NISSAN PERLA v. G HYUNG K. JUNG

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3699-08T1

NISSAN PERLA,

Plaintiff-Respondent,

v.

G. HYUNG K. JUNG and MAN NIM,

Defendants-Appellants.

________________________________

T

November 18, 2010

elephonically Argued: August 4, 2010 Decided:

 

Before Judges R.B. Coleman and C.L. Miniman.

 

On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-61-06.

 

Demetrios K. Stratis argued the cause for appellants.

 

Jay R. Atkins argued the cause for respondent (Sunshine, Atkins, Minassian, Tafuri & D'Amato, P.A., attorneys; Mr. Atkins and Joshua T. Buckner, on the brief).

PER CURIAM

Defendants G. Hyung K. Jung and Man Nim, husband and wife, appeal from a judgment entered against them and in favor of plaintiff Nissan Perla following a bench trial of disputes arising out of a failed real estate development plan. We affirm.

Defendants, who reside in Manhattan, own Block 5902, Lot 18 on the official tax map of Fort Lee, commonly known as 2169 Lemoine Avenue, Fort Lee. The lot contains about one-half acre and is improved with a two-story retail and residential building. The property is in the C-3 Limited Business District zone close to the George Washington Bridge. This zone does not permit the construction of high-rise apartment buildings.

Perla and Jung had known each other for many years as they were both employed in the diamond industry in New York City. Jung would often purchase diamonds from Perla for resale by Nim. In 2005 Perla and Jung began to negotiate Perla's purchase of defendants' property in Fort Lee. Perla intended to construct an eighty-unit apartment building on the property, which was not a permitted use. Thus, the property would have to be rezoned. In these negotiations, Perla was represented by New York attorneys Adam and Bruce Bayroff, and Jung was represented by a mortgage broker, Rodney Hilton Brown.

The initial "Term Sheet" for the sale of the property was prepared by Brown and was addressed to Bruce Bayroff, Adam's father. The Term Sheet was dated June 28, 2005, and specified a purchase price of $8 million with ten percent to be paid on signing, $2.2 million due within forty-five days thereafter, and the $5 million balance due within 120 days of signing, at which time closing was to occur. There were two special conditions specified in the Term Sheet, one of which was that the sale was to be "[a]s is, where is, but Seller will introduce Buyer to Fort Lee Land Use Authority to confirm ability to construct 80 apartment units."

Adam Bayroff converted the Term Sheet into a formal draft "Agreement of Sale and Purchase" between Jung and Nim, collectively "Seller," and Perla, "Purchaser." The purchase price remained the same, but the schedule of payments was changed: $50,000 was due on signing; $100,000 was due ten days after receiving "Apartment Approval"; $250,000 was due upon receipt of an "Acceptable Phase I Report"; and $7.6 million was due at closing.

Closing was to take place on a mutually agreeable date no earlier than fifteen days after the satisfaction of all "Preconditions to Closing" or one year from the date of the agreement, whichever was later. The Preconditions to Closing were contained in Article 14. The first precondition required that Perla receive all requisite approvals to build at least eighty apartment units on the site. The second precondition required receipt of an acceptable Phase I environmental report. The third precondition was Perla's receipt of "all required governmental approvals to the Offering Plan and any other documents required for the formation and operation of the condominium regime to be created at the Property."

Jung rejected the draft Agreement of Sale and gave it to Brown to revise. The revised Agreement of Sale was executed by Perla, Jung, and Nim on July 13, 2005. The purchase price was $8 million of which $800,000 was to be paid at signing; $2.2 million was to be paid within forty-five days of signing; and the $5 million balance was to be paid at the closing. The parties were to mutually agree on a closing date, which was to be no later than fifteen days after the satisfaction of all Preconditions to Closing or 120 days from the date of the Agreement of Sale, whichever was later.

The authority to build the project was covered in Articles 8.01 and 13, which provided as follows:

8.01 Fort Lee Land Use Authority. Seller will introduce Buyer to the Authority to assist Buyer with obtaining the necessary permissions to build the aforementioned 80 apartment units.

 

. . . .

