Gross v. Lasko

769 A.2d 1102, 338 N.J. Super. 476, 2001 N.J. Super. LEXIS 132
CourtNew Jersey Superior Court Appellate Division
DecidedMarch 30, 2001
StatusPublished
Cited by3 cases

This text of 769 A.2d 1102 (Gross v. Lasko) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gross v. Lasko, 769 A.2d 1102, 338 N.J. Super. 476, 2001 N.J. Super. LEXIS 132 (N.J. Ct. App. 2001).

Opinion

The opinion of the court was delivered by

COLLESTER, J.A.D.

Defendant, Vivian Lasko, appeals from a judgment of specific performance which ordered her to deliver a deed to plaintiffs, Kenneth W. Gross and Bonnie D. Gross, pursuant to a contract of sale signed in March 1999. The matter was tried summarily on certifications filed with the trial judge. On September 7, 1999, Judge Callinan concluded in a letter opinion that plaintiffs were entitled to specific performance. We affirm.

The salient facts are as follows. In February 1999, plaintiffs, who were residents of Pennsylvania, were searching for a vacation home in Avalon, New Jersey and using the services of Sandra Struble, a licensed real estate agent. Defendant’s property located at 39 Flamingo Avenue in Avalon, was listed for sale with Miriam Kauterman, also a New Jersey licensed real estate agent. On March 20, 1999, a contract of sale was signed for the purchase of the property for a total purchase price of $680,000. Plaintiffs provided an initial deposit of $64,000, and the remaining balance of [479]*479$616,000 was to be paid at the time of closing scheduled for May 17,1999.

The agreement contained a mortgage financing contingency, which read as follows:

[t]he Buyer and Seller agree to make a good faith effort to obtain mortgage financing upon the terms listed below. The Buyer has until April 14, 1999, to obtain a commitment for this mortgage financing or to agree to buy the property without this mortgage financing. After this deadline, and any agreed upon extension, either party may cancel this contract if the mortgage as stated below has not been obtained. Buyer agrees to apply for said mortgage within 5 days of the final execution of this agreement (i.e., when all parties have signed it).
Type of Mortgage Financing: CONVENTIONAL Points: Not to Exceed to Buyer: 3.0, Seller: 0.0, Amount of Mortgage Financing: $440,000.00, Interest Rate: (Not to Exceed) 7)4%, Length of Mortgage Financing: 30 years with monthly payment based on a 30 year payment schedule.
The Buyer may agree at their option to accept other financing which is adequate for the Buyer to complete settlement. The Buyer’s acceptance of such financing will remove the Mortgage Financing Contingency above.

On April 9, 1999, Kauterman advised Struble that defendant no longer wanted to sell the property. Struble told plaintiffs, but they had no interest in canceling the contract since they had made plans for modifications to the property and bought furniture in anticipation of the closing. The following day plaintiffs met with Kauterman, who confirmed that defendant wanted out of the agreement. Plaintiffs told Kauterman that they were not willing to cancel and would proceed to closing without mortgage financing. The next day Kauterman advised defendant that plaintiffs wanted the property and were ready to close without mortgage financing. A few days later Kauterman told plaintiffs that defendant understood that she had to complete the sale and that she had been to Kauterman’s office to sign a lease on another house for the summer. At no time did Kauterman suggest the defendant was awaiting written notice of plaintiffs’ election to proceed without mortgage financing.

However, by letter of April 20, 1999, defendant’s attorney informed plaintiffs that defendant was canceling the contract for plaintiffs’ “default under Section 23,” because they failed to provide defendant with written notice that they were waiving the [480]*480mortgage financing contingency. Paragraph 23 defined “buyers’ default” in the contract as a failure “to fulfill or perform any of the terms or conditions of this agreement,” and gave the seller the option to cancel and retain all deposits.

Two days later plaintiffs’ attorney wrote that plaintiffs insisted on the purchase of the property. He also stated that the contract gave plaintiffs until April 14,1999, to obtain mortgage financing or to elect to buy the property without such financing and that plaintiffs had notified defendant’s agent on April 10, 1999, that they intended to proceed with the purchase without a mortgage. Defendant’s attorney responded that defendant denied being informed by Kauterman that plaintiffs intended to waive the mortgage contingency provision and that, in any event, no notification of the waiver was received in writing.

The central issue at trial was whether written notice was necessary to waive the mortgage contingency clause. Plaintiffs argued that if written notification was required, the contract should have so stated in the mortgage contingency clause. Defendant denied receiving oral notice of the waiver and further relied upon a separate paragraph of the contract, which specified that

“All notices under this contract must be in writing. The notices must be delivered personally or mailed by certified mail, return receipt requested, to the other parly at the address written in this contract, or the parties’ attorney.”

Judge Callinan found that plaintiffs had informed defendant’s agent on April 10, 1999, that they intended to proceed without mortgage financing, that defendant knew of plaintiffs intention before the expiration of the mortgage contingency on April 14, 1999, and that she was not prejudiced in any way by plaintiffs’ election to meet the purchase price without a mortgage. With respect to defendant’s argument that the contract of sale required written notification, the judge noted that there was no such provision in the mortgage contingency clause. He also held that the requirement of a written mortgage commitment did not equate to a mandate that plaintiffs notify defendant in writing of their desire to proceed on an all cash basis. Finding no valid reason for [481]*481defendant’s failure to perform, Judge Callinan ordered specific performance.

On appeal defendant argues that Judge Callinan erred because the contract contained a “perpetual mortgage contingency clause” as opposed to a “self-terminating mortgage contingency clause.” She contends that the perpetual mortgage contingency gave her the unilateral right to void the contract because plaintiffs did not notify defendant in writing of the removal of the mortgage contingency.

This distinction between self-terminating and perpetual mortgage contingency clauses was never raised before the trial judge. It is well established that we will not consider matters not properly presented to the trial court unless the question goes to the trial court’s jurisdiction or is an issue “of sufficient public concern.” Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230, 708 A.2d 401 (1998); Brown v. Township of Old Bridge, 319 N.J.Super. 476, 501, 725 A.2d 1154 (App.Div.), cert. denied, 162 N.J. 131, 741 A.2d 99 (1999). This self-terminating versus perpetual mortgage contingency clause dichotomy does not relate to jurisdictional matters, nor does it have any earmark of a matter vested with sufficient public concern.

Defendant gives no substantiation of authority for the dichotomy she presents.

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Bluebook (online)
769 A.2d 1102, 338 N.J. Super. 476, 2001 N.J. Super. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-lasko-njsuperctappdiv-2001.