HARRY W. BROWN v. ESTATE OF CALLIE WALL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0812-05T50812-05T5

HARRY W. BROWN,

Plaintiff-Appellant,

v.

ESTATE OF CALLIE WALL,

Defendant-Respondent.

________________________________

 

Submitted May 22, 2006 - Decided June 16, 2006

Before Judges Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey,

Chancery Division, General Equity Part, Burlington

County, Docket No. C-193-03.

Kearns, Vassallo & Kearns, attorneys for appellant (John F. Vassallo and Matthew T. Rossettini, on the brief).

Stuart Radick, attorney for respondent (Mr. Radick,

of counsel; Jeffrey Zajac, on the brief).

PER CURIAM

Defendant, Edward G. Tyler, appeals from a July 11, 2005 final judgment of the Chancery Division, General Equity Part, that declared his contract for purchase of real property with the Estate of Callie Wall (Estate) void and unenforceable, and determined that the "right of first refusal" acquired by plaintiffs, Harry and Kathleen Brown, under a September 16, 1993 contract to purchase property, was properly exercised; and from a September 27, 2005 order denying his motion for a new trial. We affirm.

The facts are not complicated. On September 16, 1993, plaintiffs entered into a contract with Callie Wall for the purchase of real estate known as Block 33, Lot 7.01, in Fieldsboro. The contract also contained a "right of first refusal", which provided that "Seller [Callie Wall] agrees to provide buyers [plaintiffs] with a 72 hour right of first refusal on the purchase of the adjacent 2.277 acre parcel [Block 34, Lot 2 (property)] also owned by the grantor herein." On January 24, 1994, a deed of sale was recorded with the Burlington County Clerk's office, however, it did not contain the right of first refusal provision.

Without knowledge of the right of refusal held by plaintiffs, defendant entered into a contract with Wall, then residing in Florida, to purchase the adjacent 2.277 acre piece of property on November 5, 2003, for the sum of $10,000. Defendant deposited $1000 into escrow. The contract of sale was silent as to plaintiffs' right of first refusal, and Wall never provided oral or written notice to plaintiffs of the contract to sell to defendant. The closing was scheduled for December 1, 2003, but was postponed because time was not of the essence.

In the meantime, on December 10, 2003, Harry Brown asked his friend and business partner, Wally Okulicz, to check on the status of the property for him. Okulicz obliged, and when he went down to town hall the next day, December 11, 2003, he met defendant who, in answer to Okulicz's inquiry, informed him that he had already purchased the property from Wall. Okulicz then explained to defendant that plaintiffs had a right of first refusal on the property, to which defendant responded he would have to produce evidence in support of this assertion, otherwise he had no recourse. Later that day, Okulicz informed Brown over the telephone of his conversation with defendant.

As a result of his conversation with Okulicz, Brown confronted defendant the next day, Friday, December 12, 2003. At that time, defendant informed Brown that he had purchased the adjacent property from Wall and that without proof of his right of first refusal he had no recourse. Subsequently, Brown returned home to search for the contract on the original piece of property and for contact information on Wall. Brown was able to obtain a telephone number and mailing address for Wall in Florida.

On Sunday, December 14, 2003, after failing to reach Wall by telephone, Brown drafted a letter to Wall invoking his right of first refusal, asserting that he was ready, willing and able to purchase the adjacent property. Brown mailed the letter by United States Postal Service Express Mail on December 15, 2003 at 8:50 a.m. Unbeknownst to Brown, however, Wall had passed away on December 11, 2003, and the letter was forwarded to his daughter in Maryland. After not receiving any response from Wall or his daughter, Brown initiated this lawsuit on December 29, 2003.

At the one-day bench trial, defendant gave a different account of when the first encounter on this issue occurred. According to defendant, he first told Brown about his purchase of the property at a Planning Board meeting on November 26, 2003, which both defendant and Brown attended as members. Defendant claims that Brown approached him and inquired whether he had bought the property, to which defendant responded that he had.

At the conclusion of the evidence, the trial judge credited Brown's testimony over that of defendant, and entered final judgment in favor of plaintiffs. The judge concluded:

[L]et me deal with the November 26th meeting first . . . . I'm finding that that conversation did not take place . . . . [I]n considering that, I'm considering the testimony of the witness -- the two witnesses. They have opposing testimony. It's an affirmative assertion by the defendant, and . . . he's posited no witnesses or no other corroborating -- and it's an important turn of events.

But, I think there's a clear denial. And, I've watched the witnesses and their demeanor and so forth and find that Mr. Brown -- his recollection that there was no discussion of this property to be the fact.

That then turns on the issue of when, in fact . . . that the [plaintiff] was placed on reasonable notice or notice . . . that this property was being sold. And, it seems to me that, particularly considering the efforts to which the plaintiff went to once he was convinced that, in fact, the property was being sold -- which I think were extensive. He tried to make phone calls, he went on the computer . . . or had Wally go on the computer for him, wrote the letter, got if off express mail. Clearly he understood a sense of urgency in this matter.

