KARIM LAHLOU KASSI v. PINNACLE HOLMDEL DEVELOPERS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6637-05T36637-05T3

KARIM LAHLOU KASSI,

Plaintiff-Appellant/

Cross-Respondent,

vs.

PINNACLE HOLMDEL DEVELOPERS,

INC.,

Defendant-Respondent/

Cross-Appellant.

________________________________________

 
Telephonically Argued September 12, 2007 - Decided

Before Judges Sapp-Peterson and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County,

L-607-05.

Anthony Fazioli argued the cause for appellant/cross-respondent (Slavin & Morse, attorneys; Glenn C. Slavin, on the brief).

David M. Hutt argued the cause for respondent/cross-appellant (Hutt & Shimanowitz, attorneys; Mr. Hutt, of counsel and on the brief; Jonathan G. Burnham, on the brief).

PER CURIAM

This is an appeal and cross-appeal of orders of the Law Division granting partial summary judgment to defendant, Pinnacle Holmdel Developers, Inc., the builder of plaintiff, Karim Lahlou Kassi's home. The court dismissed all of plaintiff's claims except those related to certain bathroom fixtures, hardwood flooring and a front door. In addition, the court denied defendant's motion for litigation costs pursuant to Rule 4:58. We affirm the entry of both orders.

The salient facts, as derived from the record and viewed in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), disclose that plaintiff entered into a contract with defendant for the construction and purchase of a single-family "spec" residence, the Lexington model, located in a development known as the Gables in Holmdel Township. The $880,000 purchase price offered standard features by the builder, which included a "set of standard floor coverings," specifically, hardwood flooring in the foyer, dining room, living room, front staircase and kitchen. The purchase price also included $61,000 in additional options selected by plaintiff. Those selections included hardwood flooring in the library, upper hall and kitchen staircase. At no additional cost, defendant agreed to install brass towel and toilet paper holders in the master bath and second bath, as well as chrome towel and toilet paper holders in the main bath. Further, under the contract, defendant agreed to "use reasonable efforts to maintain any existing trees or vegetation within the cleared area of the property." Defendant did not warrant the condition of any existing trees, but agreed to remove dead trees within the cleared area, "if the trees [were] dead at the time of closing."

Finally, in advance of closing, plaintiff purchased a gas range. Defendant did not want to take responsibility for storing it prior to installation. Thus, the parties entered into a separate agreement related solely to the gas range. The agreement provided the following:

Purchaser[] MR KASSI LAHLOU at the Gables at Holmdel, Lot #38, Address: 1 Maple Leaf Drive in Holmdel, NJ 07733, wish[es] to provide and have Appliances installed prior to closing on the aforementioned home.

Purchaser understands that they are installing these Appliances at their own risk and Pinnacle Holmdel Developers, L.L.C. cannot be held responsible for any resulting theft and/or resulting damage to the Appliance. In addition, the Purchaser is responsible for any damages to the home that may result from the delivery into the home of these Appliances.

Handwritten below this text but before the signature lines was the following text written by plaintiff: "As per contract, the 36" Thermador gas range is installed by you in order to obtain the [Certificate of Occupancy] C.O." This agreement was signed by plaintiff and Brant Reynolds (Reynolds), the Project Director for defendant. The gas range was delivered in late November 2001. Defendant did not install the range at that time but instead stored it in the garage while construction continued.

At some point during the fall of 2001, plaintiff was informed that installation of hardwood flooring for the kitchen staircase and in the upper hall would violate the BOCA Code. In a letter to plaintiff's attorney dated November 20, 2001, plaintiff's counsel was advised that plaintiff would receive a credit for this option request.

On January 2, 2002, plaintiff completed a walk-through of the home which resulted in a "pre-closing punch list" itemizing aspects of the construction that were incomplete or unsatisfactory. Plaintiff claims that during this walk-through, he mentioned the absence of hardwood flooring for the kitchen stairway. That concern, however, was not reflected on the punch list that Reynolds prepared and plaintiff signed.

