ROMEL SILAND VS. RAPHAEL A. CRANDON (C-000025-20, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3023-19
ROMEL SILAND,
Plaintiff-Appellant,
v.
RAPHAEL A. CRANDON,
Defendant-Respondent.
________________________
Submitted January 26, 2021 – Decided March 19, 2021
Before Judges Moynihan and Gummer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No. C-
000025-20.
Miller, Meyerson & Corbo, attorneys for appellant
(Gerald D. Miller, on the briefs).
Michael C. Schonberger, attorney for respondent.
PER CURIAM
Plaintiff Romel Siland appeals from the trial court's order denying his
application for an order to show cause "seeking[,] among other relief[,] specific
enforcement of an agreement" he and defendant Raphael A. Crandon entered for
the sale of a two-family house in Jersey City, imposition of a lien on that
property and an injunction against the sale of the property to a third party; and
sua sponte dismissing without prejudice plaintiff's earlier-filed complaint
seeking like relief. We agree with plaintiff that the trial court erred in denying
injunctive relief and dismissing the complaint and reverse.
The June 11, 2009 contract1 called for the property to be sold for
"$210,000 of which $166,457.75 [was] the unpaid principal balance" of
defendant's mortgage note to a lender, a deposit of $40,000 and $3,542.25 listed
as "[u]pon obtaining financing." Plaintiff averred he had made monthly
payments of $1,488.20 on the note from June 2009 through February 2020 ; paid
all taxes; maintained insurance on the property; and made repairs, including to
a water line, as required by the contract.
On September 20, 2019, defendant wrote to plaintiff, informing him that
the property would be listed for sale. On December 20, 2019, defendant
contracted with a third-party purchaser to sell the property for $320,000. On
1
Inexplicably, the contract was also referred to as a "mortgage" to the lender
and defendant, "mean[ing] that [plaintiff] give[s] the [lender] and [defendant]
those rights stated in this [m]ortgage and also those rights the law gives to [the
lender] and [defendant] who hold mortgages on real property."
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2
February 7, 2020, plaintiff filed his complaint; on the same day, he filed a lis
pendens. Six days later, plaintiff filed the order-to-show-cause application.
Although the court required that plaintiff serve defendant with the order to show
cause within five days, defendant was not served until February 21, 2020.
Defendant transferred title to the property to the third-party on February 19,
2020. Plaintiff amended his complaint on March 23, 2020, to include the third-
party purchaser and the title company used in that transaction as additional
defendants. On the March 27, 2020 return date, the court delivered its oral
decision denying the application for the order to show cause and sua sponte
dismissing the complaint and entered the order on appeal.
We review the denial of an application for a preliminary injunction under
the abuse-of-discretion standard, determining whether the trial court correctly
applied the four-prong test of Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982),
when ruling on the application. Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387,
395 (App. Div. 2006).
The trial court analyzed the four Crowe factors an applicant must
demonstrate by clear and convincing evidence, Garden State Equal. v. Dow, 216
N.J. 314, 320 (2013): 1) a showing that the injunction is necessary to prevent
irreparable harm; 2) the legal right underlying the applicant's claims is settled;
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3) "a preliminary showing of a reasonable probability of ultimate success on the
merits"; and 4) consideration of "the relative hardship to the parties in granting
or denying" the application, Crowe, 90 N.J. at 132-34.
The trial court ruled plaintiff had not satisfied the first Crowe factor
because he had an adequate remedy at law. The court noted a "certification
provided by the defendant, [stated] the property was sold to a third-party
purchaser" and "if the defendant breached the contract of sale" damages could
be "readily ascertainable and calculable" based on the fixed amount plaintiff
alleged he had paid monthly.
Melding the second and third prongs, the trial court found plaintiff's right
to specific performance was "questionable" because plaintiff had presented no
proofs to establish he satisfied a contract term that required him to "obtain
financing within two (2) years." The court noted defendant's allegations, "both
factual and equitable, includ[ed] rightful termination by . . . defendant, failure
of consideration, statute of limitations, waiver and la[]ches[,]" and concluded,
"[o]bjective review of the record and evidence presented by both, strongly
suggest that the viability of [defendant's] claims -- and requires, therefore, the
denial of the injunctive relief."
