NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2210-15T3
MARLY CARO, on behalf of A LIMITED LIABILITY COMPANY or CORPORATION TO BE FORMED,
Plaintiff-Respondent,
v.
WILLIAM PEREZ,
Defendant-Appellant. _________________________________
Submitted May 10, 2017 – Decided June 26, 2017
Before Judges Alvarez and Manahan.
On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-7-15.
The Abraham Law Firm, LLC, attorneys for appellant (Markis M. Abraham, on the briefs).
Vincent J. La Paglia, attorney for respondent.
PER CURIAM
Defendant William Perez appeals from an order for specific
performance entered in favor of plaintiff Marly Caro following a
bench trial. We affirm. We discern the following facts from the trial record. In
April 2013, plaintiff approached defendant and advised him that
she was interested in purchasing defendant's property located at
364-366 Palisades Avenue, Jersey City, New Jersey (the property).
Predicated upon that conversation, a contract of sale was prepared
by plaintiff's attorney, Vincent La Paglia. The contract provided
for a purchase price of $750,000, comprised of a $75,000 deposit,
financing of $525,000, and a cash payment due at closing of
$150,000.1 Paragraph 6 of the contract recited a mortgage
contingency clause.
The [b]uyer agrees to make a good faith effort to obtain a first mortgage loan upon the terms listed below. The [b]uyer has until 60 [days after conclusion of inspection contingency] to obtain a commitment from a lender for this mortgage loan or to agree to buy the [p]roperty without this loan. If this is not done before this deadline, and any agreed-upon extensions, either party may cancel this [c]ontract.
After approval from defendant's attorney, Joseph Greco, both
parties signed the contract on June 7, 2014.
1 While the contract indicated that the deposit was previously paid, plaintiff and La Paglia both testified the deposit money remained in La Paglia's trust account. Plaintiff was not aware of the deposit payment status until December 2014.
2 A-2210-15T3 Plaintiff subsequently applied for a loan and La Paglia
ordered a title report. The title report revealed issues that had
to be addressed prior to the closing.
Sometime in July or August 2014, after plaintiff sold property
she owned in Brazil, she advised defendant of her intention to
purchase the property without mortgage financing. Defendant did
not object and told plaintiff to speak with her attorney.
By letter dated August 25, 2014, La Paglia corresponded to
Greco that "[m]y client advises she should have mortgage commitment
within the next two (2) weeks. Subject to clear title, we should
be in a position to close." The letter further stated that the
preliminary title binder disclosed judgments against defendant,
as well as two open mortgages on the property, both of which were
in foreclosure.
In November 2014, defendant listed the property for sale with
a broker and placed a sign on the property. After observing the
sign, plaintiff removed it and contacted her attorney. Plaintiff
stated that she also contacted defendant.
Defendant's attorney mailed and faxed a letter, dated
November 24, 2014, which declared the contract "cancelled and null
and void for failure of the buyer to make the required deposit of
escrow monies and passage of time without furnishing a mortgage
commitment." The next day, via email, plaintiff's attorney
3 A-2210-15T3 rejected defendant's attempt to terminate the contract and advised
that plaintiff intended to proceed on an all-cash basis. Further,
plaintiff's letter stated that "the reason this matter has not
closed is [defendant's] inability, at this stage, to satisfy the
title requirements[.]" Defendant refused to close title and
entered into a sales contract with a third party for $1 million.
On January 9, 2015, plaintiff filed a three-count complaint
seeking specific performance of a contract for the sale of real
estate. Additionally, plaintiff pled breach of contract and
requested restraints. On the same day, plaintiff filed a notice
of lis pendens.2 Defendant filed an answer with a counterclaim on
February 17, 2015, alleging tortious interference with a
prospective economic advantage, tortious interference with
contractual relation, and unlawful interference with contractual
relations.3 Plaintiff filed an answer to the counterclaim on March
4, 2015.
A bench trial was held on December 8, 2015, before Judge
Hector Velazquez. At trial, the judge heard testimony from
plaintiff, La Paglia, and Stephen Flatlow, the attorney who
conducted title services, on plaintiff's behalf. Defendant
2 The lis pendens is not part of the record on appeal. 3 Defendant's motion for summary judgment, plaintiff's opposition, and the court order denying summary judgment are not part of the record on appeal.
