AGARD INVESTMENTS, INC v. TACTICAL INVESTMENT GROUP LLC

NOT FOR PUBLICATION WITHOUT THE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

AGARD INVESTMENTS, INC.,

Plaintiff-Respondent,

v.

TACTICAL INVESTMENT GROUP,

LLC, and GEORGE SCOTT,

Defendants-Appellants.

___________________________________________

November 18, 2016

Submitted November 3, 2016 Decided

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-010029-09.

Pickett & Craig, attorneys for appellants (Robert T. Pickett, of counsel and on the brief; Nixon Kannah, on the brief).

Richard J. Kapner, attorney for respondent.

PER CURIAM

Defendants Tactical Investment Group, LLC, (Tactical) and George Scott appeal from a March 18, 2015 order granting plaintiff Agard Investments, Inc.'s motion to vacate a warrant to satisfy judgment (warrant) executed in defendants' favor. We affirm.

I

In 2008, plaintiff filed a complaint against defendants alleging Tactical breached the terms of various promissory/fixture notes plaintiff held. Specifically, plaintiff alleged Tactical failed to make required payments under the terms of the notes,1 and sought damages for breach of contract seeking, among other things, the unpaid principal and contractual interest. Defendants failed to file an answer and, in 2010, plaintiff obtained a default judgment against them for $1,695,316.42. Neither defendant appealed nor moved to vacate the default judgment.

In December 2014, Tactical was unable to refinance one of its properties, which was encumbered by the judgment. Plaintiff claims Tactical represented the judgment had been satisfied, and requested plaintiff execute a warrant to satisfy the judgment. Relying upon the representation the judgment had been paid, plaintiff's principal executed a discharge of mortgage and authorized its attorney to execute a warrant. The warrant, signed on January 7, 2015, stated the judgment of $1,695,316.42 had been fully paid and "therefore, full and complete satisfaction of said judgment is hereby acknowledged."

Hours later, plaintiff's principal discovered defendants had not paid any money toward the judgment. The following day, plaintiff's attorney emailed a letter to a title company that was assisting defendants refinance their property, and emailed a copy of the letter to defendants. In that letter plaintiff's attorney claimed the warrant was void because the judgment had not been satisfied.

Two days after the warrant had been signed, plaintiff filed an order to show cause requiring defendants to show why the warrant should not be vacated and the judgment reinstated. In its response, defendants did not refute they had not paid the judgment. On the return date of the order to show cause, the court granted plaintiff's application, finding plaintiff signed the warrant in error, but immediately discovered and promptly sought to redress the error by filing the order to show cause.

II

On appeal, defendants raise two arguments for our consideration. The first is the trial court erred by failing to enforce the plaintiff's agreement to execute the warrant so that the judgment could be discharged. The argument is devoid of merit.

As is evident from the record, the parties agreed plaintiff would execute a warrant if defendants satisfied the judgment. Plaintiff executed a warrant, but did so because it believed defendants' representation the judgment had been fully paid. Realizing the error, plaintiff acted immediately to correct the mistake and initiated this action.

Defendants contend the fact plaintiff agreed to execute the warrant was sufficient reason to deny plaintiff's order to show cause. However, defendants clearly overlook the obvious fact plaintiff did not agree to execute the warrant unless defendants met a condition precedent: satisfy the judgment. Defendants failed to meet that condition. Defendants have not proffered any rational basis to challenge the court's decision to vacate the warrant and to reinstate the judgment. As our Supreme Court has held, "[w]hen there is a breach of a material term of an agreement, the non-breaching party is relieved of its obligations under the agreement." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990).

Defendants next contend the trial court erred when it vacated the warrant before conducting an evidentiary hearing. Defendants point out that when the parties were before the trial court, plaintiff asserted defendants fraudulently represented to plaintiff the judgment had been paid. Defendants disputed that contention. Defendants now maintain this factual dispute mandated an evidentiary hearing. We disagree.

An evidentiary hearing is unnecessary if there are no material issues of fact in dispute. See Llewelyn v. Shewchuk, 440 N.J. Super. 207, 217 (App. Div. 2015) (observing an evidentiary hearing is not required unless material facts are challenged). Here, there is no question defendants failed to satisfy the judgment; why defendants did not do so is beside the point. In the final analysis, unless defendants satisfied the judgment, they were not entitled to the entry of the subject warrant.

To the extent any of defendants' arguments are not explicitly addressed in this opinion, it is because we are satisfied the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Plaintiff named Scott, the principal of Tactical, as a defendant because he guaranteed the notes.