 

13.01 Notwithstanding anything to the contrary contained in this Agreement, this Agreement shall have no force and effect and not be binding on Purchaser unless and until the following conditions (collectively, "Preconditions to Closing") are satisfied:

 

(i) Seller will introduce Buyer to the Fort Lee Land Use Authority to confirm and verify Buyer obtaining from the Authority the necessary permissions to build the aforementioned 80 apartment units.

 

. . . .

 

If any of the Preconditions to Closing do not occur, then Purchaser, upon written notice to Seller, may terminate this Agreement and receive the return of the Deposit and the parties shall have no further obligations to each other hereunder.

 

Perla did not pay defendants $800,000 upon signing. Rather, he paid only $300,000 on or about July 19, 2005, and never paid any additional monies to defendants. Fort Lee never rezoned the property or granted any permission to build the eighty-unit apartment building.

Defendants'New Yorkcounsel wroteto Perlaon November 3, 2005, demanding payment of the remaining balance of the deposit and scheduling of the closing. Perla's New York counsel responded on November 14, 2005, contending that defendants could not schedule a closing because Precondition to Closing 13.01(i) had not taken place. That is, Jung had not introduced Perla to the Fort Lee Land Use Authority, and there was no confirmation or verification of permission to build eighty apartment units. Perla's attorney terminated the contract and demanded return of the $300,000 deposit.

Defendants did not comply with Perla's demands, and Perla instituted this lawsuit. In his complaint, Perla alleged that he learned in mid-August that Fort Lee refused to approve the request for eighty residential apartment units. He also alleged that the revised Agreement of Sale was contingent on municipal approvals and sought a judgment for the monies tendered to defendants, including $15,000 advanced to Brown at Brown's request, and rescission of the Agreement. In the second count, Perla alleged that there had never been a meeting of the minds respecting the changes defendants made to the revised Agreement of Sale and that he had been coerced into signing it. In the third count, Perla alleged that the preconditions to closing had not occurred because Jung never introduced him to the Fort Lee Land Use Authority and that Jung's efforts to obtain approval were in vain. In the fourth count, Perla alleged that if the language of the contract did not make it clear that government approvals were a precondition to closing, the contract did not reflect the parties' agreement. In the fifth and last count, Perla alleged that the liquidated damages clause in the revised Agreement of Sale was unconscionable, contrary to public policy, and unenforceable.1

Defendants answered the complaint and asserted a counterclaim. In the first count, they alleged that they had been deprived of the benefit of their bargain under the revised Agreement of Sale and had been damaged as a result. In the second count, they alleged that Perla had violated the covenant of good faith and fair dealing and entered into a conspiracy with others to deprive defendants of the benefit of their bargain. In the third count, defendants asserted that Perla fraudulently misrepresented to Jung that he had reviewed the revised Agreement of Sale, understood the changes, consulted with his attorney, and was amenable to the revised terms. They also alleged that any intent on the part of Perla to make the contract contingent on receipt of governmental approvals was fraudulently concealed from them and that all the misrepresentations and concealments were made with the intent that defendants enter into the contract. They sought to retain the initial partial deposit and to recover compensatory and punitive damages as well.

After the close of discovery, Perla filed a motion for summary judgment on January 17, 2007. Jung filed an extensive certification in opposition to the motion. After oral argument, the judge granted the summary judgment in substantial part. He concluded that the language of the contract was clear and unambiguous. He found that approval of rezoning to permit Perla to construct eighty apartment units was a precondition to enforcement of the contract. Because no such approval was forthcoming, Perla was entitled to the return of the $300,000 initial deposit. The judge entered a judgment in favor of Perla for $300,000 together with costs and scheduled trial respecting return of the $15,000 advanced to Brown. Thereafter, Perla voluntarily waived the claim for $15,000, and the judge entered an amended order to that effect.

Defendants appealed and we reversed. Perla v. Jung, No. A-4344-06 (App. Div. July 16, 2008) (slip op. at 9). We noted that Jung and Brown

met with Fort Lee borough officials including members of the Land Use Authority on June 1, 2005, July 5, 2005, July 18, 2005, and August 3, 2005[,] to discuss [Perla's] proposal to build an apartment building with 80 units. They also delivered plans for the building prepared by [Perla's] architect. However, at some point in mid-August [Perla] learned that Fort Lee refused to rezone the property.

