ANNETTESMITH and LORRAINE JOHNSON v. SHAREEF A. SALAAM
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0661-16T1
ANNETTE SMITH and
LORRAINE JOHNSON,
Plaintiffs-Respondents,
v.
SHAREEF A. SALAAM,
Defendant-Appellant.
__________________________________
Argued February 6, 2018 – Decided February 26, 2018
Before Judges Fasciale, Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No.
C-000140-15.
George Tenreiro argued the cause for appellant
(Baldassare & Mara, LLC, attorneys; Jennifer
Mara and George Tenreiro, on the briefs).
Donald D. Campbell argued the cause for
respondents (Campbell & Campbell, attorneys;
Donald D. Campbell, on the brief).
PER CURIAM
Shareef Salaam (defendant) appeals from a July 22, 2016 order
denying defendant's motion for summary judgment; a September 8,
2016 order denying defendant's evidentiary motions in limine; and
a September 14, 2016 final judgment, entered after a bench trial,
compelling defendant to sell real property (the Property). We
affirm.
Lorraine Johnson (Johnson) and Annette Smith (Smith)
(collectively plaintiffs) filed a three-count complaint seeking
specific performance of a contract compelling defendant to sell
Smith the Property, located at 23 Madison Avenue, Jersey City, for
$250,000. At the completion of discovery, defendant moved for
summary judgment, which the judge denied. Before the bench trial
began, defendant filed two in limine motions seeking to exclude
extrinsic evidence that went beyond the four corners of the
purchase agreement between Johnson and defendant. The judge then
entered the final judgment.
Johnson owned the Property, and in June 2014, struggled to
make the mortgage payments, which resulted in a sheriff's sale of
the Property scheduled for July 2015. Johnson wanted her
goddaughter, Smith, to own the property, and Smith began the
mortgage application process with her daughter Aiesha. Smith
obtained an adjournment of the sheriff's sale until early August
2015, however, she failed to obtain the necessary financing to
purchase the Property in time.
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Defendant noticed the Property on the foreclosure list and
approached Smith about purchasing the Property, who he mistakenly
thought owned the Property. The parties met in mid-July 2015 at
the office of Johnson's closing attorney, Stephen C. Gilbert
(Gilbert), and discussed how defendant would first purchase the
Property from Johnson and then resell to Smith, but prices were
not set at the meeting. There is a partial audio recording of
this meeting. After the meeting, the parties, without Gilbert,
had lunch together wherein, plaintiffs contend, the purchase price
of $225,000 for the sale from Johnson to defendant and the purchase
price of $250,000 for the sale from defendant to Smith were agreed
upon.
On July 26, 2015, defendant and Johnson entered into a
purchase agreement for the Property (Johnson Purchase Agreement).
Both Johnson and defendant signed the contract for a purchase
price of $225,000, and the closing took place at Gilbert's office,
without either party being present.
Smith alleges that she obtained a mortgage pre-approval
certificate in preparation of purchasing the Property from
defendant with a purchase price of $250,000. However, the bank
asserted that the certificate was "not an official approved
Provident form." On or about August 18, 2015, defendant and Smith
met at the Jersey City courthouse to discuss the Property resale.
3 A-0661-16T1
The parties disputed the purchase price discussed at the meeting.
Smith contended that the parties had an oral agreement with a
purchase price of $250,000.
Defendant sent Smith a purchase agreement (Smith Purchase
Agreement) that he signed and dated August 21, 2015, with a
purchase price of $335,000. The Smith Purchase Agreement also
included a lease for $1200 rent for Smith and other rents.
Additionally, defendant sent a letter addendum to the Smith
Purchase Agreement seeking $11,852.44 for expenses incurred and
anticipated to incur. Smith did not sign the contract.
On appeal, defendant focuses on the denial of the summary
judgment, and the judge's findings of fact and conclusions of law
supporting the final judgment. Fact issues precluded the entry
of summary judgment. The judge correctly applied the law, and
there exists sufficient evidence in the record to support the
judge's findings of fact.
