MICHAEL ALBANESE v. RONALD S. GRANT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0112-04T30112-04T3

MICHAEL ALBANESE,

Plaintiff-Respondent,

v.

RONALD S. GRANT,

Defendant-Appellant.

_______________________________

 

Argued October 24, 2005 - Decided

Before Judges Alley and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, C-284-03.

Scott T. Tross argued the cause for appellant (Convery, Convery, and Shire, attorneys; Mr. Tross and Matthew S. Hawkins, on the brief).

John F. Wiley, Jr. argued the cause for respondent (John F. Wiley, attorney; Mr. Wiley and Frank T. Araps, of counsel; Mr. Wiley, on the brief).

PER CURIAM

This is an appeal by defendant, as seller, from an order filed July 19, 2004, granting specific performance to plaintiff, as buyer, of land purchase and option agreements between the parties. We affirm.

The background was this. On July 10, 2002, appellant and respondent entered into a contract for the sale of real estate of the front yard of 927 Beatrice Parkway, Edison, New Jersey. The contract, which described the lot as about 135 feet x 76 feet, set the purchase price at $150,000 and provided that the "closing date cannot be made final at this time. The Buyer and Seller agree to make 60 days after publication of subdivision approval the estimated date for the closing." Also, Paragraph 27, the Purchase Option Agreement, gave respondent a "Right of First Refusal to purchase subdivided lot #2 commonly known as rear lot of 927 Beatrice Pkwy. Including house and land approx. (135' x 76') for $150,000. An additional $10,000 bonus will be paid to Seller if option is exercised within One year of signing this agreement."

Paragraph 25 of the contract permitted attorney review:

Study by Attorney- The buyer or the seller may chose to have an attorney study this contract. If an attorney is consulted, the attorney must complete his or her review of the contract within a three-day period. This contract will be legally binding at the end of this three-day period unless an attorney for the buyer or the seller reviews and disapproves of the contract.

The next day, on July 11, 2002, respondent's attorney, Frank J. Martone, Esq. (Martone) sent a letter to appellant's attorney, John Wiley, Jr., Esq. (Wiley) to disapprove the contract. A week later, on July 18, 2002, Martone sent Wiley another letter specifically concerning paragraphs that "require[d] expansion and clarification in order to be acceptable to [his] client, Ronald Grant." Martone wrote:

(5) Paragraph 27 shall be revised as follows: Seller agrees to give the Buyer an Option to Purchase subdivided Lot #2, commonly known as the rear lot of 927 Beatrice Parkway, including the house and land (approximately 135' x 76') for $160,000.00 for one (1) year from the date of this contract. Buyer must exercise this option by giving written notice to the Seller and Seller's attorney and must complete the closing prior to one (1) year from the date of this contract. The sale of the property shall be "As-Is" subject only to the usual closing adjustments.

(6) Paragraph 28 shall be added as follows: 28. Right of First Refusal. Seller agrees to give Buyer a Right of First Refusal to purchase subdivided Lot #2 commonly known as the rear lot of 927 Beatrice Parkway, including the house and land (approximately 135' x 76') for one (1) year, commencing with the expiration of the Option to Purchase and expiring two (2) years from the date of this contract. The Right of First Refusal shall require the Seller to offer subdivided Lot #2 to the Buyer at the same price as the highest bona fide offer received by the Seller for the purchase of the property during the existence of the term of the Right of First Refusal. Buyer must complete the purchase pursuant to the Right of First Refusal within 120 days of the expiration of the Right of First Refusal or same shall be deemed to have expired. The sale shall be "As-Is," subject only the usual closing adjustments.

Moreover, Martone requested authorization to deposit Albanese's deposit check in his attorney trust account. The following day, July 19, 2002, Wiley confirmed the proposed changes were acceptable to Albanese. Wiley again confirmed the changes and authorized the deposit in a letter to Martone dated July 22, 2002.

Next, on July 29, 2002, Martone sent Wiley an addendum to the contract for Albanese to sign and return. On August 14, 2002, Wiley returned Albanese's executed addendum copies to Martone. On September 11, 2002, Wiley contacted Martone to request a copy of Grant's executed addendum, which he had not yet received.

Thus the contract, as modified by the addendum, provided among other things that

Albanese was to pay Grant $150,000 for the purchase of the rear lot, which adjoins the lot that contains Grant's personal residence.

Albanese and Grant agreed to close on Front Lot land sale within approximately sixty days after publication of subdivision approval.

Albanese was required to obtain subdivision approval from the Edison Township Planning Board within 150 days of the execution of the Contract.

All notices were to be in writing, delivered personally, or mailed by certified mail, return receipt requested, to the other party at the address in the contract, or to that party's attorney.

