INTERSTATE REALTY MANAGEMENT COMPANY v. COMMUNITY REALTY MANAGEMENT INC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1747-07T21747-07T2

INTERSTATE REALTY MANAGEMENT

COMPANY,

Plaintiff-Appellant,

v.

COMMUNITY REALTY MANAGEMENT,

INC.,

Defendant-Respondent.

____________________________________

 

Argued December 15, 2008 - Decided

Before Judges Carchman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4283-05.

Noah H. Charlson argued the cause for appellant (Bazelon, Less & Feldman, P.C., attorneys; Jeffrey A. Less, Mr. Charlson, and Christina M. Reger, on the brief).

William J. DeSantis argued the cause for respondent (Ballard, Spahr, Andrews & Ingersoll, LLP, attorneys; Mr. DeSantis, on the brief).

PER CURIAM

In this commercial case involving the contested distribution of management fees derived from affordable housing projects, plaintiff, Interstate Realty Management Company ("Interstate") appeals the Law Division's entry of summary judgment in favor of defendants. Plaintiff also appeals certain related orders entered by the trial court.

For the reasons described in this opinion, we affirm the trial court's rulings in part and vacate them in part. We remand the matter for a trial concerning the intended meaning of an ambiguous provision in the parties' contract that controls both the timeliness of plaintiff's present claims and its entitlement to any compensation.

I.

The underlying facts are complicated and involve a long chronology of business transactions and relationships. We shall summarize them from the motion record, mindful that we expect the proofs to be developed further on the remand that we have ordered in this opinion.

In the 1960s, Michael J. Levitt and Jack Soble owned Soble Construction, a company engaged in the development, ownership, and management of subsidized rental housing communities. Soble Construction retained the law firm of Rothenberg & Levine for its legal services. Specifically, Herbert Rothenberg, Esq., and Lee A. Levine, Esq., of that law firm primarily handled Soble Construction's legal matters.

Beyond providing legal services, the principals of the Rothenberg, Levine law firm, along with another New York attorney named Alan Morris (collectively the "Rothenberg Group"), began the syndication of affordable housing projects that Soble Construction was developing. Essentially, the Rothenberg Group sought to attract limited partners to invest in Soble Construction's projects. The Rothenberg Group received syndication fees for its efforts and the Rothenberg & Levine law firm received legal fees for performing the associated representation.

Additionally, Rothenberg, Levine, and Morris would name themselves general partners of each limited partnership. As general partners, they had the authority to select a management company for each project that would receive management commissions. It was Levitt's understanding at the time that Soble Construction's management company was to manage all of the projects syndicated by the Rothenberg Group.

This arrangement between the parties continued until 1974, when Soble Construction merged with U.S. Homes. Soon thereafter, Jack Soble died. Levitt then left U.S. Homes, taking the management of his projects with him. Rothenberg and Levine had represented Soble and Levitt in the merger of Soble Construction and U.S. Homes. The law firm also represented Levitt in his ensuing departure from U.S. Homes after Jack Soble's death.

Upon separating from U.S. Homes, Levitt formed plaintiff Interstate. He created Interstate to manage existing affordable housing projects that he already owned, as well as future properties that would be developed by his newly-formed separate development entity, Michaels Development Company ("MDC"). Rothenberg and Levine incorporated Interstate and MDC. Their law firm continued to perform legal services on behalf of Interstate and MDC and also on behalf of Levitt individually.

In or about 1974, U.S. Homes left the affordable housing market. At that time, the members of the Rothenberg Group were general partners of sixteen affordable housing projects developed by Levitt, all managed by U.S. Homes. As general partner, the Rothenberg Group could select the management company for each project that would replace U.S. Homes after it left the management business. U.S. Homes offered the Rothenberg Group the opportunity to take over the management of the projects.

Despite the fact that Interstate was already in the business of managing properties and Levitt had developed all sixteen projects, the Rothenberg Group did not offer it the opportunity to manage the projects. Instead, the principals of the Rothenberg Group formed their own management company, defendant Community Realty Management, Inc. ("CRM"). They awarded CRM the management contracts for all sixteen projects.

