On appeal from Superior Court of New Jersey, Chancery Division, Mercer County.
Furman, Dreier and Stern. The opinion of the court was delivered by Dreier, J.A.D.
[218 NJSuper Page 40] Plaintiffs appeal from a Chancery Division summary judgment sustaining defendants' statute of frauds defense to plaintiffs' specific performance claim. Except as to one major point the facts are substantially undisputed. The property which was the subject of the contract in question is the "Gardner Farm," formerly owned by David D. Gardner who died June 2, 1984. Prior litigation concerning the disposition of this property was the subject of our opinion in the will contest proceedings entitled In the Matter of the Will of Gardner, 215 N.J. Super. 578 (App.Div.1987). The litigation before us now, which might be rendered moot if the interests of the intervenors in the earlier litigation are upheld by the court on remand in the will contest proceeding, involves the alleged sale of the Gardner Farm by the decedent's surviving sisters and Michael Padula,
the beneficiary under decedent's disputed will.*fn1 Plaintiffs are the apparent purchasers at a closed-bid auction sale of the property held by the sisters' attorney, William C. Moran, Jr., a member of the firm of Huff, Moran & Balint, who allegedly acted as Padula's, as well as the sisters', agent for the offering and sale of the property. This additional agency relationship is the principal disputed fact in this case.
First Fidelity Bank, the temporary administrator of the estate, had proposed to the Law Division that the property be sold at $12,500 per acre. The proposal, however, was rejected by the court, and the Gardner sisters and Padula were permitted jointly to offer the property for sale in an attempt to obtain a higher price. Plaintiffs' attorney, Russell W. Annich, Jr. of the firm of Carchman, Annich & Sochor made a written offer of $1,746,000 ($1,800 per acre) on April 7, 1986. The offer was directed to the respective attorneys for the bank, the Gardner sisters and Padula.*fn2
In April 1986 Padula's attorney, Jay J. Ziznewski, was involved in an automobile accident followed by a heart attack which was alleged by Moran to have rendered Ziznewski "incapable of attending to the normal details of his practice," and as a result of which "the major role in negotiating a real estate contract fell to [Moran's] office." Moran's affidavit filed in the Chancery Division further noted that he assuaged plaintiffs' concern that they were dealing with only "one-half of the
equation," namely only with the Gardner sisters' and not with Padula's representative. Moran further stated in his affidavit
I assured that I had received authority from Mr. Ziznewski to negotiate for the highest possible all cash price, with no contingencies, and that Mr. Ziznewski's client would sign the contract on such a basis.
After receiving other increasingly higher offers from brokers and attorneys, the highest of which being $24,000 per acre, David Orron wrote to Jay Ziznewski on May 28, 1986 and described a proposed sealed-bid auction at which the then-highest offerors would bid with a floor price of $24,000 per acre. A copy of the sealed-bid auction proposal was forwarded to Ziznewski for his review five days prior to the action. No written response was made by Ziznewski or any other representative of Padula from that point through the auction, nor even thereafter prior to the eventual rejection of the written contract submitted by plaintiffs. The sealed-bid proposal read as follows:
Sealed bids will be received at the offices of Huff, Moran and Balint on Friday, May 30, 1986 at 3:00 P.M. for the purchase of premises commonly known as Lot # 4, Block 603 on the Hamilton Township, Mercer County, New Jersey Tax Map.
Terms of sale will be as follows:
1) Minimum price $24,000.00 per acre, based on a survey to be performed by the purchaser.
2) Closing within 60 days, or 20 days of Court approval of sale, whichever is later. (Court approval required ...