STUART P. SCHLEM, ESQ. VS. SHPENDI MYRTEZA (L-2269-12, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0668-14T2
TREND INVESTMENTS, L.L.C.,
Plaintiff-Respondent,
and
MIRZA BAIG,
Plaintiff,
v.
SURJIT ENTERPRISES, L.L.C.,
NIPUL PATEL, AND OHM
PROPERTIES, L.L.C.,
Defendants-Appellants.
________________________________
Argued November 4, 2015 – Decided December 22, 2015
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Camden County, Docket No.
C-12-13.
Robert S. Greenberg argued the cause for
appellant.
Patrick J. Madden argued the cause for
respondents (Madden & Madden, P.A.,
attorneys; Mr. Madden, of counsel and on the
brief).
PER CURIAM
Defendants Surjit Enterprises, L.L.C., Nipul Patel, and Ohm
Properties, L.L.C. (collectively, defendants) appeal from a
final order of the Chancery Division granting plaintiff, Trend
Investments, specific performance of a contract for the sale of
real estate. For the following reasons, we affirm.
I.
We discern the following facts from the record. Defendants
own a strip mall located at 1180-1136 South Blackhorse Pike in
Blackwood (the property), which was listed for sale in 2008.
The property contains four commercial units and an apartment;
defendant Patel leases one of the commercial units as well as
the apartment. On October 20, 2012, Mirza Baig (a principal of
Trend Investments) visited the property and met with Patel.
After reviewing financial information and discussing terms,
Patel verbally offered to sell the property to plaintiff, and
the offer was accepted. To memorialize their agreement, the
parties handwrote and signed a document. The document reads as
follows:
SELLER'S STATEMENT:
1130-1136 BLACKHORSE PIKE PROPERTY
10/20/2012
Received $250.00 (Two hundred fifty
only) as earnest money (advance) to the
agreed sale amount of $675,000 (Six hundred
seventy five thousand) total of the sale
price.
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I will take out the property out [sic]
of the market and shall not invite or
discuss with any buyer the sale of the
property address 1130-1136 Blackhorse Pike,
Blackwood NJ 08012.
For all intent and purpose [sic] the
property is sold to Trend Investment[s] and
would be closed after the contract is signed
& closed eventually.
Plaintiff and defendant Patel signed this agreement on October
20, 2012.1 Baig paid Patel the $250 in earnest money pursuant to
the terms of the written agreement.
After the parties signed the written agreement, they
further memorialized an agreement for payment of closing costs
and attorneys' fees in writing on November 3, 2012. Both
parties signed this agreement as well. Plaintiff's attorney
prepared a longer, more formalized purchase agreement, but the
parties never signed it.
Several weeks after the parties signed the agreement,
plaintiff heard that defendant was considering selling the
property to another buyer for $800,000. Plaintiff called
1
At this time, Patel had a 100 percent ownership interest in
Surjit, and could thus sign on its behalf. Ohm Enterprises,
L.L.C. was created by Patel after a bank advised him that
transferring the property from Surjit Enterprises, L.L.C. to
another entity would help him obtain a loan. Although Patel
asserts that he transferred the property to Ohm Enterprises,
L.L.C. for purposes of getting a loan, Patel never offered
evidence to that effect.
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defendant to discuss the status of the agreement. Defendant
told plaintiff that he was cancelling the agreement and planned
to sell the property to another buyer.
On January 27, 2013, plaintiff filed a complaint seeking
specific performance of its contract. Plaintiff's original
complaint listed Surjit Enterprises, L.L.C. which owned the
property, as the only defendant. Plaintiff filed a motion to
add Patel and Ohm Properties, L.L.C. as defendants on January
24, 2014, following Surjit's transfer of the property to Ohm
Properties, L.L.C. In a February 28, 2014 order, the motion
judge added Patel and Ohm Properties, L.L.C. (which Patel owns
in its entirety) as defendants, although no complaint was ever
formally served upon Patel or Ohm Properties.
