On appeal from the Superior Court of New Jersey, Chancery Division, Salem County, C-17-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Reisner.
Plaintiffs, Kenneth J. Steliga, Timothy J. Steliga and Steliga Homes, appeal from a January 7, 2009 order of the Chancery Division denying their claim for specific performance of a contract to purchase real property. We affirm.
The decision on appeal results from proceedings on remand, following our opinion in Steliga v. Ostrum, No. A-2660-05 (App. Div. April 26, 2007). The facts were reviewed in detail in that opinion and need not be repeated here. In summary, this is the history.
Plaintiffs, real estate developers, entered into a contract to purchase a large tract of land from defendants Gordon and Sharon Ostrum, who were anxious to close the sale quickly due to financial problems. The sale contract made closing contingent upon defendants obtaining "final unappealable approval" for a subdivision from the Pilesgrove Township planning board, and provided that closing "shall" take place forty-six days after the Township published the approval notice in the local newspaper. Closing was also contingent upon the buyer obtaining "buildable" lots, with construction permits being "available" upon application.
A final approval notice was published by the Township, and the approval became unappealable forty-five days later.
However, the approval contained several conditions which remained unsatisfied. After the notice was published, defendants repeatedly asked plaintiffs to set a settlement date; however, plaintiffs refused, demanding that all conditions set forth in the subdivision approval be met before closing would occur. Defendants eventually terminated the contract, and plaintiffs filed suit seeking specific performance.
After a bench trial, the trial judge found that plaintiffs breached the contract by failing to settle on the closing date indicated in the contract. The trial court implied a "time of the essence" clause, and ordered that the defendants were to retain plaintiffs' deposit as liquidated damages. Plaintiffs appealed. We reversed and remanded the case, concluding that the judge failed to consider that the defendants never sent a time of the essence notice to the plaintiffs, and that the record did not persuasively demonstrate that the parties intended the date to be essential. We directed the judge to make specific factual findings about the parties' intentions regarding their obligations to satisfy the approval conditions. On remand, all parties agreed that the judge should make those further findings based on the existing trial record.
On remand, the court concluded that a time of the essence clause could not be implied from the contract language, and that plaintiffs did not breach the contract. However, the court also concluded that the plaintiff was not entitled to specific performance. The judge found that the parties did not allocate responsibility for the satisfaction of the conditions, and thus failed to agree on critical terms of performance. The judge next determined that plaintiffs' attempts to delay closing were not "commercially appropriate." Because plaintiffs had behaved inequitably, they were not entitled to the equitable remedy of specific performance.
On this appeal, plaintiffs raise the following points for ...