4 A-2210-15T3 testified on his own behalf. Defendant moved for a directed
verdict after plaintiff rested, which was denied. After both
parties rested, the judge rendered an oral opinion. In his
opinion, the judge held that plaintiff was not in material breach
for her failure to make a timely deposit. The judge also dismissed
defendant's counterclaim.
In addition to his oral opinion, the judge issued a seven-
page written opinion, reaffirming that (1) plaintiff was not in
material breach for her failure to make the deposit pursuant to
the contract; and determining that (2) the contract did not require
plaintiff to give written notice of her election to proceed without
a mortgage; and (3) equity dictates the court to compel defendant
to specifically perform under the terms of the contract and deliver
a deed at the time and place scheduled for closing. As a result,
the judge entered a judgment of specific performance in favor of
plaintiff on December 22, 2015. All other counts in the complaint
were dismissed and any request for compensatory damages was denied.
This appeal followed.4
Defendant raises the following points on appeal:
4 Following the filing of the notice of appeal, the judge entered an order staying the enforcement of the judgment pending appeal and ordering defendant to post a bond.
5 A-2210-15T3 POINT I
THE TRIAL COURT ERRED IN GRANTING SPECIFIC PERFORMANCE BECAUSE THE CONTRACT OF SALE WAS VOID AND UNENFORCEABLE AND THE DEFENDANT'S TERMINATION WAS VALID.
A. [PLAINTIFF] COMMITTED A MATERIAL BREACH OF CONTRACT BY FAILING TO MAKE THE DEPOSIT. THEREFORE, THE CONTRACT WAS UNENFORCEABLE AND VALIDLY TERMINATED.
1. [PLAINTIFF] DID NOT PROVIDE CONSIDERATION FOR THE CONTRACT TO PURCHASE THE PROPERTY THEREFORE THE CONTRACT WAS VOID.
2. [PLAINTIFF'S] FAILURE TO MAKE THE DEPOSIT WAS A MATERIAL BREACH OF CONTRACT.
B. [PLAINTIFF] DID NOT OBTAIN A MORTGAGE COMMITMENT WITHIN THE CONTINGENCY PERIOD, SHE COULD NOT UNILATERALLY WAIVE [DEFENDANT'S] RIGHT TO CANCEL THE CONTRACT PURSUANT TO THE MORTGAGE CONTINGENCY CLAUSE, AND THEREFORE, [DEFENDANT] HAD A RIGHT TO TERMINATE THE CONTRACT.
1. [PLAINTIFF] HAD NO RIGHT TO WAIVE [DEFENDANT'S] RIGHTS UNDER THE MORTGAGE CONTINGENCY.
2. [PLAINTIFF] DID NOT OBTAIN A MORTGAGE COMMITMENT WITHIN THE CONTINGENCY PERIOD,
6 A-2210-15T3 THEREFORE THE CONTRACT WAS VOIDABLE.
C. SPECIFIC PERFORMANCE WAS NOT APPROPRIATE BECAUSE THE EQUITIES MAKE ENFORCEMENT OF THE CONTRACT AGAINST [DEFENDANT] TOO HARSH.
POINT II
THE TRIAL COURT ERRED BY DISMISSING THE DEFENDANT'S COUNTERCLAIM BECAUSE THERE WAS EVIDENCE THE TERMINATION OF CONTRACT WAS VALID AND THERE WAS EVIDENCE IN THE RECORD THE DEFENDANT SUFFERED DAMAGES.
Our review of a decision following a bench trial is limited
by well-settled principles. Sebring Assocs. v. Coyle, 347 N.J.
Super. 414, 424 (App. Div.), certif. denied, 172 N.J. 355 (2002).
"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). We accord deference to the findings of fact
by the court after a non-jury trial, provided the findings are
supported by substantial credible evidence in the record as a
whole. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65
N.J. 474, 484 (1974). We owe no deference, however, to a trial
court's conclusions of law. Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995).
On appeal, defendant argues the deposit, which amounts to ten
percent of the contract price, was a material term of the contract
that required defendant to forego his right to market the property
7 A-2210-15T3 at a higher price, as well as for defendant's security during the
mortgage commitment process, and to measure plaintiff's commitment
to close the transaction. Furthermore, defendant argues that he
was entitled to terminate the contract because plaintiff did not
obtain a mortgage commitment within the contingency period, nor
did she notify defendant in writing that she wished to proceed
with an all-cash deal.
