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Lombardi v. Masso

June 29, 2010


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-110-04.

Per curiam.


Argued May 19, 2010

Before Judges Fisher, Sapp-Peterson and Espinosa.

At the heart of this appeal lies a summary judgment entered in favor of nearly all defendants that the trial judge later vacated prior to entry of final judgment. Complicating matters is our decision in a prior interlocutory appeal wherein this court concluded the judge had no right to revisit summary judgment. Now that finality in the trial court has been achieved, plaintiff has appealed the earlier summary judgment. In parting company from our own earlier decision, we conclude that the trial judge was authorized to revisit and vacate summary judgment and, as a result, we remand for further proceedings.



Plaintiff commenced this action for damages resulting from her purchase of a home in Medford Lakes. Her complaint sought damages from three groups of defendants: the sellers, i.e., defendants Christopher J. Masso, John M. Torrence, and MTG Properties, LLC (hereafter referred to at times collectively as "the sellers"); the sellers' listing broker, Prudential Fox & Roach Realtors, and Prudential Fox's representative, Jennifer Lynch (hereafter referred to at times collectively as "the brokers"); and defendants James Githens and Tara Construction Services, Inc., the parties involved in completing construction on the home in question.

The sellers and brokers moved for summary judgment. Plaintiff's opposition, when examined according to the Brill standard,*fn1 revealed the following.

In early 2003, plaintiff, a recently divorced mother of school-aged twins desirous of moving from New York City to reside closer to members of her family in New Jersey, retained a realtor to search for homes in the Medford area. In April 2003, the realtor contacted defendant-brokers about a listing for a "totally remodeled home" located in Medford Lakes. A few days later plaintiff visited the property.

When plaintiff and her realtor arrived, the structure was in total disrepair. As plaintiff's realtor said in her opposing certification, "the house was 'gutted' and a mess; there were workers present and it was obvious that the house was uninhabitable." Among other things, plaintiff and her realtor noticed the kitchen was unfinished, the living room needed a complete renovation, the dining room was in shambles, and the pool needed to be re-equipped.

Nevertheless, plaintiff and her realtor took a look around and met with Lynch as well as Githens, who introduced himself as "a contractor and co-owner of" the property. Githens explained "what he was going to do with the house." He said he was in the process of a complete renovation of almost every room and, when finished, the structure would resemble a newly-constructed home. He also promised plaintiff she could have input regarding certain aspects of the renovations, such as carpeting, room colors, and appliances.

Although plaintiff was concerned about the property's condition, she made an offer, which Masso and Torrence accepted. A contract was executed on April 30, 2003. The contract, however, appeared to call for the transfer of the property "as is," because Lynch failed to include an addendum outlining the work to be completed. At plaintiff's insistence the parties executed an addendum on May 15, 2003, which listed the "items [to] be completed by [s]eller by settlement," including, among other things, new cabinets, a new dishwasher, refinished hardwood floors, a new fireplace, new windows, a reconditioned pool, a new laundry tub, new toilets, new closets, new vanities, and a new roof. The addendum also substituted MTG Properties, LLC (MTG), in the place of Masso and Torrence, as the seller. The addendum was signed by Masso and Torrence individually; MTG did not execute the addendum.

On July 16, 2003, plaintiff and her realtor walked through the property prior to closing. According to the realtor, "it took longer than an hour to document all of the work that still nee[ed] to be completed not to mention the work that needed to be redone due to bad workmanship." Because of the property's poor condition, plaintiff and her realtor demanded that $60,000 be placed in escrow to guarantee completion of the repairs. Masso rejected this. Plaintiff testified at her deposition that Masso "gave [her] a hug and said that he would take care of everything and that he would never let a single mom with twins live in a house in that condition." At his deposition, Masso acknowledged he told plaintiff the work would be completed. To guarantee those promises, Masso agreed to place $10,000 in escrow. Although her realtor advised against it, plaintiff accepted those terms and closed on the property.

At the closing, an escrow agreement was executed by plaintiff and Masso.*fn2 Pursuant to the escrow agreement, $10,000 of the purchase price was to be held by the title agency as collateral for the sellers' successful completion of a "punch list" of items to be completed "to buyer[']s satisfaction" by August 1, 2003. The escrowed funds were not to be released except "upon written authorization of buyer & seller."

August 1 came and went, and the work required by the escrow agreement was far from complete. On August 5, Githens visited plaintiff, claiming he was not being paid by Masso; according to plaintiff, Githens was "crying" and "begged" plaintiff to release the escrow money so "he could finish the work." Plaintiff relented. As collateral for her release of the funds, Githens gave plaintiff a $10,000 check drawn on Tara Construction's bank account to be held subject to completion of the work. Plaintiff signed a release, which contained her promise "that the escrow of $10,000.00 b[e]ing held . . . is released this date to the [s]ellers." Apparently, Githens later convinced the sellers to release the funds; the release bore the signature of Masso above the typed names of MTG and Masso.

The promised work on the home was not completed. Plaintiff later unsuccessfully attempted to negotiate the $10,000 check she had ...

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