 

[Id. at 5-6.]

 

Although the motion judge had construed the agreement as requiring approval for the project as a precondition to the duty to close, we found the language ambiguous and noted that the "agreement in the context of negotiations and modifications of the earlier draft" could be construed to "lead to a contrary conclusion." Id. at 8. Specifically, "securing a municipal approval was not a condition of the executed contract and . . . [Jung] was obligated only to 'assist' and introduce Perla to the municipal officials making the decision on rezoning." Ibid. We therefore remanded the matter for trial. Id. at 9.

After our remand, defendants sought additional discovery by letter to the motion judge, particularly with respect to the deposition of Brown, which had not been taken due to his alleged ill health. Defendants asserted that only Brown could speak to Perla's payment of $15,000 to him, testify to Perla's alleged effort to pay Brown to perjure himself, and testify to the interpretation of the contract. The judge denied this request because summary judgment was granted after the end of the discovery period. He found no justification for reopening discovery. Defendants sought reconsideration of this ruling, which the judge again denied. The trial took place on January 20, 21, 26, and 27, 2009. The judge issued a written decision on February 3, 2009, as amended on February 11, 2009.

In reviewing the factual background and procedural history, the judge observed:

The essence of the dispute is that Perla interprets the contract as mandating that Jung secure the rezoning of the property to permit the building of at least 80 apartment units, whereas Jung claims that it was his duty solely to introduce Perla to the "Fort Lee Land Use Authority" (an undefined term in the parties' Contract), and it was up to Perla to secure whatever approvals were necessary to build 80 apartment units. It is also Jung's view that Perla and Fort Lee officials acted corruptly and fraudulently to try to take his property from him.

 

Thereafter, the judge found the facts and reached legal conclusions. First, he found "the language used by the parties is unclear and ambiguous, and therefore must be considered in the context of the parties' discussions and negotiations." He found that the property, at the time the contract was signed, was zoned C-3 Limited Business District and remained so to the time of trial. The zone allowed residential apartments as a conditional use pursuant to 410.34 of "Supplemental Regulations Governing Certain Uses - Planned Development Groups." However, the half-acre lot did not meet the minimum requirements under the regulation of at least ten acres with 1000 feet of road frontage. Thus, eighty apartment units could not be built on the property.

With respect to the dates on which we noted Jung and Brown had met with Fort Lee officials, the judge considered the testimony of Neil W. Grant, Fort Lee's Borough Clerk from 1998 to the time of trial. He found that a Redevelopment Plan was prepared for the Borough in June of 2005 that encompassed only two lots, one owned by defendants and an abutting lot owned by others. It contemplated the renovation of the existing six-story building on the abutting lot and the removal of the existing improvements on defendants' lot, which would be redeveloped in a manner consistent with the abutting lot, limited to six stories.

An ordinance to adopt the Redevelopment Plan was introduced to the Mayor and Council on June 29, 2005. It was unan i mously approved, and a public hearing was scheduled for July 21, 2005. The parties signed the contract on July 13, 2005. At the scheduled public hearing, the hearing on the ordinance was postponed to August 18, 2005, at which time it "was tabled unanimously." The ordinance to rezone defendants' property was thereafter never brought up at a public hearing.

At trial, Jung "insist[ed] that somehow his Lot 18 was not really within the proposed Ordinance." The judge found this belief groundless and refuted by the plain text of the Redevelopment Plan. Jung relied for this proposition upon a notation in the June 29, 2005, Minutes where the Director of Economic Development observed that the abutting lot would accommodate twenty-four to thirty residences. The judge found that this statement "was hardly proof of the non-inclusion of Jung's lot in the redevelopment and rezoning plan."

The judge also found that there was no evidence to support defendants' claims that the property had been rezoned or that Perla had somehow "'conspired'" with municipal officials to "'steal his property.'"

