PETER GRASSO v. TINA GRASSO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6656-04T16656-04T1

PETER GRASSO,

Plaintiff-Appellant,

and

LINDA GRASSO,

Plaintiff/Intervenor-Respondent,

v.

TINA GRASSO,

Defendant-Respondent,

and

AMBREEN HAMDONI and

ALI HAMDONI,

Defendants.

_______________________________________

 

Submitted October 5, 2006 - Decided October 31, 2006

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-212-04.

Gaccione, Pomaco & Malanga, attorneys for appellant (Robert J. Pansulla, of counsel; on the brief).

Brad M. Micklin, attorney for respondent Linda Grasso.

Respondent Tina Grasso, has not filed a brief.

PER CURIAM

Plaintiff Peter Grasso (Peter) appeals from an order entered in the Chancery Division, General Equity, on August 12, 2005, enforcing a settlement between the parties; declaring that Peter has no right to purchase the real estate that is the subject of this action; approving the listing of the property for sale; and reinstating certain claims that had been asserted by plaintiff Linda Grasso (Linda) in a related matrimonial action. We affirm.

The relevant facts may be briefly summarized. Peter and Linda were married in 1991 and they lived with their child in a residence in Nutley, New Jersey. Peter's sister Tina Grasso (Tina) had title to the property. Peter and Linda were divorced in 2004. A dual judgment of divorce was entered on February 23, 2004, and an amended dual judgment of divorce was entered on April 14, 2004. Linda thereafter continued to reside in the Nutley residence with the child. In May 2004, Tina entered into a contract for the sale of the property to Ambreen Hamdani and Ali Hamdani.

On or about June 24, 2004, Peter commenced this action against Tina and the contract purchasers, alleging that he is the owner of the property. Peter claimed that he purchased the property in 1996 but the "paperwork" was held in Tina's name. Peter asserted that Tina had obtained a mortgage in the amount of $80,000 so that he could purchase the property and it was agreed that he would pay the mortgage and all "ownership costs" of the property. Peter further alleged that he had improved the property with approximately $200,000 in goods and services. Peter claimed that he and Tina had agreed that title to the property would be transferred to him after the mortgage was paid. Peter sought to enjoin the transfer of the property; preclude Tina from selling, transferring or placing a lien on the property; and compel Tina to sell the property to him. Peter also sought an award of compensatory damages; interest; attorneys' fees; and costs of suit. On June 29, 2004, Judge Kenneth S. Levy entered an order temporarily restraining the sale of the property.

On or about July 7, 2004, Linda filed a motion in the matrimonial action seeking a declaration that Peter had violated her rights as a litigant by failing to pay her $40,000 in equitable distribution, as required by the amended dual judgment of divorce. Linda sought an order permitting her to remain in the marital residence until Peter complied with the judgment. Linda additionally sought to re-open equitable distribution and an award of an equitable share of Peter's litigation recovery in the General Equity action. The judge in the matrimonial action entered an order on August 27, 2004 granting Linda's motion. At or about this time, Linda filed a motion to intervene in this action and her motion was granted by order entered on September 15, 2004. In support of this motion, Linda alleged that Peter had never disclosed his ownership in the marital residence. She said that Peter had "emphatically denied" any such "ownership rights."

On November 12, 2004, the judge in the matrimonial action ordered that any funds received by Peter from this action would be placed in escrow pending disposition of Linda's claims. The order provided that Linda would have "complete uninterrupted use of the former marital residence" and further provided that Peter was barred from access to the home and must remain 1,000 feet from the premises unless he was appearing for parenting time with the parties' child, in which event he must remain curbside and in his automobile.

The parties to this matter subsequently settled the dispute and placed their agreement on the record on April 18, 2005. The settlement involved two alternative plans for the sale of the property. Under Plan A, Tina would transfer title to Peter on or before May 12, 2005, contingent upon his receipt of a mortgage commitment by May 2, 2005. The parties agreed that Tina and Linda would each be paid $100,000. The payment to Linda would be in settlement of the equitable distribution claim she was asserting in the matrimonial action.

