IVF INVESTMENT COMPANY LLC v. ESTATE OF JERYL G NATOFSKY, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IVF INVESTMENT COMPANY,

LLC,

Plaintiff-Respondent,

v.

ESTATE OF JERYL G.

NATOFSKY, M.D.,

Defendant-Appellant,

and

U.S. FINANCIAL LIFE

INSURANCE COMPANY,

Defendant,

and

ESTATE OF JERYL G.

NATOFSKY, M.D.,

Third-Party

Plaintiff-Appellant,

v.

SUSAN L. TREISER, M.D.,

MICHAEL C. DARDER, M.D.,

MELISSA YIH, M.D., AND

FERTILITY AND GYNECOLOGY

CENTER, P.A.,

Third-Party

Defendants-Respondents.

Argued telephonically March 4, 2014 Decided July 31, 2014

 

Before Judges Sapp-Peterson, Maven and Hoffman.

 

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1902-10.

 

Jeffrey M. Garrod argued the cause for appellant (Orloff, Lowenbach, Stifelman & Siegel, P.A., attorneys; Mr. Garrod, of counsel and on the briefs; Craig A. Ollenschleger and David Gorvitz, on the briefs).

 

Charles X. Gormally argued the cause for respondents (Brach Eichler, L.L.C., attorneys; Mr. Gormally, of counsel and on the brief; Paul M. Bishop, on the brief).

PER CURIAM

Defendant Estate of Jeryl Natofsky, M.D. (Estate) appeals from the April 12, 2013 Law Division order granting plaintiff's motion for summary judgment, including dismissal of its counter-claim alleging fraud, equitable fraud, unjust enrichment, and tortious interference. We affirm.

I.

On January 1, 2004, Dr. Natofsky joined third-party defendant Fertility and Gynecology Center, P.A. (FGC) as a shareholder. To acknowledge his shareholder interest, Dr. Natofsky entered into a Shareholders Agreement with the other shareholders of FGC, third-party defendants Drs. Susan Treiser and Michael Darder, who agreed to sell Dr. Natofsky a combined one-third interest in FGC. On September 1, 2005, third-party defendant Dr. Melissa Yih joined FGC as a doctor-shareholder, reducing each partner's interest to one-fourth.

The Shareholders Agreement included a provision authorizing FGC to purchase insurance on the lives of the shareholders in order to fund a buy-out in the event of a shareholder's death. Section 14 of the agreement stated, in relevant part:

(a) The Corporation may from time to time purchase policies of insurance, insuring the lives of one or more of the Shareholders, as well as disability insurance policies for one or more of the Shareholders (a "Policy or the "Policies"), in amounts determined from time to time by the Board in its discretion. Each Shareholder agrees in such event to do everything necessary to cause a Policy to be issued pursuant to the application of the Corporation. The Corporation shall be the owner of the Policies, have custody of Policies and be named as beneficiary of the Policies. The Corporation shall pay the premium of the Policies so long as the Board determines to maintain such insurance. Notwithstanding the foregoing, the Shareholders agree that the Corporation may establish a trust to own the policies and make premium payments thereon.

 

(b) Upon the death or permanent disability of a Shareholder, the Corporation shall promptly submit a claim for payment on any such insurance policies. The proceeds of the policies shall be used first to pay the acquisition cost of the Decedent's or Disabled Shareholder's shares.

 

As officers of FGC, Drs. Treiser and Darder had previously established plaintiff IVF Investment Company (IVF) to purchase and own the life insurance policies on the lives of the FGC shareholders in March 1998, in furtherance of the buy-out provision. Pursuant to the Shareholders Agreement, on January 19, 2005, Dr. Natofsky applied for a $3,000,000 life insurance policy (Policy) with defendant U.S. Financial Life Insurance Company (U.S. Life); Susan Pollard, FGC's life insurance agent, assisted Dr. Natofsky. The Policy designated him as the owner and insured, and named IVF as the 100% beneficiary. IVF paid the premiums associated with the Policy. Dr. Natofsky's wife, Randi Natofsky (Randi), testified at deposition that her husband "came home one day very proud . . . that they just took out a big policy on him and that me and the kids would be taken care of if anything ever happened to him[.]"