We begin by addressing the denial of summary judgment. When
reviewing an order granting or denying summary judgment, we apply
"the same standard governing the trial court." Oyola v. Liu,
431 N.J. Super. 493, 497 (App. Div. 2013). We owe no deference to the
motion judge's conclusions on issues of law. Manalapan Realty,
LP v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
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Defendant argues that the Johnson Purchase Agreement is
unambiguous and exclusively controls the parties' dispute and thus
no material issues of fact existed to require the judge to deny
defendant's summary judgment motion. To grant summary judgment
regarding the terms of the agreements, the judge had to conclude
that the agreements permitted only one plausible interpretation
and that that single plausible interpretation one-sidedly favored
defendant's position. Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995). Here, however, the parties presented two
plausible explanations of the agreements and the judge properly
denied summary judgment. We will address defendant's related
contentions seriatim.
Defendant asserts that when denying summary judgment, the
judge improperly allowed plaintiffs to rely on extrinsic evidence,
specifically the parol evidence rule.1 Plaintiffs disagree, and
further contend that the Johnson Purchase Agreement is defective
and not controlling, explaining that at issue is the oral agreement
between the parties, not the Johnson Purchase Agreement. The
parties disputed whether the Johnson Purchase Agreement or Smith
Purchase Agreement controls, whether an oral agreement exists
1
In a footnote, defendant relies on this same argument to appeal
the judge's denial of defendant's evidentiary motions in limine.
This contention is without merit. R. 2:11-3(e)(1)(E).
5 A-0661-16T1
between the parties for defendant to sell the Property to Smith,
and if so, what terms and conditions exist in that oral agreement.
Defendant asserts that because the alleged oral agreement
occurred before the signing of the Johnson Purchase Agreement, the
judge could not consider parol evidence unless there existed an
ambiguity in the contract, and no ambiguity existed in the Johnson
Purchase Agreement. "In general, the parol evidence rule
prohibits the introduction of evidence that tends to alter an
integrated written document." Conway v. 287 Corp. Ctr. Assocs.,
187 N.J. 259, 268 (2006) (citing Restatement (Second) of
Contracts § 213 (Am. Law Inst. 1981)).
Here, the resolution of defendant's summary judgment motion
depended on the judge's interpretation of the parties' agreements
– usually a matter of law, suitable for decision on a motion for
summary judgment. Spring Creek Holding Co. v. Shinnihon U.S.A.
Co.,
399 N.J. Super. 158, 190 (App. Div. 2008). However, when a
contract is ambiguous in a material respect, summary judgment is
unavailable and the parties must be given the opportunity to
illuminate the contract's meaning through the submission of
extrinsic evidence. Conway,
187 N.J. at 268-70. A contract is
ambiguous if its terms "are susceptible to at least two reasonable
alternative interpretations." Nester v. O'Donnell,
301 N.J.
Super. 198, 210 (App. Div. 1997) (quoting Kaufman v. Provident
6 A-0661-16T1
Life & Cas. Ins. Co.,
828 F. Supp. 275, 283 (D.N.J. 1992), aff'd,
993 F.2d 877 (3d Cir. 1993)). Although extrinsic evidence should
never be permitted to modify or curtail the terms of an agreement,
a court may "consider all of the relevant evidence that will assist
in determining the intent and meaning of the contract." Conway,
187 N.J. at 269. The Court has "permit[ted] a broad use of
extrinsic evidence to achieve the ultimate goal of discovering the
intent of the parties." Id. at 270.
We reject defendant's argument that the judge improperly
admitted parol evidence when interpreting the Johnson Purchase
Agreement. The Johnson Purchase Agreement validly sold the
property to defendant, and plaintiffs do not dispute this sale.