The parties additionally agreed that if Peter did not obtain the mortgage commitment by May 2, 2005 or the sale did not occur on May 12, 2005, Plan B would apply. Under this alternative, the property would be listed with a broker and sold on the open market, with one-half of the proceeds paid to Tina and one-half paid to an escrow account subject to distribution by order of the Family Part.

Concerning the settlement, Peter's attorney stated on the record that:

The plan is contingent upon the sale occurring with the loan commitment date I have indicated. If it does not occur, the parties have agreed that the property will be sold on the open market at a market price to be listed by ERA Burgdorf.

Linda's attorney stated:

The two dates listed by [Peter's attorney] both the sale date of May 12 and the commitment date of May 2nd are separate dates meaning that if there's not a closing on May 12th the house is automatically listed but also if there's not a mortgage committed by May 2nd, the property can automatically be listed.

Additionally, under the scenario of the property being listed for a straight sale and the net proceeds divided, [Linda's] waiver of her equitable distribution claim is vacated and she still reserves the right to pursue those claims in the Family Court.

On May 13, 2005, an order was entered in the matrimonial action which provided in part that Peter could enter the martial residence "for purposes related to the closing" provided he gave reasonable notice to Linda's attorney and obtained Linda's consent, "which shall not be unreasonably withheld."

On July 1, 2005, Peter filed a motion in this action seeking enforcement of the settlement agreement. In his supporting certification, Peter stated that he had obtained a mortgage commitment but certain "conditions" had to be met. Peter said that he had accompanied an appraiser from the bank to the property to assist in the valuation. When Peter arrived at the house, Linda called the Nutley police and asked that he be removed from the premises.

Peter claims that Linda's "antics" disrupted his ability to obtain financing on his own. Consequently, Peter's friend Louis Mirro (Mirro) agreed to allow the property be purchased in his name, with Peter as co-buyer. Peter said that, notwithstanding this change, the parties had continued to negotiate and arrange for closing. However, Peter said that later he was not allowed into the home to assist the Nutley zoning officer regarding the issuance of a temporary certificate of occupancy or to perform minor work that was required. Peter alleged that he was ready, willing and able to close the transaction.

Linda countered with a motion for enforcement of the settlement and other relief. In a certification, Linda's attorney stated that Peter had not provided a completed loan commitment and failed to close by the agreed upon date. Counsel noted that Peter was endeavoring to have a third party purchase the property, presumably because Peter could not arrange the required financing on his own. Counsel stated that Peter had offered nothing to suggest that he was able to meet the terms agreed upon within a reasonable period of time. He further stated that Linda did not agree to the sale to a third party because such a transaction would cause significant capital gains taxes, breach the agreement with the real estate broker, and result in the loss of Linda's matrimonial rights for equitable distribution and legal fees.

Tina weighed in with her own affidavit, in which she stated that she was "shocked" to learn that Peter had decided not to comply with the agreement. Tina asserted that when Peter failed to close by May 12, 2005, she contacted the realtor and placed the property on the market for sale. Tina said that since that time, Peter had made harassing calls to the realtor stating that she had no right to sell the property. Tina also said that Peter changed the locks on the house so that it could not be shown to potential buyers. According to Tina, Peter told real estate agents and potential buyers that the property was not for sale. In addition, Peter had abandoned a motor vehicle on the property and he had refused to remove it.

Judge Levy heard the motions on August 12, 2005. The judge placed his decision on the record. The judge rejected Peter's contention that Tina and Linda had waived the May 12, 2005 deadline for closing. The judge also found that, although the parties had not stipulated on the record that "time was of the essence," that was implicit in the agreement. The judge made the following findings:

The parties actually established two dates that had to be met in order for Peter Grasso to maintain the right to purchase the property. The first was May 2. He had to have a mortgage commitment by that date. And the second was May 12, the date by which he was required to close. As stated on the record, if either of those dates were missed the house would "automatically" be listed for sale with a particular . . . broker. The use of the term automatically allowed the listing to occur immediately once the May 12 date had passed. There was no provision for notice or cure. Indeed, given the agreement that the listing could . . . occur automatically, [Tina] could have contracted with the broker prior to May 12, agreeing that the broker could list the house for sale on May 13 unless notified that the house had been sold on May 12 or earlier. In other words, no further action by either party would have been necessary. The change to plan B would be automatic on May 13. Under these circumstances one would have to conclude that the parties understood . . . the May 12 deadline to be an essential part of the contract.