Albanese was granted an option to purchase the rear lot.

Then, on October 23, 2002, Wiley, on behalf of Albanese, submitted the following to the Edison Township Planning Board: the Minor Subdivision Application, the Variance Application, the Subdivision Plan, and the Minor Subdivision Checklist (the applications). Additionally, Wiley stated in the letter, "I have submitted the Certification of Taxes to the Tax Collector and asked that same be completed and forwarded directly to you [Lillian Triola of the Edison Township Planning Board.]"

The Edison Township Planning Board had provided Wiley with an "Information Sheet for Minor Subdivision Submittals" prior to the applications, which required "[c]ertification from the Township Tax Collector that no taxes or assessments for local improvements are due or delinquent on the property for which the subdivision application is made. No application will be deemed complete until this form is submitted." Wiley contacted Gary Farinich (Farinich), the Edison Township Tax Collector, to complete the Certification of Taxes and then to forward the certification to Lillian Triola. Farinich did not complete the certification because there were two open tax liens and sewer use fees outstanding, of which he informed Wiley.

After Wiley learned from Farinich that the certification was denied due to the arrearages, Wiley contacted Martone on November 8, 2002, to request that the outstanding taxes be paid in order to obtain the certification for the application process: "If these accounts are not brought current, [Albanese] will not be permitted to proceed with the subdivision application." On November 15, 2002, Wiley contacted the Tax Collector again to request the breakdown and total amount due for the outstanding fees on the property.

On December 13, 2002, a Township Planner granted the subdivision approval subject to several recommendations.

Next, Wiley contacted Martone on January 10, 2003, explaining that Grant owed over $23,000 in back taxes and that

[Albanese] is willing to advance payment for the taxes if he can [sic] be secured by a mortgage. I am enclosing a title search and I will need payoff statements from the time mortgages to insure there is enough equity. Please advise me whether or not your client is willing to accept this arrangement.

Martone informed Wiley on January 15, 2003, that Grant was securing funding to pay the taxes; on February 14, 2003, Martone advised Wiley that Grant was closing a line of credit on February 19, 2003.

On March 17, 2003, Martone then informed Wiley that, "Mr. Grant has reconsidered [Albanese's] offer to extend a loan to pay off the tax arrearage. Please let me know what terms [Albanese] requires for such a loan and I will review with Mr. Grant." The next day, Wiley contacted Martone via facsimile with the proposed Note and Mortgage to secure Albanese's payment of the arrearages "in order to go forward with the Planning Board meeting on Wednesday, March 19, 2003 . . . If we do not pay the tax lien prior to the meeting, we will be taken off the agenda and place[d] on the next available meeting." On March 19, 2003, Martone contacted Wiley with suggestions for the proposed mortgage note.

The note, however, became unnecessary because Wiley learned that

[a]pparently, Edison Township does not require payment of the taxes in order to be placed on a public meeting agenda. They do require payment of the taxes prior to the issuance of a building permit, which, at that point in time we will have closed on the property and the taxes will have been paid at the closing.

Wiley informed Martone of this development in a letter dated April 22, 2003.

On June 16, 2003, the Edison Township Planning Board granted the applications. The notice of resolution was published on June 25, 2003, and the closing was permitted to occur after a forty-five day appeal period expired, i.e., after August 11, 2003.

As indicated, Paragraph 27, as revised by paragraph 5 of the addendum, gave Albanese the option to purchase the rear lot. Wiley contacted Martone on behalf of Albanese on July 15, 2003, via facsimile, with Albanese's "wishes to exercise the option" and willingness to close both transactions simultaneously. In a letter dated September 15, 2003, Martone stated,

[Grant] will not comply with your request to schedule a closing on the "optioned" property. In your letter, you advised "at this time, [Albanese] wishes to exercise the option afforded to him in Paragraph #5 of the Contract Addendum." The Addendum did not revise the date of the contract, which was July 10, 2002. Paragraph 5 of the Addendum provided, "Buyer must exercise this option by giving written notice to the Seller and Seller's attorney and must complete the closing prior to one (1) year from the date of this contract." Pursuant to Paragraph 5 of the Addendum to Contract, your client's option expired July 10, 2003.

Pursuant to Paragraph #6 of the Addendum, paragraph #28 was added to the Contract. Pursuant to Paragraph #28, your client has a Right of First Refusal. This Right of First Refusal commenced on the expiration of the Option to Purchase on July 10, 2003. This Right will expire on July 10, 2004. Paragraph #28 further provided that if your client exercises the Right of First Refusal, he must complete the purchase within 120 days of the expiration of the Right of First Refusal, or it will be deemed to have expired.