In February 2010, FGC terminated Dr. Natofsky's employment. In early March 2010, Dr. Natofsky and Randi had a conference call with their financial planner, Mark Monkarsh, a licensed financial planning specialist and life insurance broker, to discuss obtaining affordable life insurance protection for his family. Monkarsh testified at his deposition that during their conversation, he advised Dr. Natofsky to determine whether he could take over the Policy issued by IVF and whether he was the owner of the Policy, which would permit him to change the beneficiary. Monkarsh also testified that "Human Resources" told Dr. Natofsky he was not the owner and could not change the beneficiary.

Contrastingly, Pollard testified at deposition that, when she asked Dr. Natofsky about maintaining the Policy, he stated "my wife, Rand[i], works for New York Life. I am sure we have all the life insurance we need." Maria Fiorino, FGC's office administrator, did not recall Pollard informing her that Dr. Natofsky refused to assume the Policy because he had life insurance. Kenneth Kelly, FGC's accountant, also did not recall having any conversations with Pollard regarding Dr. Natofsky's Policy.

After four months of negotiations, on June 16, 2010, Dr. Natofsky, FGC and IVF entered into a Settlement Agreement and General Release (Settlement Agreement), which compensated Dr. Natofsky for his shares and compliance with a restrictive covenant. The Settlement Agreement also released the parties from all claims arising from any conduct, event or omission occurring prior to the execution of the agreement.

Three days after signing the Settlement Agreement, Dr. Natofsky died. On August 13, 2010, IVF submitted a claim for the proceeds of the Policy. Shortly thereafter, the Estate filed a claim for the same proceeds. As a result of the competing claims, U.S. Life refused to pay the proceeds until the parties resolved the dispute over the rightful beneficiary.

On November 12, 2010, IVF filed a complaint against the Estate and U.S. Life seeking a declaration of ownership, beneficiary status, and turnover of the $3,000,000 death benefit. The Estate filed a counterclaim and third-party complaint1 seeking damages for fraud, equitable fraud, tortious interference, and unjust enrichment.

Thereafter, IVF filed a motion to proceed in a summary manner, pursuant to Rule 4:67-1(b) and Rule 4:67-2(b), to determine the owner and beneficiary of the Policy. On April 4, 2011, Judge Yolanda Ciccone entered an order granting plaintiff's motion to proceed summarily and ordered a plenary hearing "[t]o determine ultimately the issues on the ownership as well as the beneficiary" of the Natofsky policy."

We granted leave to the Estate to appeal the trial court's interlocutory order granting IVF's motion to proceed in a summary manner. We subsequently remanded the matter to the Law Division to conduct a hearing limited to the issues the judge had set forth in her order. We retained jurisdiction.

On December 13, 2011, Judge Ciccone conducted the remand hearing; no testimony was taken but each side presented argument, relying on various documents presented for consideration. At the conclusion of the hearing, the judge issued an oral decision, finding plaintiff was the beneficiary of the Policy, and further, there was no need for a determination as to ownership of the Policy.

The Estate challenged this decision, asserting before us the trial court did not conduct the Rule 4:67 proceeding properly, and consequently, violated defendant's right to a jury trial. Specifically, the Estate challenged the judge's determination plaintiff was the beneficiary of Dr. Natofsky's policy; the Estate also disputed the trial judge's decisions to exclude the proffered testimony of three witnesses,2 whose testimony, the Estate claimed, would have demonstrated a genuine issue of material fact as to the identity of the beneficiary of the policy, thereby precluding a summary proceeding.

We found Judge Ciccone did not err with respect to her finding plaintiff had an insurable interest at the time the Policy was issued nor in her finding the Settlement Agreement did not alter plaintiff's status as the beneficiary of the insurance policy. IVF Inv. Co., LLC v. Estate of Natofsky, No. A-4136-10 (App. Div. May 21, 2012) (slip op. at 13). We further concluded:

The judge's decision not to address defendant's defenses and counterclaim was justified, as the summary proceeding was conducted to resolve the single issue of beneficiary status. There are several related claims pending, and defendant's opportunity to be heard and right to a trial by jury on other issues have not been foreclosed by the summary disposition of this single matter.

