DARBY INVESTMENT CORP v. ANGELONI REALTY GROUP, L.L.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0139-09T30139-09T3

DARBY INVESTMENT CORP.,

Plaintiff-Appellant,

v.

ANGELONI REALTY GROUP, L.L.C.

and JAMES M. ANGELONI,

Defendants-Respondents.

________________________________________________________________

 

Argued February 23, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from the Superior Court of New

Jersey, Law Division, Camden County,

Docket No. L-5328-08.

William C. MacMillan argued the cause for

appellant (Law Offices of Igor Sturm,

attorneys; Mr. MacMillan, on the brief).

Respondents have not filed a brief.

PER CURIAM

Plaintiff Darby Investment Corp. (Darby) appeals from an August 28, 2009 order of the Law Division denying its motion for partial summary judgment and granting defendants Angeloni Realty Group (the Group) and James Angeloni's (Angeloni) motion for summary judgment dismissing plaintiff's complaint. We reverse and remand.

These are the facts as presented to the motion judge.

Plaintiff is the owner of a parcel of commercial real estate located at 111 Centennial Boulevard in Voorhees, designated as block 200, lot 10.03. On November 21, 2007, plaintiff entered into a contract to sell the property to the Group for $2,100,000. Angeloni is the sole member of the Group. The agreement was amended on January 23, 2008. A second amendment was signed but not dated, and both of these amendments extended the closing date. Under the terms of the agreement, the Group was required to pay a $50,000 non-refundable deposit, to be held by defendants' title company. While Angeloni initially stated that he had paid the deposit to the title company, the parties agree that the deposit was never paid, and the escrow agent did not execute the signature page attached to the contract. Angeloni contends that it was a "simple mistake."

Under the terms of the agreement in its amended form, the Group was required to proceed to closing no later than April 21, 2008. The parties agree that the Group failed to do so. On May 2, 2008, plaintiff's attorney declared the Group in default and offered it the opportunity to cure. Defense counsel then submitted a third proposed amendment, but the parties were unable to reach agreement as to that amendment. On June 21, 2008, plaintiff's counsel terminated the agreement.

The agreement provided that upon default by the Group, plaintiff was entitled to retain the deposit as liquidated damages as well as any carrying fees previously paid. In addition, the agreement stated that the Group was required to pay a carrying fee of $5,000 per month until closing of the property, and real estate taxes from the effective date of the agreement until closing or termination of the agreement. Defendants claim that the Group paid $12,000 in carrying fees and does not contest that plaintiff is entitled to that amount. Plaintiff contends that the Group owes plaintiff a total of $67,832.34, representing the deposit, $20,000 in unpaid carrying fees, and $47,832.34 in real estate taxes.

On October 21, 2008, plaintiff filed a five-count complaint against defendants, setting forth causes of action based on: breach of contract, legal and equitable fraud, breach of the covenant of good faith and fair dealing, piercing the corporate veil, and negligence. Plaintiff sought compensatory, consequential, and incidental damages, costs of suit, counsel fees, and any other relief deemed just and equitable.

After the issue was joined by the filing of an answer, plaintiff and defendants filed cross-motions for summary judgment. The trial judge denied plaintiff's motion and granted defendants' motion to dismiss the complaint. This appeal followed.

On appeal, plaintiff asserts that the trial judge erred by not granting summary judgment as to the deposit, reimbursement for property taxes and carrying fees. It also claims that the judge erred by dismissing the individual claim against Angeloni.

In his decision, the motion judge determined that there was a valid contract between the parties and that plaintiff terminated the contract "knowing the deposit remitted by the defendant was less than the full amount requested in a contract." Citing Knorr v. Smeal, 178 N.J. 169, 177-78 (2003), the judge determined that plaintiff had waived any claim to the $50,000 deposit. In addition, the judge also determined that at all times Angeloni was acting in a corporate capacity and as a representative of the corporation.

We conclude that on the record before us there were factual issues that require further inquiry and a trial.

Addressing the liability of Angeloni, we note that plaintiff asserts that Angeloni represented that he had made the requisite deposit. He later asserted that he was mistaken in his representation. The representation and the circumstances surrounding the misrepresentation require further inquiry and scrutiny since that representation is a critical factor in plaintiff's claim for the deposit. The motion judge's analysis fails to set forth findings as to the conclusion that Angeloni was acting in a corporate capacity or in what way the apparent misrepresentation, innocent or otherwise, impacts on the claim of fraud and other misconduct alleged by plaintiff. This all must be explored at a plenary proceeding at which time, plaintiff can be put to its proofs to establish the elements of fraud. See Banco Popular N. Am. v. Gandi, 184 N.J. 161, 172-73 (2005).

We reach the same result regarding the deposit and other claimed damages. First, as to the issue of a waiver, we conclude that this issue too, is fact-sensitive and requires a trial. See generally Ridge Chevrolet-Oldsmobile v. Scarano, 238 N.J. Super. 149, 155-56 (App. Div. 1990)(setting forth in context relevant facts to be considered in determining a waiver). Here, despite plaintiff's claim that no one is arguing about the significance of the lack of the title company's signature on the agreement acknowledging the agreement, defendant asserted below that such lack of signature put plaintiff on notice that the deposit had not been paid. Plaintiff, to the contrary, argues that Angeloni misrepresented that the deposit had been paid while Angeloni asserts that his representation was a mistake. Simply by stating the conflicting positions, one can surmise that the issue was not ripe for summary judgment.

Waiver is the voluntary and intentional relinquishment of a known right. Knorr, supra, 178 N.J. at 177. The intent to waive may be established by factual circumstances. Ibid. The factual scenario giving rise to the judge's determination of waiver was inappropriate for summary judgment.

Paragraph 14(a) of the agreement provided that upon default plaintiff was entitled to the deposit as well as any carrying fees previously paid. By amendment, defendant paid monies to plaintiff and agreed to pay additional carrying fees computed at $5,000 per month. Defendant conceded that plaintiff was entitled to the monies previously paid but argues that plaintiff, again, waived its right to any additional carrying charges. In his decision, the motion judge never addressed this specific provision nor the liability of defendant for additional carrying fees up to the time of default. On remand, the judge shall determine that issue, and if facts are in dispute, that, too, shall be resolved at trial. We reach the same result regarding the tax obligation. The judge failed to address whether the obligation to pay realty taxes stood independent of the liquidated damage provision or was subsumed in Paragraph 14(a).

We reverse and remand for trial.

Reversed and remanded.

 

Neither party argues that the failure of the title company to execute the contract affected the validity or terms of the contract.

Although it claims the deposit that sum is not included in the $67,832.34.

(continued)

(continued)

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A-0139-09T3

 

May 24, 2010