September 17, 2013
WILLIAM H. COOPER, Plaintiff-Appellant,
LAKEHURST PRESBYTERIAN CHURCH, Defendant-Respondent
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-170-11.
William H. Cooper, appellant pro se.
Respondent has not filed a brief.
Before Judges Alvarez and Carroll.
Plaintiff William H. Cooper appeals from the judgment of the trial court dismissing his complaint with prejudice at the conclusion of a two-day bench trial. We affirm.
We briefly summarize the relevant procedural history and the facts based on the limited record before us.
In late April 2010, plaintiff and defendant Lakehurst Presbyterian Church entered into a written realtor's form of contract pursuant to which plaintiff agreed to purchase a property owned by the church located at 212 Pine Street, Lakehurst, New Jersey (the property), for the sum of $93, 500. The church also owned an adjoining property at 101 Orchard Street, Lakehurst. On May 3, 2010, plaintiff's counsel "disapproved" the contract and expressed concern about a common driveway between the properties. Among other things, plaintiff's counsel sought to review a current survey and the driveway easement. Negotiations between the parties ensued, and by letter dated July 15, 2010, it was agreed that the attorney review period was concluded. The church agreed that it would seek subdivision approval from the appropriate municipal land use board to relocate the lot line so that no easement would be necessary. The church then proceeded with the subdivision application. While plaintiff has not included a copy of the Land Use Board's determination in his appendix, the trial judge's decision notes the following:
On October 25, 2010, as documented in the business record which consisted of a true and exact copy of the Resolution, the Land Use Board of the Borough of Lakehurst memorialized its decision which granted in part and denied in part the defendant Church's subdivision plan. The Land Use Board, as such, denied the Church's request for variances and waivers from the requirement to provide curbing around the entire parking area perimeter of the property. Additionally, the Land Use Board required a buffer area to be installed between the two properties. Testimony presented from the Pastor of the defendant Church indicated that said requirement would have eliminated approximately twenty parking spaces from the Church's parking lot.
. . . .
Thereafter the Professional Design Services, LLC engineering firm submitted to the defendant Presbyterian Church its February 1, 2011 estimate as to various anticipated costs necessary to complete the various requirements for the site plan subdivision land use approval. Those costs entailed - -were memorialized, rather, in D-3 in evidence and were $46, 000. Testimony indicated there were other costs and expenses  including but not limited to requirements, engineering fees, and the like for an amended Pinelands application. Applications and requests before other agencies were not waived by the Lakehurst Land Use Board but also were required of the defendant Church, which requirements entailed other costs. Also as per the testimony, as of February 1, 2011 the Church had expended already $10, 976.60 which included engineering plans, permit applications, and counsel fees in order to present the proposal before the Borough of Lakehurst Land Use Board.
Due to the unexpected conditions and expenses attached to the Lakehurst Land Use Board's approvals, the church advised plaintiff that it was not economically feasible to proceed. The church further advised plaintiff that it was, however, ready, willing and able to sell the property pursuant to the original contract, with an access agreement to the garage. Plaintiff rejected this proposal, positing that the church was obligated to proceed in accordance with the contract as amended, and that its failure to complete the subdivision requirements constituted a breach of contract.
In August 2011, plaintiff commenced an action in the Chancery Division seeking to compel specific performance of the real estate contract. A bench trial took place on May 7 and 8, 2012, and following submission by counsel for both parties of proposed findings of fact and conclusions of law, on June 1, 2012, the trial judge issued a comprehensive oral opinion dismissing plaintiff's complaint with prejudice.
In his decision, Judge John A. Peterson, Jr. indicated that he had the opportunity to assess the credibility of the witnesses, which included plaintiff, the realtor (plaintiff's sister), the church's representative Reverend Hindley, and both parties' attorneys. In his detailed findings, Judge Peterson essentially concluded that (1) the interim pastor did not have the authority to commit the church to the sale; (2) there was never a sufficient meeting of the minds to support the original contract or an amended or reformed version thereof; (3) the church made a good faith effort to obtain the subdivision; and (4) the substantial costs to the church associated with satisfying the conditions necessary to obtain the subdivision would render specific performance unconscionable, would also result in the church losing twenty parking spaces, and would concomitantly bestow a windfall on plaintiff. Judge Peterson found the testimony of Reverend Hindley "compelling  and credible." Conversely the judge described plaintiff's testimony as "orchestrated" and found that plaintiff "failed to exercise good faith and exhibited a lack of credibility." Accordingly the court declined to reform the contract or order specific performance. It is from these determinations that plaintiff now appeals.
"'The scope of appellate review of a trial court's fact-finding function is limited.'" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting Cesare v. Cesare, 154 N.J. 394, 411 (1998)). "'[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant[, ] and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting In re Trust Created By Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)). "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Ibid. (quoting Cesare, supra, 154 N.J. at 411-12). "Because a trial court hears the case, sees and observes the witnesses, and hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (quoting Cesare, supra, 154 N.J. at 411-12). However, we owe no deference to a trial court's interpretation of the law, and review issues of law de novo. State v. Parker, 212 N.J. 269, 278 (2012); Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J.Super. 146, 193 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009). We also review mixed questions of law and fact de novo. In re Malone, 381 N.J.Super. 344, 349 (App. Div. 2005).
Significantly, Rule 2:6-1(a)(1) requires the appendix prepared by the appellant to include "such . . . parts of the record . . . as are essential to the proper consideration of the issues . . . ." Failure to include any item essential to the decision hinders appellate review. Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J.Super. 84, 87 n.3 (App. Div. 2001). "Nor are we obliged to attempt review of an issue when the relevant portions of the record are not included." Community Hosp. v. Blume Goldfaden, 381 N.J.Super. 119, 127 (App. Div. 2005).
Here the trial judge, in arriving at his ultimate determination that plaintiff was not entitled to compel either specific performance or reformation of the contract, reviewed documentary evidence, as referenced in his opinion. This included portions of the Constitution of the Presbyterian Church of the United States, which set forth the procedures which must be adhered to in connection with the transfer of real property, and upon which the judge based his conclusion that the interim pastor lacked the proper authority. The judge also cited the various conditions to the subdivision approval contained in the Resolution of the Lakehurst Land Use Board, and the estimate rendered by the engineer of the various costs associated with satisfying those conditions. Though marked in evidence, and cited by Judge Peterson, plaintiff has failed to include those exhibits in his appendix.
Also hampering our effective review is plaintiff's failure to provide us with the transcripts of the trial testimony. Here the judge stated that he "weighed [and] considered the plaintiff's testimony and found severe credibility issues presented themselves with the plaintiff's version of events and the plaintiff's own testimony." Because defendant has not provided us with these trial transcripts, or a complete record, we have no basis to disturb these credibility findings or to determine whether plaintiff demonstrated the right to compel specific performance or reformation of the contract. As such, we cannot adequately review the record and must affirm.