Upon learning that his attorneys formed CRM as a competing management company, Levitt became upset. He decided not to retain the Rothenberg Group for future syndications, unless he had a guarantee that Interstate would manage the properties or receive a share of the commissions if the projects were managed by CRM. This led the parties to enter into a Memorandum of Understanding ("MOU") in 1975, an agreement that is at the core of this litigation.

The MOU, which allegedly Levine drafted, was executed by the members of the Rothenberg Group, CRM, Levitt and his business partner, MDC, and Interstate. Levine and Rothenberg represented CRM in the transaction. Levine signed the MOU both individually and on behalf of CRM.

Levitt asserts that at the time he signed the MOU on behalf of Interstate, Levine and Rothenberg were acting as house counsel for Interstate. Levitt maintains that he was not represented by other counsel or told by Levine and Rothenberg to consult with other counsel.

The MOU reads, in pertinent part:

1. In connection with projects sold by [the Rothenberg Group] on behalf of 3M (commencing with the Rolling Hills project) and pursuant to which [the Rothenberg Group] retain general partnership interests, CRM shall retain management thereof. CRM shall pay to Interstate seven twenty-fourths (7/24) of its management commission with respect to each project sold by [the Rothenberg Group] on behalf of 3M.

2. CRM shall pay over to Interstate by the tenth (10th) day of each month Interstate's share of commissions collected pursuant to Paragraph 1 hereinabove during the previous month.

[(Emphasis in original).]

Furthermore, the MOU granted the Rothenberg Group the right to syndicate future projects by 3M.

The Rothenberg Group sold (or syndicated) five affordable housing projects on behalf of 3M: Brown Woods; Hilltop; Rolling Hills; Walker Village; and Edwardsville. CRM managed these properties and paid Interstate a share of the management commissions for many years.

Defendant CRM contends that the two sentences in paragraph one of the MOU, read in conjunction with one another, signify that CRM shall pay Interstate commissions so long as the Rothenberg Group retains its general partnership interest, and regardless of whether CRM manages the property. The motion judge adopted this construction.

Conversely, Interstate maintains that CRM should pay commissions as long as CRM manages the projects, irrespective of the Rothenberg Group's partnership interest in the projects. Interstate particularly relies on the deposition testimony of Levine, as drafter of the MOU and attorney and signatory for CRM, to support its position:

Q. From your understanding of the intent of the [MOU], as a signatory to it and as a lawyer who prepared it, once CRM obtained management pursuant to the procedures in Section 1, did it matter who thereafter owned the project in terms of CRM's obligation to pay or not pay Interstate as long as CRM kept management as a result of having originally gotten it through the procedures in Section 1?

A. No, it didn't.

Q. It did not matter?

A. No.

[(Emphasis added).]

By signing the MOU, Levine presumed that "CRM would continue to pay 7/24 of its management commissions as long as CRM continued to manage the projects." Levitt further attested that he would not have agreed to enter into the MOU if it meant that the Rothenberg Group could cut off CRM's obligation to pay fees to Interstate simply by relinquishing ownership of the projects while CRM continued its management functions.

In 1977, Levine and Rothenberg had a bitter disagreement. Levine left the law firm, and the two men never spoke again. As part of the settlement of litigation resulting from Levine's departure, Rothenberg and Morris bought out Levine's general partnership interests in the affordable housing projects. Those interests were converted into limited partnership interests. Levitt then hired Levine's new law firm to provide legal services for him. Levine and his successor law firm have continued to do so for approximately thirty years.

As a result of the permanent rift between Rothenberg and Levine, Levitt believed that he no longer was obliged to syndicate his future projects through Rothenberg and Morris. However, he also believed the MOU continued in effect for the five aforementioned Levitt-developed projects. CRM continued to pay commissions to Interstate on those projects for several years, although Levitt no longer offered Rothenberg the opportunity to syndicate future projects.