Indeed, the record fails to reveal anything that any representative of the Borough said or didn't say, did or didn't do, that was corrupt, fraudulent or even improper. As to Perla, the unimpeached record reflects, and I so find, that neither Perla nor any representative of Perla's ever at any time had any contact direct or indirect with any representative of the Borough of Fort Lee. In essence, Mr. Jung's suspicion is that if indeed the rezoning was never achieved, it must be because of corruption in the Borough, with which Perla and his agents were complicit. But there being no facts to support the claims of fraud, corruption or conspiracy, those claims must be dismissed, with prejudice.

 

The judge then addressed the breach of contract claims. He noted that defendants relied on Article 8.01 and their claim that Perla's "duty to close was triggered and established once Jung made the necessary 'introduction.'" Perla, on the other hand, focused on Article 13.01, which required confirmation and verification that Perla would obtain permission to build eighty units or the contract could be cancelled and Perla would be entitled to a refund.

The judge found that "it was always understood by the parties that 80 apartment units could not be built on the property under the existing C-3 zoning, and that the only way the property could accommodate 80 apartment units was if it was rezoned." Further, no party contemplated that anyone would seek to obtain a zoning variance or so contended a trial. They understood that rezoning was required and that it "would likely occur in the context of the Borough's plan for redevelopment."

The judge found that Jung was very experienced in land use applications in Fort Lee and "knew that Perla was not bound to close the $8M deal unless permission was granted by the Borough to build 80 apartment units." The Term Sheet referred to confirming the "ability to construct 80 apartment units." The draft Agreement of Sale referred to "the 'unequivocal, absolute and unappealable permission and right' to build at least 80 condominium units."

There was never an agreement that Perla need not close till [sic] all conceivable approvals were granted. But there was an agreement, understood by all, reflected in the P-1 Term Sheet and in the final Contract (P-3), that Perla need not close unless Fort Lee changed its zoning to permit at least 80 residential apartment units on the site.

 

The judge found Perla's testimony credible that he did not consider the Agreement of Sale "as a real contract" but merely something that Jung needed to show municipal officials to demonstrate that he had a substantial buyer as part of his effort to secure rezoning and that "he couldn't be forced to buy the land without being able to build at least 80 units." He further found that it was understood by the parties "that Jung and only Jung" would deal with Fort Lee. He found that Jung sold Perla on his ability to secure rezoning, that he never asked Perla to meet with any representative of Fort Lee, and that "[i]t was Jung's responsibility to deliver the permission by Fort Lee for 80 units. If Jung got it, he got $8M for his property; if he did not get it, the deal was off." The judge further found that "rezoning was a precondition to closing," as the parties knew. Because Jung did not secure this precondition to closing, Perla had no duty to close. He was entitled to cancel the contract and receive a refund of the deposit.

Additionally, Perla did not breach the Agreement for Sale by making only a $300,000 deposit because the agreement was a "show contract" intended only to prove to Fort Lee that a contract existed. Although "[t]he literal language of the Contract was breached[,] the actual understanding of the parties was not breached. That is why the record is devoid of any demand for deposit monies."

Finally, the judge found that there was no breach of the covenant of good faith and fair dealing. He found no facts in the record to support such a claim and dismissed it with prejudice.

With respect to the $15,000, he found that Brown was acting on his own for his own benefit in demanding that amount. As such, defendants were not liable as principals. Thus, Perla's claim for return of this money was dismissed with prejudice. This appeal followed.

Defendants raise two issues on appeal. First, they contend that the trial judge abused his discretion in denying their application to reopen discovery. Second, they urge that the judge's findings constitute a manifest denial of justice.

Our review of a trial judge's exercise of discretion is limited.

"[J]udicial discretion" is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.

 

[Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951) (citations omitted), certif. denied, 9 N.J. 178 (1952).]

 

The exercise of judicial discretion "is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). Moreover, the exercise of judicial discretion must have a factual underpinning and legal basis. Id. at 110. Applying these principles, we have explained:

Judicial discretion, sound discretion guided by law so as to accomplish substantial justice and equity, is a magisterial, not a personal discretion. It is legal discretion, in which the judge must take account of the applicable law and be governed accordingly. If the judge misconceives or misapplies the law, his discretion lacks a foundation and becomes an arbitrary act. When that occurs, the reviewing court should adjudicate the matter in light of the applicable law to avoid a manifest denial of justice.

