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Conklin v. Davi - 76 N.J. 468, 388 A.2d 598 (1978)


Pursuant to N.J. Ct. R. 4:40-1, a motion for judgment, stating specifically the grounds therefor, may be made by a party either at the close of all the evidence or at the close of the evidence offered by an opponent. If the motion is made prior to the close of all the evidence and is denied, the moving party may then offer evidence without having reserved the right to do so.


Plaintiffs James L. Conklin and Marie F. Conklin (“Sellers”) contracted to sell and convey residential property to defendants Richard T. Davi and Geraldine Davi (“Buyers”). The Buyers tendered a down payment, but they refused to consummate the sale, alleging defects in title and misrepresentations on the part of the Sellers. The Sellers filed a lawsuit against the Buyers in New Jersey state court seeking specific performance; the Buyers filed a counterclaim for rescission. Before the trial commenced, the Sellers abandoned their claim for specific performance, and the case proceeded solely as an action on the Buyers’ counterclaim, which in effect sought return of their down payment. At the conclusion of the case, the trial court granted the Sellers' motion for judgment. The Buyers appealed, and the appellate division reversed, but rather remanding for a new trial, the appellate division ordered that judgment be entered in favor of the Buyers. The Sellers sought a rehearing, arguing that since the trial court had granted their motion for judgment at the conclusion of the Buyers’ case, they had had no opportunity to present a defense to the Buyer' rescission claim. The appellate division denied the motion for a rehearing, adhering to its position that the Buyers were entitled to judgment. The Sellers appealed.


Did the Sellers have the right to present their evidence upon denial of the motion for judgment by the appellate division?




The state supreme court reversed the judgment entered for the Buyers and remanded the cause for a new trial. The court held that although the appellate division properly found that the trial court erred in granting the Sellers motion for judgment, its entry of judgment in favor of the Buyers was clearly erroneous. The reversal by the appellate division was in effect a ruling that the trial court erred in failing to deny the Sellers' motion. Had the trial judge, rather than the appellate division, denied the motion, the Sellers unquestionably could then have offered evidence to support their position, pursuant to N.J. Ct. R. 4:40-1. The right of the Sellers to present their evidence upon denial of the motion for judgment applied whether the motion was denied in the first instance by the trial court or by the appellate division.

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