The judge considered the conversations between the parties as
evidence of the oral agreement for defendant to sell the Property
to Smith in preparation of the Smith Purchase Agreement. Defendant
relies on the Johnson Purchase Agreement's clause, "[t]his
Agreement contains the entire agreement of the parties," and
section, "Additional Contractual Provisions (if any)" marked as
"N/A" to assert this Agreement unambiguous and controlling, and
barring parol evidence. The parties' oral agreement concerned a
different agreement, the sale from defendant to Smith, not Johnson
to Smith, and this is the agreement at issue here. The judge did
not improperly rely on parol evidence to alter the terms of the
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Johnson Purchase Agreement, but instead considered the
conversations between the parties as evidence of an oral agreement
for defendant to sell to Smith.
At summary judgment, the parties sharply disputed the oral
agreement for defendant to sell the property to Smith. They
disputed the existence of the oral agreement, with defendant at
times denying its existence and other times acknowledging an oral
agreement but with different terms than plaintiffs; when and where
the alleged oral agreement occurred; and the purchase price, terms,
and conditions for the alleged oral agreement.
Defendant asserts that the judge should have granted summary
judgment because plaintiffs' opposition violated court rules by
not containing a counterstatement of undisputed material facts as
required by Rule 4:46-2(b) and instead submitting Smith's
affidavit; and the opposition failed to address defendant's legal
arguments in any meaningful way.
To oppose a summary judgment motion, the non-movant is
required to file a responding statement either admitting or
disputing each of the facts in the movant's statement. R. 4:46-
2(b). Rule 4:46-2(b) provides that "[s]ubject to [Rule] 4:46-
5(a), all material facts in the movant's statement which are
sufficiently supported will be deemed admitted for purposes of the
motion only, unless specifically disputed by citation conforming
8 A-0661-16T1
to the requirements of paragraph (a) demonstrating the existence
of a genuine issue as to the fact." "[B]are conclusory assertions
in an answering affidavit are insufficient to defeat a meritorious
application for summary judgment." Brae Asset Fund, LP v. Newman,
327 N.J. Super. 129, 134 (App. Div. 1999).
Here, in opposition to defendant's summary judgment motion,
plaintiffs submitted Smith's affidavit and undisputed facts in
lieu of a responding statement of facts. Plaintiffs also submitted
a separate counterstatement of facts in their reply brief to the
summary judgment motion. Defendant asserts these submissions did
not comply with Rule 4:46-2 because plaintiffs did not admit or
deny each of defendant's facts, and the facts set forth by
plaintiffs were without citation to the record. As such, defendant
contends that his facts that were supported with citation to the
record should have been "deemed admitted."
Rule 4:46-2(b) is subject to Rule 4:46-5(a), which provides:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations
or denials of the pleading, but must respond
by affidavits meeting the requirements
of [Rule] 1:6-6 or as otherwise provided in
this rule and by [Rule] 4:46-2(b), setting
forth specific facts showing that there is a
genuine issue for trial.
Thus, the rule allows affidavits to set forth specific facts. Rule
1:6-6, governing affidavits, explains that "[i]f a motion is based
9 A-0661-16T1
on facts not appearing of record or not judicially noticeable, the
court may hear it on affidavits made on personal knowledge, setting
forth only facts which are admissible in evidence to which the
affiant is competent to testify."
Smith submitted the affidavit which contained, amongst other
facts, facts regarding the mortgage application which had not been
previously produced. Her statements were made on personal
knowledge. Further, Smith's affidavit and undisputed facts
specifically stated that it was made "to refute the absolute false
factual representations made in the Motion for Summary Judgment."
She refuted the events that took place according to defendant, the
parties' conversations, the negotiated resale price, and
defendant's assertions regarding the mortgage application. There
were no citations to the record, except to exhibits that Smith
attached to her affidavit regarding newly discovered documents
regarding the mortgage application.