On October 9, 2003, Wiley contacted Martone to schedule a time of the essence closing, which Martone rejected on October 14, 2003. Martone stated that Paragraph 12 of the contract made the contract contingent upon Albanese obtaining subdivision approval within 150 days of the contract date, so Albanese only had a right of first refusal.

Albanese then brought an action for specific performance. After a bench trial, Judge Messina ordered specific performance by Grant. In his oral decision on June 29, 2004, Judge Messina ruled in part that:

The letter of disapproval that Mr. Martone sent to Mr. Wiley [on July 11, 2002] terminated the original contract. On the 18th of July 2002, Mr. Martone wrote to Mr. Wiley and indicated what Mr. Grant's requirements were in order to go forward with the proposed real estate transaction.

Mr. Martone says after he lists all of the proposed changes, "If the foregoing changes are acceptable to the buyer, please advise me and I will prepare an addendum incorporating same for signature by our clients." So Mr. Martone on behalf of Mr. Grant is telling Mr. Wiley that there will be no binding contract until there is an addendum prepared for signature by the clients.

This is a condition with regard to the entering of a final contract that Mr. Grant's attorney imposed.

. . . .

Things were dragging and Mr. Wiley was wondering when he was going to get the addendum signed by Mr. Grant and there was a fax sent to Mr. Martone on September 11th and it seems relatively clear that when this fax was sent on the 11th of September 2002, Mr. Wiley had not as yet received an addendum signed by Mr. Grant.

Now, it's somewhat confusing because on September 17th, 2003, Mr. Wiley wrote . . . the final addendum was not signed until September 3rd, 2002 which is inconsistent with the fax of September 11th, 2002 when Mr. Wiley says he hadn't received the executed addendum yet.

I suspect that the September 3rd is a typo, but it really doesn't matter as far as the time or the exercise of the option is concerned. So on September 11th or very shortly thereafter, the addendum signed by Mr. Grant is returned. It is clear that the parties were not bound to any contract until all of the signatories had, in fact, signed.

. . . .

[T]he one-year time for the exercise of the option began to run in September 2002. It is clear that the delay from the 18th of July to early September was entirely the fault of Mr. Grant. So he can hardly complain that the time didn't begin to run sooner. The contract could have been finalized and completed as early as the 19th of July. I said the 18th before, it shouldn't be, the 19th. That's the date Mr. Wiley said everything was okay, we accept it.

. . . .

It is clear and all of the attorneys agree that a holder of an option to purchase real property must accept the offer by exercising the option in strict accordance with its terms and within the time that was designated. So the question that I have to fact and decide is whether or not there was the exercise of the option in strict accordance with his terms. And I have decided that there was.

Equity often softens the rigors of the law. The Court of equity sometimes must enquire into the circumstances which surround a transaction that is before the Court. And the chancellor must determine from all of the circumstances what is a fair interpretation of a contract in accordance with the intentions of the parties.

One must ask what was the purpose of the provision in the contract that required notification be given to the seller and the seller's attorney. The purpose clearly was so that both would know about it. It is also important when one considers whether or not an option was exercised properly to make a determination as to whether or not the party exercising the option was bound. And I think the intentions of the parties here were to be certain that the plaintiff, that is the party exercising the option, was in fact bound to purchase.

And second, to be certain the the [sic] defendant and his attorney had notice of the exercise of the option. And I think that those intentions of the parties were satisfied. The plaintiff was clearly bound to proceed with the purchase of the other lot and the owner and his attorney were notified of the exercise of the option. The deadline for notification was really much later and it is clear that both the lawyer, Mr. Martone, and the owner, Mr. Grant, knew about the exercise of the option within the time that it takes the mail to get to Mr. Grant from a mailing of July 16th.

Judge Messina's written order granting specific performance of the contract and option was entered on July 19, 2004.

We first consider Grant's contention that Judge Messina, in deciding to toll Albanese's time period to obtain subdivision approval from the Edison Township Planning Board, erred as a matter of law, and that the record does not support the Judge's waiver and estoppel findings. We disagree.

Preliminarily, we note that when an error in factfinding of a judge or administrative agency is alleged, the scope of appellate review is limited. We will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. We give "due regard" to the ability of the fact finder to judge credibility and, where an agency's expertise is a factor, to that expertise. State v. Locurto, 157 N.J. 463, 470-71 (1999); In re Taylor, 158 N.J. 644, 655 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

The guidelines for our review were set forth in Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974), where the court stated that the "[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." See New Jersey Turnpike Authority v. Sisselman, 106 N.J. Super. 358, 370 (App. Div. 1969), certif. den. 54 N.J. 565 (1969). Our function is limited: we will not "disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc., supra, 65 N.J. at 484; Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963). "[T]he appellate court therefore ponders whether, on the contrary, there is substantial evidence in support of the trial judge's findings and conclusions." Rova Farms Resort, Inc., supra, 65 N.J. at 484.

