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NOT FOR PUBLICATION WITHOUT THE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.

3 A-0668-14T2
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.

5 A-0668-14T2
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

6 A-0668-14T2
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,

7 A-0668-14T2
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

9 A-0668-14T2
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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