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Lobiondo v. O'Callaghan

February 19, 2003

JAMES LOBIONDO, PLAINTIFF-RESPONDENT,
v.
LIAM O'CALLAGHAN, DEFENDANT-APPELLANT, AND JOHN MULHEREN, DEFENDANT.



On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, MON-C-251-00.

Before Judges Wefing, Wecker and Fuentes.

The opinion of the court was delivered by: Wefing, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 4, 2002

Defendant, Liam O'Callaghan, appeals from a judgment granting specific performance to plaintiff, James LoBiondo. We reverse and remand for entry of judgment in favor of defendant.

I.

O'Callaghan and his wife, Robin, together own a house located at 850 Ocean Avenue in Sea Bright. The property is across the street from the ocean and the rear abuts the Shrewsbury River. The O'Callaghans also own a house in Princeton, where Mrs. O'Callaghan works for Educational Testing Service. Their two sons attended Christian Brothers Academy (CBA) in Lincroft and Mr. O'Callaghan lived at the Sea Bright house during the week with the boys because it was closer to their school as well as closer to his work. Mrs. O'Callaghan stayed in Princeton because it was closer to her work. The family would reunite on weekends, sometimes in Sea Bright, more often in Princeton. The family resided together in Sea Bright during the summer.

Various neighbors had, over the years, indicated to O'Callaghan an interest in buying the house if he ever decided to sell. During these discussions, O'Callaghan consistently replied that he would not sell the house until his youngest son had graduated from CBA, an event scheduled to occur in 2001. Neighbors who had expressed an interest in the property included Mr. O'Shea, who owned the property next door to O'Callaghan, Mr. DeSio, who lived a few houses down the street, and Mr. Chimento, who owned a beach club further up Ocean Avenue.

Plaintiff LoBiondo owns the Surfrider Beach Club that is diagonally across Ocean Avenue from the O'Callaghan home. He was particularly interested in buying the property, both to provide a residence for his son, James, who managed the beach club, and to provide additional parking for the business. LoBiondo maintained that as a result of his discussions with Mr. O'Callaghan, he at first had an oral contract for the purchase of the house that was later transformed into an oral right of first refusal. Defendant O'Callaghan denied any such agreement.

Discussions between O'Callaghan and LoBiondo commenced in 1996 and spanned several years. Nothing was ever reduced to writing between the two. Mrs. O'Callaghan, despite being a joint owner, took no part in these discussions. The trial court, after a four-day bench trial, found for plaintiff.

According to LoBiondo, the two men met in the winter of 1998-1999 to discuss a possible sale. During the meeting, they discussed the condition of the property and the fact that the bulkhead was in need of extensive repair. LoBiondo said they agreed at this meeting that the property was worth approximately $280,000. LoBiondo also testified that during this meeting, O'Callaghan said he could not agree then to sell the property to LoBiondo because he had already promised Chimento the first opportunity to buy.

LoBiondo said the two next met in late 1999 or early 2000; by that time O'Callaghan knew that Chimento was no longer interested in buying the O'Callaghan home. LoBiondo said he told O'Callaghan in April 2000 that for business reasons he would like to buy the property in 2000 but that he would permit O'Callaghan to remain in the house until his son finished high school. LoBiondo maintained that O'Callaghan was willing to sell on those terms. He said the two had further discussions on price and agreed $300,000 was a fair price.

LoBiondo said he told O'Callaghan that another nearby neighbor, Guch, was planning to sell his house and that he, LoBiondo, would buy that house if O'Callaghan did not want to sell in 2000. O'Callaghan responded by producing a survey of his property to demonstrate to LoBiondo why his property would be superior, for LoBiondo's purposes, to Guch's.

LoBiondo said he wanted to commence repairs on the bulkhead and demolish a wall on the property which would permit him both greater access to the bulkhead and facilitate the parking of cars. LoBiondo testified O'Callaghan was agreeable to both proposals and LoBiondo secured a number of estimates on having the bulkhead repaired. When LoBiondo settled on the contractor, he wanted a deposit before proceeding to request the necessary permits. LoBiondo said he called O'Callaghan to make sure they still had a deal and O'Callaghan said they did.

LoBiondo planned to begin demolishing the wall on Monday, June 19, 2000. Mrs O'Callaghan learned of this on June 18 and immediately objected. She also insisted that the couple list the property with a real ...


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