GLENN FOSS and CHRISTINE FOSS v. FRANK PASQUALE LIMITED, PARTNERSHIP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3058-04T33058-04T3

GLENN FOSS and CHRISTINE FOSS,

Plaintiffs-Respondents,

v.

FRANK PASQUALE LIMITED,

PARTNERSHIP and FRANK PASQUALE,

Defendants-Appellants.

________________________________________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Fall and Parker.

On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. MRS-C-115-04.

Advokat & Rosenberg, attorneys for appellants (Jeffrey Advokat, on the brief).

Wolf, Block, Schorr and Solis-Cohen, attorneys for respondents (Charles X. Gormally, of counsel; Mr. Gormally and Adelaide Riggi, on the brief).

PER CURIAM

Defendants Frank Pasquale Limited Partnership and Frank Pasquale appeal from an order entered January 10, 2005 granting plaintiffs' motion for summary judgment and denying defendants' cross-motion for summary judgment. An order entered on February 18, 2005 denied defendants' motion for reconsideration.

In this action for specific performance, plaintiffs Glenn and Christine Foss entered into a contract with defendants to purchase property located at 7 Mulbrook Lane in Towaco. The contract, dated November 14, 2003, set a tentative closing date of February 1, 2004.

The pertinent provisions of the contract are as follows:

11. Physical Condition of the Property --This property is being sold "AS IS." The Seller does not make any claims or promises about the condition or value of any of the property included in this sale. The Buyer has inspected the property and relies on this inspection and any rights which may e provided for elsewhere in this contract. The Seller agrees to maintain the grounds, buildings and improvements subject to ordinary wear and tear.

12. Inspection of the Property -- The Seller agrees to permit the Buyer to inspect the property at any reasonable [time], which inspections must be completed within ten (10) days of the conclusion of attorney review. The Seller will permit access for all inspections provided for in this contract. Buyer shall then have an additional seven (7) days within which to make repair demands upon Seller.

. . . .

19. Risk of Loss - The Seller is responsible for any damage to the property, except for normal wear and tear, until the closing. If there is damage, the Buyer can proceed with the closing and either:

(a) require that the Seller repair the damage before the closing; or

(b) deduct from the purchase price a fair and reasonable estimate of the cost to repair the property. In addition, either party may cancel this contract if the cost of repair is more than 10% of the purchase price.

The tenants were initially expected to vacate the property prior to the planned February 1, 2004 closing date, but their departure was delayed until June 18, 2004. Plaintiffs' attorney notified defendants that time was of the essence and scheduled the closing for July 16, 2004. The closing was then moved to July 22, 2004 at defendants' request. Defendants, however, failed to appear on the closing date and claimed that, as a result of vandalism and neglect, the property had sustained damages exceeding 10% of the contract price and declared the contract terminated pursuant to paragraph 19(b).

Plaintiffs attempted to waive the risk of loss provision under paragraph 19 of the contract but defendants refused to close the sale. On August 5, 2004, plaintiffs filed a verified complaint and order to show cause with temporary restraints to enjoin the sellers from entering into any other contract or conveyance of title to the property and to compel specific performance.

The parties cross-moved for summary judgment. After oral argument on January 7, 2005, Judge Kenneth MacKenzie entered an order granting summary judgment in favor of plaintiffs. A written statement of reasons appended to the order noted that the facts were largely undisputed. Defendants, however, attempted to create a dispute of fact by denying the allegations in paragraph 11 of plaintiffs' Statement of Undisputed Facts which stated that "[d]efendants began a series of unlawful attempts to void the contract, delay the closing and otherwise obstruct fulfillment of the contract."

Judge MacKenzie granted summary judgment in favor of plaintiffs for the following reasons:

As an initial matter, the claimed dispute over paragraph 11 of the plaintiffs' statement of undisputed facts does not create a genuine issue of material fact to preclude the grant of summary judgment. Judson v. Peoples Bank & Trust of Westfield, 17 N.J. 67, 74 (1954). Those generalized allegations of dilatory tactics are at most tangential to the central issue, which is proper construction of the contractual clauses concerning property damage.

This case turns on the relationship between clause 12, which, contrary to defendants' assertion, does permit plaintiffs to waive damage discovered, and clause 19, which grants a termination right to either party in the event repair of damages sustained before closing would cost more than 10% of the purchase price to repair. The contract must be interpreted in light of the parties' intent. Bethlehem Steel Corp. v. K.L.O. Welding Erectors, Inc. 132 N.J. Super. 496, 499 (App. Div. 1975) ("The fundamental rule in construing contracts calls for the ascertainment of the intention of the parties in the light not only of the language used, but also of the surrounding circumstances and the objects sought to be attained by them under their agreement."). Thus, the intent expressed in clause 12 was to relieve seller of responsibility for repairs if buyer waived the results of the inspections. The purpose, in this context, was to allow the parties to go forward despite unexpected defects in the home. Clause 19, if interpreted as seller wishes, to permit cancellation of the contract any time the cost of repairs was greater than 10% of the purchase price, would undercut the contract-saving effect of clause 12. Therefore, clause 19 must be limited by the waiver provision of clause 12, and the contract must be specifically performed.

In this appeal, defendants argue that the grant of summary judgment in favor of plaintiffs should be reversed on the grounds that (1) the contract contains no damage waiver clause; (2) the parties did not agree to change the contract; and (3) the trial court erroneously relied on paragraph 12 of the contract. We have carefully considered the record in light of defendants' arguments and the applicable law and are satisfied that Judge MacKenzie properly granted summary judgment in favor of plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995); R. 4:46-2; Judson, supra, 17 N.J. at 74. We affirm essentially for the reasons stated by Judge MacKenzie in his statement of reasons appended to the order entered on January 10, 2005. R. 2:11-3(e)(1)(A) and (E).

 
Affirmed.

(continued)

(continued)

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A-3058-04T3

November 23, 2005