On July 23, 2021 a
REPLY BRIEF submitted by TROCANO, RUSSELL, P of RUSSELL P TROCANO & ASSOCIATES on behalf of EDCOST I LLC, BARBARA TROCANO against GLENN STEVENS, JOHN DOE II, CTA TITLE SERVICE LLC, STEVEN POOLE, MICHAEL POOLE ET AL.
was filed
involving a dispute between
Barbara Trocano,
Caroline Stevens,
Edcost I Llc,
Glenn Stevens,
and
Caroline Stevens,
Century 21 Solid Reality Co,
Cta Title Service Llc,
Glenn Stevens,
John Doe I,
John Doe Ii,
Michael Poole,
Russell Trocano Jr Esq,
Solid Gold Realty Inc,
Solid Gold Realty Llc,
Steven Poole,
Xyz Corporation I,
Xyz Corporation Ii,
for Contract/Commercial Transaction
in the District Court of Bergen County.
Preview
BER-L-004906-21 08/03/2021 3:20:14 PM Pg 1 of 10 Trans ID: LCV20211808354
BARBARA TROCANO, EDCOST I, LLC.
SUPERIOR COURT OF NEW JERSEY
PLAINTIFFS, LAW DIVISION BERGAN COUNTY
VS. DOCKET NO.: BER-L-4906-21
GLENN STEVENS, CAROLINA STEVENS, CIVIL ACTION
MICHAEL POOLE, STEVEN POOLE, CENTURY
21 SOLID REALITY COMPANY, CTA TITLE
SERVICE LLC INC., JOHN DOE J, II (FICTITIOUS BRIEF IN SUPPORT OF PLAINTIFF
NAME), XYZ
CORPORATION LI, II (FICTITIOUS NAME)
DEFENDANTS.
BRIEF IN FURTHER SUPPORT OF PLAINTIFF BARBARA TROCANO’S
COMPLAINT AND ORDER TO SHOW CAUSE
RUSSELL P. TROCANO AND ASSOCIATES
60 SOUTH MAPLE AVENUE
RIDGEWOOD, NEW JERSEY 07450-3807
ATTORNEY ID #: 022371987
(201) 445-0777
(201) 445-0669 TELEFAX
ATTORNEY FOR PLAINTIFF
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS [2]
TABLE OF AUTHORITIES B]
PROCEDURAL HISTORY [4]
STATEMENT OF FACTS [5-6]
THE PLAINTIFF SHOULD BE EXCUSED
FROM COMPLYING WITH ESCROW UNDER
PRINCIPALS OF EQUITY [7]
POINT I
The Doctrine Of Impossibility Excuses The
Plaintiff From Compliance Where Compliance Is
Not Possible Without Any Fault Of The Plaintiff [7-8]
POINT II [8-9]
The Defendant’s Would Be Unjustly Enriched If
Allowed To Enforce The Escrow Agreement’s
September 2021 Deadline
POINT III [9-10]
Notions Of Equity And Fair Play Naturally
Compels Holding For The Plaintiff
CONCLUSION [10]
BER-L-004906-21 08/03/2021 3:20:14 PM Pg 3 of 10 Trans ID: LCV20211808354
TABLE OF AUTHORITIES
Cases
1 Facto v. Pantagis, 390 N.J. Super. 227,
231 (App. Div. 2007).
JB Pool Management. LLC v. Four
Seasons at
Smithville Homeowners Ass'n. Inc., 431
N.J. Super. 233, 246 (App. Div. 2013).
Connell v. Parlavecchio, 255 N.J. Super.
45 (App. Div. 1992)
Goldsmith vy Camden County
Surrogate's Office, 408 N.J. Super 376
(App. Div. 2009).
VRG Corp.. v GKN Realty Corp., 135
N.J. 539. 554 (1994).
Statutes
1 N.J. Stat. Ann. § 56:8-2 (West) Fraud,
etc., in connection with sale...
or real estate as unlawful practice
BER-L-004906-21 08/03/2021 3:20:14 PM Pg 4 of 10 Trans ID: LCV20211808354
PROCEDURAL HISTORY
Plaintiff filed a Complaint and Order to show Cause with accompanying documents and
certification. This brief in support of the Plaintiff and in response to the Judge Gregg Padovano
ORDER on July 28, 2021.
