Before Judges Pressler, Brochin and Kleiner
The opinion of the court was delivered by: Brochin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County
The opinion of the court was delivered by
Plaintiff Charles A. Gaglia contracted with defendants Robert P. Kirchner and Rosemary Kirchner to buy their house. Before the sale had been consummated, defendants contended that the contract had been rescinded pursuant to its attorney review clause, see N.J.A.C. 11:5-6.2, and they contracted to sell the house to another buyer.
Mr. Gaglia sued for specific enforcement or, alternatively, damages. He also alleged that the Kirchners had committed both common law fraud and violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. The Chancery Division granted defendants' motion for summary judgment dismissing plaintiff's complaint, and plaintiff has appealed. We affirm.
Because this is an appeal from an order granting summary judgment, we are obliged to accept plaintiff's version of the facts and to give him the benefit of all favorable inferences reasonably inferable from those facts. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 538; R. 4:46-2(c). We will summarize the facts of the case consistently with these requirements.
In the late spring of 1997, plaintiff began to look for a house available for purchase in the vicinity of Wayne, New Jersey. He retained Francine Elmo, a realtor associated with Coldwell Banker Realtors, to assist him in his search. Ms. Elmo knew that Mr. and Ms. Kirchner, both of whom were also realtors associated with Coldwell Banker, were offering their home for sale, and she thought that it might satisfy Mr. Gaglia's requirements.
Ms. Elmo first showed the house to Mr. Gaglia on May 13, 1997. The Kirchners' asking price was $750,000. On May 15, 1997, Mr. Gaglia tendered a contract to purchase their house for $700,000, but his offer was refused. On May 19, 1997, he requested Ms. Elmo to tell the Kirchners that he was about to sign a contract to purchase another house and to ask them again, before he did, whether they would accept his $700,000 offer. They responded that they were willing to accept $735,000. Mr. Gaglia was unwilling to pay more than $700,000; therefore, he made an offer on the other house. He reached an agreement with that vendor on a price, but continued to negotiate other terms of a proposed contract.
On June 5, 1997, Ms. Kirchner told Ms. Elmo that she and her husband were ready to accept Mr. Gaglia's $700,000 offer. Mr. Gaglia had not yet completed negotiations for the other house. He knew that the Kirchners had offered their house for sale the previous year and had then changed their minds and withdrawn it from the market. He was concerned that they might change their minds again after he had terminated negotiations for the other house. He therefore told Ms. Elmo he was willing to purchase the Kirchners' house for $700,000, but before he renewed his offer, he wanted them to promise expressly that they would honor the contract and see it through to closing. She communicated Mr. Gaglia's position to the Kirchners and they agreed that they would honor the contract.
On June 7, 1997, after revisiting the Kirchners' house, Mr. Gaglia told Ms. Elmo that he would reinstate his $700,000 offer. He re-dated his originally tendered contract and initialed a few changes. That same day, Ms. Elmo met the Kirchners at their house. She told them that Mr. Gaglia would be giving up his opportunity to purchase the other house that he had been negotiating to buy and he therefore wanted to be sure that they would honor his contract to purchase their house for $700,000. They assured Ms. Elmo that there would be no problem, that they were satisfied with the contract, and that they had every intention of honoring it. They executed the contract and it was dated June 7, 1997. In reliance on the Kirchners' having signed the contract, Mr. Gaglia terminated his negotiations to buy the other house.
The contract had been prepared by Ms. Elmo on a Coldwell Banker form. It contained the attorney review provisions required by N.J.A.C. 11:5-6.2. The following clause appears at the top of the form, in large lettering:
"THIS IS A LEGALLY BINDING CONTRACT THAT WILL BECOME FINAL WITHIN THREE BUSINESS DAYS. DURING THIS PERIOD YOU MAY CHOOSE TO CONSULT AN ATTORNEY WHO CAN REVIEW AND CANCEL THE ...