Busciglio v. DellaFave
| Decision Date | 29 January 2004 |
| Citation | 366 N.J. Super. 135,840 A.2d 897 |
| Parties | Francesca BUSCIGLIO, Plaintiff-Respondent, v. Grace DELLAFAVE and Christopher Finn, Defendants/Third Party Plaintiffs-Appellants, v. Enzo BUSCIGLIO, Dolores Depiazza, Century 21 Eudan Realty, Aldo Merendino and Prudential Merendino Realty, Third-Party Defendants. |
| Court | New Jersey Superior Court |
Michael A. Casale argued the cause for appellants. Mark D. Madaio, Bergenfield, argued the cause for respondent.
Before Judges KESTIN, AXELRAD and LARIO.
The opinion of the court was delivered by LARIO, J.A.D.
Defendants, mother and son, appeal from the trial court's order of May 20, 2002, granting plaintiff summary judgment. The court ordered defendants to specifically perform the contract for the sale of their jointly-owned real estate to plaintiff. We reverse and remand for a plenary trial.
Defendants raise the following issues on appeal:
A. THE BROKER-PREPARED CONTRACT WAS DISAPPROVED.
B. THE ATTORNEYS DID NOT HAVE AUTHORITY TO BIND THEIR CLIENTS.
On December 6, 2000, plaintiff, an interested purchaser, and defendant Grace DellaFave, a co-owner with her son, defendant Christopher Finn, signed a contract for the sale of defendants' residential property located at 26 Springfield Avenue, Hasbrouck Heights.2 A real estate broker had prepared the contract of sale and, on the same day that it was signed by plaintiff and defendant DellaFave, it was faxed to plaintiff's attorney, Salvador Sclafani, with a notation that Dean Lynch, represented the sellers. Defendant Finn did not sign the agreement until December 9, 2000.
The contract of sale contained a standard attorney-review clause allowing the buyer and seller to have an attorney review the contract of sale within a three-day period. After reviewing the contract of sale, if the attorney disapproved the contract, the reviewing attorney was required to notify the realtor and the other party named in the contract within the three-day period. If no disapproval was received within three days, then the contract became legally binding as written.
On December 8, 2000, Sclafani wrote to Lynch expressly disapproving the contract of sale. He proposed an amendment in the form of a contract rider, and signed it as the attorney "for Francesca Busciglio." The amendment to the contract was prepared with a reference to "sellers", but only one signature line was set forth on the amendment for defendant DellaFave. Sclafani's letter of December 8, 2000 referred to the proposed amendment to the contract of sale which "has been executed by me on behalf of the purchaser." Sclafani submitted the proposed amendment for Lynch's "review and [his] clients' approval." Sclafani also stated that he would accept Lynch's signature on behalf of his clients "to expedite conclusion of the attorney review." Sclafani then stated that he was instructing his client to forward $18,500 to Lynch for deposit to his trust account. His letter continued: "I ask that you do not deposit same until the amendment has been signed by you and your clients." (Emphasis supplied.)
On December 11, 2000, Lynch corresponded with Sclafani indicating that he had not seen the completed contract of sale. Nevertheless, Lynch proposed a series of changes to both the contract of sale and plaintiff's rider, which he faxed to Sclafani. On the same day, Sclafani signed Lynch's December 11, 2000 letter containing the proposed changes as "approved" and faxed the letter back to Lynch.
On December 12, 2000, Lynch sent a letter to Sclafani acknowledging that he had received the completed agreement of sale (by that time signed by both sellers). Lynch also signed and returned plaintiff's rider, "signed by me [Lynch] on behalf of my client noting it is subject to my letter of December 11, 2000 [which] you have approved." Lynch's letter also included additional changes to the agreement of sale that Sclafani and Lynch had agreed upon orally.
On December 13, 2000, Lynch wrote to Sclafani to advise him that "my client has requested that I not revive the contract of sale."
The record reveals that neither Sclafani nor Lynch had obtained a written retainer agreement setting forth the scope of either attorney's representation. Furthermore, at no point throughout the course of their negotiations, did plaintiff or defendants sign any of the changes to the contract of sale or execute a power of attorney appointing her or their respective lawyer as attorney-in-fact.
Plaintiff sued defendants for specific performance of the amended contract of sale. Defendants moved for summary judgment dismissing plaintiff's complaint. Plaintiff's cross-motion for summary judgment sought specific performance of the amended contract plaintiff contended had been consummated. On May 20, 2002, the motion judge denied defendants' motion and granted plaintiff's cross-motion for specific performance.
In reviewing an order for summary judgment, we employ the same standard that governs the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167, 704 A.2d 597 (App. Div.1998). Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523, 666 A.2d 146 (1995) provides a current analysis of that standard:
[W]hen deciding a motion for summary judgment under Rule 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential...
To continue reading
Request your trial
-
In re Norvergence, Inc.
...bind it since apparent authority can only arise through the actions of the putative principal. Qwest cites Busciglio v. DellaFave, 366 N.J.Super. 135, 140, 840 A.2d 897 (App.Div.2004), remanded 2005 WL 1606060, aff'd, 2006 WL 3053405, in which the court held that "[a]pparent authority must ......
-
Wall Twp. Educ. Ass'n v. Bd. of Educ. of the Wall Twp. Sch. Dist.
...an agency's summary decision differs slightly from our de novo review of a court's grant of summary judgment. Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004). Although we employ a de novo standard of review to an agency's determination that there are no genuine issues of m......
-
Still v. State-Operated Sch. Dist. of Camden
...an agency's summary decision differs slightly from our de novo review of a court's grant of summary judgment. Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004). Although we employ a de novo standard of review to an agency's determination that there are no genuine issues of m......
-
Cayre v. New Jersey Department of Environmental Protection/Land Use Regulation, A-0223-19
... ... summary decision differs slightly from our de novo review of ... a court's grant of summary judgment. Busciglio v ... DellaFave, 366 N.J.Super. 135, 139 (App. Div. 2004) ... Although we employ a de novo standard of review to an ... agency's ... ...