Every failure to perform as required by a contract, even a
small failure, is a breach that gives rise to a claim for damages.
Restatement (Second) of Contracts § 236 comment a (1981). A breach
is material if it "goes to the essence of the contract." Neptune
Research & Dev., Inc., v. Teknics Indus. Sys., Inc., 235 N.J.
Super. 522, 531 (App. Div. 1989) (quoting Ross Sys. v. Linden
Dari-Delite, Inc., 35 N.J. 329, 341 (1961)). Whether a breach is
material is a question of fact. Murphy v. Implicito, 392 N.J.
Super. 245, 265 (App. Div. 2007); Magnet Res., Inc. v. Summit MRI,
Inc., 318 N.J. Super. 275, 286 (App. Div. 1998).
"[I]f during the course of performance one party fails to
perform essential obligations under the contract, he may be
considered to have committed a material breach and the other party
may elect to terminate it." Ingrassia Constr. Co., Inc. v. Vernon
Twp. Bd. of Educ., 345 N.J. Super. 130, 136-37 (App. Div. 2001)
(citation and internal quotation marks omitted). The key question
8 A-2210-15T3 is whether the breach affected the ultimate goal of the contract
only tangentially, or whether it "goes to the essence of a
contract." Neptune Research, supra, 235 N.J. Super. at 531
(citation omitted). For breaches that are not "material," the
duty of both parties to perform remains intact. Magnet Res.,
Inc., supra, 318 N.J. Super. at 285.
We have described a material breach as:
Where a contract calls for a series of acts over a long term, a material breach may arise upon a single occurrence or consistent recurrences which tend to "defeat the purpose of the contract." . . . In applying the test of materiality to such contracts a court should evaluate "the ratio quantitatively which the breach bears to the contract as a whole, and secondly the degree of probability or improbability that such a breach will be repeated."
[Id. at 286 (quoting Medivox Prods., Inc. v. Hoffmann-La Roche, Inc., 107 N.J. Super. 47, 59 (Law Div. 1969))].
The Restatement (Second) of Contracts § 241 (1981) sets forth the
following criteria to determine whether a breach is material:
(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
9 A-2210-15T3 (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;
(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
Here, the judge addressed the issue of the materiality of
plaintiff's failure to make a timely deposit when addressing
defendant's motion for a directed verdict:
With respect to the deposit, there is case law in this jurisdiction that would indicate that the failure to provide a deposit would not be a material breach of the contract that would allow for the cancellation of a contract for the sale of property, especially in a situation like this, where there was obviously a mistake made on [] the contract, which indicates that the deposit of [$75,000] was previously paid. Everyone, I guess, believed that that, in fact, was done. And it wasn't until, I guess, November of that year, when there was an attempt to cancel this contract that the parties actually recognized or realized that no deposit was [] provided.
The [c]ourt notes and [] gives great importance to the fact that Mr. Greco, [] as the attorney for [defendant] in this case, never requested the deposit, even though obviously, as the attorney for the seller, also has the obligation to review the contract terms. And interestingly enough, in this case, there was [] no request for the deposit. So I don’t think the failure of the deposit would provide this [c]ourt or obligate this [c]ourt to find that there was a material breach that would allow for cancellation of
10 A-2210-15T3 the contract. But at this juncture, this [c]ourt would not enter judgment in favor of [] the plaintiff on that basis alone.
Furthermore, at the conclusion of the bench trial, the judge held
in his oral opinion:
I don’t think there's any evidence here that would support this [c]ourt denying or voiding this contract simply because [] of a mistake made with respect to this deposit. No one cared about the deposit; no one asked about it; no one questioned it. Mr. La Paglia, unfortunately, made a mistake with respect to this contract. He assumed that [] the deposit was made when it was not made. Mr. Greco also made a mistake. He assumed somebody had the deposit or frankly, he didn’t really understand what the provision said. But neither of the attorneys, both highly respected in the community and experienced real estate practioners, gave a damn about the deposit, right? No one cared because the deal was we're trying to resolve these title issues. The deposit, I'm sure is there somewhere and if it's not there, we'll get it there and nobody cared about it.
