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Zabasajja v. Capano

A-2819-02T2 (N.J. Super. App. Div. 2003) (Unpublished)

CONTRACTS; ATTORNEYS—It is not malpractice by an attorney for refusing to follow a client’s direction to terminate a contract when the client doesn’t have the right to terminate the contract in the first place.

A seller wanted to cancel a residential real estate contract, but her attorney did not follow those instructions. The contract had an addendum that gave the buyer forty-five days within which to obtain a mortgage commitment. The seller signed the addendum on May 17 and the addendum was forwarded to the buyer’s attorney on May 22. The fully executed addendum was returned on May 31. The seller claimed that on both June 19 and June 29, each less than forty-five days after any of the aforementioned dates, she instructed her attorney to cancel the contract “because the buyers had not procured an unconditional mortgage commitment in the time specified by the contract.” All the seller’s attorney did was to write to the buyer’s attorney requesting information about the status of the mortgage commitment. On July 5, the buyer advised the seller that it had received a written unconditional mortgage commitment. Two days later, the seller fired its attorney and retained new counsel. The sale never took place and the buyer sued for specific performance. Within that suit, the seller sued her first attorney, alleging malpractice. Specifically, the seller alleged that she had a right to cancel the contract as early as June 19 and that her attorney’s refusal to do so caused the seller to suffer damage as a result of that omission.

The Court examined the dates and assumed that the buyer could not have executed the contract earlier than May 21 nor later than May 31. It didn’t care that it couldn’t determine when the buyer actually signed the document because the forty-five day period had not run from any of the dates that the seller claimed to have told her attorney to cancel the contract. Therefore, the seller’s attorney “breached no duty to his client[] when he simply inquired about the status of the mortgage commitment.”


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