It is "improper" for us "to engage in an independent assessment of the evidence as if . . . [we] were the court of first instance." State v. Locurto, supra, 157 N.J. at 471. And where the trial court has made credibility determinations, even without specifically articulating detailed findings of credibility, where the reasons for its determination may be inferred from the record, we are not free to make our own credibility determination. Id., at 472-74.

Grant contends that the contract clearly required Albanese to obtain subdivision approval from the Edison Township Planning Board within 150 days of the contract's execution. He argues that it was clear error for Judge Messina to toll the 150-day period for five and a half months because Grant's property taxes were overdue. This contention is without merit.

Albanese, on the other hand, contends that Martone did not object to the expiration of the 150-day period but only to the exercise of the option. The attorneys simply "mentioned" the 150-day period to secure the subdivision after Wiley sent Martone a time of the essence letter.

Additionally, Albanese noted that the parties worked together from about October 2002 through April 2002 to resolve the tax certification issue with the Tax Collector in order to obtain subdivision approval. In fact, the 150-day period expired during this time frame while the parties attempted to secure financing for the arrearages "but neither party raised a concern about it."

Judge Messina found,

A contract is made at the time when the last act necessary for its formation is completed. And the date that this contract was completed and the top at the date from which time began to run was probably September 11[, 2000], September the 3[, 2000] at the earliest if [Wiley's September 17, 2003 letter is] to be believed. But as I said, I think that that date was probably a typo.

Between November 8, 2002, and April 22, 2003, the trial court found the delay to obtain subdivision approval was "caused solely by the owner and was beyond the control of the purchaser." In particular, Judge Messina found that Albanese had no reason to expect Grant would have a problem with unpaid taxes, which was "entirely the fault" of Grant. Accordingly, the Judge declared that Grant was estopped from including November 8, 2002 to April 22, 2003 in the 150-day time period to obtain subdivision approval.

Appellant relies upon Dunkin' Donuts of America, Inc., v. Middletown Donut Corp., 100 N.J. 166, 182 (1985), where the Supreme Court examined whether it was within the trial court's authority as a court of equity to fashion its own equitable remedy to replace "disproportionately harsh" legal remedies set forth in a franchise agreement. Id. at 173.

In Dunkin' Donuts, a franchisee was found "'guilty of unconscionable cheating,'" and the franchise agreement provided the franchise be terminated, the franchisee's rights shall cease, and the franchisee must pay damages. Id. at 173. Instead of complying with the franchise agreement, the trial court created its own remedy on the basis of equitable considerations. Ibid. The Supreme Court found there was "no support in equitable principles for the imaginative relief that [the trial court] fashioned. Moreover, the remedy clearly flies in the face of the common-law rules of franchising, and runs counter to the thrust of modern franchising statutes as well." Dunkin' Donuts of America, Inc., supra, 100 N.J. at 175.

Thus, in Dunkin' Donuts, there was a clear breach of contract and a mutually agreed upon remedy for such breach; the trial court did not need to fashion equitable remedies because New Jersey had statutory franchise protection, and "encouraging [equitable relief] would offend not only sound policy but common sense as well." Id. at 180.

While Grant suggests that we "[s]ee Metropolitan Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir. 1990) (vacating order tolling cure periods set forth in the parties' agreements)," this Second Circuit opinion is not controlling and is readily distinguishable. There, the parties had expressly bargained for and mutually assented upon a cure provision in an indenture. Metro. Life Ins. Co., supra, 906 F.2d 884, 890 (1990). The court held that no body of law authorized the court to toll the running of the cure period in indentures because there was "no indication that the state courts of New York have granted stays tolling cure-period type provisions except in landlord-tenant matters," whereas that case involved a leveraged buy-out. Ibid. Furthermore, there was no conduct on the part of either party to support an equity court's decision to toll, as there was in the instant matter.

As Albanese notes, the 150-day period expired when counsel worked together to arrange financing for the tax payment, but neither party raised a concern about the expiration. Albanese relies upon First Nat'l Bank v. Northup, 21 N.J. Super. 71, 76 (Ch. Div. 1952) to argue that "[e]quity will always look behind the form to determine the substance of an arrangement."