BER-L-004906-21 08/03/2021 3:20:14 PM Pg 5 of 10 Trans ID: LCV20211808354
STATEMENT OF FACTS
This Plaintiff is an elderly widow residing in Wyckoff, New Jersey, when the Defendants
solicited her to sell a vacant parcel of land property.
Plaintiff agreed to be represented by Defendant's realtor in closing the transaction.
Plaintiff and Defendant entered a contract in June 2020 whereby the closing was to occur on
September 2020 subject to conditions. The vacant property had riparian and tideland issues that
needed to brought into compliance, of which Defendants assured the Plaintiff would not pose a
significant hurdle to the deal. It was not until near the closing deadline in September of 2020
that the Defendants pushed an 1 1th-hour addendum on Plaintiff giving her a year to bring the
property into compliance.
Pursuant to'the addendum, Plaintiff agreed in principle to have $500,000 of the
purchasing costs placed in an escrow account with the realtor's brother. Without informing
the
Plaintiff it was objectively impossible to comply with the addendum within the allotted time,
When Plaintiff
Defendants reassured Plaintiff that an extension would be given as necessary.
as the
learned of this impossibility, she relayed her concerns to the Defendants. Insofar
became necessary. As
Defendants were concerned, an extension would eventually be given if it
Defendants seek to
the deadline loomed, Defendants began to ignore Plaintiff's concerns entirely.
purchase cost owed to
wait out the deadline and shave hundreds of thousands of dollars off the
Plaintiff.
ing the release of
Several reasons provide this Court with ample justification for prevent
ty offers a basis for relieving
the escrow funds. First, the doctrine of impossibility/impracticabili
Plaintiff from compliance where compliance is impossible or impractical.
BER-L-004906-21 08/03/2021 3:20:14 PM Pg 6 of 10 Trans ID: LCV20211808354
Alternatively, the Defendants would be unjustly enriched hundreds of thousands of dollars at the
Plaintiff's expense without any benefit to her.
Finally, a decision for the Defendant would offend principals of equity and notions of
justice. Not only did the realtor fail to advise Plaintiff of this serious and assumed risk, but the
entire process has been anything but transparent. With the realtor and escrow company
purportedly acting on behalf of Plaintiff, multiple fiduciaries failed to advise Plaintiff diligently.
In doing so, the realtor and escrow company chose the path of expediency and quick return on
the commission without adequately representing the Plaintiff's interests. Plaintiff prays the
Court sees the 11th-hour addendum for what it is: a prelude to retain hundreds of thousands of
dollars to money at the expense of another.
BER-L-004906-21 08/03/2021 3:20:14 PM Pg 7 of 10 Trans ID: LCV20211808354
LEGAL ARGUMENT
THE PLAINTIFF SHOULD BE EXCUSED FROM COMPLYING WITH ESCROW
AGREEMENT BECAUSE COMPLIANCE IS NOT ONLY IMPOSSIBLE BUT WOULD
ALSO UNJUSTLY ENRICH THE DEFENDANT AND OFFENDS NOTIONS OF
EQUITY
POINT I
Compliance
The Doctrine of Impossibility Excuses the Plaintiff from Compliance Where
Is Not Possible Without Any Fault of The Plaintiff
ility as a
New Jersey Courts have adopted the doctrine of impracticability and impossib
ly provide that a
contract defense. Courts have held that "[e]ven if a contract does not express
makes
party will be relieved of the duty to perform if an unforeseen condition arises that
ance has unexpectedly
performance impracticable, a court may relieve him of that duty if perform
become impracticable as a result of a supervening event." Facto v. Pantagis, 390 N.J. Super. 227,
231 (App. Div. 2007).
(or
The Appellate Division has held that "successful defense of impossibility
perform its contract obligations,
impracticability) of performance excuses a party from having to
more difficult, because of the
where performance has become impossible, or at least inordinately
l contemplation of the
occurrence of a supervening event that was not within the origina
s at Smithville Homeowners
contracting parties." JB Pool Mi anagement. LLC v. Four Season
Ass'n. Inc., 431 N.J. Super. 233, 246 (App. Div. 2013).