In 1979, Rothenberg sent a letter to Interstate, which stated in relevant part:

I have concluded, frankly, that there is absolutely no legal obligation on the part of CRM to continue any payments whatsoever to Interstate. The condition of [the MOU] was that Rothenberg, Levine and Morris would have the right to sell all future projects purchased or developed by [Levitt]. Obviously, this has not been done and the intended future commissions have not been realized. Accordingly, I see no legal obligation on the part of CRM to continue the payments.

However, I will suggest to the Directors of CRM that we continue the payments nevertheless, but certainly not on any basis that would yield more than one-half of the profit realized on these projects to Interstate.

[(Emphasis added).]

That letter did not prompt an immediate response from Interstate. Nevertheless, certain payments from CRM to Interstate continued.

After buying out Levine, Rothenberg and Morris "re-syndicated" the Browns Woods and Hilltop projects. This transaction meant that Rothenberg and Morris were forming new limited partnerships for the projects, with themselves remaining as general partners while recruiting new limited partners. The existing limited partners of the projects were notified in writing prior to each such re-syndication.

In a letter dated December 28, 1984, concerning the re-syndication of Browns Woods, Rothenberg stated that CRM would continue to manage that property. Levitt, an intended recipient of the letter, denies ever receiving it. The letter was received by Levine, who testified at his deposition to the following:

Q. Did you understand the December 28th, 1984 letter that even though there was a proposed sale, that CRM would continue to manage the property?

A. Well, I didn't read that letter, but I think I've already testified that I can't imagine they would re-syndicate one without doing it.

So I just assumed in every single case that they were going to -- after I read the very first letter, the very first time they were doing one, I would know they would do it in every project.

After Browns Woods was re-syndicated, CRM sent a letter to Interstate stating the following: "On February 28, 1985[,] Browns Woods Apartments was sold." Concurrently, CRM stopped paying Interstate commissions for Browns Woods. The principals of CRM ceased making those payments, believing that CRM's obligation under the MOU had concluded because the project had been sold. CRM specifically took the position that, under the terms of the MOU, Browns Woods was no longer a project "'sold by [the Rothenberg Group] on behalf of 3M' and because '[the Rothenberg Group] no longer retain[ed] general partnership interests.'"

As for the Hilltop project, Levine and the other partners in Hilltop received a similar letter from CRM, announcing that CRM would continue to manage the project. CRM informed Interstate of the sale of Hilltop in a letter dated August 26, 1985. It ceased making commission payments to Interstate for the same reasons presented as to Browns Woods.

In 1989, Rothenberg and Morris sold Rolling Hills. Rothenberg informed Levine of that transaction in a June 6, 1989 letter. The letter also stated that CRM would continue to manage the project. CRM made Interstate aware of the sale in a letter dated February 5, 1990. It concluded with its correspondence what would be its last commission payment for that property. After the sale of Rolling Hills, CRM continued to pay Interstate a share of commissions for the Walker Village and Edwardsville projects.

Interstate claims that the letters informing it of the three sales, Browns Woods, Hilltop, and Rolling Hills, did not disclose either that CRM would continue to manage the projects, or that they were sold to limited partnerships controlled by Rothenberg and Morris. Levitt asserts that the letters caused him to believe that the three projects had been sold to third-party purchasers and that CRM no longer managed them. In his certification, Levitt claimed that he had never heard, in his years in the business, of an arms-length sale of an affordable housing project to a third party, in which the purchaser retained the management company. Levitt further claims that if CRM's continuing management had been disclosed, he would have (1) demanded payment at that time and (2) sued if CRM did not honor his demand.

Mark Borowsky, CRM's Chief Financial Officer and the signatory of the letters, testified at his deposition that he did not inform Interstate of CRM's continuing management. Borowsky did not think that information was relevant, as he was not a party directly involved with the MOU.

CRM also points out that at some time in 1996, Interstate would have acquired knowledge that CRM continued to manage Browns Woods, Hilltop, and Rolling Hills. More specifically, CRM asserts that Interstate sought to expand its business and even explored the possibility of acquiring CRM. In the course of that exploration, Interstate received a list of properties managed by CRM at the time, which would have included Browns Woods, Hilltop, and Rolling Hills.