We agree that plaintiff's failure to make a timely deposit
in accordance with the terms of the sales contract did not
constitute a material breach, as it did not defeat the overall
purpose of the contract. See Magnet Res., Inc., supra, 318 N.J.
Super. at 286. Furthermore, plaintiff remedied the breach after
notice. See id. at 287. The essence of the contract was the sale
of the property to plaintiff for the agreed upon price of $750,000
for which she remained ready and willing to perform. See Stamato
11 A-2210-15T3 v. Agamie, 24 N.J. 309, 316 (1957) (citation omitted) ("[T]he
general rule is that he who seeks performance of a contract for
the conveyance of land must show himself ready, desirous, prompt,
and eager to perform the contract on his part.")
Concededly, it would have been optimal had plaintiff promptly
made the deposit. Indeed, under other circumstances, plaintiff's
failure to provide payment may have defeated her claim for specific
performance. However, when considered in context, the oversight
in making timely payment of the deposit did not impact upon
plaintiff's ability to perform her obligation to close title nor
did it otherwise disturb the contract's equilibrium.
We next turn to the mortgage contingency clause. In
addressing defendant's arguments regarding the mortgage
contingency clause, the judge concluded that there was no written
notice requirement under the express terms of the contract:
In order to decide this case, the [c]ourt must determine the meaning of paragraph 6 of the [s]ales [c]ontract. To determine the meaning of the terms of an agreement by the objective manifestations of the parties' intent, the terms of the contract must be given their "plain and ordinary meaning." Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997). "A writing is interpreted as a whole and all writings forming part of the same transaction are interpreted together." Barco Urban Renewal Corp. v. Housing Auth. of Atlantic City, 674 F.2d 1001, 1009 (3d Cir. 1982) (citing Restatement (Second) of Contracts § 202(2) (1981)). A
12 A-2210-15T3 "court should not torture the language of [a contract] to create ambiguity." Stiefel v. Bayly, Martin & Fay, Inc., 242 N.J. Super. 643, 651[ (App. Div. ]1990). "In the quest for the common intention of the parties to a contract, the court must consider the relations of the parties, the attendant circumstances, and the objects they were trying to attain." Anthony L. Petters Diner, Inc. v. Stellakis, [202 N.J. Super. 11, 28] (App. Div. 1985). In the interpretation of a contract, the court's goal is to ascertain the intention of the parties as revealed not only by the language used but also with reference to the surrounding circumstances and the relationships of the parties at the time it was entered into. Driscoll Constr. Co.[, Inc.] v. N.J. Dep't of Transp., 371 N.J. Super. 304, 313 (App. Div. 2004); Graziano v. Grant, 326 N.J. Super. 328, 342 (App. Div. 1999).
Defendant's argument that the [p]laintiff failed to provide timely written notice of the mortgage commitment or of her election to proceed without mortgage financing fails simply because [p]laintiff was not required to provide such notice. See Schultz v. Topakyan, 193 N.J. Super. 550, 554-53 (App. Div.[]) ([c]ourt refused to imply a requirement of written notice of commitment within the contingency period of a mortgage contingency clause), [certif. denied, 99 N.J. 207 (1984)]; Gross v. Lasko, 338 N.J. Super. 476, 484-85 (App. Div. 2001) ([w]here there is no specific provision requiring a buyer to notify a seller in writing of buyer[']s decision to waive the mortgage contingency clause, the [c]ourt refused to imply one[).] Here, there is no specific provision in the contract requiring the [p]laintiff to give written notice of either, a loan commitment or an intent to proceed without mortgage financing.
13 A-2210-15T3 In arguing that written notice is required, [d]efendant points to paragraph 29 of the contract which specifies that "[a]ll notices under this contract must be in writing." However, while other clauses in the contract may refer to "notice," there is no such language in the mortgage contingency clause. Like the courts in Schultz and Gross, this [c]ourt will not infer such a requirement from the language in this contract. To imply a requirement of written notice in this clause would require this [c]ourt to rewrite the contract to include a written notice requirement that was never agreed to. "It is not the function of any court to make a better contract for the parties by supplying terms that have not been agreed upon." [Graziano, supra, 326 N.J. Super. at 342]; Schenck v. HJI Assocs., 295 N.J. Super. 445, 450 (App. Div. 1996). "Where the terms of a contract are clear, the court must enforce it as written and not make a more advantageous contract for either party." [Gross, supra, 338 N.J. Super. at 486.] The mortgage contingency clause in this case is clear and unambiguous. There clearly is no written notice requirement, and this [c]ourt will not imply one to give a better contract than that intended by the [d]efendant.