Although defendant simplifies the matter, the evidence
presented a clear dispute. Specifically, the parties' depositions
were at odds regarding the events between them and, importantly,
the resale price; and plaintiffs' production of mortgage
application documents in opposition to defendant's summary
judgment motion furthered the dispute regarding the existence of
an oral agreement. Notably, at the summary judgment motion
10 A-0661-16T1
hearing, defendant's counsel abandoned the Rule 4:46-2 argument,
stating "it's procedural. We wanna do this on the merits. So
I'll move on."
The judge properly found that genuine issues of material fact
existed. "A judge may not merely accept as true all the
allegations of a party's statement with no consideration of 'the
competent evidential materials.'" Leang v. Jersey City Bd. of
Educ.,
399 N.J. Super. 329, 357 (2008) (quoting Brill,
142 N.J.
at 540), aff'd in part and rev'd in part on other grounds,
198 N.J. 557 (2009). Defendant's statement of facts were not
"sufficiently supported" to be "deemed admitted" under Rule 4:46-
2(b). Although plaintiffs failed to strictly comply with the
rule, defendant was not entitled summary judgment based on the
assumption that his statement of material facts was true "when the
record as a whole clearly show[ed] a material dispute." Pressler
& Verniero, Current N.J. Court Rules, cmt. 1.2 on R. 4:46-2 (2018).
Defendant further contends that plaintiffs' opposition failed
to address defendant's legal arguments in any meaningful way. The
party opposing summary judgment "must do more than simply show
that there is some metaphysical doubt as to the material facts,"
Triffin v. Am. Int'l Grp., Inc.,
372 N.J. Super. 517, 523-24 (App.
Div. 2004) (quoting Big Apple BMW, Inc. v. BMW of N. Am., Inc.,
974 F.2d 1358, 1363 (3d Cir. 1992)), as "[c]ompetent opposition
11 A-0661-16T1
requires 'competent evidential material' beyond mere 'speculation'
and 'fanciful arguments,'" Hoffman v. Asseenontv.Com, Inc.,
404 N.J. Super. 415, 426 (App. Div. 2009) (quoting Merchs. Express
Money Order Co. v. Sun Nat'l Bank,
374 N.J. Super. 556, 563 (App.
Div.) certif. granted,
183 N.J. 592 (2005), appeal dismissed,
217 N.J. 591 (2006)). Defendant provides no basis to assert that
plaintiffs failed to abide by this standard. Plaintiffs responded
to defendant's summary judgment motion by submitting a thirteen-
page brief along with exhibits and Smith's affidavit.
Defendant asserts that the judge should have granted summary
judgment because the doctrines of impossibility and/or mutual
mistake provide defendant with defenses to non-performance. "A
successful defense of impossibility . . . of performance excuses
a party from having to perform its contract obligations, where
performance has become literally impossible, or at least
inordinately more difficult, because of the occurrence of a
supervening event that was not within the original contemplation
of the contracting parties." JB Pool Mgmt., LLC v. Four Seasons
at Smithville Homeowners Ass'n, Inc.,
431 N.J. Super. 233, 246
(App. Div. 2013).
At the summary judgment hearing, the judge asked plaintiffs
if Smith would qualify for a mortgage to purchase the Property.
Plaintiffs' counsel answered in the affirmative, and explained
12 A-0661-16T1
that Smith does not have debt, she is employed, her daughter is
employed – who would be a co-applicant for the mortgage – and they
have a combined income of over $120,000. The parties stipulated
that Smith did not have time to obtain financing to purchase the
Property before the August 2015 sheriff's sale.
Defendant relies on Smith's mortgage pre-approval
certificate, which the bank explained was "not an official approved
Provident form," to assert that it was impossible for Smith to
purchase the Property during the relevant time period. Defendant
provides no other explanation or reason to assert that Smith could
not have possibly purchased the Property from defendant. The
parties disputed the procedures Smith and her daughter followed
in either obtaining a mortgage pre-approval or completing a
mortgage application. Smith and her daughter received letters
from Provident Bank in July 2015 regarding their mortgage
application, which included their credits scores. The credit
scores and combined income do not suggest that it was impossible
for Smith and her daughter to purchase the Property. Further,
Provident Bank's Mortgage Instruction Letter provides a checklist
for obtaining a mortgage and explicitly requires the applicant to
provide the sales contract for the purchasing property. Smith
could not furnish such a contract to the bank because she did not
13 A-0661-16T1
execute the Smith Purchase Agreement. The doctrine of
impossibility is inapplicable and has no bearing on this case.
