DEAN P. SANDERSON v. JENNIFER VAN SCHOICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DEAN P. SANDERSON,

Plaintiff-Respondent,

v.

JENNIFER VAN SCHOICK, ARK ANGELS

LABRADORS, LLC, and ARK ANGELS

RESCUE,

Defendants-Appellants.

_____________________________________

November 3, 2016

Argued October 6, 2016 Decided

Before Judges Fisher and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-38-15.

Kurt R. Kowalski argued the cause for appellants.

Dean P. Sanderson, respondent, argued the cause pro se.

PER CURIAM

Defendants appeal a May 13, 2015 Chancery Division order denying their motion for reconsideration and for a new trial. We affirm.

Defendant Van Schoick and her associated entities, defendants Ark Angels Labradors, LLC and Ark Angels Rescue, (collectively "defendants") are in the dog breeding business. This matter involves a dispute over the ownership of Hooch,1 a three-year-old Labrador Retriever, that plaintiff claims defendants agreed to sell to him in June 2014.

On February 12, 2015, plaintiff filed a verified complaint alleging various causes of action against defendants and requesting damages, costs, attorney's fees, and an order requiring that defendants return possession of Hooch to plaintiff. The court held a bench trial on plaintiff's claims.

The judge found that plaintiff and defendants entered into a contract on June 6, 2014, pursuant to which plaintiff was entitled to adopt and take ownership of Hooch, subject to plaintiff's payment of a $900 adoption fee and defendants' limited right to use Hooch over the following six-month period for breeding. The court entered a March 25, 2015 order directing that defendants return possession of Hooch to plaintiff and requiring plaintiff to pay defendant the $900 adoption fee.

On April 14, 2015, defendants filed a motion for reconsideration and for a new trial, arguing the judge misapplied applicable contract law, subjected defendants to penalties under New Jersey consumer laws, and failed to consider newly discovered evidence.

Defendants' motion for a new trial was founded on a claim of newly discovered evidence. In support of the motion, defendants submitted an alleged original of a June 6, 2014 Foster Agreement and addendum, an affidavit from a putative handwriting expert opining as to the authenticity of the initials and signatures on various documents, and an affidavit from a putative witness to the execution of contract documents on June 6, 2014, offering his version of what occurred.

The judge denied defendants' motions, finding defendants did not demonstrate the evidence could not have been discovered prior to trial through the exercise of due diligence. The judge also determined that, based on his credibility determinations, the result of the trial would have been the same even if the new evidence had been presented. Defendants appealed.

We first address defendants' argument that the judge erred in denying their motion for reconsideration. Motions for reconsideration should be granted only in the limited circumstances in which either "(1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Fusco v. Bd. of Educ., 349 N.J. Super.455, 462 (App. Div.) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)), certif. denied, 174 N.J.544 (2002). We review a trial court's denial of a motion for reconsideration under an abuse of discretion standard. See ibid. An abuse of discretion arises when a decision was "made without a rational explication, inexplicably departed from established practices, or rested on an impermissible basis." Estate of Kotsovska v. Liebman, 221 N.J.568, 588 (2015) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J.561, 571 (2002)).

Defendants argue the court's denial of the reconsideration motion constituted an abuse of discretion because the verdict was based on a misapplication of basic contract law. Defendants assert the trial court incorrectly failed to determine that all of the documents executed on June 6, 2014, constituted an entire agreement that unambiguously reserved to defendants the right to deny plaintiff ownership of Hooch. Defendants claim the court's determination was incorrect because a "[c]ourt has no right to rewrite [a] contract merely because one might conclude that it might well have been functionally desirable to draft it differently" and cannot "remake a better contract for the parties than they themselves have seen fit to enter into, or to alter it for the benefit of one party and to the detriment of the other." Karl's Sales and Serv., Inc. v. Gimbel Bros., 249 N.J. Super. 487, 493 (App. Div. 1991) (citations omitted), certif. denied, 127 N.J. 548 (1991).

The cornerstone for the interpretation of a contract is the parties' shared intent in reaching the agreement. Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). If the intent is evident from the contract's clear, unambiguous terms, the agreement will be enforced as written. Karl's Sales, supra, 249 N.J. Super. at 493. Defendants argue the court erred in finding an agreement to transfer ownership to plaintiff because the adoption application included a reservation permitting them to refuse an adoption. They claim the reservation created an ambiguity in the contract terms requiring a determination that there was no meeting of the minds between the parties and, therefore, no enforceable contract. We disagree.

In interpreting a contract, the focus is on "the intention of the parties to the contract as revealed by the language used, taken as an entirety; and, in the quest for the intention, the situation of the parties, the attendant circumstances, and the objects they were thereby striving to attain are necessarily to be regarded." Lederman v. Prudential Life Ins. Co. of Am., 385 N.J. Super. 324, 339 (App. Div.), certif. denied, 188 N.J. 353 (2006). To the extent a contractual term is susceptible to more than one reasonable interpretation, Powell v. Alemaz, Inc., 335 N.J. Super. 33, 44 (App. Div. 2000), a court may determine the parties' intent from evidence bearing on the circumstances of the agreement's formation, Conway v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 269 (2006), and from the parties' behavior in carrying out its terms, Savarese v. Corcoran, 311 N.J. Super. 240, 248 (Ch. Div. 1997), aff'd, 311 N.J. Super. 182 (App. Div. 1998).