In any event, the competent evidence demonstrates that the [d]efendant had actual notice of the [p]laintiff's election to proceed without mortgage financing. Both parties testified that during a meeting in July or August 2014, the [p]laintiff told the [d]efendant that she intended to close without mortgage financing and that she had the cash available to consummate the sale. Under the circumstances the [c]ourt finds that the [p]laintiff complied with her obligations under the contract. The [c]ourt further finds that the seller had no lawful right to terminate the contract and refuse to close title.
14 A-2210-15T3 In construing a contract, "[t]he court makes the
determination whether a contractual term is clear or ambiguous."
Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002)
(citing Nester, supra, 301 N.J. Super. at 210). When the term is
clear, a court is required to enforce the contract as written,
giving the words their plain, ordinary meaning. Gibson v.
Callaghan, 158 N.J. 662, 670 (1999). However, when the words are
susceptible to more than one reasonable interpretation, the court
must examine the document as a whole in resolving the ambiguity
and must consider other external evidence, such as the relationship
of the parties, the contractual objectives, and other attendant
circumstances. Nester, supra, 301 N.J. Super. at 210. Still, the
contractual language should not be tortured to create ambiguity.
Ibid.
As the judge found, the terms of the contract did not call
for written notice of plaintiff's election to proceed without the
loan, it merely required the parties to agree, which they did.
Since defendant had notice of plaintiff's election, the judge held
plaintiff complied with the contract's terms. To be sure, had the
judge imposed a requirement of written notice not required by the
plain language of the contract, it would have been erroneous. See
Gross, supra, 338 N.J. Super. at 484-86.
15 A-2210-15T3 We review the grant of specific performance for an abuse of
discretion. Estate of Cohen ex rel. Perelman v. Booth Computers,
421 N.J. Super. 134, 157 (App. Div.), certif. denied, 208 N.J. 370
(2011). While the "abuse of discretion standard defies precise
definition," we may find an abuse of discretion when a decision
is "made without a rational explanation," "rest[s] on an
impermissible basis," or was "based upon a consideration of
irrelevant or inappropriate factors." Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002) (internal quotation marks and
citations omitted).
Specific performance is an equitable remedy that operates to
compel one party to unwillingly transact with another and
therefore, should be granted in only exceptional circumstances.
See Centex Homes Corp. v. Boag, 128 N.J. Super. 385, 392-93 (Ch.
Div. 1974) (citation omitted) (stating that "considerable caution
should be used in decreeing the specific performance of agreements,
and the court is bound to see that it really does the complete
justice which it aims at, and which is the ground of its
jurisdiction"). However, "[t]here is a virtual presumption,
because of the uniqueness of land and the consequent inadequacy
of monetary damages, that specific performance is the . . .
appropriate remedy for . . . [a] breach of the contract to convey"
16 A-2210-15T3 real property. Friendship Manor, Inc. v. Greiman, 244 N.J. Super.
104, 113 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991).
To establish a right to specific performance, the party
seeking the relief must demonstrate that the contract in question
is valid and enforceable at law, and that the terms of the contract
are clear. Marioni v. 94 Broadway, Inc., 374 N.J. Super. 588,
598-99 (App. Div.), certif. denied, 183 N.J. 591 (2005). Thus,
even if the parties had an enforceable contract, the remedy of
specific performance is not automatic, as the decision is a
discretionary one based on principles of equity. Id. at 599
("[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.").
Specific performance is infused with equitable
considerations; the applicant "must stand in conscientious
relation to his adversary; his conduct in the matter must have
been fair, just and equitable, not sharp or aiming at unfair
advantage." Stehr v. Sawyer, 40 N.J. 352, 357 (1963). Further,
"[t]he long established rule is that the party who 'seeks
performance of a contract for the conveyance of land must show
himself ready, desirous, prompt and eager to perform the contract
on his part.'" Ridge Chevrolet-Oldsmobile, Inc. v. Scarano, 238
17 A-2210-15T3 N.J. Super. 149, 156 (App. Div. 1990) (quoting Stamato, supra, 24
N.J. at 316).
