July 18, 2007
ANTHONY J. OLIVERI, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
THOMAS VAN BLARCOM AND DOROTHY I. VAN BLARCOM, DEFENDANTS-APPELLANTS/ CROSS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Civil Part, Chancery Division, Bergen County, BER-C-194-04E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 28, 2006
Before Judges Kestin and Graves.
Defendants, Thomas Van Blarcom and Dorothy I. Van Blarcom, appeal from a judgment in favor of plaintiff, Anthony J. Oliveri, specifically enforcing the terms of a contract for the sale of commercial real estate, and requiring defendants to convey the property to plaintiff for $400,000 subject to certain conditions, along with two motor vehicles for an additional $15,000. Plaintiff cross-appeals from the provision of the judgment requiring him to pay defendants a further $15,000 for the cost of a frame machine on the property.
Following a bench trial, the trial judge rendered a two-part oral opinion and a written opinion. In the oral opinion, he expressed his findings, conclusions, and reasons for the terms of the judgment. In the written opinion, he explained his reasons for granting a stay pending appeal with certain conditions but not with others sought by plaintiff; denying plaintiff's motion for reconsideration of the determination that he pay defendants an additional $15,000 for the frame machine; and granting plaintiff's motion to amend the judgment to include a description of the property so that the judgment could be recorded.
Defendants raise two issues on appeal. They argue that the statute of frauds, N.J.S.A. 25:1-11, requires contracts for the sale of real estate to be in writing and there was no signed contract here; and that the tenants of the property should have been joined as indispensable parties. Plaintiff's cross-appeal involves a single issue: whether the record supports the findings on which the requirement to pay for the frame machine was based.
A trial court's factual findings and conclusions are "binding on appeal when supported by adequate, substantial and credible evidence" in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988). The trial court's rulings of law are not entitled to the same deference, however. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
The primary issues at trial were whether the parties had entered into an enforceable contract and, if so, what the obligations of the parties were under that contract. Defendants also contended that specific performance was not an available remedy because the property had been leased to a third party and plaintiff had not impleaded the tenant.
The facts of the matter were developed through the testimony of the parties and their attorneys in the real estate transaction. Some time before the instant transaction, plaintiff had purchased from defendants an auto body business and the real property on which it was located. Plaintiff later became interested in purchasing the parcel at issue because he needed additional storage for the vehicles he was to repair.
Initially, plaintiff and defendant Thomas Van Blarcom dealt with each other directly and reached an understanding about the second purchase. The sales price was to be $400,000, with defendants taking a mortgage for the purchase price, as had occurred in the earlier transaction. Plaintiff gave a $5,000 deposit pending written agreement. The parties each engaged counsel and some papers were exchanged. Negotiations over details ensued.
Some differences arose, inter alia, over whether plaintiff would provide defendants with a deed in lieu of foreclosure, to be held in escrow, to secure the loan of the purchase price. At one point, defendants served a "time of the essence" letter establishing a closing date at which plaintiff did not appear. There was a dispute as to this aspect of the matter, with disagreement, based upon letters between the attorneys representing the parties in the transaction, whether the "time of the essence" letter had ever been withdrawn.
After trial ended, the judge rendered the first part of his oral opinion. He reviewed the testimony and concluded that the parties had reached a meeting of the minds. He determined that the basic form of contract, prepared and exchanged, was not signed because certain terms were being negotiated by the attorneys. However, a detailed rider on the letterhead of plaintiff's attorney that specifically referenced the draft contract and laid out ten items for modification was signed by plaintiff and defendants. The judge held this document along with the draft agreement--in the light of a series of communications on behalf of defendants urging plaintiff to close and even making time of the essence--to satisfy the requirement of the statute of frauds for a sufficiently specific, signed writing memorializing the details of the contract between the parties. We affirm this legal conclusion substantially for the reasons stated. See Buckley v. Mayor and Aldermen of Jersey City, 105 N.J. Eq. 470, 481 (Ch.), aff'd, 107 N.J. Eq. 137 (E. & A. 1930); see also Borough of Lodi v. Fravi Realty Co., 4 N.J. 28, 33 (1950); Sutton v. Lienau, 225 N.J. Super. 293, 300-01 (App. Div.), certif. denied, 111 N.J. 650 (1988).
The judge also determined that the parol evidence rule barred defendants' assertions regarding additional amounts due, specifically $50,000 for equipment and other personal property, but that plaintiff was obliged to pay $15,000 additional as the value of a frame machine that he received, and $15,000 for two old vehicles, a Cadillac and a Porsche, if they were turned over. The parol evidence ruling, also, was well supported in fact and law. No separate issue has been raised on appeal regarding the portion of the judgment dealing with the two old vehicles.
In the second part of his oral opinion, rendered the following day, the judge ruled on defendants' contention that the complaint for specific performance should be dismissed because plaintiff had failed to join indispensable parties, the current tenants of the premises who allegedly had an agreement to purchase the premises that was contingent on defendants prevailing in this matter. The judge rejected defendants' position on two bases: that the tenants were not indispensable parties, and that defendants had omitted to plead failure to join them as an affirmative defense. In this respect, also, we discern no error in the judge's expressed reasons or the result he reached, and we affirm substantially for the reasons stated. See Jennings v. M & M Transp. Co., 104 N.J. Super. 265, 272 (Ch. Div. 1969).
Finally, as to the cross-appeal, our perusal of the record shows no adequate support for the trial court's finding that plaintiff had received the frame machine and the court's conclusion, therefore, that plaintiff was obliged to pay defendants for its fair value. Defendant Thomas Van Blarcom, at several points in the evidence he offered at trial, testified that plaintiff never picked up the frame machine or any of its components. At another point, he testified that plaintiff picked up some equipment, "an electric hoist and whatnot." It is not clear from the record that these latter items were pieces of equipment plaintiff received as part of the overall transaction, or whether they were the basic components of the frame machine. In any event, these evidentiary showings provided an inadequate basis for a finding that plaintiff had received the frame machine and was thus obliged to pay its fair value as determined by the court. Moreover, it appears, from a review of the pleadings that defendants never made a proper claim within the parameters of this suit for the value of the frame machine. Their argument on appeal that "the frame machine was part of the $50,000 agreement for tools," which the trial court disallowed via application of the parol evidence rule, suggests they never made such a separate claim.
For the foregoing reasons, as to the appeal, we affirm. As to the cross appeal, we reverse. We remand for 1) the entry of a modified judgment deleting the provision mandating the payment by plaintiff to defendants of $15,000 for a frame machine, and 2) for dissolution of the stay pending appeal and for the entry of such further orders as may be required to effect the modified judgment.
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