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Frasiolas v. Lekas

A-0195-98T2 (N.J. Super. App. Div. 1999) (Unpublished)

CONTRACTS; PAROLE EVIDENCE; DEADMAN’S STATUTE—To assert an oral promise by a now deceased party to a contract, the claimant must prove the promise by “clear and convincing” evidence even if the party can avoid the parole evidence rule.

In 1975, a husband and wife purchased a diner from another couple. At the same time, a twenty year lease was executed which gave the buyers a right of first refusal in the event that the underlying property was offered for sale during its term. Three years later, one of the selling owners died. As the twenty year lease drew to a close, the diner owners claimed that while the deceased seller was alive, a promise had been made that upon expiration of the lease, the land would be sold to them. There was no way to confirm this promise and the written lease and the bill of sale covering the diner said nothing about it. The land owner made no attempt to sell the land during the twenty years, and therefore the right of first refusal never came into play. Following the expiration of the lease, the diner building was sold and was removed from the property. The lower court held that the buyers’ assertion of an oral promise made by the deceased owner had to be established by “clear and convincing proof” pursuant to the Deadman’s Statute, N.J.S. 28:81-2, and that the buyers had failed to meet that standard. The lower court also held that the alleged oral promise violated the statute of frauds; that the claim ran afoul of the parol evidence rule; and that there was no substance to the claim of defamation or interference with prospective economic advantage. The Appellate Division upheld the lower court’s dismissal of the complaint.


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