On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, C-351-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Fuentes and Chambers.
Plaintiff, Gruppo Editoriale Oggi, Inc., sued defendant, Joseph Bonaro, for specific performance of an option agreement involving commercial real estate. Following a bench trial, plaintiff obtained judgment awarding it the property, and plaintiff appealed. We reverse.
In 1988, plaintiff began publishing a newspaper, America Oggi. Initially, plaintiff's offices were at 41 Bergenline Avenue in Westwood. Bonaro agreed to have his corporation, J.B. Offset Printing Co., which was located at 55 Bergenline Avenue, print America Oggi for plaintiff. In 1994, plaintiff moved its offices to Bonaro's building and became his tenant in a portion of the building not used by the printing company, which occupied about half of the building's space. Beginning in 1995, plaintiff began expressing an interest in purchasing both Bonaro's printing company and the building in which it was housed at 55 Bergenline Avenue. In 2000, Bonaro agreed to sell plaintiff the assets of his printing company, while also indicating a willingness to sell the building to plaintiff in the future. Bonaro offered plaintiff a right of first refusal on the building, but plaintiff insisted on an option to purchase.
On July 25, 2000, the closing occurred on the sale of the assets of the printing company, and plaintiff's rent became approximately $8,300 per month. The price for the sale was set at about $4 million, with plaintiff paying $1 million at closing and Bonaro providing financing for the rest. The final payment on plaintiff's promissory notes for the asset purchase, $48,332.15, was due August 1, 2005. On the closing date, the parties also entered into the formal written option agreement that is at the center of this controversy.
The option agreement contains the following pertinent provisions:
2. TERM OF OPTION. The term of this option shall commence on the date hereof and shall terminate on July 25, 2005.
4. EXERCISE OF OPTION. The right to exercise the option granted Optionee is expressly conditioned upon the satisfaction and payment of all monies due and owing under [the notes given with respect to the sale of the assets of the printing company]. Upon satisfaction of this condition and at any time prior to the expiration of the option period, Optionee shall have the right to exercise its option to purchase the Premises. Optionee shall exercise its option by giving written notice to that effect to Optioner. In that event, closing of title shall take place as provided for in the terms and conditions of the sale as contained on the form of contract annexed hereto . . . . Upon exercise of the option as defined herein, the parties agree to execute said form of contract within ten days from the date thereof.
8. CONSEQUENCES OF FAILURE TO EXERCISE OPTION OR TERMINATION OF OPTION. If Optionee has not exercised its option to purchase the Premises prior to the expiration of the option period, then this Option Agreement shall terminate. In that event, Optionee shall have no further rights under this Option Agreement. In such event, neither Optioner nor Optionee shall have any further liability to the other, except that Optionee shall execute any and all documents necessary to signify of record the termination of this Option Agreement.
The agreement also provides that "[a]ny notice required, permitted or appropriate hereunder shall be served upon the respective parties by certified mail, return receipt requested," and that a copy of any notice must be sent to Bonaro's attorney, whose name and address is listed.
In late April or early May 2005, telephone discussions occurred between plaintiff's president, Andrea Mantineo, and Bonaro, who was then 79 years old. We accept the judge's finding that Mantineo indicated during those discussions that plaintiff intended to exercise the option, and that in early to mid-June 2005, Mantineo left a message on Bonaro's ...