[Id. at 28.]

Since our grant of leave to file an interlocutory appeal was limited to the narrow issue of identification of the beneficiary, we affirmed the Law Division's order of December 13, 2011, and remanded for disposition of the remaining issues in dispute. We did not retain jurisdiction.

On the second remand, IVF filed two summary judgment motions. Judge Ciccone denied the first motion, without prejudice, concluding the Estate's claims were not waived by the Settlement Agreement and that additional discovery was necessary.

Upon completion of the additional discovery, IVF renewed its summary judgment motion, which Judge Ciccone granted, concluding the Estate's claims were barred by the Settlement Agreement because they arose from conduct occurring prior to the execution of the agreement. The court also ordered the turnover of the $3,000,000 Policy proceeds to IVF. This appeal followed.

II.

Our review of a summary judgment motion is de novo, applying the same standard used by the motion judge under Rule 4:46. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). We first consider whether a genuine issue of material fact exists; we next consider whether the competent evidential materials viewed "in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c). If the evidence is "'so one-sided that one party must prevail as a matter of law,'" then summary judgment should be granted. Brill, supra, 142 N.J. at 533 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). Nevertheless, we afford no deference to the motion judge's conclusions of law. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010).

Under the law of the case doctrine, a "legal decision made in a particular matter 'should be respected by all other lower or equal courts during the pendency of that case.'" Lombardi v. Masso, 207 N.J. 517, 538 (2011) (quoting Lanzet v. Greenberg, 126 N.J. 168, 192 (1991)). The rule is "non-binding" and "intended to 'prevent relitigation of a previously resolved issue.'" Ibid. (quoting In re Estate of Stockdale, 196 N.J. 275, 311 (2008)). Moreover, the doctrine only applies when "one court is faced with a ruling on the merits by a different and co-equal court on an identical issue." Id. at 539 (citations omitted).

III.

The Estate argues the trial court erred in granting IVF's second summary judgment motion because it was contrary to the trial court's first summary judgment decision, and our first interlocutory opinion, holding that claims, which were not accrued at the time the settlement agreement was signed, were not barred by the Settlement Agreement. The Estate further argues the trial judge violated the law of the case by granting IVF's second summary judgment motion. In opposition, IVF argues the motion court below did not fail to apply the law of the case because this court never held that the Estate's equitable beneficiary claims were not subject to the Settlement Agreement. Rather, IVF argues that in affirming the trial court's declaration that IVF is the beneficiary of the Policy, we ruled only that IVF's beneficiary claim was not released.

A.

We previously considered the Estate's appeal to determine whether Judge Ciccone properly conducted a Rule 4:67 summary proceeding, whether she properly determined the Policy's beneficiary, and whether she properly excluded witnesses' testimony. Following our review, we affirmed Judge Ciccone's rulings, including her decision that IVF was the named beneficiary of the Policy. IVF, supra, slip op. at 10.

In affirming, we first found IVF had an insurable interest, pursuant N.J.S.A. 17B:24-1.1(a)(4), and contractual agreements between Dr. Natofsky and IVF. IVF, supra, slip op. at 12-13. We stated "[b]oth the statute and the parties' agreement lead us to conclude that IVF Investment had an insurable interest in Natofsky's life at the time the Natofsky policy was issued." Id. at 13.

We next determined IVF's claim did not accrue prior to the effective date of the Settlement Agreement because "[a] beneficiary's claim on an insurance policy does not arise until the death of the insured." Id. at 20. We then found the Release did not release IVF's beneficiary "claim," nor change IVF's beneficiary status, because the life insurance proceeds were never meant to benefit Dr. Natofsky; rather, it was implemented to ensure the partnership had sufficient funds to buy Dr. Natofsky's shares in the event of his death. Id. at 17. Thus, we concluded Dr. Natofsky was not an intended beneficiary of the Policy. Ibid. We further found "the language of the Shareholder Agreement demonstrates that the parties explicitly contemplated the situation that actually evolved." Id. at 18.