 

[Cosme v. E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997) (quoting In re Presentment of Bergen Cnty. Grand Jury, 193 N.J. Super. 2, 9 (App. Div. 1984)), certif. denied, 156 N.J. 381 (1998).]

Where the trial court makes a discretionary ruling, that decision will not be reversed on appeal absent a showing of an abuse of discretion. In re Estate of Hope, 390 N.J. Super. 533, 541 (App. Div.), certif. denied, 191 N.J. 316 (2007); Schweizer v. MacPhee, 130 N.J. Super. 123, 127 (App. Div. 1974). A trial court decision will constitute an abuse of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Our appellate review of a trial judge's fact-findings is also limited by well-settled, controlling principles. Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div.), certif. denied, 172 N.J. 355 (2002). "We are not to review the record from the point of view of how we would have decided the matter if we were the court of first instance." Ibid. (citation omitted). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted); see also Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004).

"[W]e do not disturb the factual findings . . . of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.) (citation omitted), certif. denied, 40 N.J. 221 (1963); see also Metuchen Sav. Bank v. Pierini, 377 N.J. Super. 154, 161 (App. Div. 2005) (stating same). It is not our function to weigh the evidence. Cintrone v. Hertz Truck Leasing & Rental Serv., 45 N.J. 434, 440 (1965). Neither do we "'determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.'" Penpac, Inc. v. Passaic Cnty. Utils. Auth., 367 N.J. Super. 487, 507 (App. Div.) (citation omitted), certif. denied, 180 N.J. 457 (2004). This is so because we are not in a good position to judge credibility and ordinarily should not make new credibility findings. Dolson v. Anastasia, 55 N.J. 2, 7 (1969); see also Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104 (App. Div. 1952). "Rather, our aim is 'to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" Sebring Assocs., supra, 347 N.J. Super. at 424 (citations omitted). Indeed, we exercise our original fact-finding jurisdiction sparingly and only in a clear case where there is no doubt about the matter. Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960).

"While we will defer to the trial court's factual findings so long as they are supported by sufficient, credible evidence in the record, our review of the trial court's legal conclusions is de novo." 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84; Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Defendants' application to reopen discovery was governed by Rule 4:24-1(c), which presently provides in pertinent part:

The parties may consent to extend the time for discovery for an additional 60 days by stipulation filed with the court or by submission of a writing signed by one party and copied to all parties, representing that all parties have consented to the extension. A consensual extension of discovery must be sought prior to the expiration of the discovery period. If the parties do not agree or a longer extension is sought, a motion for relief shall be filed . . . and made returnable prior to the conclusion of the applicable discovery period. . . . No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown.[2]

 

Here, on June 8, 2006, the judge set a discovery end date of November 1, 2006. It was not until October 26, 2006, that defendants secured an order for issuance of a commission to take the deposition of Brown in New York, although he was obviously a central figure in the negotiation of the contract and ought to have been deposed long before this end of discovery. On November 7, 2006, defense counsel wrote to Brown and asked that he have his attorney communicate with defense counsel to set up a date, time, and place for the deposition. The deposition was subsequently scheduled for December 16, 2006, but was adjourned by agreement of counsel "pending certain medical treatment of Mr. Brown." Brown's counsel wrote that Brown would submit to deposition "some time after the first of the year" when his medical treatment would be completed. The adjournment was supported by a letter from Brown's treating physician. On January 23, 2007, defense counsel wrote to Brown's attorney requesting a new date for Brown's deposition, advising him that there was a trial date of March 12, 2007. No further effort to secure his deposition or testimony at trial was documented.

Defendants never sought a consensual extension of the discovery end date prior to the end of discovery nor did they file a motion seeking an extension before the end of discovery or even before summary judgment was granted to Perla. There was even a November 16, 2006, case management conference at which they could have raised the issue but failed to do so. They also did not seek to enforce the commission in New York to secure a firm date for Brown's deposition and an order compelling him to attend.

