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Scherr v. Delsantro

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 30, 2008

BETH SCHERR, PLAINTIFF-RESPONDENT,
v.
JOSEPH DELSANTRO AND CYNTHIA DELSANTRO, DEFENDANTS-APPELLANTS.

On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Sussex County, Docket No. C-31-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 8, 2008

Before Judges Coburn, Fuentes and Chambers.

Defendants, Joseph and Cynthia Delsantro, appeal from the order of the Chancery Division, General Equity Part, granting plaintiff Beth Scherr the relief of specific performance in connection with this breach of contract case involving the sale of defendants' home. We affirm substantially for the reasons expressed by Judge Langlois in her well-reasoned oral opinion delivered from the bench on October 26, 2007. In so doing, we incorporate by reference the factual finings articulated by Judge Langlois, which are well-supported by the evidence presented at trial. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

We add only the following brief comments. The dispositive issue here is whether defendants are entitled to insist, as a matter of law, that plaintiff satisfy the literal requirement of the mortgage contingency clause. Even assuming, arguendo, that the mortgage contingency date was deemed by the parties as time of the essence, the evidence shows that plaintiff obtained a written mortgage commitment within the timeframe established by the contract.

Defendants nevertheless argue that a plain reading of the contingency clause required plaintiff "to forward" to defendants a copy of the written mortgage commitment. In our view, acceptance of this argument would elevate form over substance, and renders the court powerless to consider whether justice and equity demand a different result. In this light, we note that defendants cannot, and indeed do not, argue or even allege that they were prejudiced in any way by plaintiff's failure to comply with the literal requirement of this clause in the contract.

As noted by Judge Langlois, the mortgage contingency clause here had a dual purpose: (1) to protect a buyer from the consequences of financial incapacity; and (2) to provide the sellers with a date certain for the return of the property to the market. Here, the potential prejudice to the sellers of removing the property from the market place never occurred. As emphasized by Judge Langlois, "the sellers already had the right to continue to market this property throughout the timeframe of this transaction." Thus, plaintiff satisfied the core provisions of the mortgage contingency clause by procuring a written mortgage commitment within the timeframe established by the contract. Under similar circumstances, we have upheld the relief ordered by the trial court here. Gross v. Lasko, 338 N.J. Super. 476, 485-86 (App. Div. 2001).

In interpreting a contract, a court's primary mission is to ascertain the intent of the parties from the language used in the agreement. Highland Lakes Country Club Cmty. Ass'n v. Franzino, 186 N.J. 99, 115-16 (2006) (quoting Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282 (1993)). In going about this task, substance must prevail over form. Here, Judge Langlois found that plaintiff (1) obtained a written mortgage commitment within the timeframe established by the contract; and (2) defendants received actual notice of this fact when plaintiff's agent conveyed this information orally to defendants' agent. From these facts, we are satisfied that Judge Langlois's decision to grant plaintiff the relief of specific performance is supported by the competent evidence.

Defendants have also challenged plaintiff's application for consequential monetary damages. We decline to consider this issue because Judge Langlois has not acted upon plaintiff's request for this type of relief. We note, however, that any decision on the question of damages must contain an explanation as to why the matter of damages was not heard and decided by the court in the context of a unitary trial.

Affirmed.

20080130

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