DEBRA AURIEMMA v. MARTIN P. BRODEUR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6154-04T3

DEBRA AURIEMMA,

Plaintiff-Respondent,

v.

MARTIN P. BRODEUR

Defendant,

and

MELANIE A. DuBOIS,

Defendant-Appellant.

 

Argued: May 1, 2006 - Decided July 31, 2006

Before Judges Fall, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Number ESX-L-2503-04.

Richard L. Zucker argued the cause for appellant (Lasser Hochman, attorneys; Mr. Zucker and Bruce H. Snyder, on the brief).

Marlo J. Hittman argued the cause for respondent.

PER CURIAM

In this breach of contract dispute concerning a failed residential real estate transaction, defendant Melanie A. DuBois appeals from separate orders entered in the Law Division on June 16, 2005, denying her motion for summary judgment, and granting summary judgment in favor of plaintiff Debra Auriemma. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Defendants Melanie A. DuBois and Martin P. Brodeur were the owners of residential property and premises known as 40 Fox Run, North Caldwell. On December 1, 2003, defendants entered into a contract for the sale of that property to plaintiff. The purchase price was $1,900,000. Pursuant to the terms of the contract, plaintiff paid and deposited the sum of $50,000 with attorneys for defendants as deposit monies, to be held "until closing of title."

The contract set February 15, 2004, as "the estimated date for closing." The contract also permitted plaintiff to obtain, inter alia, a structural inspection of the premises and paragraph 18c thereof provided that "[i]f the inspections reveal any serious defects and the parties do not agree on what corrective actions or repairs are to be made by the Seller, either party may cancel this contract." Paragraph 22 of the contract further stated that "[i]f the contract is legally and rightfully canceled, the Buyer can get back the deposit and the parties will be free of liability to each other."

Plaintiff obtained a structural inspection of the subject property on January 10, 2004. By letter to counsel for defendants dated January 12, 2004, counsel for plaintiff stated:

The home inspection was performed on Saturday, January 10, 2003. A significant structural problem exists in the kitchen/dining room. An engineer and contractor will need to evaluate the extent of the damage and expense to correct this problem. If the necessary repairs cause damage such as wall cracks, broken tiles, etc., that work would need to [be] corrected in addition to the structural problem.

The buyers will choose a structural engineer and contractor to correct the condition and sellers will be required to pay all expenses for the repairs.

Please advise your clients accordingly.

By return letter to plaintiff's counsel on that same date, counsel for defendants stated:

We have reviewed your letter of this date with our client regarding the structural problem in the kitchen/dining room. Ms. Brodeur is looking into the matter with her own contractor.

While you may have your engineer inspect the condition, no work may [be] done pre-closing. We would prefer that the work be done after the closing with an agreed adjustment or escrow.

We will be back to you after Ms. Brodeur's contractor reviews the condition.

By letter to counsel for defendants dated January 19, 2004, counsel for plaintiff stated:

Please be advised that my client will need to engage a Contractor to price ou[t] the necessary work relative to the structural repairs. All repair work to be accomplished must be performed by my client's contractor and is to be accomplished prior to closing.

In addition, please note the attached inspection report and list of other repairs which will need to be performed at the seller's cost and expense.

Please advise your client accordingly.

By letter to counsel for defendants dated January 26, 2004, counsel for plaintiff stated:

Please be advised relative to the inspection report issues and structural repairs my client will agree to a $100,000.00 credit at closing from seller, provided that the work will begin after the closing of title. Your client may remain in the premises until the end of February under a use and occupancy agreement and will be required to pay the real estate taxes, all utilities including water and sewerage, if seller does not vacate by February 29, 2004, the per diem rate will be $300.00.

Please discuss with your client and advise if same is acceptable, so that the title work may be ordered and thereafter a closing scheduled. I will need back title information from you.

By letter to defendants' counsel dated February 3, 2004, counsel for plaintiff stated:

This shall confirm our conversation of yesterday wherein you advised that your client rejected my clients['] offer as transmitted under my letter dated January 26, 2004. Your client has counter-offered a price reduction of $20,000.00 with the stipulation that my client shall accept the premises in "as is" condition and shall assume responsibility to do all of the work to address the objectionable conditions of the premises.