We agree with Albanese's contention in this respect. Kerney v. Johnson, 104 N.J. Eq. 244 (E. & A. 1929) is directly applicable to this case. In that case, a buyer failed to perform in a contract for the sale of real estate where time was of the essence. Id. at 245. Notably, the court stated:

It is true that the contract provides in a printed clause that time shall be of the essence of the contract; but, as the learned vice-chancellor very properly held, such a statement is not conclusive where it appears from the evidence and the conduct of the parties that they did not in fact so treat the contract, and did not in fact consider that time should be of the essence of the contract, but in reality waived by their own conduct that defense which they now urge as a barrier to recovery in the case. In such an eventuality, where the parties themselves have practically construed their own contract, such a clause does not control the situation, but the circumstances and the equities of the case as defined by the conduct of the parties present the best interpretation as to the meaning of such a clause; for concededly, under the settled construction of the law upon this subject, the acts of the parties in dealing with the subject-matter of their contract afford the best indication of their intention either to execute it or to annul it.

[Kerney, supra, 104 N.J. Eq. at 246 (emphasis added).]

The court granted specific performance of the contract for the sale of the real estate. Kerney, supra, 104 N.J. Eq. at 247.

The reasoning in Kerney supports the result reached by Judge Messina. The land contract in question contained a provision for subdivision approval within 150 days of execution. The parties did not anticipate the tax arrearage problem, which Edison Township required to be cleared before approval was granted. As Judge Messina declared, Albanese had no reason to expect Grant would have unpaid taxes on the property, which was "entirely the fault of the owner."

Additionally, counsel for both parties worked together to obtain financing for the arrearages, during which time the 150-day time period expired. Thus, that 150-day provision is "not conclusive [because] it appears from the evidence and the conduct of the parties that they did not in fact so treat the contract . . . but in reality waived by their own conduct that defense which they now urge as a barrier to recovery in the case." Kerney, supra, 104 N.J. Eq. at 246. As Judge Messina found, Grant caused the delay due to the arrearages, so he is "estopped to claim that the time period from the 8th of November 2002 to April 22nd, 2003 is to be added to the time it took to obtain subdivision approval. Certainly, the running of the time must be tolled for that period."

We thus reject Grant's argument that Judge Messina was without the authority to toll the 150-day provision. There is sufficient, substantial, and credible evidence in the record, as illustrated by the negotiations between counsel to obtain financing, that the time period should have been tolled due to waiver and estoppel.

We further conclude that Grant's assertion that Judge Messina erred in ruling that Grant had waived his right to terminate the contract due to Albanese's failure to procure subdivision approval within the 150-day deadline also lacks merit.

Appellant acknowledges that a letter from Martone to Grant dated July 2, 2003, "certainly suggests that he was willing to close on the Front Lot in August 2003, [although] there is no indication whatsoever that Grant (as opposed to his attorney) was willing to overlook Albanese's failure to timely obtain subdivision approval or that Grant received any consideration for relinquishing contract rights."

Without applying the facts to the present case, Grant cites County of Morris v. Fauver, 153 N.J. 80, 104-05 (1998) (quoting West Jersey Title & Guar. Co. v. Industrial Trust Co., 27 N.J. 144, 152-53 (1958)), to define waiver as "'the intentional relinquishment of a known right'" that "'presupposes a full knowledge of the right and an intentional surrender.'" The facts of that case, however, are considerably at variance from the facts at hand. In County of Morris, supra, 153 N.J. at 87, at issue was the per diem reimbursement rate the State owed to the County of Morris according to a contract for housing state prisoners in the county's facilities. The Supreme Court found there was "no showing that the County voluntarily and knowingly waived its right to complete payment under the terms of the contract." County of Morris, supra, 153 N.J. at 104-05. Here, by way of contrast, there is substantial evidence to support a finding that Grant voluntarily and knowingly waived his right to terminate the contract.

Appellant cites, also without supporting analysis, Allstate Insur. Co. v. Howard Sav. Institution, 127 N.J. Super. 479, 488 (Ch. Div. 1974), for the proposition that even where a contractual right is intentionally relinquished, there must be consideration. Specifically, though, the court stated:

[e]ven where an "intentional relinquishment" has occurred we are cautioned that this is not, by doctrinal standards, necessarily effective.

A contract right or other chose in action, as a rule, can no more be relinquished than created without consideration or a sealed instrument. A release or an accord and satisfaction is the ordinary way by which contractual rights are effectively relinquished. [5 Williston on Contracts 3d. ed. 1961), 678 at 240].

Albanese contends that Grant's counsel never asserted the right to cancel the contract. For example, in an October 14, 2003 letter to Wiley, Martone writes that "[Grant] is willing to proceed to sale at this time of the front lot only to [Albanese]." In this letter disputing time of the essence, Martone never invoked Grant's right to terminate. Thus, as Judge Messina found, Grant waived his right to terminate the contract. In particular, the Judge relied upon a July 2, 2003 letter from Martone to Wiley, which asked, "[I]f we can now anticipate a closing mid August?"