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Addressing the fourth prong, the trial court noted defendant's certification
provided "the property has been sold to a Benum Gross, a third-party purchaser,
for $320,000[,]" but then found "[s]ufficient, persuasive, and credible evidence
ha[d] been provided by means of the HUD-1 [closing statement] to substantiate
the assertion that 52 Harrison[] LLC, [was] a bona fide purchaser for value."
The court concluded divesting the third-party of the property "would be
inequitable on the record set forth before this [c]ourt by the plaintiff."
The court dismissed plaintiff's complaint, adding that action did "not
deprive plaintiff of a remedy" because he could "refile in the Law Division for
any alleged breach of contract, and seek the readily calculable compensatory
damages in that Division."
An abuse of discretion "arises when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571
(2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d
1260, 1265 (7th Cir. 1985)). When exercising legal discretion, the trial court
"must take account of the law applicable to the particular circumstances of the
case and be governed accordingly." Kavanaugh v. Quigley, 63 N.J. Super. 153,
158 (App. Div. 1960). If the trial judge misapplies the law to the factual
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circumstances before him or her, "the exercise of the legal discretion lacks a
foundation and becomes an arbitrary act." Ibid. We perceive misapplications
in the trial court's analysis of each Crowe factor.
Although the court recited our holding in Friendship Manor, Inc. v.
Greiman, 244 N.J. Super. 104, 113 (App. Div. 1990), that there was a virtual
presumption that specific performance was the appropriate remedy for a seller's
breach of a contract to sell real property because of the unique character of
realty, it ignored that precept and concluded plaintiff had an adequate monetary
remedy. The trial court's decision did not consider our Supreme Court's holding
that
[e]quity's jurisdiction to award specific performance of
a contract is exercisable unless the remedy at law is
adequate and complete and as efficient as the remedy
of specific enforcement. Mantell v. Int'l Plastic
Harmonica Corp., 141 N.J. Eq. 379 (E & A 1947). In
the language of Lord Selborne, the ruling principle is
that specific performance will be given if it will "do
more perfect and complete justice." Wilson v.
Northampton & Banbury Junction Ry. Co., (1874) 9
Ch. A.C. 279 at 284 (Eng.). The "foundation and
measure" of the jurisdiction, said Professor Pomeroy,
"is the desire to do justice, which the legal remedy
would fail to give"—complete justice to both parties
"with respect to all the judicial relations growing out of
the contract between them." Pomeroy's Equity
Jurisprudence §1401 (5th ed. 1941).
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[Fleischer v. James Drug Stores, Inc., 1 N.J. 138, 146
(1948).]
It is plain that money damages would not be as adequate, complete and
efficient as specific performance in this case where plaintiff had paid defendant's
mortgage note, real estate taxes, insurance premiums and upkeep on the property
for over ten years while making the property his home. The property is certainly
unique to plaintiff. Pruitt v. Graziano, 215 N.J. Super. 330, 331 (App. Div.
1987) ("Presumptively, real property is unique and damages at law are an
inadequate remedy for breach of a contract to sell it. A factual resolution of
uniqueness of the real property is immaterial.").
In adopting defendant's submission and finding that plaintiff failed to
prove it had obtained financing, and by accepting—ostensibly without
documentary proof—defendant's allegation he had terminated the contract, the
trial court did not adhere to the principle that it was
required to do more than merely determine whether the
contract is valid and enforceable; the court of equity
must also "appraise the respective conduct and situation
of the parties," Friendship Manor, 244 N.J. Super. at
113, the clarity of the agreement itself notwithstanding
that it may be legally enforceable, Salvatore v. Trace,
109 N.J. Super. 83, 90 (App. Div. 1969), and the impact
of an order compelling performance, that is, whether
such an order is harsh or oppressive to the defendant,
Stehr v. Swayer, 40 N.J. 352, 357 (1963), or whether a
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denial of specific performance leaves plaintiff with an
adequate remedy, Fleischer, 1 N.J. at 146-47.
[Marioni v. 94 Broadway, Inc., 374 N.J. Super. 588,
600 (App. Div. 2005).]