My client rejects your client's counter-offer and in accordance with Paragraph 8 of the Contract of Sale hereby terminates the contract and demands return of all deposit money. Kindly see that this is done immediately. If your client accepts my client[']s original offer they are prepared to proceed with the sale.

Contrary to your assessment that my client would take the money and not do the repairs, you will note that in our offer on this subject matter, we specifically required the right to do the repairs during the post closing use and occupancy period. Therefore, your client's assessment of the situation is unfounded. Secondly, your statement that my client knew of the condition when the offer to purchase was made is without any substantive merit. You may recall that one of the key issues that I raised during the period when we were negotiating contract terms was to have a sufficient period for inspections due to what we believed to be a serious structural problem. My client's concern has been substantiated. In short, my clients would like to close the deal but are not willing to do so without all necessary work being done or without a sufficient allowance to address all of the known and latent conditions that will arise as a consequence thereof.

Please advise your client accordingly.

[Emphasis added.]

An amended version of that letter, dated February 4, 2004, was sent to counsel for defendants by counsel for plaintiff, changing the reference in the second paragraph from "Paragraph 8" to "Paragraph 18" of the contract. In all other respects, the content of the February 3 and February 4 letters were identical.

In an electronic-mail message transmitted on February 11, 2004, to counsel for defendants, plaintiff's counsel stated:

Confirming our telephone conversation, you have indicated that your client has reconsidered her position and now offers my client a price concession of $100,000 against the purchase price in consideration of them accepting the premises, in as is condition.

My clients are considering your client's new offer and have not yet determined if they wish to rescind the notice of termination. I will advise you by the close of business on Thursday of their position.

By letter to counsel for defendants dated February 12, 2004, counsel for plaintiff stated:

Please be advised that my client rejects the counter-offer of Sellers. Please return all deposit monies promptly to my office.

By return letter to counsel for plaintiff dated February 12, 2004, counsel for defendants stated:

We are shocked by your clients' reaction to our client's agreement to the $100,000 adjustment which you had demanded.

Your letter of February 4th, after canceling the contract, states, "If your client accepts my clients' original offer, they are prepared to proceed with the sale." As you know that is exactly what we did, which constituted an acceptance of your offer, quoted above. We consider the contract binding as modified.

Please advise by Tuesday February 17th whether or not your clients will, in fact, close. If they do breach, we shall hold them accountable for all damages sustained as a result of their breach, including cost of bridge loan, carrying costs for the house, costs of resale, including brokerage commission, and any difference in the price upon resale.

Please be guided accordingly.

By reply letter to counsel for defendants dated February 13, 2004, plaintiff's counsel stated, in pertinent part:

In reply to your letter of even date, contrary to a statement made in your letter, there has never been a formal offer made by seller pursuant to the terms of the Contract. As a result of your delay in not responding to my letter of February 4, 2004, in a timely fashion my client lost the ability to engage the contractor of their choice to perform the work at the property.

On March 31, 2004, plaintiff filed a complaint against defendants in the Law Division, stating that she had validly exercised her right to cancel the contract pursuant to the terms of paragraph 18 thereof. She alleged that defendants had breached the contract and sought return of the deposit monies and assessment of punitive damages.

On June 28, 2004, defendant Martin Brodeur filed an answer to the complaint. On July 19, 2004, defendant Melanie DuBois filed an answer to the complaint and asserted a counterclaim, alleging that plaintiff had breached the contract, seeking compensatory damages. On or about November 1, 2004, defendant Martin Brodeur filed an amended answer and also asserted a counterclaim against plaintiff, seeking compensatory damages based on the alleged breach of their contract. Thereafter, defendant DuBois sold the subject property to a third party for a contract price of $1,760,000.