Furthermore, we found IVF had not relinquished its beneficiary status pursuant to the Settlement Agreement because the Policy was not a claim as defined by the agreement. Id. at 19. We reasoned the parties' failure to specifically include the Policy as a waived interest demonstrated IVF's and Dr. Natofsky's intent not to release the property interest in the beneficiary rights of the Policy. Id. at 20.

Pending completion of additional discovery, Judge Ciccone denied IVF's first motion for summary judgment, without prejudice, and indicated the Estate's fraud and unjust enrichment claims did not accrue until after the release became effective. The judge, in quoting Holmin v. TRW, Inc., 330 N.J. Super. 30, 36, aff'd o.b., 167 N.J. 205 (2000), noted that "'[u]ntil a plaintiff has suffered 'damages' . . . he [or she] cannot maintain a suit for damages based on fraud since his cause of action has not yet accrued.'" The judge also noted that the Estate's "outstanding allegations must be explored through depositions."

After the depositions were completed, Judge Ciccone granted IVF's second motion for summary judgment and dismissed the Estate's equitable fraud, fraud, tortious interference, and unjust enrichment claims. The judge found the Estate's common law fraud claim was not viable because the Estate never had a beneficiary right in the Policy proceeds, and thus, could not have detrimentally relied on allegedly false facts. The judge also found the Estate's tortious interference claim failed because we ruled that IVF is the beneficiary, and therefore, the Estate "cannot now show that the IVF Parties interfered with any contract or expectation based on events that occurred after Dr. Natofsky signed the Release."

We conclude Judge Ciccone did not violate the law of the case in granting IVF's second summary judgment motion. The judge was not bound by her previous interlocutory decision "[b]ecause such a ruling is always subject to reconsideration up until final judgment is entered[.]" Lombardi, supra, 207 N.J. at 539 (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). The law of the case does not apply where, as here, the same judge is reconsidering her own interlocutory ruling. Ibid. The first summary judgment motion was denied without prejudice, and specifically noted the Estate's claims would be explored once further discovery was completed. Therefore, there was no ruling regarding the Estate's claims that bound the case.

B.

We also reject the Estate's argument that Judge Ciccone's ruling ignored our binding decision that claims, which did not accrue until after the release, were not released. The Estate argues this court ruled as a matter of law that the Estate's claims to Natofsky's death benefit accrued after the Settlement Agreement was signed. However, in defining the term "claims," we specifically found that IVF's claims, as the named beneficiary of the Policy, were not encompassed in the claims released in the settlement agreement. IVF, supra, slip op. at 20-21. Further, in finding that IVF's beneficiary claims accrued after Natofsky's death, we cited Metro. Life Ins. Co. v. Woolf, 138 N.J. Eq. 450, 454-55 (1946), for the proposition that "[a] beneficiary's claim on an insurance policy does not arise until the death of the insured," and that claim is a vested property right of the designated beneficiary. IVF, supra, slip op. at 20.

We previously made no finding that the claims of the Estate and IVF are the same. Rather, in finding that IVF was the beneficiary, we rejected the Estate's equitable claims, specifically finding that equitable principles have little applicability outside of matrimonial disputes. Id. at 15-16. We therefore declined to "allow the alteration of beneficiary status based solely on a change in the relationship between the insured and the named beneficiary." Ibid. Thus, Judge Ciccone followed the law of the case in dismissing the Estate's claims associated with its equitable beneficiary claims.

The Estate further argues the trial court misread the Settlement Agreement to mean "conduct" had been released when, in fact, it was 'claims' that had been released. The Estate also contends the trial court's determination that any claim arising solely out of pre-Settlement Agreement conduct was released is wrong as a matter of law, and contrary to our previous holding. We disagree.