Moreover, it is also clear that Peter Grasso breached the contract by not being ready, willing and able to personally purchase the property. The agreement was that Peter Grasso could purchase the property by May 12. In that regard it was specific. If he was unable to close the deal by that date the third party purchaser was specifically to be found through a listing with a real estate broker. The clear intent of the parties is blatantly inconsistent with Peter Grasso's position that he should be permitted to substitute Mirro, and to place blame on Linda Grasso for his inability to obtain financing and close by May 12 is totally unjustified. Peter Grasso violated a restraining order when he accompanied the appraiser to the house, and Linda Grasso had every right to summon the police for self-protection.

. . . Clearly, any inability to close due to the proceedings that resulted from his violation of the order must be attributed to Peter Grasso.

The judge accordingly entered an order enforcing the settlement. The order approved the listing of the property for sale; declared that Peter's right to purchase the property had expired; and reinstated Linda's rights in the matrimonial action. This appeal followed.

Peter argues that the judge erred in finding that the parties intended that time was of the essence for either the mortgage commitment or the closing. Peter contends that the judge should have enforced his right to purchase the property because the parties were obligated to act in good faith to consummate the sale. Peter further argues that the judge erred in denying injunctive relief and the court should have ordered the property sold to him.

We have carefully considered these contentions and thoroughly reviewed the record on appeal. We are satisfied that Peter's contentions are entirely without merit and we affirm substantially for the reasons stated by Judge Levy in his decision on the record on August 12, 2005. We add the following brief comments.

It is well established "that absent a clear expression or a necessary implication respecting essentiality of a closing date, a reasonable deviation will be permitted, and a court of equity will enforce the obligation to convey where a buyer is ready, willing and able to close within the time deemed reasonable in the circumstances." Forrest v. Forrest, 241 N.J. Super. 239, 243 (App. Div. 1990) (citations omitted). Here, the judge correctly found that the parties had by "necessary implication" made time of the essence in establishing the May 2nd deadline for the mortgage commitment and the May 12th date for closing.

Moreover, despite Peter's claims to the contrary, he was not ready willing and able to close by May 12th as agreed. Indeed, when the motions were heard on August 12, 2005, Peter did not have his own mortgage financing and he was not prepared to purchase the property. Rather, he was seeking to compel the sale of the property to a third party, something that had never been agreed to by Linda and Tina.

We additionally see no merit in Peter's contention that Linda did not act in good faith because she purportedly obstructed his efforts to arrange mortgage financing and close on the transaction. The order entered in the Family Part on November 12, 2004, barred Peter from entering the residence and specifically provided that he was to remain at least 1,000 feet from the house unless he is appearing for parenting time with the parties' child. The order subsequently entered on May 13, 2005, stated that Peter could enter the residence "for purposes related to the closing" but he could only do so if he provided reasonable notice to Linda's attorney and obtained Linda's consent.

There is no evidence in this record that Peter ever provided reasonable notice to Linda's attorney or obtained Linda's consent before he entered upon the property. In the circumstances, Linda had reasonable grounds to call the local police and report the apparent violation of the restraining order. Moreover, we are not convinced that Linda's action precluded Peter from obtaining the financing and closing on the sale. Peter could have sought permission of the Family Part judge to enter the premises if Linda had unreasonably withheld consent for his entry into the house. He also could have enlisted the aid of other persons to assist the appraiser, accompany the zoning officer and make necessary repairs.

Affirmed.

 

Peter named the contract purchasers as defendants but the spelling of their names in the caption was incorrect. On August 13, 2004, Peter agreed to dismiss his claims against these defendants.

The order erroneously identifies Peter as defendant. It is clear, however, that the restrictions on access to the marital residence apply to him.

Peter also appealed an order entered on September 23, 2005, by the Family Part judge which provided in part that Linda could assert claims for fraud, punitive damages, sanctions and attorneys' fees respecting the equitable distribution of the marital residence. In an opinion also filed this date, we affirm the order. Grasso v. Grasso, No. A-1174-05T1 (App. Div.).

(continued)

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A-6656-04T1

October 31, 2006