Furthermore, Judge Messina explained that even if Grant did not knowingly relinquish his right to terminate the contract, which appellant argues only Grant and not Martone could waive, "then certainly principles of equitable estoppel would be applicable."

We agree. The argument that Martone could not waive the right on behalf of Grant is without merit. As already indicated, Martone wrote Wiley stating "our client [Grant] is willing to proceed to sale at this time . . . ." Martone was acting at Grant's direction. There is, moreover, sufficient evidence to support Judge Messina's finding that Grant knowingly waived his right to terminate the contract. The July 2, 2003 letter from Martone to Wiley anticipates a mid-August closing; the October 14, 2003 closing indicates Grant's willingness to close on the rear lot.

Moreover, Ridge Chevrolet-Oldsmobile, Inc. v. Scarano, 238 N.J. Super. 149 (App. Div. 1990) is instructive. In that case, the parties entered into a contract on June 24, 1986 for the sale of land, which was contingent upon the buyer obtaining site plan approval, wetland approval, and required variances to build an automobile dealership. Id. at 152. These approvals were required by January 1, 1987 or the seller had the option to terminate the contract or extend the deadline for said approvals. Ibid. The buyer did not obtain these approvals by the deadline. Id. at 153. The trial court found that the seller waived the right to terminate the contract because of his inaction on January 1, 1987 and his authorization to the seller to appear at a town meeting for the approvals on June 24, 1987. Ibid.

We determined on appeal in Ridge that the trial court's findings were supported by adequate substantial and credible evidence according to the Rova Farms Resort, supra, standard. We approved the trial court's reasoning on the issue of equitable estoppel:

[T]he Court finds that Defendant by his actions and behavior implied a continuing contractual relationship without any indication of dissatisfaction, concerns or possible breach by Plaintiff until after approximately one year into the contract. Due to Plaintiff's reliance upon Defendant's conduct of silence and alluding acceptance, Plaintiff expended funds in excess of $30,000 to employ experts, legal witnesses and procure architectural and engineering analysis in order to obtain site plan approval and variances. Such reliance by a party who in good faith was led to change his position to his detriment is entitled, through the equity power of this Court, to estop the inducing party from asserting rights which otherwise may have existed.

[Id. at 154 (citing Carlsen v. Masters, Mates and Pilots Pension Plan Trust, 80 N.J. 334, 339 (1979).]

Here, Grant continued his contractual relationship with Albanese, through Martone to Wiley, because he expressed his interest in closing the transaction in July and then in October. In the October 14, 2003 letter, Martone only stated that

[Albanese] seems to be under the impression that he can pick and choose which of the various provisions of the contract that he will observe, and which that he can ignore with impunity. Paragraph 12 of the contract made the contract contingent upon your client obtaining subdivision within 150 days of the date of the contract.

The Edison Township Planning Board granted approval on June 16, 2003. It was not until this letter that Grant or Martone had expressed any inkling of dissatisfaction with the failure to comply with the 150-day provision.

As in Ridge, here Albanese could reasonably have relied upon Grant's silence, and Grant is estopped from asserting the supposed deadline. Furthermore, it was legally sufficient for Albanese to rely upon Grant's inaction, silence, omission, or representations in regard to the right to terminate. Ridge, 238 N.J. Super. at 154 (citing Fairken Assoc. v. Hutchin, 233 N.J. Super. 274, 280 (App. Div. 1987)).

Grant admits that the July 2, 2003 letter "certainly suggests" that he was willing to close in August 2003. The October 14, 2003 letter may acknowledge that Albanese did not obtain approval within the 150-day time period, but (1) Judge Messina was correct in tolling that period; and (2) Grant, by acknowledging Albanese's failure to obtain timely approval but choosing not to terminate the contract, knowingly and voluntarily waived his right to do so. Sufficient evidence on the record supports these conclusions.

In contending that he was not estopped from asserting the deadline, Grant offers contentions that overlap somewhat with those already made. In particular, he focuses on Judge Messina's oral statement that "[i]f waiver doesn't apply because there was not a knowing relinquishment of a right, then certainly principles of estoppel would be applicable to stop Mr. Grant from invoking this provision in the contract to terminate it."

The four elements of promissory estoppel are:

(1) a clear and definite promise by the promisor; (2) the promise must be made with the expectation that the promisee will rely thereon; (3) the promise must in fact reasonably rely on the promise; and (4) detriment of a definite and substantial nature must be incurred in reliance on the promise.

[Malaker Corp. Stockholders Protection Comm. v. First Jersey Nat'l Bank, 163 N.J. Super. 463, 479 (App. Div. 1978), certif. denied, 79 N.J. 488 (1979).]

