THE ALBERT SAMUELS TRUST WILLIAM HERMAN v. SETTIMO AND THE THREE MUSKETEERS, LLC

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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0576-17T2

THE ALBERT SAMUELS TRUST,
WILLIAM HERMAN, GARY SAMUELS,
PETER MARX, and CANDIA HERMAN,

           Plaintiffs-Respondents,

v.

SETTIMO AND THE THREE
MUSKETEERS, LLC,

     Defendant-Appellant.
____________________________________

                    Submitted September 18, 2018 – Decided October 2, 2018

                    Before Judges Hoffman and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Docket No. L-2682-15.

                    Dominic V. Caruso, attorney for appellant.

                    Belsole and Kurnos, LLC, attorneys for respondents
                    (Kevin Weinman, of the brief).

PER CURIAM
      This matter arises from a dispute over a commercial real estate contract.

Plaintiffs entered into an agreement to sell two lots 1 in Hanover Township to

defendant buyer, Settimo and The Three Musketeers, LLC. The agreement

provided for the payment of a development bonus, under certain circumstances.

After defendant refused to pay the bonus, plaintiffs sued to compel payment.

Defendant now appeals from the Law Division order granting plaintiffs' motion

for summary judgment and entering judgment against defendant in the amount

of $172,222.30, plus prejudgment interest. We affirm.

                                         I

      In 2006, the parties entered into a contract for plaintiffs to sell the subject

property to defendant for $3,497,777. Lot 6 consisted of approximately 5.5

acres of improved property with frontage on Jefferson Road, and Lot 12

consisted of 3.3 acres of vacant property to the rear of Lot 6. Defendant

terminated the initial contract after determining that approximately forty percent

of the subject property was designated as protected wetlands by the New Jersey

Department of Environmental Protection. Later that year, defendant entered into

a second contract for the purchase of the same two lots, but for a reduced price,


1
  The property, identified on the local tax map as Block 2606, Lots 6 and 12, is
commonly referred to as 64 South Jefferson Road in Whippany.


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$2,577,000, with the reduction reflecting the impact of the wetlands on the

development potential of the property.      Nevertheless, the second contract

contained the following provision:

            DEVELOPMENT BONUS: In the event the Buyer
            obtains approval to construct a building or other
            substantial improvements on the undeveloped portion
            of approximately 3.3 acres at the rear of the Property at
            any time after closing, the Buyer shall be obligated to
            pay the Seller the additional sum of One Hundred
            Seventy Two Thousand Two Hundred Twenty-Two and
            30/100 Dollars ($172,222.30). . . .

      Subsequently, defendant purchased Lots 1 and 1.01, narrow strips of land

adjacent to the subject property. In 2011, the Township of Hanover Board of

Adjustment (Board) granted defendant all necessary variances and approvals for

the construction of a warehouse and office building on its four lots.2         In

November 2013, plaintiffs sent defendant a letter requesting payment pursuant

to the development bonus provision, based upon the approvals defendant

obtained. After defendant failed to make the requested payment, plaintiffs filed




2
  According to Joseph Gutilla, a managing member of defendant, in order to
provide larger warehouse and office space for a related food distribution
business, defendant's plan included construction of "an addition to one of the
existing buildings [on Lot 6], i.e. expand onto the adjacent vacant land of Lot
12."

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this action. In response to requests for admissions, defendant admitted the

approvals obtained "apply to the bonus property."

                                            II

      We review the disposition of a summary judgment motion de novo,

applying the same standard used by the motion judge under Rule 4:46-2(c).

Townsend v. Pierre,  221 N.J. 36, 59 (2015) (citation omitted). Thus, the court

considers, as the motion judge did, whether "the competent evidential materials

presented, when 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." Town of Kearny v. Brandt,  214 N.J. 76, 91

(2013) (quoting Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540

(1995)). If there is no genuine issue of material fact, the court must then "decide

whether the trial court correctly interpreted the law." Massachi v. AHL Servs.,

Inc.,  396 N.J. Super. 486, 494 (App. Div. 2007) (citing Prudential Prop. & Cas.

Co. v. Boylan,  307 N.J. Super. 162, 167 (App. Div. 1998)). The interpretation

of a contract is a "question[] of law particularly suited for summary judgment."

Badiali v. N.J. Mfrs. Ins. Grp.,  220 N.J. 544, 555 (2015) (citing Selective Ins.

Co. of Am. v. Hudson E. Pain Mgmt. Osteopathic Med. & Physical Therapy,

 210 N.J. 597, 605 (2012))."


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      As a general rule, we enforce contracts as the parties intended. Pacifico

v. Pacifico,  190 N.J. 258, 266 (2007) (citations omitted). To do so the "terms

of the contract must be given their 'plain and ordinary meaning.'" Schor v. FMS

Fin. Corp.,  357 N.J. Super. 185, 191 (App. Div. 2002) (quoting Nester v.

O'Donnell,  301 N.J. Super. 198, 210 (App. Div. 1997)).

      Defendant primarily asserts that the bonus provision's language for

"approval to construct a building or other substantial improvements on" Lot 12

applies only if the Board approved construction of a building "on Lot 12."

Defendant argues the necessity to purchase Lots 1 and 1.01 – which created

access to and from Lot 12 and the public road – to obtain its development

approval precludes the triggering of the bonus provision. We disagree.

      The bonus provision plainly and unambiguously states that if defendant

obtains approval for construction of a building or other substantial

improvements on Lot 12 at any time after closing, defendant would owe

plaintiffs the development bonus. It is undisputed defendant did obtain such

approval, memorialized in a resolution from the Board. We agree with the trial

judge that "[n]otably absent from the plain language of the . . . bonus provision

is any wording that suggests that the development bonus is contingent on

[d]efendant obtaining approval to only or exclusively build on Lot 12." We


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therefore hold that defendant is liable to plaintiff for $172,222.30, plus

prejudgment interest, on the basis of the clear triggering of the bonus provision.

      Lastly, defendant argues plaintiffs "should be equitably estopped from

asserting a claim" for the bonus since they did not assert the claim until

November 4, 2013, three months after defendant paid off a purchase money

mortgage which plaintiffs extended under the terms of the parties' contract. We

decline to consider this argument because defendant failed to assert this defense

in its answer or in its opposition to plaintiff's motion for summary judgment.

See Gabriele v. Lyndhurst Residential Cmty., LLC,  426 N.J. Super. 96, 105

(App. Div. 2012) (citing Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229, 234

(1973)). "[A]ppellate courts will decline to consider questions or issues not

properly presented to the trial court . . . []unless the questions so raised on appeal

. . . concern matters of great public interest.[]" Nieder,  62 N.J. at 234 (quotation

omitted). Nothing here suggests that defendant's claim of equitable estoppel

rises to the requisite level of "great public interest." See U.S. Bank Nat'l. Ass'n

v. Guillaume,  209 N.J. 449, 483 (2012) (quoting Nieder,  62 N.J. at 234).

      Affirmed.




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