We review issues involving contract interpretation de novo. Waskevich v. Herold Law, P.A., 431 N.J. Super. 293, 297 (App. Div. 2013). "A basic principle of contract interpretation is to read the document as a whole in a fair and common sense manner." Hardy v. Abdul-Matin, 198 N.J. 95, 103 (2009). "If the terms of a contract are clear, they are to be enforced as written." Malick v. Seaview Lincoln Mercury, 398 N.J. Super. 182, 187, (App. Div. 2008) (citing Cnty. of Morris v. Fauver, 153 N.J. 80, 103 (1998)). On the other hand, "[w]here a contract is ambiguous, courts will consider the parties' practical construction of the contract as evidence of their intention and as controlling weight in determining a contract's interpretation[.]" Fauver, supra, 153 N.J. at 103.

Ambiguity in a "contract exists if the terms of the contract are susceptible to at least two reasonable alternative interpretations." Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002). The meaning of the terms of an agreement is determined by the "objective manifestations of the parties' intent." Ibid. A reviewing court should not "torture the language of [a contract] to create ambiguity." Ibid. (citation and internal quotation marks omitted).

"The scope of a release is determined by the intention of the parties as expressed in the terms of the particular instrument, considered in the light of all the facts and circumstances." Bilotti v. Accurate Forming Corp., 39 N.J. 184, 203 (1963). "A general release, not restricted by its terms to particular claims or demands, ordinarily covers all claims and demands due at the time of its execution and within the contemplation of the parties." Id. at 204. Moreover, when a release's language refers to "any and all" claims, as here, courts generally do not permit exceptions. Isetts v. Borough of Roseland, 364 N.J. Super. 247, 255-56 (App. Div. 2003).

Here, Judge Ciccone properly interpreted the Settlement Agreement to exclude the Estate's fraud and unjust enrichment claims as they were based on conduct that occurred prior to the execution of the Settlement Agreement, which provided that:

(b) By agreeing to this Release, Dr. Natofsky is waiving . . . any and all Claims . . . arising out of or relating to any conduct, matter, event or omission existing or occurring prior to his signing of this Settlement Agreement, including but not limited to the following:

 

. . . .

 

(xiv) any other statutory or common law Claims, now existing or hereinafter recognized, known or unknown, asserted or unasserted, including, but not limited to, breach of contract, libel, slander, fraud, wrongful discharge, promissory estoppel, equitable estoppel and misrepresentation.

 

(c) Dr. Natofsky understands that this General Release includes all Claims known or unknown by him, including those that he may have asserted or raised previously as well as those that he has not raised or asserted previously.

The Settlement Agreement unambiguously provided that claims arising out of any conduct or omission existing at the time of the agreement were waived, which included fraud, equitable estoppel and misrepresentation, and is not susceptible to multiple meanings. See Schor, supra, 357 N.J. Super. at 191. The Estate's argument hinges on Pollard's alleged misrepresentations regarding Dr. Natofsky's ownership and IVF's refusal to provide Dr. Natofsky with a copy of the insurance policy; however, any claim based on this conduct was waived and released because the conduct occurred prior to June 16, 2010. The Estate's assertion that the conduct was not released pursuant to the Settlement Agreement clearly lacks merit. The trial court correctly determined the Estate's claims based on pre-Settlement Agreement conduct were waived and released by Dr. Natofsky pursuant to the Settlement Agreement.

C.

The Estate additionally argues that the trial court failed to afford all favorable inferences when the court decided the summary judgment motion in favor of IVF. The Estate also contends our prior opinion and the first summary judgment ruling demonstrate ambiguity in the Settlement Agreement and support an interpretation that the Estate's claims were not released.

Generally, the construction of a contract is a question of law for the court; however, that rule is predicated upon the absence of an issue of fact. Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011) (citing Jennings v. Pinto, 5 N.J. 562, 569-70 (1950)). The effect of a written instrument depends not solely on its construction and meaning, but upon disputed collateral facts and extrinsic circumstances; the inferences of fact drawn are for the jury's determination. Jennings, supra, 5 N.J. at 570.