The judge found the conditions requisite to satisfy specific
performance were met:
Evaluation of the equities in this case favor the [p]laintiff. First, the parties were both represented by competent attorneys, each with many years of experience in handling residential and commercial real estate closings. They reviewed and approved the final terms of the sales contract and neither attorney sought to modify or change the mortgage contingency clause so as to require the type of written notice the [d]efendant now seeks to enforce. Second, from the date of execution of the contract on June 7, 2014[,] until the Notice of Termination was served on November 24, 2014, neither party suggested that there was an issue regarding the mortgage contingency clause. In fact the closing was proceeding in its normal course, with a loan application having been made and title work having been ordered. Prior to the receipt of the termination notice, neither [p]laintiff nor her attorney ever suspected that the [d]efendant was concerned that a loan commitment was not received within the time specified in the contract. In fact, it is reasonable to assume that the [d]efendant did not really care about said contingency because [p]laintiff had expressed her intent to close without mortgage financing sometime in July or August 2014. Thus, it seems abundantly clear that the [p]laintiff was lulled into believing that no further notices were needed and that the closing would take place when the title company completed its due diligence. Third, it is clear from the evidence that the real reason for seeking to terminate the contract was because the [d]efendant believed he could sell the property to another buyer
18 A-2210-15T3 for substantially more than the $750,000 [p]laintiff had offered. The evidence clearly demonstrates that prior to sending the notice terminating contract, the [d]efendant had negotiated a new listing agreement and was marketing the property for sale. In fact, the [d]efendant would later enter into a new contract for [$1 million]. Defendant's conduct could be interpreted as violating the implied covenant of good faith and fair dealing. In this regard, our Court[] ha[s] held that "[e]very contract [entered into under the laws of this state] contains an implied covenant of good faith and fair dealing." Kalogeras v. 239 Broad Ave., L.L.C., 202 N.J. 349, 366[] (2010) [(citation omitted)]. "Good faith" imports "standards of decency, fairness or reasonableness" and "requires a party to refrain from 'destroying or injuring the right of the other party to receive' its contractual benefits." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 109- 10[] (2007). Finally, the [c]ourt concludes that an order compelling performance will not be harsh or oppressive to the [d]efendant. He is not being denied what he bargained for, the sale of his property for the total purchase price of $750,000. On the other hand, [p]laintiff would be denied what she has bargained for, the purchase of real property, for a reasonable price, that she intends to rehabilitate for residential and commercial use. Under the circumstances[,] this [c]ourt must conclude that it would be unfair and unjust to permit the [d]efendant to unilaterally terminate a contract for a breach of the mortgage contingency clause without affording the [p]laintiff an opportunity to cure the alleged breach within a reasonable period of time. This [c]ourt opts "to apply reasonableness to the situation" and concludes that the oral notice given to the [d]efendant was sufficient compliance with the mortgage contingency provision of the contract. Defendant must therefore be compelled to
19 A-2210-15T3 comply with the terms of the contract and deliver a deed at the time and place scheduled for closing. To do otherwise would result in the forfeiture of the [p]laintiff's rights, a result abhorred by equity. Shultz, supra, 193 N.J. Super. at 553[] (citing Bertrand v. Jones[,] 58 N.J. Super. 273, 281 (App. Div. 1959)).
In awarding specific performance, we are satisfied the judge
exercised appropriate discretion by aptly weighing the equities
and determining they aligned with plaintiff. See Stehr, supra,
40 N.J. at 357. We discern no error in the judge's determination
the parties entered into a valid and enforceable contract and that
the enforcement of the contract would not be "harsh or oppressive."
See Marioni, supra, 374 N.J. Super. at 599 (citation omitted).5
Finally, we have considered defendant's argument relating to
the dismissal of the counterclaim in light of the record and
conclude it lacks sufficient merit to warrant consideration in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
5 In reaching our decision, we reject as wholly without merit defendant's argument that enforcement of the contract was "oppressive" based upon his loss of $250,000.
20 A-2210-15T3