"The doctrine of mutual mistake applies when a 'mistake was
mutual in that both parties were laboring under the same
misapprehension as to [a] particular, essential fact.'" Bonnco
Petrol, Inc. v. Epstein,
115 N.J. 599, 608 (1989) (alteration in
original) (quoting Beachcomber Coins, Inc. v. Boskett,
166 N.J.
Super. 442, 446 (App. Div. 1979)). Here, neither party asserted
that they shared an erroneous assumption of fact, but instead, the
parties shared conflicting views of their agreement. See id. at
609. The facts do not support the application of mutual mistake.
Defendant asserts that in their opposition to the summary
judgment motion plaintiffs failed to demonstrate by clear and
convincing evidence that an exception to the statute of frauds
applied. Specifically, defendant argues that the judge applied
the wrong standard by explaining that plaintiffs "could meet the
burden of clear and convincing evidence," and he should have
required plaintiffs to provide clear and convincing evidence
because of the statute of frauds.
"The motion court must analyze the record in light of the
substantive standard and burden of proof that a factfinder would
apply in the event that the case were tried."
Globe Motor Co. v. Igdalev,
225 N.J. 469, 480 (2016). The statute
14 A-0661-16T1
of frauds permits the enforcement of an oral agreement to sell
interest in real estate in limited scenarios.
An agreement to transfer an interest in real
estate or to hold an interest in real estate
for the benefit of another shall not be
enforceable unless:
. . . .
b. a description of the real estate
sufficient to identify it, the nature of
the interest to be transferred, the
existence of the agreement and the
identity of the transferor and the
transferee are proved by clear and
convincing evidence.
[
N.J.S.A. 25:1-13 (emphasis added).]
Evidence is clear and convincing when it "produce[s] in the mind
of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established." Aiello v. Knoll
Golf Club,
64 N.J. Super. 156, 162 (App. Div. 1960); see also In
re Purrazzella,
134 N.J. 228, 240 (1993). This standard does not
imply absolute certainty or that the evidence is
uncontested. See In re Jobes,
108 N.J. 394, 408 (1987).
"It is ordinarily improper to grant summary judgment when a
party's state of mind, intent, motive or credibility is in issue."
In re Estate of DeFrank,
433 N.J. Super. 258, 266 (App. Div. 2013);
see also Pressler & Verniero, Current N.J. Court Rules, cmt. 2.3.4
on R. 4:46-2 (2018). Here, the showing of clear and convincing
15 A-0661-16T1
evidence for defendant to resell the Property to Smith for $250,000
hinged on the credibility of witness testimony. The judge properly
determined that the facts viewed most favorably to plaintiffs
could provide clear and convincing evidence that an agreement was
reached between the parties. Many material issues of fact
continued to exist and the judge could not properly grant summary
judgment. The judge, in his letter opinion post-trial, explained
that in denying defendant's summary judgment motion he reviewed
the statute of frauds. Even considering the statute of frauds,
the judge could not have granted summary judgment because material
issues of fact existed and credibility findings were required.