The factors that should have been considered included any evidence or
lack thereof that defendant terminated the contract; and the reason, if he had
terminated the contract, defendant sent plaintiff a notice of his intention to sell
the property. Moreover, the trial court did not consider the mode of enforcement
of the financing provision that required defendant to declare plaintiff in default
"on the [n]ote and this [m]ortgage" if he "fail[ed] to keep any promise [made]
in this [m]ortgage." Again, "mortgage" was used interchangeably with
"[a]greement" in the contract so plaintiff's promises seemingly included the
financing provisions. We see nothing in the record establishing that defendant
declared plaintiff in default as per the contract terms. And, there was no specific
stated time for obtaining the financing; there is nothing in the record that
defendant ever declared time to be of the essence. See Paradiso v. Mazejay, 3
N.J. 110, 114 (1949) (holding where time is not specifically made of the essence
in a parties' agreement, "the intention of the parties to make it so must be clearly
spelled out either by an examination of all the surrounding circumstances or by
supplemental notice from one party to the other"); see also Marioni, 374 N.J.
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Super. at 603. The absence of a notice of default or that time was of the essence
evidenced the parties' conduct and situation that should have been considered in
determining if specific performance was appropriate.
So too, the fact that defendant stood by while plaintiff paid defendant's
expenses should have been weighed by the trial court as impacting the equities
of the case, including whether plaintiff established an equitable lien on the
property, or whether the parties' conduct amounted to a waiver of or novation
from the contract-financing terms timeframe. Even if time for obtaining
financing was of the essence—and we see no evidence it was—a party's
inconsistent action constitutes "a waiver . . . and the parties will be deemed to
have extended the time for performance for a reasonable period of time[.]"
Marioni, 374 N.J. Super. at 607-08.
As Judge Fisher explained in Marioni, 374 N.J. Super. at 601:
These equitable considerations—that is, how
clearly have the parties expressed their contractual
undertaking, whether the impact of compelling
performance will be unduly oppressive or whether the
withholding of the remedy will leave the plaintiff with
an inadequate remedy, and whether the parties have
acted equitably toward each other, among others—pour
content into what is meant by the "discretionary" nature
of specific performance. It is not a discretion that
depends upon "the mere will and pleasure of the judge;
nor does it depend upon his own individual opinion, as
to its propriety and feasibility; much less is it a matter
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of favor." Pomeroy, Specific Performance of Contracts
§ 36 at 114 (3d ed. 1926). Instead, the court must
exercise judicial discretion-a discretion "controlled and
governed by the principles and rules of equity." Ibid.
The trial court abused its discretion by departing from established principles of
law and equity and by failing to consider the totality of the circumstances that
resulted from the parties' full actions.
The court also erred by declaring the ultimate buyer, 52 Harrison LLC, 2 a
bona fide purchaser. The HUD-1 statement relied upon by the court contained
no proof that the third-party purchaser qualified as a bona fide purchaser.
A bona fide purchaser for value is one who takes title to property without
notice of a prior interest "and has paid a valuable consideration therefor."
Venetsky v. W. Essex Bldg. Supply Co., 28 N.J. Super. 178, 187 (App. Div.
1953); see also Monsanto Emps. Fed. Credit Union v. Harbison, 209 N.J. Super.
539, 542 (App. Div. 1986). The third-party purchaser was on notice of plaintiff's
claim by virtue of the lis pendens plaintiff filed twelve days before the third-
party purchaser closed on the property.
When an individual or entity contracts to purchase property, they have the
duty to check the entire record of that property "from the date the deed into [the
2
The buyer listed on the HUD-1—"52 Harrison LLC"—differs from the buyer
listed in the contract—Binem Gross.
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seller] was recorded until the date he relinquishes record title." Palamarg Realty
Co. v. Rehac, 80 N.J. 446, 456 (1979). "A purchaser may well be held bound to
examine or neglect at his peril, the record of the conveyances under which he
claims[.]" Glorieux v. Lighthipe, 88 N.J.L. 199, 203 (E. & A. 1915). As such,
the third-party purchaser was on constructive notice that there was a dispute
concerning rights to the property. Manzo v. Shawmut Bank, N.A., 291 N.J.
Super. 194, 200 (App. Div. 1996); see also N.J.S.A. 2A:15-7. Contrary to
defendant's argument that the lis pendens was filed prematurely, it was filed just
after the complaint was filed; it thus fully complied with N.J.S.A. 2A:15-6.