I'm going to find that, in fact, he received notice on December 12th, not December 11th, because I think the witness, Mr. Okulicz, was not acting in any -- he was not an official, he wasn't acting in any official capacity. It was basically hearsay. Essentially I think any reasonable person who was involved or potentially involved in a transaction who heard this would confirm for himself to make sure the facts were correct. And, he did. Mr. Brown went to Mr. Tyler the next day and confirmed directly.

. . . .

And, in fact, by the time he sent the letter, I find that he was within the 72-hour period.

. . . .

I think it is equitable to find that

. . . that Mr. Brown was first provided with notice not by the seller, unfortunately, but he found out about it. And, he -- as soon as he found out about it, he did everything in his power to perfect it by telling the seller -- who unfortunately had died, but obviously his estate is out there -- that he was willing to fulfill the terms of the contract between himself and . . . the late Mr. [Wall].

Therefore, based on those findings, I'm going to find in favor of the plaintiff and against the defendant. I'm going to order and direct that this property be transferred by the estate in due course to the plaintiff under the same terms and conditions that were entered into by Mr. Tyler. And, if there's a lis pendens filed on this property, it should be discharged.

Defendant moved for a new trial, Rule 4:49-1, or in the alternative, to amend judgment, Rule 4:49-2, based on evidence "newly" discovered on June 22, 2005. The so-called newly discovered proof consisted of statements from two persons claiming to have knowledge of Brown's November 26, 2003 conversation with defendant to the effect that Brown had notice of the Wall-Tyler contract at a point earlier than Brown acknowledged. In rejecting defendant's motion, the trial judge first noted that:

the fact alone that Mr. Wall did not affirmatively notify Mr. Brown before he signed an agreement with Mr. Tyler was a violation of the Contract, and on that basis alone the contract with Mr. Tyler was void as a matter of law.

The court then went on to consider, and ultimately reject, the supplement proffer of proof as insufficient to support the relief requested:

Mr. Tyler had every opportunity to investigate and prepare for his case. After a year and a half, there has to be finality. These certifications do not persuade the Court under the "clear and convincing" standard required by the Rule that there is a miscarriage of justice under the law, which would require the Court to set aside the judgment and re-try the case, particularly in light of the additional findings set forth above. It is highly unlikely, that such testimony would alter the outcome in any event. Quick Chek Food Stores v. Township of Springfield, 83 N.J. 438 (1980).

On appeal, defendant raises the following issues:

I. Judgment should be amended and granted in favor of defendant pursuant to Rule 4:49-2 because the lower Court erred in declining to review whether plaintiffs received notice on December 11, 2003, based on an incorrect legal finding that the failure of Callie Wall to notify plaintiffs of the sale of property to defendant violated the contract between Callie Wall and plaintiffs, and, on that basis alone, the contract with defendant and Callie Wall was void as a matter of law, as well as its unsupportable factual finding that plaintiffs were not on notice of the sale between Callie Wall and defendant until December 12, 2003, and served notice of their exercise of the right of first refusal by mail on December 15, 2003, when the evidence clearly shows that plaintiffs were on notice on December 11, 2003, and failed to serve notice within 72 hours as required by the 1993 contract.

A. Standard of Review

B. The lower Court erred in declining to review its factual finding regarding whether plaintiffs had received notice on December 11, 2003 based on its incorrect legal finding that Callie Wall's failure to notify plaintiffs violated his contract with plaintiffs, and, on that basis alone, the defendant's contract was void as a matter of law.

C. Judgment should be granted in favor of defendant Edward Tyler pursuant to Rule 4:49-2 because the lower Court erred in finding for the plaintiffs based on its unsupportable factual finding that plaintiff Harry Brown was not on notice of the sale between Callie Wall and defendant Edward Tyler on December 12, 2003, and served notice of plaintiffs' intent to exercise their right of first refusal by mail on December 15, 2003, when the evidence clearly shows that plaintiff, Harry Brown, was on notice via his conversation with Wall[y] Okulicz on December 11, 2003, and failed to serve notice for more than 72 hours as required by the contract.

II. In the alternative, the Court erred in denying defendant's motion for a new trial pursuant to Rule 4:49-1 based on its incorrect ruling that testimony from a previously unknown witness regarding whether plaintiffs received notice of sale of property prior to December 2003 would not alter the outcome of the trial after ruling in favor of plaintiffs based, in large part, on defendant's making an affirmative assertion regarding plaintiffs' having received notice of the sale on November 26, 2003, yet having failed to offer any corroboration in support of that statement.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A), (C) and (E).

Suffice it to say, the trial judge's findings are supported by sufficient credible evidence, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) and his ultimate determination soundly based in principles of law and equity. We, therefore, affirm substantially for the reasons stated by Judge Hogan in his oral opinion of June 20, 2005 and in his written decision of September 9, 2005.

 
Affirmed.

The court did, however, enter a supplemental judgment against the Estate of Callie Wall on September 27, 2005, awarding defendant the sum of $1000 to be deducted from the proceeds of the sale of Block 34, Lot 2.

(continued)

(continued)

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A-0812-05T5

June 16, 2006