In 1996, Rothenberg died. Thereafter, Alan Morris became more involved in CRM's operations. In 2002, Morris sold Walker Village. Morris informed the limited partners, including Levine, of that sale, and also of the fact that CRM would continue to manage the property. In a letter dated December 29, 2004, CRM informed Interstate of the sale and included what would be its last payment of commissions for that project.

Lastly, Morris sold Edwardsville in 2004. Morris similarly informed the limited partners, including Levine, of that sale and that CRM would continue to manage the property. In a letter dated December 29, 2004, CRM informed Interstate of the sale and indicated that it would no longer make commissions payments. In his deposition, Levitt stated that he had contacted the President of CRM, who told him that CRM would continue to manage Edwardsville. Levitt claims that it was after his conversation and his receipt of the December 29, 2004 letter that he had reason to wonder whether CRM would continue to manage Edwardsville despite that project being sold.

On January 26, 2005, Levitt wrote a letter to Morris stating that CRM should continue to pay Interstate for the Edwardsville project pursuant to the MOU. Morris rejected that assertion, and no further fees were paid to Interstate.

Interstate contends that it lacked knowledge of CRM's continuing management of the five projects and that CRM intentionally concealed this fact from Interstate. CRM offers several factual points to refute that claim. First, CRM notes that Levitt stated that his company has engaged in transactions in which Interstate would remain as the management company, similar to CRM's re-syndications, despite stating elsewhere that he was unfamiliar with that type of transaction.

Second, CRM claims that many of Interstate's employees were personally aware of CRM's continuing management of the projects. For example, many employees of CRM attending training seminars disclosed the project sites that they managed. Those training classes were hosted by an organization chartered primarily through the efforts of an Interstate and a CRM employee. Furthermore, a directory published by that organization listed CRM employees as working for Hilltop and Rolling Hill. According to the President of CRM, Interstate's President would have received this directory. The organization also published a newsletter with this information. CRM further maintains that Interstate's company treasurer read the various newsletters, which contained the information regarding CRM's management.

CRM also contends that there was information available to the general public reflecting CRM's management of the projects. Each project had a prominent sign identifying CRM as the managing agent. Also, since 2001, CRM has maintained a website on the Internet listing the properties that it manages.

Interstate filed its complaint against CRM in the Law Division in July 2005. The complaint alleged that CRM breached the MOU by discontinuing its payment of management fees to Interstate. In addition, Interstate alleged that CRM breached the covenant of good faith and fair dealing with respect to the MOU.

After responsive pleadings had been filed, CRM moved to disqualify Levine as Interstate's counsel. The disqualification request was based upon the fact that Levine had previously represented Interstate's adversary CRM, and that he had allegedly drafted the MOU. Levine did not recall at his deposition whether he had drafted the MOU.

The trial court granted the disqualification motion, applying Rule of Professional Conduct 1.9 (prohibiting certain lawyer conflicts involving former clients). In its January 24, 2006 order removing Levine as Interstate's attorney of record, the court also imposed a prohibition upon Interstate's representatives communicating with Levine or with any members of Levine's current law firm. After Interstate obtained substitute counsel, it moved to have the court reconsider allowing its new attorneys to speak with Levine. That request was denied.

Following discovery, CRM moved for summary judgment. It principally contended that Interstate's lawsuit for a share of management fees was untimely, either under the pertinent six-year statute of limitations, N.J.S.A. 2A:14-1, or under principles of laches. In its opposition, Interstate maintained that its complaint was indeed timely. Among other things, Interstate argued that the payments owed under the MOU represented "installment contract" payments, so that a cause of action would not accrue until each successive payment under the contract became due.

On November 2, 2007, the trial judge issued a detailed written decision on CRM's summary judgment application. As an initial matter, the judge concluded that the MOU is indeed an installment contract under New Jersey law. The judge noted that CRM had an ongoing monthly obligation under the MOU to pay Interstate 7/24ths of the management commissions earned on the subject housing projects. The judge also found that "[t]he commissions were payable in installments because they were due monthly," and "they continued over an uncertain period of time" as determined by the conditions specified in the MOU.