Bare conclusions in the pleadings without factual support in affidavits will not defeat a motion for summary judgment. Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011). The respondent must do more than show that there is some metaphysical doubt as to the material facts. Triffin v. Am. Intern., 372 N.J. Super. 517, 523-524 (App. Div. 2004). Summary judgment is also appropriate where the disputed issue of fact is insubstantial. Schick v. Ferolito, 167 N.J. 7, 27 (2001).

Here, the Estate did not raise this issue below;3 regardless, even affording all favorable inferences to the Estate, there is no competent evidence that raises a genuine issue of material fact. We previously ruled that IVF was the beneficiary of the Policy and found the Estate's equitable beneficiary claims to be inapplicable to this case. IVF, supra, slip op. at 16. During oral argument of IVF's second summary judgment motion, the Estate argued there was a factual dispute regarding whether Dr. Natofsky declined to assume the Policy because Fiorino, the office manager, did not recall Pollard informing her that Dr. Natofsky rejected the offer to take over the Policy. The Estate also argued IVF's accountant stated Pollard never informed him of the offer to turn the Policy over to Dr. Natofsky. The Estate further argued IVF was aware that Dr. Natofsky was the owner of the policy, as evidenced by an email to the accountant stating Dr. Natofsky was required to receive a copy of the Policy; according to the Estate, this demonstrated he was entitled to the Policy. The only evidence offered to prove Dr. Natofsky's intention to change the beneficiary was Mark Monkarsh's testimony. The Estate made no reference to any ambiguity in the Settlement Agreement.

The Estate asserts that because there are factual disputes summary judgment was improperly granted; however, these assertions are insubstantial based upon our determination IVF was the beneficiary of the Policy. The facts the Estate cites do not affect IVF's established beneficiary status, which entitles it to the proceeds of the Policy. Dr. Natofsky's ownership is irrelevant because he did not change the beneficiary of the Policy during his life.

 

 

D.

The Estate further argues its claims are based on IVF's failure to provide Dr. Natofsky with a copy of the Policy after signing the Release, despite his request. Specifically, the Estate argues this failure created a favorable inference, which was improperly ignored by the trial judge. The Estate also argues that, by failing to inform Dr. Natofsky he was the owner of the policy, IVF breached an affirmative duty as a fiduciary constituting a material misrepresentation regarding the true owner of the Policy. Lastly, the Estate argues these facts support causes of action for equitable fraud and unjust enrichment and warrant a reversal of the dismissal of its claims.

"In general, equitable fraud requires proof of (1) a material misrepresentation of a presently existing or past fact; (2) the maker's intent that the other party rely on it; and (3) detrimental reliance by the other party." Liebling v. Garden State Indem., 337 N.J. Super. 447, 453 (App. Div.), certif. denied, 169 N.J. 606 (2001). Scienter, or the "knowledge of the falsity and an intention to obtain an undue advantage therefrom, . . . are not essential if plaintiff seeks to prove that a misrepresentation constituted only equitable fraud." Jewish Ctr. of Sussex Cnty. v. Whale, 86 N.J. 619, 624 (1981) (internal citation omitted).

Again, the Estate did not raise this issue before Judge Ciccone, and this issue does not go to the jurisdiction of the trial court or concern matters of substantial public interest. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Regardless, the Estate has failed to identify a genuinely disputed issue of material fact that would require a trial on its equitable fraud claim.

During the motion hearing, the Estate argued that Pollard misrepresented the ownership of the Policy when she told Dr. Natofsky, "I advised him that IVF was willing to allow him to assume ownership of the policy." The Estate then argued this was a contradiction because Pollard stated she did not discuss ownership with Natofsky during their telephone conversation concerning the Policy after his termination. The Estate also argued because Pollard stated she informed Kelly and Fiorino that Dr. Natofsky declined to assume the Policy and Fiorino and Kelly did not recall that conversation, this contradicted her testimony.