Closing occurred on January 11, 2002. Five days later, plaintiff's spouse reported the theft of the gas range from the garage to local police, advising that the range had been observed at the property as recently as two weeks earlier during the walk-through, but was missing when she and plaintiff arrived at the residence for the closing.

On March 6, 2002, defendant forwarded to plaintiff two checks, one for $1,254 and one for $313, representing the refund of plaintiff's deposit for the hardwood flooring. Plaintiff, however, returned the checks. By letter dated March 21, 2002, defendant responded, explaining that,

[t]he installation of the hardwood is not possible as previously explained to you because both the front and rear staircases are set to meet flush with the upper hall to accommodate carpeting. It would be a code violation to modify the stairs to have a difference in riser height of the required 3/4" for the hardwood. Your suggestion of raising the treads for the last 3 to 5 stairs is not feasible in your home since both staircases have oak treads and are not carpeted. If they were fully carpeted, we could raise the last 4 or more treads to make up the 3/4" needed.

In order to bring closure to this issue, you should accept these checks and select a carpet selection for the upper hall. . . . If you choose not to make a carpet selection for the upper hall, we will forward you an additional check for $425 representing the standard carpet credit.

Because the outstanding issues between the parties remained unresolved, in accordance with the contract, plaintiff commenced arbitration proceedings. On May 30, 2003, the arbitrator issued a decision awarding plaintiff relief on some of his claims. The award, however, did not include resolution of plaintiff's claims related to hardwood flooring for the kitchen stairs and upper hallway, and installation of the towel and toilet paper holders. As to these items, the arbitrator determined that they were not covered because they were "contractual and not warranted."

In February 2005, plaintiff filed a two-count complaint against defendant alleging breach of contract and negligence. In the first count, plaintiff alleged that defendant failed to install (1) hardwood flooring in the kitchen staircase and upper hallway; (2) towel holders and toilet paper holders in the shared bathroom, the bathroom of bedroom number four and the first floor bathroom; (3) brass towel and toilet paper holders in the powder room; (4) a tub in the master bathroom free of defects; and (5) failed to plant certain trees and evergreens on the subject property. In the second count, plaintiff alleged that defendant failed to install the gas range that was stolen while still under defendant's control.

On June 8, 2006, defendant served plaintiff with a $10,000 settlement offer. Plaintiff rejected this offer. On June 23, 2006, defendant moved for summary judgment.

Defendant argued that summary judgment should be granted because plaintiff's remedy under the contract for its failure to install the hardwood flooring in the upper hall and kitchen staircase was limited to the return of his deposit. Likewise, defendant argued that plaintiff executed a written agreement in which he agreed to assume the risk of theft of the gas range pending installation. Next, as to plaintiff's claim related to landscaping, defendant argued that contrary to plaintiff's contention, the contract did not call for planting of certain trees and evergreens and that its only obligation under the contract was to "use reasonable efforts to maintain existing trees or vegetation within the cleared area of the property." Lastly, defendant agreed to reimburse plaintiff for its failure to install the towel and toilet paper holders and, for purposes of the motion only, also agreed to reimburse plaintiff for a new front door, the cost of which plaintiff estimated to be approximately $3,944.08.

Plaintiff filed opposition to the motion, arguing that there were genuinely disputed issues of fact that required resolution by a jury. Specifically, plaintiff argued that defendant, prior to closing, was made aware, both orally and in the punch list prepared by its representative, of the outstanding items that were to be completed prior to closing, but nonetheless failed to remedy the deficiencies. Plaintiff contended defendant failed to work promptly to install the gas range, resulting in its theft. Additionally, plaintiff urged that he bargained for the planting of certain trees and evergreens in the contract, which defendant never planted.