Based upon the judge's findings, the installments that were not paid more than six years before Interstate filed suit in July 2005 would be time-barred under N.J.S.A. 2A:14-1. The court rejected Interstate's request to preserve the pre-July 1999 claims under principles of equitable tolling. The judge specifically observed that "any alleged breach [by CRM] would have been detectible [by Interstate] via reasonable inquiries" concerning the housing projects. The court also noted that Interstate's principal, Levitt, knew that payments had ceased for two of the five projects "as early as 1985."

The motion judge ultimately concluded that all of Interstate's claims were untimely, based on the judge's interpretation of paragraphs one and two of the MOU. In particular, the judge read those paragraphs to mean that CRM's obligation to remit 7/24th of its management fees to Interstate "terminated upon the sale of the five projects."

Specifically, the court found that Browns Woods was sold on February 28, 1985; Hilltop was sold on May 31, 1985; Rolling Hills was sold on September 30, 1989; Walker Village was sold on June 30, 2002; and Edwardsville was sold on December 29, 2004. Given this long history of successive project sales, and the more than three decades that had lapsed since the MOU was drafted in 1975, the court concluded that it would be unfair to force CRM now to defend Interstate's lawsuit for past due fees. The court perceived that "[t]oo much time has elapsed and there is no way a jury could sort out the 'truth' as urged by [Interstate's] counsel." Consequently, the motion judge entered a companion order on November 2, 2007 granting summary judgment to CRM.

Interstate now appeals. It contends that: (1) the trial court erred by determining the intended meaning of the MOU as to the duration of the payments owed by CRM; (2) the court should have applied equitable tolling principles for the pre-1999 claims because CRM intentionally failed to disclose material facts about the status of the projects to Interstate; and (3) the "gag order" issued regarding communications with Levine, a critical fact witness, was unnecessary and unduly prejudicial. We now consider those points and the subsidiary arguments raised by the parties.

II.

In reviewing summary judgment granted in CRM's favor, we are obligated to consider the record in a light most favorable to Interstate as the non-moving party. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c). With respect to the central disputed issue here -- the construction and duration of the 1975 MOU -- we are mindful that a trial court's legal interpretation of contract terms is subject to de novo appellate review. Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998).

Preliminarily, we note our concurrence with the motion judge's specific finding that the MOU is an installment contract, for which claims regarding unpaid management fees do not accrue until each successive payment becomes due. For such installment contracts involving recurring periodic payments, the applicable statute of limitations is tied to the due date of each successive payment. See County of Morris v. Fauver, 153 N.J. 80, 108-09 (1998); Metromedia Co. v. Hartz Mount. Assoc., 139 N.J. 532, 535-36 (1995). CRM has not cross-appealed this finding by the motion judge. Consequently, if any installment payments are proven to be due to Interstate under the MOU and payable within six years of the filing of this breach-of- contract lawsuit, they are not time-barred under N.J.S.A. 2A:14-1.

We also sustain the motion judge's decision insofar as it treats any claims for payments due before July 18, 1999, as time-barred because such claims were not filed within the six-year limitations period under N.J.S.A. 2A:14-1. The judge reasonably found that equitably tolling principles are inapplicable to such pre-July 1999 claims. In particular, the record supports the judge's perceptive observation that there are no "extraordinary circumstances" demonstrated here that could have "prevented someone with the expertise and business accrueness of [Interstate's principal] Michael Levitt from making inquiries and resolving any questions as to his [company's] entitlement to continued payments from CRM." We are equally satisfied that the "discovery rule" sometimes invoked to toll a limitations statute does not apply. See County of Morris, supra, 153 N.J. at 110; Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 589-91 (1993).

We differ with the motion judge, however, in his determination that the meaning of paragraphs one and two of the MOU is unambiguous, and must be decided in favor of CRM without a trial. In particular, we part company with the judge's determination that those contractual provisions necessarily signify that Interstate's right to receive a share of the management commissions ceased once CRM no longer had an equity interest in a particular project.