The record fails to support the trial court's conclusion regarding the third-
party purchaser's status. It follows that the trial court's determination that
divestment of the property would be inequitable to that purchaser is also
unsupported because the purchaser took title with constructive notice of
plaintiff's claim of interest in the property.
These errors require reversal of the trial court's denial of plaintiff's
application for an order to show cause.
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The trial court did not set forth the grounds for sua sponte dismissing
plaintiff's complaint. 3 The dismissal immediately followed the court's finding
that 52 Harrison LLC was a bona fide purchaser. If the trial court's dismissal of
plaintiff's complaint was based in that finding—which we determine was
without evidential support—that aspect of the order must also be reversed.
This was not, as defendant contends in his merits brief, a summary action.
If that was the ground for the dismissal order, it cannot stand.
Our Supreme Court made clear that a trial court may grant summary
disposition under 1) Rule 4:67-1 governing "all actions in which the court is
permitted by rule or by statute to proceed in a summary manner," 4 such as
actions brought under the New Jersey Open Public Records Act, N.J.S.A. 47:1A-
6, or actions to compel arbitration under N.J.S.A. 39:6A-11; or 2)
in all other Superior Court actions "other than
matrimonial actions and actions in which unliquidated
monetary damages are sought," Rule 4:67-1 applies
"provided it appears to the court, on motion made
pursuant to R. 1:6-3 and on notice to the other parties
to the action not in default, that it is likely that the
matter may be completely disposed of in a summary
3
Even if the court was correct in disposing of the application for injunctive
relief—which we neither conclude or even suggest—it should have transferred
the action to the Law Division instead of dismissing it.
4
Rule 4:67-1 excludes "actions for the recovery of penalties which shall be
brought pursuant to R. 4:70[.]"
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manner." R. 4:67-1. Summary disposition is permitted
by agreement of the court and the parties, evinced by "a
clear and unambiguous statement from the judge and
the unequivocal consent of the parties to a final
resolution . . . ." Waste Mgmt. of N.J., Inc. v. Union
Cnty. Utils. Auth., 399 N.J. Super. 508, 518-19 (App.
Div. 2008).
[Grabowsky v. Twp. of Montclair, 221 N.J. 536, 550
(2015).]
The procedural requirements noted by the Court "permit the presentation of a
factual record and legal arguments to the court, and . . . ensure that the parties
anticipate and address the standard for summary disposition before the court
decides whether to grant that relief." Ibid.As in Grabowsky, neither party sought nor consented to summary
disposition of the action. Ibid. And, as in that case, plaintiff was not on notice
that his case stood to be dismissed, and he was not afforded an opportunity to
oppose summary disposition or present a record in opposition. Ibid. The
proceedings on the return date of the order to show cause consist of nothing but
the trial court's nine-minute oral decision placed on the record beginning at 8:12
a.m.; there were no appearances by the parties or their counsel.5 "The minimum
5
The order to show cause provided that the trial court would "entertain
argument, but not testimony, on the return date of the order to show cause, unless
the court and parties are advised to the contrary no later than [three] days before
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requirements of due process of law are notice and an opportunity to be heard [,]
. . . mean[ing] an opportunity to be heard at a meaningful time and in a
meaningful manner." Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76,
84 (App. Div. 2001). The trial court's sua sponte dismissal contravened those
principles.
Of course, a trial court has discretion to convert an application for a
temporary restraining order into a motion for summary judgment. See
Concerned Citizens of Borough of Wildwood Crest v. Pantalone, 185 N.J. Super.
37, 48 (App. Div. 1982) (determining that a trial court has discretion to convert
an application for injunctive relief into a motion for summary judgment on the
return date of an order to show cause when there are no material facts in dispute).
But, as we have delineated, material facts in this case are in dispute. Hence,
summary judgment would have been an inappropriate disposition, and if that
was the trial court's basis for dismissal, it must be reversed.
We therefore reverse the order in its entirety and remand this matter for a
hearing on the order to show cause. Because the trial court has expressed an
opinion on the merits of this case, we direct that the hearing be conducted before
the return date." The record does not reflect any advice to the contrary.
Nevertheless, there is no indication in the record that plaintiff was on notice that
his complaint was in jeopardy on the return date.
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a different judge. See Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div.
2005).
Reversed and remanded. We do not retain jurisdiction.
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