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Draesel v. Pardes

A-323-03T3 (N.J. Super. App. Div. 2005) (Unpublished)

CONTRACTS; NOTICE — An attorney can reasonably rely on the ability to deliver a required written notice after its deadline after leaving a phone message for the recipient’s attorney to the effect that the notice would be sent, if in a few days, he or she does not receive any objection from the recipient’s attorney.

A husband and wife hired an attorney to represent them in two transactions. The first transaction was the sale of their home. The second transaction was the purchase of a new home. The contract for the purchase of the new home was contingent upon the sale of the couple’s current residence. The sale contract provided that the couple had until a certain date to provide written confirmation that the contingency had either been met or waived. To meet this requirement, the couple’s attorney had to send the seller a copy of the executed sale contract for the couple’s current home. If the couple failed to provide the written notice by the deadline, either party could void the contract. The couple’s attorney placed several calls to counsel for the prospective buyer’s of the couple’s home. The buyer’s counsel did not get back to the attorney until the day that written confirmation was required for the sale contract for the new home. In order to avoid cancellation of the contract, the couple’s attorney telephoned the seller’s counsel and left a telephone message. In the message he stated that an agreement had been met with regards to the sale of the couple’s current home, and that written confirmation would follow within the next three days. He needed time to clarify some of the details on the contract for sale of the buyer’s house. He also requested that the seller’s attorney contact him if he had any questions. The seller’s attorney never contacted him, so he assumed that the extension was granted. However, on the deadline date, the seller had received an offer from a third party to purchase the property at a higher price. The seller’s counsel then faxed a letter to the couple’s attorney voiding the contract for failure to meet the deadline for the written notice. The couple’s attorney tried to salvage the contract by offering a higher purchase price, which the seller refused to accept. The couple then sued the seller for specific performance, but was denied relief. The couple then filed a legal malpractice action against their attorney and his law firm, asserting that they were professionally negligent in not providing the written notice by the deadline. In its defense, the attorney argued that the delay in his submission of the notice was due to circumstances beyond his control, namely the buyer’s attorney’s delay in returning his phone calls. He also asserted that it was reasonable for him after leaving the telephone message for the seller’s counsel and not receiving a return call, to assume that the seller consented to the extension of time. A jury trial was held after which a verdict was rendered in favor of the attorney. The couple then moved for a new trial and the attorney cross-moved for counsel fees. The lower court denied both motions and the couple appealed.

The Appellate Division affirmed the lower court’s ruling. It found that in evaluating a motion for a new trial, the lower court had a duty to review the record to determine whether reasonable minds would accept the evidence as adequate to support the jury verdict. In applying this principle, the Court held that there was sufficient evidence to conclude that neither the attorney nor his firm were negligent. It held that based on the evidence presented, the jury could have reasonably found that the attorney reasonably believed that it would be acceptable to deliver the written notice after the deadline after leaving a voice message for the seller’s attorney and not receiving a return call.


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