Defendant requested oral argument but the court decided the motion on the papers. The court granted summary judgment dismissing plaintiff's complaint but ordered defendant to pay plaintiff $6,015.35, representing reimbursement for towel holders and toilet paper holders ($504.27), the front door ($3,944.08), and return of the hardwood flooring deposit ($1,567). In a written statement of reasons granting summary judgment, the motion judge found,

A. Hardwood Flooring

. . . .

[T]he Contract of Sale governs the responsibility of the Developer/Seller in regards to extras and denotes that the Developer/Seller is only responsible for the credit extended by the Buyer if such extras cannot be made. Buyer offers absolutely no argument to the Court for a reason why the Cou[rt] should not follow the terms of the Contract of Sale.

. . . .

C. Gas Range

In Count Two of the Complaint, Buyer seeks damages for the theft of a Thermodor 36" professional gas range, valued at $3,500. Developer argues that the hold harmless agreement prevents the Buyer from succeeding in his claim with regards to the range. The agreement states:

Purchaser understands that they are installing these Appliances at their own risk and Pinnacle Holmdel Developers, LLC cannot be held responsible for any resulting theft and/or resulting damage to the Appliance. In addition, the Purchaser is responsible for any damages to the home that may result from the delivery into the home of these Appliances.

[hand written] [sic] As per contract, the 36" Thermodor gas range is installed by you in order to obtain the C.O.

The agreement was signed by the Buyer on November 21, 2001. Buyer argues that "the fact still exists that defendants did not work promptly to have the gas range installed and delayed the installation unreasonably."

However, the Buyer offers no legal argument to support this statement. All the court has before it is a contract between the parties that states that the Buyer wishes to have appliances installed prior to closing and that such is at their own risk. The contract specifically states that the Developer cannot be held responsible for ANY resulting theft. The contract says nothing about the amount of time it takes to install. Buyer agreed to assume the risk of theft when signing the agreement.

. . . .

E. Trees

Buyer argues that it bargained for certain trees and evergreens that it did not receive. Buyer states that these were in the contract of sale, but cites no specific paragraph in the contract of sale. Developer states that it only was responsible for clearing dead trees. The portion labeled "Landscaping and Trees" in the contract of sale reads:

Seller will use reasonable efforts to maintain any existing trees or vegetation within the cleared area of the property. Seller does not represent or guarantee to Buyer that any of the trees or vegetation located on the property are healthy and will live. Seller will only be responsible for removing trees which subsequently die within the cleared area, if the trees are dead at the time of closing[.]

Additionally, in the Rider to the Contract labeled "Buyer's Options," Section 24 dealing with landscaping states that it is "standard" and makes no mention of trees.

This court was presented with no evidence that an agreement to plant additional trees existed other than the Buyer stating it did in [its] brief. The Court GRANTS defendant's motion for summary judgment as to the trees issue.

Subsequent to the entry of the order dismissing plaintiff's complaint, defendant filed a motion seeking reimbursement for litigation costs pursuant to Rule 4:58-3. The motion judge denied the motion, reasoning in his statement of reasons appended to the order,

This Court has considered the applicability of the Offer of Judgment Rule and interpreted it to mean that an offer of settlement does not expire by the terms of R. 4:58-1 until 10 days prior to trial or 90 days after the offer is made, whichever period first expires. Therefore, since no trial date was set in this matter and fewer than 90 days had passed since the date the offer was made by Defendant, Pinnacle, and the entry of the summary judgment award, the offer had not expired, and the consequences of R. 4:58-2 do not attach. When summary judgment was entered, Plaintiff, Kassi, was precluded from accepting the prior offer within the timeframe required by R. 4:58-1. For these reasons, this Court DENIES Defendant, Pinnacle's, motion to compel costs and fees.

The present appeal and cross-appeal followed.