It was not until September 4, 2008, that defendants sought to reopen discovery during a conference with the judge when an order was entered denying that request. Defense counsel then wrote to the judge on September 15, 2008, stating that defendants may be able to connect the conspiracy dots if they could depose Brown, the Fort Lee Mayor, and Council. On September 23, 2008, the judge wrote to counsel stating in pertinent part, "[n]o justification for reopening the discovery period has been established, and the [c]ourt will therefore not permit discovery to be reopened." He scheduled the trial for December 15, 2008. On December 18, defendants' counsel wrote to the judge protesting his refusal to reopen discovery.

On January 9, 2009, defendants filed a motion to reopen discovery. Among other things, defense counsel certified that Brown had been avoiding his deposition. He certified that only a single argument was made in support of the summary judgment and "at the time of summary judgment no other issues were considered with proper scrutiny since there was no proper discovery conducted other than the testimonies of [Perla] and [Jung]." (Emphasis added.) Perla opposed the motion, suggesting that it should not even be heard due to procedural irregularities. On January 16, 2009, the judge wrote to counsel for the parties reminding them that trial was scheduled for January 20, 2009. He noted that he was "not in receipt of any motion regarding discovery or otherwise." This motion was never heard because trial began as scheduled.

In order to extend discovery based upon "exceptional circumstances," the moving party must satisfy four inquiries: (1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.

 

[Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div.) (citing Vitti v. Brown, 359 N.J. Super. 40, 51 (Law Div. 2003)), certif. denied, 185 N.J. 296 (2005).]

 

Defendants urge that the additional discovery would not have had a "devastating effect" on the trial date, but this ignores their duty to demonstrate diligence in pursuing discovery and to establish why discovery was not completed within the time allotted for discovery. Defendants admitted that no discovery was conducted other than party depositions but never explained why that was so. Defendants did not pursue taking the deposition of Brown until October 26, 2006, when discovery was to end on November 1, 2006, and they never sought to take the depositions of the Fort Lee Mayor and Council by serving deposition notices and subpoenas during time for discovery.

Even assuming that defendants have established the second prong of Rivers, they have completely failed to establish the third and fourth prongs. They have not advanced any "explanation for counsel's failure to request an extension of the time for discovery within the original time period." Ibid. Nor have they demonstrated that "the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time." Ibid.

Based on this record and defendants' failure to satisfy the first, third, and fourth prongs of Rivers, we cannot find any abuse of discretion in the judge's refusal to reopen discovery. These depositions ought to have been pursued long ago. We also note that nothing precluded defendant from calling the Mayor and Council as witnesses at trial and from attempting to secure Brown's voluntary appearance in New Jersey for trial. We find no exceptional circumstances here and affirm the judge's September 4, 2008, order denying defendants' request to reopen discovery.

Defendants next contend that the judgment should be reversed due to a manifest denial of justice, citing Rova Farms, supra, 65 N.J. at 484. They contend that the negotiation of the contract established that "the only possible conclusion is that [defendants'] understanding of the terms of the contract is what was intended by the parties. Otherwise, other revisions would have taken place." They assert that the judge's summary judgment opinion that the contract was clear and unambiguous influenced the outcome of the trial. They also urge that the refusal to reopen discovery was a manifest denial of justice.

We disagree. The judge clearly accepted our determination that the language of the contract was not clear and was ambiguous. He expressly made such a finding. He then carefully considered the testimony of the parties and made a fact-finding respecting their intended goal rezoning the property to permit construction of eighty apartment units, an event that would trigger the parties' obligations under the contract, and that never occurred. We have carefully considered the judge's fact-findings in light of the evidence adduced at trial and the judge's credibility determinations and are satisfied that his fact-findings are not "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone, supra, 78 N.J. Super. at 155 (citation omitted).

Affirmed.

1 The liquidated damages clause was included in the contract prepared for Perla by Adam Bayroff. It was not deleted by Brown nor stricken by any of the parties to the contract at the time of execution.

2 The rule as quoted above varies from the form of the rule considered by the trial judge. Because a procedural rule "is in general to be deemed applicable to actions pending on its effective date," Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120 (1973) (citations omitted), see also Romagnola v. Gillespie, Inc., 194 N.J. 596, 603 (2008), we have quoted the version now in effect. The exceptional circumstances requirement was not changed.