Immediately before trial, plaintiff renewed its request to
add Patel and Ohm Properties, L.L.C. as defendants to the suit.
Counsel for defendants asserted that plaintiff failed to file
and serve an amended complaint that added the new defendants to
the suit after the February 28 order. Defendants asserted that
adding them to the proceedings immediately before trial would
violate their due process rights. The trial judge noted that
both new defendants had notice of the pending action for months,
and that because Patel was the personal representative for both
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corporate defendants, no defendant would be unfairly surprised
by being named as parties to the suit.
After granting plaintiff's motion to join Patel and Ohm
Properties, L.L.C. as defendants, a trial was held on August 25,
2014. The trial judge found in favor of plaintiff and granted
plaintiff's request for specific performance in an order dated
September 26, 2014. This appeal followed.
II.
Defendants raise the following arguments on appeal:
POINT I:
OHM PROPERTIES, L.L.C. WAS NOT PROPERLY
BEFORE THE COURT, AND THEREFORE, THE COURT
HAD NO JURISDICTION TO ENTER AN ORDER FOR
SPCIFIC PERFORMANCE AGAINST IT.
POINT II:
THE HANDWRITTEN DOCUMENT DATED OCTOBER 20,
2012 WAS PRELIMINARY, MISSING ESSENTIAL
TERMS, AND NOT INTENDED TO BE BINDING UNTIL
AFTER THE SIGNING OF A FORMAL CONTRACT.
As a threshold matter, the trial judge both found facts and
made legal conclusions. When a party alleges error in a judge's
findings, as defendants assert here, the scope of appellate
review is limited. We will only decide whether the findings
made could reasonably have been reached on "sufficient" or
"substantial" credible evidence present in the record,
considering the proof as a whole. Rova Farms Resort, Inc. v.
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Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Meanwhile,
this court reviews the construction and interpretation of
contracts de novo; because contract construction is a question
of law, no deference is owed to the trial court's interpretation
of such contracts. See Kieffer v. Best Buy, 205 N.J. 213, 222-
23 (2011) (citations omitted).
Defendants first argue that the suit against them was
improperly brought because Patel and Ohm Properties, L.L.C. were
never served with a complaint. They argue that, because a civil
action can only be commenced against a party by filing a
complaint, and because they received no notice of such a
complaint, the trial court had no jurisdiction to enter its
order. We disagree.
A civil action is commenced by filing a complaint with the
court. R. 4:2-2. Service of a complaint on a defendant is
necessary for a court to assert jurisdiction over that
defendant. R. 4:4-4. These processes are required to comport
with the fundamental requirements of due process; however,
parties need not formally serve each defendant in a case where
the requirements of due process are otherwise met. See Bussell
v. Dewalt Prods. Corp., 259 N.J. Super. 499, 509 (App. Div.
1992), certif. denied, 133 N.J. 431 (1993). Due process is a
"flexible concept that depends on the facts and circumstances of
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the matter at hand." State v. Cook, 179 N.J. 533, 559 (2004)
(citing N.J. Parole Bd. v. Byrne, 93 N.J. 192, 209 (1983)).
"The critical components of due process are adequate
notice, opportunity for a fair hearing and availability of
appropriate review." Schneider v. City of East Orange, 196 N.J.
Super. 587, 595 (App. Div. 1984), aff'd 103 N.J. 115 (1986),
cert. denied, 479 U.S. 824, 104 S. Ct. 97, 93 L. Ed. 2d 48
(1986). A plaintiff thus fulfills notice and process
requirements if a defendant knew about the litigation before
being added as a defendant, and if said defendant has an
opportunity to be fully heard. Bussell, supra, 259 N.J. Super.
at 509-10. This is contemplated in our court rules, which allow
civil actions to continue when parties transfer their interest
in litigation. See R. 4:34-3.