Defendants have failed to establish the denial of the reconsideration motion was"made without a rational explication, inexplicably departed from established practices, or rested on an impermissible basis." Estate of Kotsovska, supra, 221 N.J.at 588. The judge carefully considered each of the documents comprising the contract, the actions of the parties, and the testimony he deemed credible, and determined that plaintiff and defendants entered into a binding agreement requiring transfer of Hooch's ownership to plaintiff. To the extent there were any purported ambiguities in the contract documents, the court properly resolved them against Van Schoick because she was the documents' draftsman. See Highland Lakes Country Club and Cmty. Ass'n v. Franzino, 186 N.J. 99, 122 (2006) (finding that where an ambiguity appears in a written agreement, it "is to be strictly construed against the draftsman").

We also reject defendants' claim that the court erred in denying reconsideration because the affidavits and documents they submitted in support of the motion provided new information demonstrating the court's verdict was in error. A motion for "[r]econsideration cannot be used to expand the record and reargue a motion." Capital Fin. Co. of Delaware Valley v. Asterbadi, 398 N.J. Super.299, 310 (App. Div.), certif. denied, 195 N.J.521 (2008). "Reconsideration is only to point out 'the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.'" Ibid.(citing R.4:49-2). It is not meant "to serve as a vehicle to introduce new evidence in order to cure an inadequacy" in the record. Ibid.(citing Cummings v. Bahr, 295 N.J. Super.374, 384 (1996)). We are therefore satisfied the court correctly disregarded the proffered supplemental information in its determination of the reconsideration motion.SeeJ.P. v. Smith, 444 N.J. Super.507, 529 (App. Div. 2016) (submission of affidavit on a motion for reconsideration was "inappropriate" because it "contained no new information that could not have been submitted" previously), certif. denied, 226 N.J.212 (2016).

We next consider defendants' argument that the court erred by denying their motion for a new trial under Rule 4:49-1 based on newly discovered evidence.2 Motions for a new trial based on newly discovery evidence under Rule 4:49-1 are governed by the same standard as motions for a new trial based on newly discovered evidence under Rule 4:50-1. Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 445 (1980). "To obtain relief from a judgment based on newly discovered evidence, the party seeking relief must demonstrate 'that the evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence for use at the trial, and that the evidence was not merely cumulative.'" DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009) (quoting Quick Chek Food Stores, supra, 83 N.J. at 445), certif. denied, 208 N.J. 381 (2011). "All three requirements must be met." Ibid.

The decision on a motion for a new trial is within the sound discretion of the trial court and "will not be disturbed unless that discretion has been clearly abused." Quick Chek, supra, 83 N.J. at 496 (citing State v. Puchalski, 45 N.J. 97, 107 (1965)). Even if a court could have granted a new trial, appellate courts "will not substitute [their] opinion for the trial court's" as long as there was no abuse of discretion. Baumann v. Marinaro, 95 N.J. 380, 389 (1984).

The purported newly discovered evidence upon which defendants relied centered upon the contract documents Van Schoick found in storage after receiving the court's unfavorable verdict. The substance of the putative handwriting expert's affidavit was similarly focused on the contract documents. The trial judge, however, found defendants failed to demonstrate the documents, and the handwriting expert's affidavit about them, were not unobtainable prior to trial through the exercise of due diligence. The record supports the judge's determination.

Van Schoick claimed the contract documents were not discovered prior to trial because they were in storage as the result of a flood in her home. The court, however, rejected the claim noting that Van Schoick quickly located the documents after receiving an adverse verdict at trial and failed to demonstrate she could not have located the documents by exercising the same diligence before trial. We discern no abuse of discretion in the court's conclusion that defendants failed to sustain their "substantial" burden of demonstrating diligence. Quick Chek, supra, 83 N.J.at 445. As the trial court correctly noted, Van Schoick's prompt post-trial discovery of the contract documents simply confirmed that through the exercise of similar diligence prior to trial, the documents could have been discovered.

The judge also considered defendants' proffered evidence and determined that, even if it had been admitted at trial, it would not have changed the result. The judge noted that the contract documents were in part cumulative of Van Schoick's testimony, and the verdict was founded on his determination that Van Schoick's version of the events was not credible. We are satisfied the judge did not abuse his discretion by determining that the proffered evidence was insufficient to change his conclusion that the parties entered into a contract granting plaintiff the right to take ownership of Hooch. Defendants failed to sustain their burden of demonstrating otherwise.

Defendants last argue the court abused its discretion by not granting a new trial based upon the information contained in the affidavit of the putative lay witness. The record reflects only that Van Schoick reestablished contact with the witness following the trial, but does not demonstrate defendants exercised any due diligence to locate the witness prior to trial. Defendants therefore failed to sustain their burden of demonstrating the evidence from the witness could not have been discovered through the exercise of due diligence prior to trial. SeeQuick Chek, supra, 83 N.J.at 446.

Defendants' remaining arguments are without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).

Affirmed.

1 During the proceedings, Hooch was also referred to as Chooch.

2 Plaintiff contends we should not consider defendants' argument because the motion for a new trial was not timely served as required by Rule 4:49-1(b). We do not address plaintiff's timeliness argument because it was not raised before the trial court and does not "go to the jurisdiction of the trial court or concern matters of great public interest." Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).