ABDUL KHOKHAR et al. v. LOUIS D'AMELIO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2707-04T52707-04T5

ABDUL KHOKHAR and

SHAHNAZ KHOKHAR,

Plaintiffs-Respondents,

v.

LOUIS D'AMELIO and

THERESA D'AMELIO,

Defendants-Appellants.

__________________________________

 

Submitted May 17, 2006 - Decided August 1, 2006

Before Judges Wefing and Graves.

On appeal from Superior Court of New

Jersey, Chancery Division, Passaic

County, No. C-64-04.

Rubin & Connelly, attorneys for appellants

(A. Michael Rubin, on the brief).

No brief was submitted on behalf of respondents.

PER CURIAM

Defendants appeal from a trial court Order for Final Judgment entered on January 12, 2005, directing specific performance of a contract for the sale of real property. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendants are the owners of residential premises located at 104 French Hill Road in Wayne. In the fall of 2003 they decided to sell their home, but without the assistance of a real estate broker. They placed a "For Sale" sign in the front yard, and plaintiffs responded. After touring the house, the parties agreed upon a sales price of $560,000. Plaintiffs were to pay a deposit of $56,000, and defendants agreed to take back a mortgage for ten years at five percent.

Defendants contacted Norman Chidiac, Esq., the attorney who had represented them for many years in a number of transactions. Mr. Chidiac prepared a form real estate contract, which he gave to Mr. Khokhar, who delivered it by hand to his attorney, Michael DeMarco, Esq. Mr. DeMarco wrote to Mr. Chidiac on November 25, 2003, advising him that the form of contract was unacceptable in several regards. Mr. DeMarco included with his letter a four-page rider incorporating the revisions he deemed necessary.

Mr. Chidiac responded to Mr. DeMarco by letter dated December 18, 2003, in which he indicated those provisions of the rider that were acceptable and the modifications to the remainder that were needed. Mr. DeMarco wrote a further letter on December 30, in which he set forth those items in Mr. Chidiac's letter of December 18 that were acceptable and the further modifications needed for his clients.

The attorneys spoke by telephone on January 13, 2004, and reviewed the remaining open items. By the conclusion of that telephone conversation, they had reached agreement on all issues. Accordingly, Mr. DeMarco sent a confirming letter on January 15, 2004, in which he recited the modifications to which they had agreed. That letter closed with the following paragraph:

Accordingly, our clients' agreement now consists of: (1) the form Contract for sale prepared by your office; (2) The Rider to Contract prepared by my office; (3) Your letter of December 18, 2003; and this letter. Please confirm same by having your client execute each and forward same to my office for execution by my client.

Appended to the letter was the following statement:

"Agreed to and accepted this _____ Day of ________, 2004."

This was returned to Mr. DeMarco with date of January 26, 2004, having been inserted and signed "Norman J. Chidiac as atty for seller." A cover letter of the same date stated:

I have reviewed your January 15, 2004 [sic] which outlined modifications to mine of December 18, 2003. Please note, that the property consists of a one-family home. I have agreed and accepted, on my clients' behalf said modifications.

Mr. Chidiac testified that this letter was prepared and signed by his secretary and that he did not see it prior to its being sent. He did not dispute, however, that he signed the addendum to Mr. DeMarco's letter of January 15 that we noted above.

This was the last communication between the attorneys as to the terms of this transaction. None of the documents were ever signed by either of the parties.

Plaintiffs commenced with the details of preparing to close this transaction, ordering a title search and a home inspection. Plaintiffs came to the premises several times to measure various rooms in connection with their purchase of furniture for their new residence.

Defendants also took steps to prepare for a closing. There was a guest house on the property that was occupied by tenants, who had resided there for several years. One of the terms upon which plaintiffs insisted was that the tenants vacate the guest house because they wished it to be available for Mr. Khokhar's father. Defendants informed the tenants they would have to find new quarters.

For whatever reason, the relationship between the parties deteriorated, and at some point in late February 2004 defendants advised plaintiffs they were not willing to complete this transaction but were going to sell the property to another party. Defendants maintained that because the parties had not executed a final contract, a binding agreement did not exist, and they were free to sell to others. Plaintiffs disagreed, and on April 1, 2004, plaintiffs filed suit in the Chancery Division, seeking specific performance.

Following a plenary hearing, at which both the parties and their attorneys testified, the trial court entered judgment for plaintiffs. This appeal followed.

On appeal, defendants contend that no contract ever came into existence, as they never executed any of the contract documents. They also contend that enforcement of the contract is barred by the statute of frauds. As to these contentions, we affirm the judgment below substantially for the reasons expressed by Judge McVeigh in her oral opinion of December 20, 2004.

Defendants assert as a further argument that the contract is unenforceable because plaintiffs did not satisfy the condition precedent relating to review and approval of their credit report. We disagree. It is necessary to set forth the terms of the various documents exchanged by the attorneys to demonstrate why we are satisfied that plaintiffs met all the conditions required of them.

Whether plaintiffs were creditworthy was obviously an issue of concern for defendants in light of their agreement to take back a mortgage in connection with the sale. Paragraph 30 of the form contract initially prepared by Mr. Chidiac stated:

This Contract is contingent upon Sellers' approval of Buyer's credit report, which shall be paid for by Buyer. Buyer to pay $50 (Fifty Dollars) for the credit report upon signing this Contract and paying the deposit set forth herein.

Mr. DeMarco's four-page rider, forwarded with his letter of November 25, 2003, stated that this paragraph should be:

amended to reflect that Sellers shall have seven (7) days to approve or disapprove Buyers' credit report. In this regard, Sellers shall act in good faith and if Sellers fail to disapprove Buyers' credit report within seven (7) days, this contingency shall be waived.

Mr. Chidiac responded in his letter of December 18, 2003, that this was unacceptable and proposed the following language:

Paragraph 30 of the Contract shall be amended to reflect that Seller shall have ten days from receipt of Buyer's credit report to approve or disapprove of Buyer's credit. In accordance therewith, Buyer shall provide all of his personal information and the appropriate authorization necessary to secure said credit report. Seller shall act in good faith, but there shall be no waiver of this contingency.

Mr. DeMarco's response, in his letter of December 30, was that this was acceptable but that if the sellers disapproved of his clients' credit report, they had to do so within ten days of the contract being approved by the parties. He enclosed with his letter a copy of the credit report. Mr. DeMarco repeated this provision in his letter of January 15, 2004, again enclosing a copy of Mr. Khokhar's credit report. Mr. Chidiac indicated his approval to these terms by signing and returning Mr. DeMarco's letter.

At no point, either within the ten-day limit called for under the contract documents or at any time thereafter, was there any complaint about the sufficiency of Mr. Khokhar's credit. Mr. Chidiac testified at trial that the credit score reflected on the report was a good score. We are satisfied that there was compliance with the condition relating to the credit report, in its final form as approved.

The judgment under review is affirmed.

 

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