In this case, defendants Patel and Ohm Properties, L.L.C.
were apprised of the pending lawsuit against them. The initial
complaint was served on Surjit Enterprises, L.L.C. which Patel
owned at the time of service. Patel transferred the property to
Ohm Properties, L.L.C. after plaintiff began prosecuting the
lawsuit, and as Patel was preparing to defend the lawsuit. We
are satisfied that all defendants had sufficient notice of the
action to prepare for it, an opportunity to be heard at trial,
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and an opportunity for meaningful review on appeal. We perceive
no prejudice to defendants.
Defendants also assert that plaintiff's failure to file a
lis pendens on the property before filing their complaint
constitutes a fatal procedural defect, and that we should
reverse for this reason. We reject this argument. It is
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Defendants' next argument is that the trial judge erred in
finding that the parties had created a binding contract.
Defendants argue that the document Patel signed was a
preliminary document, and that there was no "meeting of the
minds" as to essential contract terms. We disagree.
Courts evaluate two primary factors in determining whether
parties created a binding contract: whether there has been a
"meeting of the minds," and whether the contract manifests
mutual assent of the parties. Newfield Fire Co. No. 1 v.
Borough of Newfield, 439 N.J. Super. 202, 214-15 (App. Div.
2015) (citations omitted). Furthermore, the Legislature has
identified factors to consider that are unique to contracts for
the sale of real estate. Pursuant to N.J.S.A. 25:1-13, the
Legislature has provided that:
An agreement to transfer an interest in real
estate or to hold an interest in real estate
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for the benefit of another shall not be
enforceable unless:
(1) 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 transferee are established in
a writing signed by or on behalf of the
party against whom enforcement is sought[.]
The Legislature has also provided that "the focus of
inquiry in a situation involving an agreement for the sale of an
interest in real estate . . . should be whether an agreement has
been made between the parties by which they intend to be bound."
Morton v. 4 Orchard Land Tr., 180 N.J. 118, 126 (2004) (internal
citation omitted).
Here, the trial judge found the requisite intent between
the parties to bind themselves in the words of the document
itself. As the trial judge noted, Patel dictated the terms of
the agreement and signed it. The agreement explicitly
acknowledged that "[f]or all intent and purpose [sic] the
property is sold to Trend Investment[s.]" These elements of the
contract and the negotiations lead us to conclude that the
parties intended to be bound by the terms of the agreement.
Defendants assert that the preliminary nature of the
agreement establishes a lack of intent to be bound. However, a
signed memorandum, even if preliminary in nature, is sufficient
to bind the signatories of the memorandum if such is their
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intent. See, e.g., Comerata v. Chaumont, Inc., 52 N.J. Super.
299, 305 (App. Div. 1958). Such a memorandum is binding as a
contract even if a formalized agreement is forthcoming. Ibid.
As discussed above, even if the handwritten document was
preliminary in nature, the parties' intent to be bound is clear
given the language used in the agreement and the circumstances
of the negotiations. We thus conclude that the parties had the
requisite intent to bind themselves to a real estate contract.
Defendants also argue that the agreement was missing
certain essential terms, including future rent to be paid to
Trend Investments, L.L.C. closing terms, terms concerning
attorneys' fees, and a closing date. The trial court found that
these terms were not essential to the contract, and we agree.
"[I]t is not necessary for a writing to contain every possible
contractual provision to cover every contingency in order to
qualify as a completed binding agreement." Berg Agency v.
Sleepworld-Willingboro Inc., 136 N.J. Super. 369, 377 (App. Div.
1975) (citations omitted). Rather, "[s]o long as the basic
essentials are sufficiently definite, any gaps left by the
parties should not frustrate their intent to be bound." Ibid.
The contract in this case contained all of the "basic
essentials" necessary to evince the parties' intent to be bound.
The contract identified the parties, identified the property to
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be sold, set forth the consideration and payment of earnest
money, and was signed by the parties. Accordingly, we disagree
with defendants' contention that the contract was missing
essential terms and that the contract was thus unenforceable.
Affirmed.
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