On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-203-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Waugh, and St. John.
In separately filed appeals, which were consolidated on November 1, 2010, plaintiff Sunoco, Inc., appeals from the final judgment of the Law Division determining that it did not have the right to purchase commercial property owned by Lula M. Crisp and subsequently by defendant Estate of Lula M. Crisp (Estate). Defendant Angelo Georgetti appeals from those portions of the judgment determining (1) that Georgetti's first agreement with Crisp was unenforceable and (2) that he was not entitled to the return of his deposit in connection with his second agreement to purchase the same property from the Estate.
Because Sunoco subsequently purchased the property at issue from the Estate, we dismiss its appeal as moot. We affirm that portion of the judgment determining that the first agreement between Crisp and Georgetti was unenforceable and reverse that portion of the judgment holding that the deposit paid by Georgetti as part of the second agreement is not refundable. As to the latter issue, we remand for an evidentiary hearing.
Prior to her death in 2007, Crisp owned commercial property in Cinnaminson, on which tenants operated a gas station and a McDonald's restaurant. There was also a defunct car wash on the property. Sunoco, which operated the gas station, entered into a lease with Crisp and her late husband in 1958. Although the lease was amended and extended from time to time, it has always contained a right of first refusal exercisable by Sunoco in the event the Crisps chose to sell the property.
The lease provision at issue provided as follows:
(e) In the event the Lessor desires to sell the within demised premises or other property owned by Lessor of which this is a part at any time during the term hereof or any renewal thereof and receives therefor a bona fide offer of purchase acceptable to Lessor, Lessor shall notify Company in writing of said offer of purchase and Company shall have the right to meet said bona fide offer by giving Lessor notice in writing of its intention so to do within thirty (30) days after receipt of said offer in writing. Upon the payment of said purchase price Lessor shall convey to Company . . . title to said property . . .
At the time of the events that gave rise to this litigation, Georgetti owned commercial property adjacent to the Crisp property. In the fall of 2006, Crisp and Georgetti began discussing the sale of Crisp's property. On February 21, 2007, Crisp and Georgetti signed a memorandum of understanding (MOU) which provided, in part, that Georgetti would purchase the property from Crisp for $950,000, but only after the expiration of the lease between Crisp and Sunoco. Georgetti was required to pay $50,000 "for th[e] exclusive right to purchase."
The MOU acknowledged Sunoco's right of first refusal and provided that Crisp would notify Sunoco that she would not renew the lease, that Crisp and Georgetti would then enter a formal agreement regarding the sale of the property, and that they would close on the property no later than January 1, 2010. Crisp died on April 30, 2007. On June 29, 2007, Sunoco, which had previously learned of the MOU from the Estate, informed the Estate that it was exercising its right of first refusal. It delivered a check for $50,000 to meet the amount initially paid by Georgetti.
On July 9, 2007, the Estate provided Georgetti with written notice that Sunoco had exercised its right to purchase the property. Georgetti, however, refused to release the Estate from the terms of the MOU.
On August 8, 2007, Sunoco requested that Georgetti release his rights under the MOU, but Georgetti denied its request.
Sunoco did not close on the purchase of the property because of Georgetti's refusal.
Sunoco sought an order requiring the Estate to honor its right of first refusal. On March 12, 2008, Sunoco filed a complaint in the General Equity Part, naming Georgetti and the executor of the Estate as defendants. Sunoco filed an amended complaint on March 24, 2008, removing the executor and naming the Estate itself ...