We now turn to the trial. Our review of the factual findings
made by a trial court in a non-jury trial is quite limited. Estate
of Ostlund v. Ostlund,
391 N.J. Super. 390, 400 (App. Div. 2007).
"We do not weigh the evidence, assess the credibility of witnesses,
or make conclusions about the evidence." State v. Barone,
147 N.J. 599, 615 (1997).
Findings of the trial judge are binding on appeal if they are
"supported by adequate, substantial and credible evidence." Rova
Farms Resort, Inc. v. Inv'rs. Ins. Co.,
65 N.J. 474, 484 (1974).
We have determined that there exists sufficient evidence in the
record to support the judge's findings of fact. The judge found
plaintiffs credible. The judge considered the parties testimony,
16 A-0661-16T1
which "significantly differ[ed]," regarding the terms of the
resale; and the documents entered into evidence. He noted that
defendant did not dispute discussions about the resale, citing a
recording of defendant offering to purchase the Property and then
resell it to Smith. The judge found that
[o]nce having secured title to the property
at the end of July, when confronted by . . .
Smith on her pressing for the underlying
contract of sale for the agreed upon resale
price of $250,000 in August, [d]efendant
reneged on his promise citing "other issues"
and demanded an additional $85,000 and
presented . . . Smith with a take [it] or
leave it contract of $335,000.
In considering defendant's numerous arguments against the
existence of an oral agreement, the court explained that
"[d]efendant's citation to the 'entire agreement' boiler plate
paragraph in the [Johnson Purchase Agreement] does not abrogate
the right of the [p]laintiffs to prove an enforceable oral
agreement, which they have."
Plaintiff contends that the judge failed to apply a two-
tiered legal standard for granting specific performance. "That
[standard] is, after determining that the purchaser has a legal
right to recovery, a court of equity must make a further
determination that has been said to be discretionary." Marioni
v. 94 Broadway, Inc.,
374 N.J. Super. 588, 599 (App. Div. 2005).
17 A-0661-16T1
"[T]he right to specific performance turns not only on whether
plaintiff has demonstrated a right to legal relief but also whether
the performance of the contract represents an equitable result."
Ibid. Defendant contends that the judge improperly found that a
valid contract existed and, additionally, failed to balance the
equities, which would have been decided in defendant's favor.
Although specific performance is a discretionary remedy,
"[t]here is a virtual presumption, because of the uniqueness of
land and the consequent inadequacy of monetary damages,
that specific performance is the buyer's appropriate remedy for
the vendor's breach of the contract to convey." Friendship Manor,
Inc. v. Greiman,
244 N.J. Super. 104, 113 (App. Div. 1990).
Even though the judge did not clearly explain how he applied
the standard when he found for specific performance, his letter
opinion provides his thorough analysis for finding an oral
agreement between the parties and how the balance of equities
favored plaintiffs. The judge specifically considered the events
that led to the parties entering into the Johnson Purchase
Agreement – Johnson's impending sheriff's sale for which defendant
expressed an interest to help; the meetings and conversations
between the parties; their testimony; and the documents entered
into evidence.
18 A-0661-16T1
The judge made equitable considerations, including the
parties' respective conduct and situation of the parties, in making
his discretionary decision in favor of plaintiffs for specific
performance. See ibid. Specifically, the judge requested written
summations post-trial from the parties regarding their positions,
and "pursuant to the equitable powers in terms of trying to reach
. . . a just resolution of this complaint," considered the
possibility of allowing Smith to purchase the Property for
$335,000. Further, the judge considered that the parties only
entered into the agreements in order to save the Property from
foreclosure – defendant was supposed to assist plaintiffs.
Defendant contends that the judge erred by considering fraud
in his final judgment decision because plaintiffs did not plead
fraud. Defendant correctly states that plaintiffs never pled
fraud, however, mischaracterizes the judge's use of fraud.
Defendant focuses on the judge's following language as the lynchpin
for his argument: "the [c]ourt will not permit the statute of
frauds to perpetuate frauds" and "it would be fraud not to enforce
the agreement." Defendant removes this language from its context
and reads it as if it stands alone. This language concludes the
judge's discussion of the statute of frauds, where the judge
unequivocally cites a statute of frauds exception. The judge
further cites two cases in which the statute of frauds is
19 A-0661-16T1
discussed, not an allegation of fraud. The judge did not consider
fraud.
Affirmed.
20 A-0661-16T1
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