Grant argues that Judge Messina's ruling was "erroneous" because neither promissory nor equitable estoppel applies. Grant argues that promissory estoppel does not apply because he never promised Albanese "anything," which we assume means a promise not to terminate the contract. Indeed, the record does not support a showing that Grant explicitly made such a promise to Albanese. Consequently, we agree with appellant that promissory estoppel is inapplicable,

In our view, however, equitable estoppel applies. Equitable estoppel is quite similar to promissory estoppel because a detrimental change in position based on reasonable reliance is required; however, the party asserting equitable estoppel does not need to prove an affirmative promise, but can rely upon conduct, inaction, representations, misrepresentations, silence, or omission. Fairken, supra, 223 N.J. Super. at 280 (citation omitted).

There is sufficient evidence in the record that respondent reasonably could have relied upon appellant's conduct throughout July to October and expect the closing would occur and the contract would not be terminated. Grant fails to acknowledge this conduct in submitting that "there has been no showing that Grant ever led Albanese to believe that he was waiving the 150-day deadline."

Grant also contends that "Albanese and [Wiley] were obviously aware of the deadline. If they wanted to protect themselves against Grant's invocation of that deadline, they could have and should have amended the Contract to extend that deadline." This contention fails, however, to recognize that Albanese and Wiley were reasonably relying upon Martone's statements in the July and October letters that anticipated a closing date.

Thus, we conclude that Judge Messina did not err in deciding to apply equitable estoppel to Grant's right to terminate the contract.

We also reject Grant's contention that Albanese failed to exercise the option to purchase the rear lot in accordance with the terms of the contract.

According to Paragraph 5 of the Addendum, Albanese, as the buyer, had to give written notice to appellant, as the seller, and to Martone as seller's attorney, in order to exercise the option. What occurred is that on July 15, 2003, Wiley sent a fax to Martone telling him that Albanese wished to exercise the option to buy the rear lot.

Grant invokes, among other cases, Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Center Associates, 182 N.J. 210 (2005), relying on that case for the well-settled proposition that an "optionee's failure to exercise an option in the time and manner required by the contract" renders the "option right null and void." Although the Court in Brunswick Hills found equitable principles did not apply, it relied upon the covenant of good faith and fair dealing to grant the tenant specific performance. Id. at 232-32.

In our view, the record supports the conclusion that there was no ambiguity in the way the option was exercised. We must examine the totality of the circumstances to fairly interpret a contract in accordance with the parties' intention. Schenck v. HJI Associates, 295 N.J. Super. 445, 451 (App. Div. 1996). A contract "must be interpreted considering the surrounding circumstances and relationships of the parties, at the time it was entered into, to understand their intent and to give effect to the nature of the agreement as expressed on the written page." Id. at 450-51.

The trial court inquired about the circumstances surrounding the contract to interpret fairly its terms and give effect to the parties' intentions. Judge Messina found that "the purpose of the provision in the contract that required notification be given to the seller and the seller's attorney . . . clearly was so that both would know about it."

Although Albanese only notified Martone, not Grant as well as Martone, this is a much less significant deviation than in Brunswick Hills Racquet Club, Inc., where the plaintiff failed to make the requisite payment before the option expired. Brunswick Hills Racquet Club, supra, 182 N.J. at 223. There is sufficient evidence to show that Grant knew Albanese wished to exercise the option.

Judge Messina acknowledged that

[i]t would have been better, obviously, if Mr. Wiley had sent [the notice to Grant] and that would have cleared up the issue so that there would be no question.

Equity regards substance rather than form in order to achieve a just result and to effectuate the intention of the parties. With regard to the exercise of the option here, the intention of the parties was effectuated given the totality of circumstances of the case.

After Wiley notified Martone only via fax on July 15, 2003, that Albanese wished to exercise the option, Jane Striano (Striano), a paralegal at Martone's office, on July 16, 2003, mailed Grant a copy of Wiley's letter and a cover letter stating, "Enclosed please find a letter from the attorney for the buyer with regard to exercising a contractual option, please call our office to discuss, once you have reviewed same." Striano testified that Grant responded to that letter by telephone message, and she then left him a telephone message on August 11, 2003 to inquire about a closing date.

On September 15, 2003, Martone wrote Wiley a letter informing him that "[Grant] will not comply with your request to schedule a closing on the 'optioned' property." Martone stated that the addendum did not change the contract's July 10, 2002 execution and quoted the contract language about exercising the option by giving seller and seller's attorney notice within one year from the date of the contract. Martone did not object to Wiley's failure to give notice to Grant specifically as well, as he did about the date of the contract. Of course, "equity aids the vigilant, not those who sleep on their rights." Brick Plaza, Inc. v. Humble Oil & Refining Co., 218 N.J. Super. 101, 104 (App. Div. 1987).

