On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5328-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Ashrafi.
Plaintiff Darby Investment Corp. (Darby) appeals from an August 28, 2009 order of the Law Division denying its motion for partial summary judgment and granting defendants Angeloni Realty Group (the Group) and James Angeloni's (Angeloni) motion for summary judgment dismissing plaintiff's complaint. We reverse and remand.
These are the facts as presented to the motion judge. Plaintiff is the owner of a parcel of commercial real estate located at 111 Centennial Boulevard in Voorhees, designated as block 200, lot 10.03. On November 21, 2007, plaintiff entered into a contract to sell the property to the Group for $2,100,000. Angeloni is the sole member of the Group. The agreement was amended on January 23, 2008. A second amendment was signed but not dated, and both of these amendments extended the closing date. Under the terms of the agreement, the Group was required to pay a $50,000 non-refundable deposit, to be held by defendants' title company. While Angeloni initially stated that he had paid the deposit to the title company, the parties agree that the deposit was never paid, and the escrow agent did not execute the signature page attached to the contract*fn1. Angeloni contends that it was a "simple mistake."
Under the terms of the agreement in its amended form, the Group was required to proceed to closing no later than April 21, 2008. The parties agree that the Group failed to do so. On May 2, 2008, plaintiff's attorney declared the Group in default and offered it the opportunity to cure. Defense counsel then submitted a third proposed amendment, but the parties were unable to reach agreement as to that amendment. On June 21, 2008, plaintiff's counsel terminated the agreement.
The agreement provided that upon default by the Group, plaintiff was entitled to retain the deposit as liquidated damages as well as any carrying fees previously paid. In addition, the agreement stated that the Group was required to pay a carrying fee of $5,000 per month until closing of the property, and real estate taxes from the effective date of the agreement until closing or termination of the agreement.
Defendants claim that the Group paid $12,000 in carrying fees and does not contest that plaintiff is entitled to that amount. Plaintiff contends that the Group owes plaintiff a total of $67,832.34, representing the deposit,*fn2 $20,000 in unpaid carrying fees, and $47,832.34 in real estate taxes.
On October 21, 2008, plaintiff filed a five-count complaint against defendants, setting forth causes of action based on: breach of contract, legal and equitable fraud, breach of the covenant of good faith and fair dealing, piercing the corporate veil, and negligence. Plaintiff sought compensatory, consequential, and incidental damages, costs of suit, counsel fees, and any other relief deemed just and equitable.
After the issue was joined by the filing of an answer, plaintiff and defendants filed cross-motions for summary judgment. The trial judge denied plaintiff's motion and granted defendants' motion to dismiss the complaint. This appeal followed.
On appeal, plaintiff asserts that the trial judge erred by not granting summary judgment as to the deposit, reimbursement for property taxes and carrying fees. It also claims that the judge erred by dismissing the individual claim against Angeloni.
In his decision, the motion judge determined that there was a valid contract between the parties and that plaintiff terminated the contract "knowing the deposit remitted by the defendant was less than the full amount requested in a contract." Citing Knorr v. Smeal, 178 N.J. 169, 177-78 (2003), the judge determined that plaintiff had waived any claim to the $50,000 deposit. In addition, the judge also determined ...