1992), the Court held that
In Connell v. Parlavecchio, 255 N.J. Super. 45 (App. Div.
defenses where a fact essential
"[ijmpossibility or impracticability of performance are complete
BER-L-004906-21 08/03/2021 3:20:14 PM Pg 8 of 10 Trans ID: LCV20211808354
to performance is assumed by the parties but does not exist at the time for performance. They are
not defenses where the difficulty is the personal inability of the promisor to
perform.". Parlavecchio, 255 N.J. Super. 45, 49 (App. Div. 1992).
The facts of this case square neatly with the doctrine's purpose and the Courts' precedents. After
months of negotiating, the Defendants proposed that Plaintiff enters into an escrow agreement
whereby she places $500,000 in escrow to be returned to her upon clearing the riparian rights.
However, Plaintiff's inability to complete the work within a year is not out of a personal inability
to perform. On the contrary, Plaintiff has expended thousands of dollars and retained an expert
who informed Plaintiff that it was objectively impossible to complete the work within the
allotted time. A second expert opinion confirmed the same. When Plaintiff informed the
Defendants of this fact, Defendant stated that more time would be given as the work progressed.
and
In reliance, Plaintiff continued the work, but the Defendants would later ignore this problem
her
willfully fail to rectify the problem. Plaintiff seeks this Court's equitable power to excuse
of doing so.
from compliance with the September 2020 deadline because of the impracticality
POINT IT
Escrow
The Defendant’s Would Be Unjustly Enriched If Allowed To Enforce The
Agreement’s September 2021 Deadline
f is the doctrine
Another basis that provides the Court justification to hold for the Plaintif
e principle that a
of unjust enrichment. The doctrine of unjust enrichment rests on the equitabl
another. Goldsmith v
person shall not be allowed to enrich himself unjustly at the expense of
2009), certif. den. 200 N.J.
Camden County Surrogate's Office, 408 N.J. Super 376 (App. Div.
n of that benefit
502 (2009). This requires that Defendant received a benefit and that retentio
without payment would be unjust. VRG Corp.. v GKN Realty Corp., 135 N.J. 539. 554 (1994).
BER-L-004906-21 08/03/2021 3:20:14 PM Pg 9 of 10 Trans ID: LCV20211808354
Plaintiff has presented proof establishing that the Defendants seek to retain $$500,000 unjustly
owed to Plaintiff by forcing Plaintiff to breach the year deadline or demanding money in
exchange for giving her the necessary time required to comply.
By incorporating a provision that is objectively impossible to comply with, Defendants
seek to capitalize on this impossibility at the Plaintiff's expense. After signing the escrow
agreement, Plaintiff made a good faith effort in fulfilling her contractual obligation. When it
s,
became clear that no reasonable effort in complying was possible, she alerted the defendant
who initially agreed to give her more time as the work progressed. In reliance, Plaintiff
continued to work on clearing the tidelands and riparian rights issue, but as the deadline
seek
approached, Plaintiff received the deaf ear on the required extension. The Defendants now
to retain $500,0000 of Plaintiff's sale price without any benefit or payment.
POINT Il
f
Notions Of Equity And Fair Play Naturally Compels Holding For The Plaintif
on principles of
Finally, the Court should afford the Plaintiff the relief needed based
home inquiring about
equity. The Defendants and their agents solicited the Plaintiff at her
on Plaintiff at the last
purchasing t he property. Defendant's realtor pushed the escrow agreement
to also benefit his
minute without informing her about the impossibility. The realtor sought
to advise the Plaintiff of
brother's escrow company by retaining his services, and he also failed
the impossibility of compliance with the escrow agreement.
. While initially
The Defendants have not acted in good faith throughout the process
d Plaintiff as time went
stating that more time would be given, the Defer ndants repeatedly ignore
after exhausting her
on. While Plaintiff has made good faith efforts to resolve the issue and
BER-L-004906-21 08/03/2021 3:20:14 PM Pg 10 of 10 Trans ID: LCV20211808354
efforts, Defendant's true motives became apparent when they demanded hundreds of thousands
of dollars for an extension. Not only does it fly in the face of earlier statements and
acknowledgment, but it was also a deliberate strategy to let the clock run out and prevent
Plaintiff from pursuing her rights matter sooner than later.