Furthermore, Martone's office, for whatever reason, tape-recorded a phone call that his assistant, Jana, left for Grant, on November 17, 2003:

Ronald it is Jana, Frank Martone's office. I know that Frank left you several messages and I know that you did speak with Jackie in our office a while ago, and this is with regard to the property on Beatrice Parkway in Edison. The reason that Frank has been trying to get a hold of you is because you will recall that in your conversation with Jackie we had gotten a letter from Wiley's office exercising their right of refusal on the lot of 160. You told them you didn't want to accept that.

It is beyond legitimate dispute that the record contained sufficient evidence to support a finding that, although Grant was not literally notified as the contract set forth, he knew Albanese wished to exercise the option, which is a fair interpretation of the parties' intent for this term.

In addition, the instant facts are readily distinguishable from those in another case relied on by Grant. There, the plaintiff had exercised his option five-and-a-half months too late, which he blamed on an "honest mistake." Brick Plaza, Inc., supra, 218 N.J. Super. at 102. Here, however, Wiley notified Martone on July 15, 2003, that Albanese wished to exercise the option. Although the contract was signed on July 10, 2002, providing for a one-year option, the addendum was not executed until early September 2002, which Judge Messina declared as the contract date. Consequently, the option was timely exercised. It is not in the order of an egregious, five-and-a-half month delay, as occurred in Brick Plaza, Inc.

In Denesevich v. Moran, 211 N.J. Super. 554 (App. Div. 1986), we found that the seller's notice to the broker only, and not to the buyer too as the contract dictated, was insufficient. Denesevich, 211 N.J. Super. at 556-57. We looked, however, to common sense to explain that the broker's interest in the real estate transaction was "significantly different" than the buyer's interest, so it was illogical to notify only the broker. Id. at 557. Here, common sense shows that the contract provision was intended to ensure that Grant had notice that Albanese wished to exercise the option, and the record reflects sufficient, credible evidence to show that Grant knew Albanese wished to exercise the option.

Grant cites no persuasive authority to support his proposition that the failure to send the notice according to the contract term nullifies the option. And while he contends that "[n]otice by Albanese's attorney that Albanese wished to exercise the option was ineffective unless also accompanied by proof of authority," we are satisfied that the trial court legitimately could infer that the purpose of the buyer specifically exercising the option was to ensure that the buyer intended to be bound. Judge Messina found that it is certainly important to consider whether the option holder intended to be bound, and he concluded that "the intentions of the parties here were to be certain that the plaintiff . . . was in fact bound to purchase."

On September 17, 2003, Wiley even informed Martone the contract was not finalized on July 10, 2002, and that Albanese was prepared to institute an action for specific performance to enforce the contract. Grant's refusal to close on the optioned house lot was the reason the term was not strictly adhered to; Albanese notified Grant two months prior to the option's expiration with his wish to close and inquiry about a closing date.

 
In short, appellant's contentions lack merit, and we affirm the order appealed from.

Notably, on September 17, 2003, Wiley sent Martone a letter stating Martone "disapproved the contract on July 11, 2002, and [the] final addendum was not signed until September 3, 2002." Judge Messina, during his oral opinion, noted that he suspected the September 3 date was a typo, but it did not matter in regard to the exercise of the option.

The facsimile indicates the request was sent by "regular mail" also.

That order was amended to correct the docket number on July 20, 2004.

Trial judges, like administrative agencies, must make fact findings that are sufficiently clear and complete to permit review. Matter of Vey, 124 N.J. 534, 544 (1991); Matter of Issuance of a Permit, 120 N.J. 164, 173 (1990). Otherwise, we may remand to the trial court for completion of fact finding. Id. If the findings are bad enough and the record sparse, we may order a whole new trial. Hewitt v. Hollahan, 56 N.J. Super. 372, 382-84 (App. Div. 1959).

Notably, Judge Messina found Ms. Striano to be a credible witness, as well as Albanese, Wiley, and Martone. But, he

found Mr. Grant to be evasive, uncertain, and equivocal in the testimony that he provided. He seemed to change his testimony from time to time and I often did not believe him where there was a conflict in the testimony of Mr. Albanese, Mr. Wiley, Mr. Martone and Ms. Striano on the one hand and Mr. Grant on the other; I believe Mr. Albanese, Wiley, Martone and Ms. Striano.

"[T]here is still no contract because Mr. Martone has requested and made as a condition of a final binding contract the preparation for signature by the parties."

(continued)

(continued)

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A-0112-04T3

November 21, 2005