Both parties moved for summary judgment. The motions were argued in the Law Division on June 16, 2005. In granting summary judgment in favor of plaintiff, the motion judge found that the February 3, 2004 letter constituted a clear and unequivocal expression of an intent to terminate the contract for failure to reach an agreement with respect to the costs and responsibility for structural repairs. The judge interpreted the language in the February 3, 2004 letter concerning the original offer as an attempt to resuscitate the agreement subsequent to termination of the contract, and could not be construed as a rescission of that termination. The judge found that when counsel for defendants stated his clients would accede to plaintiff's original request for a $100,000 credit, that constituted an offer to plaintiff, which was then rejected by her counsel in the February 12, 2004 letter. The motion judge stated that because the offer had been rejected by plaintiff, he could not find an enforceable contract. Orders memorializing the court's decision were entered on June 16, 2005.

On appeal, defendant Melanie A. DuBois presents the following arguments for our consideration:

POINT I

THE BUYER'S OFFER TO PURCHASE THE SUBJECT PROPERTY WAS UNCONDITIONALLY AND UNEQUIVOCALLY ACCEPTED BY THE SELLERS, AND THE DETERMINATION OF THE TRIAL COURT TO GRANT SUMMARY JUDGMENT TO THE BUYER AND DENY SUMMARY JUDGMENT TO THE SELLERS MUST BE REVERSED.

POINT II

GENUINE ISSUES OF MATERIAL FACT EXISTED AS TO WHETHER PLAINTIFF'S PURPORTED TERMINATION OF THE CONTRACT WAS VALID, AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED.

After analyzing the record in light of the written and oral arguments advanced by the parties, we conclude that the issues presented by defendant are without merit. We are satisfied that the termination language contained in the February 3, 2004 letter complied with the agreed-upon terms of the contract in paragraph 18c, permitting a termination of the contract because, as of that date, the parties had been unable to "agree on what corrective actions or repairs are to be made by the Seller[.]" This placed the parties in the position of having to both later unequivocally express an intention to be bound by any amendments to the original agreement before they would be required to perform.

We conclude that the surplus language contained in the February 3, 2004 letter, expressing willingness to proceed with the sale under certain circumstances, was insufficient to constitute a continuing offer that, upon acceptance, would formulate a binding contract. First, more than a week had passed since written termination of the contract before defendant signified, through counsel, her agreement to a credit of $100,000. The record reflects that by that time, plaintiff was already looking at other houses for sale.

Second, it is clear from the content of the February 11, 2004 e-mail transmission that plaintiff considered defendant's assent to a $100,000 credit as an offer to resuscitate the contract. Plaintiff decided not to accept that offer to resuscitate the terminated contract. Accordingly, there was no meeting of the minds.

Lastly, the terms of the January 26, 2004 letter from plaintiff's counsel, which contained plaintiff's offer, were broader than simply an agreement to a $100,000 credit; they also encompassed a use and occupancy agreement and the timing of the structural repairs. Moreover, the terms offered contained in the January 26, 2004 letter had already been specifically rejected by defendant. "A qualified or conditional acceptance containing terms and conditions not found in the original proposal may operate as a counter-offer but does not constitute an acceptance and does not result in the formation of a valid contract binding upon the parties." Carlin v. Newark, 36 N.J. Super. 74, 89 (Law Div. 1955). It cannot be concluded that a contract has been formed "unless and until the prospective buyer and sellers all agreed in writing to identical terms." Gaglia v. Kirchner, 317 N.J. Super. 292, 300 (App. Div.), certif. denied, 160 N.J. 91 (1999). Here, paragraph 26 of the parties' contract specifically provided that "[t]his contract can only be changed by agreement in writing signed by both Buyer and Seller."

On this record, we cannot find that the requisite mutual assent or meeting of the minds as to essential terms had occurred sufficiently to formulate a binding contract, simply by defendant signifying her belated agreement to a $100,000 credit that she had previously rejected. See Graziano v. Grant, 326 N.J. Super. 328, 339-40 (App. Div. 1999) (noting that the terms of contract must be definite and certain). In these circumstances, we conclude that the surplus language contained in the February 3, 2004 letter was nothing more or less than an invitation for further negotiation and cannot be viewed as the acceptance of an offer.

 
To the extent that we have not discussed the remaining arguments advanced by defendant, we consider them to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

According to a certification filed in the Law Division by Ms. DuBois, she and defendant Martin P. Brodeur are now divorced and the real party in interest is Ms. DuBois.

Footnote continued on next page.

12

A-6154-04T3

July 31, 2006