CONCLUSION
For the foregoing reasons, Plaintiff Barbara Trocano respectfully requests that the Court grant
her the specific performance requested in her Complaint and Order to Show Cause to prevent
irreparable harm to the Plaintiff.
Respectfully submitted,
[Russell Trocano & Associates]
[Attorneys for [Plaintiffs, Barbara Trocano, Edcost I LCC.
leu uA Ul Seth
[Russell P. Trocano]
Dated: August 3, 2021
10
Preview
BER-L-004906-21 08/03/2021 3:20:14 PM Pg 1 of 10 Trans ID: LCV20211808354 BARBARA TROCANO, EDCOST I, LLC. SUPERIOR COURT OF NEW JERSEY PLAINTIFFS, LAW DIVISION BERGAN COUNTY VS. DOCKET NO.: BER-L-4906-21 GLENN STEVENS, CAROLINA STEVENS, CIVIL ACTION MICHAEL POOLE, STEVEN POOLE, CENTURY 21 SOLID REALITY COMPANY, CTA TITLE SERVICE LLC INC., JOHN DOE J, II (FICTITIOUS BRIEF IN SUPPORT OF PLAINTIFF NAME), XYZ CORPORATION LI, II (FICTITIOUS NAME) DEFENDANTS. BRIEF IN FURTHER SUPPORT OF PLAINTIFF BARBARA TROCANO’S COMPLAINT AND ORDER TO SHOW CAUSE RUSSELL P. TROCANO AND ASSOCIATES 60 SOUTH MAPLE AVENUE RIDGEWOOD, NEW JERSEY 07450-3807 ATTORNEY ID #: 022371987 (201) 445-0777 (201) 445-0669 TELEFAX ATTORNEY FOR PLAINTIFF BER-L-004906-21 08/03/2021 3:20:14 PM Pg 2 of 10 Trans ID: LCV20211808354 TABLE OF CONTENTS Page TABLE OF CONTENTS [2] TABLE OF AUTHORITIES B] PROCEDURAL HISTORY [4] STATEMENT OF FACTS [5-6] THE PLAINTIFF SHOULD BE EXCUSED FROM COMPLYING WITH ESCROW UNDER PRINCIPALS OF EQUITY [7] POINT I The Doctrine Of Impossibility Excuses The Plaintiff From Compliance Where Compliance Is Not Possible Without Any Fault Of The Plaintiff [7-8] POINT II [8-9] The Defendant’s Would Be Unjustly Enriched If Allowed To Enforce The Escrow Agreement’s September 2021 Deadline POINT III [9-10] Notions Of Equity And Fair Play Naturally Compels Holding For The Plaintiff CONCLUSION [10] BER-L-004906-21 08/03/2021 3:20:14 PM Pg 3 of 10 Trans ID: LCV20211808354 TABLE OF AUTHORITIES Cases 1 Facto v. Pantagis, 390 N.J. Super. 227, 231 (App. Div. 2007). JB Pool Management. LLC v. Four Seasons at Smithville Homeowners Ass'n. Inc., 431 N.J. Super. 233, 246 (App. Div. 2013). Connell v. Parlavecchio, 255 N.J. Super. 45 (App. Div. 1992) Goldsmith vy Camden County Surrogate's Office, 408 N.J. Super 376 (App. Div. 2009). VRG Corp.. v GKN Realty Corp., 135 N.J. 539. 554 (1994). Statutes 1 N.J. Stat. Ann. § 56:8-2 (West) Fraud, etc., in connection with sale... or real estate as unlawful practice BER-L-004906-21 08/03/2021 3:20:14 PM Pg 4 of 10 Trans ID: LCV20211808354 PROCEDURAL HISTORY Plaintiff filed a Complaint and Order to show Cause with accompanying documents and certification. This brief in support of the Plaintiff and in response to the Judge Gregg Padovano ORDER on July 28, 2021. BER-L-004906-21 08/03/2021 3:20:14 PM Pg 5 of 10 Trans ID: LCV20211808354 STATEMENT OF FACTS This Plaintiff is an elderly widow residing in Wyckoff, New Jersey, when the Defendants solicited her to sell a vacant parcel of land property. Plaintiff agreed to be represented by Defendant's realtor in closing the transaction. Plaintiff and Defendant entered a contract in June 2020 whereby the closing was to occur on September 2020 subject to conditions. The vacant property had riparian and tideland issues that needed to brought into compliance, of which Defendants assured the Plaintiff would not pose a significant hurdle to the deal. It was not until near the closing deadline in September of 2020 that the Defendants pushed an 1 1th-hour addendum on Plaintiff giving her a year to bring the property into compliance. Pursuant to'the addendum, Plaintiff agreed in principle to have $500,000 of the purchasing costs placed in an escrow account with the realtor's brother. Without informing the Plaintiff it was objectively impossible to comply with the addendum within the allotted time, When Plaintiff Defendants reassured Plaintiff that an extension would be given as necessary. as the learned of this impossibility, she relayed her concerns