Even affording all favorable inferences to the Estate, there is no competent evidence of material misrepresentation. See Liebling, supra, 337 N.J. Super. at 453. Monkarsh's and Randi's testimony that Dr. Natofsky inquired into whether he was the owner of the Policy and the subsequent response is the only evidence regarding his knowledge that he was not the owner and was not permitted to change the beneficiary. As we noted in our previous opinion, Monkarsh's testimony regarding what Pollard told Dr. Natofsky is hearsay within hearsay, pursuant to N.J.R.E. 805. IVF, supra, slip op. at 26. His testimony is also inadmissible under N.J.R.E. 602 because Monkarsh lacks personal knowledge of Pollard's alleged misrepresentation to Dr. Natofsky regarding the owner of the policy. Ibid. "Inadmissible evidence may not be used to affect the outcome of a summary judgment motion." Randall v. State, 277 N.J. Super. 192, 198 (App. Div. 1994) (citing R. 1:6-6). Therefore, the record contains no competent evidence proving that a material misrepresentation was made to Dr. Natofsky regarding the ownership of the Policy.

The record is also devoid of evidence that FGC or IVF intended Dr. Natofsky to rely on any misrepresentation regarding ownership of the Policy; indeed, FGC and its shareholders were under the impression FGC or IVF was the owner of the Policy pursuant to the Shareholders Agreement, which provides that "[t]he Corporation may from time to time purchase policies of insurance, insuring the lives of one or more of the Shareholders . . . The Corporation shall be the owner of the Policies, have custody of Policies and be named as beneficiary of the Policies." Dr. Treiser testified that "[a]ll of the policies on the physicians that were purchased by the practice were owned by IVF Investments." Kelly, the accountant for FGC, testified he either told Pollard or instructed Dr. Natofsky to inform Pollard that IVF should be the owner and beneficiary of the Policy. Thus, IVF was under the impression it was the owner and beneficiary of the Policy since its inception, and therefore, there is no evidence of any intention to deceive or mislead Dr. Natofsky.

We also note there is no written expression of Dr. Natofsky's intent to change the Policy's designated beneficiary. See Czoch v. Freeman, 371 N.J. Super. 273, 287 (1999) (noting "that in each case which allowed the insurance proceeds to be distributed to a person other than the named beneficiary, there was a writing to dispute the beneficiary designation"), certif. denied, 161 N.J. 149 (1999). There is no evidence to support Dr. Natofsky's intention to change the Policy's beneficiary outside of Monkarsh's and Randi's inadmissible testimony. Without a writing to support Dr. Natofsky's intention to change the beneficiary, the Estate cannot support this claim.

 

E.

Next, the Estate argues IVF's failure to provide Dr. Natofsky with a copy of the Policy resulted in fraud because it had a duty to provide a copy after the execution of the Release. However, as IVF argues, Dr. Natofsky requested a copy of the Policy while he was alive, which was prior to the effective date of the Settlement Agreement. Therefore, any claim relating to this conduct is barred by the Settlement Agreement.

IVF had no duty to provide Dr. Natofsky with a copy of the Policy once negotiations began for the Settlement Agreement. Furthermore, since the Dr. Natofsky received premium notices regarding the Policy and could have contacted the insurance company directly to obtain a copy of the policy. Therefore, the Estate's argument regarding IVF's failure to provide Dr. Natofsky with a Policy lacks merit.

Further, there was also no fiduciary relationship between Dr. Natofsky and IVF. Generally, "[t]he essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position." F.G. v. MacDonell, 150 N.J. 550, 563 (1997). That is not the case here where Natofsky was an equal partner in IVF. Nonetheless, partners are to act with "the utmost good faith in their dealings with each other . . . ." Heller v. Hertz Mountain Indus., Inc., 270 N.J. Super. 143, 151 (1993) (citations omitted). The record here lacks competent evidence that the parties' negotiations leading up to Dr. Natofsky's assignment of his membership interest were conducted in a manner other than in good faith. Affording the Estate all reasonable inferences, there is no competent evidence of material misrepresentation.