When courts are called upon to enforce contractual agreements, their main objective is to carry out the mutual intent of the parties. Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 269 (2006). At times, that objective can be fulfilled without resorting to extrinsic proofs, when the meaning of a written agreement is plain on its face. However, the task of interpretation become more complicated when a contract term is ambiguous.

A contractual provision is ambiguous if it is "susceptible to at least two reasonable alternative interpretations." Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997) (citation omitted). In such instances of apparent ambiguity, the court may consider extrinsic proofs that could "shed light on the mutual understanding of the parties." Hall v. Bd. of Educ. of Jefferson, 125 N.J. 299, 305 (1991) (citations omitted); see also Conway, supra, 187 N.J. at 270.

For ease of reference, we repeat the first paragraph of the MOU, about which the parties have a fundamental disagreement:

1. In connection with projects sold by [the Rothenberg Group] on behalf of 3M (commencing with the Rolling Hills project and pursuant to which [the Rothenberg Group] retain general partnership interests, CRM shall retain management thereof. CRM shall pay to Interstate seven twenty-fourths (7/24) of its management commission with respect to each project sold by [the Rothenberg Group] on behalf of 3M.

[(Emphasis in original and added).]

CRM contends, and the motion judge agreed, that the phrase "pursuant to which [the Rothenberg Group] retain general partnership interests," which appears in the first sentence of paragraph one, signifies that the duty to pay management fees to Interstate is conditioned upon CRM continuing to maintain a partnership interest in such projects.

Conversely, Interstate argues that the second sentence of paragraph one, prescribing that "CRM shall pay to Interstate seven twenty-fourths (7/24) of its management commission with respect to each project sold," is not conditioned upon CRM maintaining a partnership interest in the project. Interstate emphasizes that no such condition is expressly included in the second sentence of that paragraph addressing fee payments.

Interstate asserts that the first sentence of the paragraph merely "identifies" the projects that CRM, as opposed to Levitt, was eligible to manage. That eligibility was significant in light of the Rothenberg Group's creation of a new competing management entity, CRM. Those projects are the five specific developments in which the Rothenberg Group had a partnership interest in 1975. According to Interstate, the second sentence then quantifies the fractional portion of management fees to be paid to Interstate, irrespective of whether CRM continued to manage those projects as a partner or as a non-partner.

Interstate further argues that the course of performance of the MOU after 1975 is consistent with its construction of paragraphs one and two. In particular, it emphasizes that Levine left the Rothenberg Group and CRM in 1984, thereby changing the partnership arrangement, but CRM continued thereafter to pay management fees to Interstate despite that ownership change. Although the concept of "course of performance" mainly derives from the sale-of-goods Article in the Uniform Commercial Code, see N.J.S.A. 12A:2-208, we analogously find the interpretation of this MOU, which admittedly does not involve goods, relevant to the parties' post-formation conduct in implementing it. See Michaels v. Brookchester, Inc., 26 N.J. 379, 387-88 (1958) (recognizing that a court may consider extrinsic proofs to aid in a contract's interpretation); see also Atlantic N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 306-07 (1953) (same).

Additionally, to the extent that the MOU is ambiguous, the court should take into account the well-known principle that an ambiguous contract is generally to be construed against its drafter. In re Estate of Miller, 90 N.J. 210, 221 (1982); see also Terminal Constr. Corp. v. Bergen County Hackensack River Sanitary Dist. Auth., 18 N.J. 294, 302 (1955). Here, the MOU's alleged drafter was Levine, who at the time of its drafting was a member of the Rothenberg Group and aligned against the interests of Levitt and Interstate.

Based upon the incomplete record before us, we perceive that the relevant provisions in paragraphs one and two of the MOU are reasonably susceptible to both the meaning ascribed by CRM and also the contrary meaning ascribed to those same provisions by Interstate. Consequently, the matter must be remanded for a trial to assess, in a plenary fashion with courtroom testimony and other relevant proofs, the most probable meaning of the MOU intended by the parties.