to the Defendants. Insofar became necessary. As Defendants were concerned, an extension would eventually be given if it Defendants seek to the deadline loomed, Defendants began to ignore Plaintiff's concerns entirely. purchase cost owed to wait out the deadline and shave hundreds of thousands of dollars off the Plaintiff. ing the release of Several reasons provide this Court with ample justification for prevent ty offers a basis for relieving the escrow funds. First, the doctrine of impossibility/impracticabili Plaintiff from compliance where compliance is impossible or impractical. BER-L-004906-21 08/03/2021 3:20:14 PM Pg 6 of 10 Trans ID: LCV20211808354 Alternatively, the Defendants would be unjustly enriched hundreds of thousands of dollars at the Plaintiff's expense without any benefit to her. Finally, a decision for the Defendant would offend principals of equity and notions of justice. Not only did the realtor fail to advise Plaintiff of this serious and assumed risk, but the entire process has been anything but transparent. With the realtor and escrow company purportedly acting on behalf of Plaintiff, multiple fiduciaries failed to advise Plaintiff diligently. In doing so, the realtor and escrow company chose the path of expediency and quick return on the commission without adequately representing the Plaintiff's interests. Plaintiff prays the Court sees the 11th-hour addendum for what it is: a prelude to retain hundreds of thousands of dollars to money at the expense of another. BER-L-004906-21 08/03/2021 3:20:14 PM Pg 7 of 10 Trans ID: LCV20211808354 LEGAL ARGUMENT THE PLAINTIFF SHOULD BE EXCUSED FROM COMPLYING WITH ESCROW AGREEMENT BECAUSE COMPLIANCE IS NOT ONLY IMPOSSIBLE BUT WOULD ALSO UNJUSTLY ENRICH THE DEFENDANT AND OFFENDS NOTIONS OF EQUITY POINT I Compliance The Doctrine of Impossibility Excuses the Plaintiff from Compliance Where Is Not Possible Without Any Fault of The Plaintiff ility as a New Jersey Courts have adopted the doctrine of impracticability and impossib ly provide that a contract defense. Courts have held that "[e]ven if a contract does not express makes party will be relieved of the duty to perform if an unforeseen condition arises that ance has unexpectedly performance impracticable, a court may relieve him of that duty if perform become impracticable as a result of a supervening event." Facto v. Pantagis, 390 N.J. Super. 227, 231 (App. Div. 2007). (or The Appellate Division has held that "successful defense of impossibility perform its contract obligations, impracticability) of performance excuses a party from having to more difficult, because of the where performance has become impossible, or at least inordinately l contemplation of the occurrence of a supervening event that was not within the origina s at Smithville Homeowners contracting parties." JB Pool Mi anagement. LLC v. Four Season Ass'n. Inc., 431 N.J. Super. 233, 246 (App. Div. 2013). 1992), the Court held that In Connell v. Parlavecchio, 255 N.J. Super. 45 (App. Div. defenses where a fact essential "[ijmpossibility or impracticability of performance are complete BER-L-004906-21 08/03/2021 3:20:14 PM Pg 8 of 10 Trans ID: LCV20211808354 to performance is assumed by the parties but does not exist at the time for performance. They are not defenses where the difficulty is the personal inability of the promisor to perform.". Parlavecchio, 255 N.J. Super. 