Plaintiff contends that granting defendant's motion was against the weight of the evidence and that the decision was reached without affording plaintiff an opportunity for oral argument. In addition, plaintiff contends the issues regarding the hardwood flooring, gas range and trees were not one-sided but instead raised genuinely disputed issues that required a jury trial. In its cross-appeal, defendant argues that the Offer of Judgment rule does not require that litigation be resolved by way of trial as a condition precedent to invoking the rule.

We reject the arguments advanced on both the appeal and cross-appeal and affirm the July 21, 2006 and September 8, 2006 orders substantially for the reasons set forth in Judge Waldman's written statement of reasons attached to each order. We add the following comments:

Rule 1:6-2(d) provides in pertinent part that "no motion shall be listed for oral argument unless a party requests oral argument in the moving papers[.]" Further, unless the motion involves pretrial discovery or the calendar, "the request shall be granted as of right." The clear mandate of Rule 1:6-2(d) is that a party's request for oral argument on a motion seeking dispositive relief should be granted as of right. See Raspantini v. Arocho, 364 N.J. Super. 528, 531 (App. Div. 2003). "While a request for oral argument respecting a substantive motion may be denied, see Great Atl. and Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 497-98 (App. Div. 2000); Spina Asphalt Paving v. Fairview, 304 N.J. Super. 425, 427 n.1 (App. Div. 1997); cf. Cobra Prods., Inc. v. Fed. Ins. Co., 317 N.J. Super. 392, 396 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999), the reason for the denial of the request, in that circumstance, should itself be set forth on the record." Raspantini, supra, 364 N.J. Super. at 531-32.

Here, defendant sought oral argument in support of its motion for summary judgment. Although plaintiff did not formally request oral argument, plaintiff was entitled to rely upon defendant's request. See Vellucci v. DiMella, 338 N.J. Super. 345, 347 (App. Div. 2001). Consequently, oral argument should have been entertained, and the court's decision to dispose of the motion on the papers should have been set forth on the record. Raspantini v. Aropcho, 364 N.J. Super. 528, 531 (App. Div. 2003).

During the telephonic oral argument of the appeal, both sides acknowledged that in advance of the return date of the motion, the judge's law clerk notified counsel that the matter would proceed on the papers. Neither side objected. While we are of the view that the court mistakenly exercised its discretion when it decided the motion on the papers after oral argument had been requested, we are convinced the court reached the proper result, and oral argument would not have altered the outcome. See Triffin v. American Intern. Group, Inc., 372 N.J. Super. 517, 524 (App. Div. 2004). Consequently, the court's failure to entertain oral argument "is insufficient to require our intervention." Ibid.

In its cross-appeal, defendant urges that nothing in the Offer of Judgment rule requires that litigation be resolved by way of trial in order for the rule to apply. Judge Waldman's decision was not that there had to be a trial. Rather, the court focused upon the fact that under Rule 4:58-1, the time period during which plaintiff was required to accept the offer had not expired.

Rule 4:58-1(b) provides, "If the offer is not accepted on or prior to the 10th day before the actual trial date or within 90 days of its service, whichever period first expires, it shall be deemed withdrawn[.]" (Emphasis added). Here, neither event that would have triggered application of the rule occurred. Thus, the court properly denied defendant's claim for counsel fees and litigation costs.

 
Affirmed.

The order dated July 21, 2007 states "partial summary judgment." However, the reference to "partial" in the order is a typographical error. The order dismissed all claims.

According to the certification of Howard S. Irwin, a member of Holmdel, Inc., submitted in support of defendant's summary judgment motion, a "spec" house is a home that is "built without a contract having been executed with a prospective purchaser in the hopes that the home would be sold thereafter."

Building Officials and Code Administrators.

The written statement of reasons was not included as part of the appellate record. However, it was faxed to the court, without objection, during the telephonic oral argument.

In September of 2006, Rule 4:58-1 was amended. As amended, it now consists of two sections: (a) and (b). However, there was no change to the above-quoted language.

(continued)

(continued)

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A-6637-05T3

October 1, 2007