CRM objects to a plenary hearing to discern the meaning of the MOU's terms. Its objection, in large part, stems from the unfortunate fact that one of the key principals to the 1975 MOU, Rothenberg, is now deceased. In addition, the recollections of other witnesses with knowledge have unquestionably faded. By way of illustration, CRM points to the fact that Levitt stated at his deposition over two hundred times that he could not recall the information relating to the MOU that was sought by the questioner. Additionally, certain relevant documents no longer exist. The motion judge found these practical difficulties to be a key factor in granting summary judgment to CRM.

Although we appreciate the considerable problems of reconstructing events and discussions that took place when the MOU was drafted in 1975, we disagree with CRM that those practical impediments only prejudice CRM, and that principles of laches bar Interstate's present lawsuit. The problems of proof generated by the passage of time hinder both parties here, not just CRM. Those problems do not justify the summary dismissal of that portion of Interstate's claims, which did not accrue under the installment contract until July 1999 and thereafter. Fundamentally, if a contract calls for a permanent obligation to pay consideration to another party, the fact that an alleged breach occurs decades later does not preclude judicial enforcement of that obligation, even if the witnesses who originally negotiated the contract are no longer available. To hold otherwise would leave the victim of a breach of an allegedly ambiguous contract provision without a meaningful remedy.

We are also not persuaded that the application of laches here is suitable for the circumstances presented this case, or would be fair. The statute of limitations suffices here to segregate Interstate's stale claims from its untimely ones. See Borough of Princeton v. Bd. of Chosen Freeholders, 169 N.J. 135, 157 (2001); Kopin v. Orange Products, Inc., 297 N.J. Super. 353, 373 (App. Div. 1997).

Because critical and legitimate issues persist surrounding the meaning of the MOU -- and the specific duration of CRM's management fee-sharing obligation -- the case must be remanded for a trial. At such a trial, the most probable intended meaning of the MOU's first two paragraphs is to be ascertained. Such a remand would not, of course, require the adoption of the interpretation advocated by Interstate, as we similarly lack confidence on this limited record that Interstate's interpretation is necessarily what the parties intended.

Instead, the parties' respective positions should be re-examined anew on remand, with the benefit of witness testimony and the judicial assessment of the demeanor and credibility of those witnesses. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). This disposition moots Interstate's claim that it was denied due process by the motion judge in the procedural manner in which the judge interpreted the contract.

We have considered the remainder of the arguments presented on appeal, including but not limited to Interstate's contention that the trial court's restrictions on access to Levine were an abuse of discretion. We are unpersuaded by Interstate's claim that the principles relating to ex parte access to a medical witness in Stemplar v. Speidell, 100 N.J. 368 (1995), should apply to this context involving an attorney such as Levine alleged to have violated R.P.C. 1.9. We are satisfied that the motion judge resolved this delicate issue with sensitivity and even-handedness. Because we find none of those additional arguments to have merit, we reject them without further comment. R. 2:11-3(e)(1)(E).

The Law Division's order of January 24, 2006 restricting the parties' ex parte access to Levine is affirmed in all respects. The order of November 2, 2007 granting summary judgment to CRM is affirmed in part and vacated in part. The matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

3M is a group that consists of Levitt and his partner, Interstate, and MDC.

In its brief, CRM takes issue with Interstate's classification of this transaction as a "re-syndication," rather than a "sale" to the Pennsylvania Housing Finance Agency, which, in turn, sold it to another entity which retained CRM as the management company. We need not resolve this dispute over nomenclature for purposes of the present appeal.

The original complaint also included a count for common-law fraud, which Interstate eventually dismissed voluntarily.

We do not decide, nor have we been asked to, whether some or all of those open issues pose factual questions for a jury rather than the judge.

We leave to the remand proceedings, which will establish the true intended contours of the MOU, the open question of whether CRM's conduct in implementing the MOU violated the covenant of good faith and fair dealing.

(continued)

(continued)

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A-1747-07T2

January 14, 2009