45, 49 (App. Div. 1992). The facts of this case square neatly with the doctrine's purpose and the Courts' precedents. After months of negotiating, the Defendants proposed that Plaintiff enters into an escrow agreement whereby she places $500,000 in escrow to be returned to her upon clearing the riparian rights. However, Plaintiff's inability to complete the work within a year is not out of a personal inability to perform. On the contrary, Plaintiff has expended thousands of dollars and retained an expert who informed Plaintiff that it was objectively impossible to complete the work within the allotted time. A second expert opinion confirmed the same. When Plaintiff informed the Defendants of this fact, Defendant stated that more time would be given as the work progressed. and In reliance, Plaintiff continued the work, but the Defendants would later ignore this problem her willfully fail to rectify the problem. Plaintiff seeks this Court's equitable power to excuse of doing so. from compliance with the September 2020 deadline because of the impracticality POINT IT Escrow The Defendant’s Would Be Unjustly Enriched If Allowed To Enforce The Agreement’s September 2021 Deadline f is the doctrine Another basis that provides the Court justification to hold for the Plaintif e principle that a of unjust enrichment. The doctrine of unjust enrichment rests on the equitabl another. Goldsmith v person shall not be allowed to enrich himself unjustly at the expense of 2009), certif. den. 200 N.J. Camden County Surrogate's Office, 408 N.J. Super 376 (App. Div. n of that benefit 502 (2009). This requires that Defendant received a benefit and that retentio without payment would be unjust. VRG Corp.. v GKN Realty Corp., 135 N.J. 539. 554 (1994). BER-L-004906-21 08/03/2021 3:20:14 PM Pg 9 of 10 Trans ID: LCV20211808354 Plaintiff has presented proof establishing that the Defendants seek to retain $$500,000 unjustly owed to Plaintiff by forcing Plaintiff to breach the year deadline or demanding money in exchange for giving her the necessary time required to comply. By incorporating a provision that is objectively impossible to comply with, Defendants seek to capitalize on this impossibility at the Plaintiff's expense. After signing the escrow agreement, Plaintiff made a good faith effort in fulfilling her contractual obligation. When it s, became clear that no reasonable effort in complying was possible, she alerted the defendant who initially agreed to give her more time as the work progressed. In reliance, Plaintiff continued to work on clearing the tidelands and riparian rights issue, but as the deadline seek approached, Plaintiff received the deaf ear on the required extension. The Defendants now to retain $500,0000 of Plaintiff's sale price without any benefit or payment. POINT Il f Notions Of Equity And Fair Play Naturally Compels Holding For The Plaintif on principles of Finally, the Court should afford the Plaintiff the relief needed based home inquiring about equity. The Defendants and their agents solicited the Plaintiff at her on Plaintiff at the last purchasing t he property. Defendant's realtor pushed the escrow agreement to also benefit his minute without informing her about the impossibility. The realtor sought to advise the Plaintiff of brother's escrow company by retaining his services, and he also failed the impossibility of compliance with the escrow agreement. . While initially The Defendants have not acted in good faith throughout the process d Plaintiff as time went stating that more time would be given, the Defer ndants repeatedly ignore after exhausting her on. While Plaintiff has made good faith efforts to resolve the issue and BER-L-004906-21 08/03/2021 3:20:14 PM Pg 10 of 10 Trans ID: LCV20211808354 efforts, Defendant's true motives became apparent when they demanded hundreds of thousands of dollars for an extension. Not only does it fly in the face of earlier statements and acknowledgment, but it was also a deliberate strategy to let the clock run out and prevent Plaintiff from pursuing her rights matter sooner than later. CONCLUSION For the foregoing reasons, Plaintiff Barbara Trocano respectfully requests that the Court grant her the specific performance requested in her Complaint and Order to Show Cause to prevent irreparable harm to the Plaintiff. Respectfully submitted, [Russell Trocano & Associates] [Attorneys for [Plaintiffs, Barbara Trocano, Edcost I LCC. leu uA Ul Seth [Russell P. Trocano] Dated: August 3, 2021 10