To the extent the relationship creates a fiduciary duty, partners are not released of that obligation until "the relationship is terminated and partnership affairs are wound up." Ibid. (citations omitted). Here, on February 15, 2010, Dr. Natofsky assigned his membership interest ending his shareholder relationship. All issues between the parties were resolved by June 16, 2010. Again affording the Estate all reasonable inferences, any duty IVF may have owed Dr. Natofsky ended upon the signing of the Settlement Agreement. Thus, any claims of omissions or breaches of duty occurring after the execution of the Settlement Agreement clearly lack merit.

The Estate's unjust enrichment claim also fails as a matter of law. The doctrine of unjust enrichment rests on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another. Assocs. Commercial Corp. v. Wallia, 211 N.J. Super. 231, 243 (App. Div. 1986) (citing Callano v. Oakwood Park Homes Corp., 91 N.J. Super. 105, 108 (App. Div. 1966)). "'The key words are enrich and unjustly . . . .'" Ibid. (quoting Callano, supra, 91 N.J. Super. at 109). "To recover under this doctrine, the plaintiff must prove that the defendant 'received a benefit, and that retention of the benefit without payment therefor would be unjust.'" Ibid. (quoting Callano, supra, 91 N.J. Super. at 109).

Here, the Estate argues IVF's receipt of the Policy is a result of its conduct; however, IVF is not liable for any conduct that resulted in an unjust benefit because the Shareholder Agreement defined the manner in which life insurance policies would be procured, and Dr. Natofsky acted consistent with that agreement. Because IVF paid the premiums on the policy, we conclude IVF did not receive an unjust benefit. We find no evidence in the record to support Estate's claims of equitable fraud and unjust enrichment arising from conduct occurring after the execution of the Release.

F.

Finally, the Estate argues the trial court erred in ordering the turnover of the $3,000,000 death benefit because IVF did not file a motion seeking relief on any claims. The Estate also argues that the trial court erred when it ordered a turnover of funds without considering its estoppel defense. The Estate further argues that the estoppel claims are not barred by the Settlement Agreement. In opposition, IVF argues the Estate's estoppel defense is encompassed in the Settlement Agreement and waived by Dr. Natofsky because it seeks to disqualify IVF as the beneficiary. IVF also argues the defense is an assertion of an alleged right and is essentially a claim which is barred.

"Equitable estoppel applies when 'conduct, either express or implied, which reasonably misleads another to his prejudice so that a repudiation of such conduct would be unjust in the eyes of the law.'" D'Agostino v. Maldonado, 216 N.J. 168, 200 (2013) (citation and internal quotation marks omitted) (quoting McDade v. Siazon, 208 N.J. 463, 480 (2011)). To prove equitable estoppel, there must be a "'knowing and intentional misrepresentation'" which results in the party seeking estoppel to rely to his or her detriment. Ibid. (quoting O'Malley v. Dep't of Energy, 109 N.J. 309, 317 (1987). "Equitable estoppel is based on the principles of fairness and justice." Ibid. (citing Knorr v. Smeal, 178 N.J. 169, 180 (2003)).

As noted, the record provides no evidence there was an intentional misrepresentation; therefore, the essential element of a viable estoppel defense is absent in this case. The Estate combined its arguments for equitable fraud and estoppel during oral argument on the second summary judgment motion and therefore, the decision regarding equitable fraud would also apply to the estoppel argument.

Further, estoppel was a specified claim that Dr. Natofsky released in the Settlement Agreement, and thus, the court must enforce the contract as written. See Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 273 (2006) (quoting James v. Fed. Ins. Co., 5 N.J. 21, 24 (1950)). As a matter of law, the Estate cannot sustain an estoppel defense. Also, the contract explicitly bars the defense that arises from pre-Settlement Agreement conduct.

Affirmed.

1 The third-party complaint named FGC and its three remaining shareholders as third-party defendants.

2 Specifically, the testimony of Randi, Monkarsh, and Dr. Yih were excluded.

3 Although we may consider allegations of error not brought to the trial judge's attention, we frequently decline to consider issues that were not presented in the trial court. See State v. Arthur, 184 N.J. 307 (2005).