M. SPIEGEL & SONS OIL CORP v. YUVAL AMIEL
Annotate this CaseNOT 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-1900-16T2
M. SPIEGEL & SONS OIL CORP.,
d/b/a SOS FUELS,
Plaintiff-Appellant,
v.
YUVAL AMIEL, a/k/a VAL AMIEL,
YUVAL ANIEL, AMIEL YUVAL, and
YOUVAL AMIEL, and GUY MADMON,
a/k/a GUY HROMADKA, GUY NADMON,
and GUY KMADMON,
Defendants-Respondents.
_________________________________
Argued March 12, 2018 – Decided April 11, 2018
Before Judges Accurso, O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
2160-14.
John T. Knapp argued the cause for appellant
(Stephen C. Gilbert, PC, attorneys; John T.
Knapp and Stephen C. Gilbert, of counsel and
on the briefs).
Gary S. Redish argued the cause for respondent
(Winne, Banta, Basralian & Kahn, PC,
attorneys; Gary S. Redish and Christine R.
Smith, of counsel and on the brief.)
PER CURIAM
Defendants Yuval Amiel1 and Guy Madmon2 appeal from a
$1,088,747.15 final judgment entered following a bench trial.
Because we are satisfied the trial judge's findings of fact are
supported by substantial credible evidence and defendants' legal
arguments lack merit, we affirm.
I.
Plaintiff M. Spiegel & Sons Oil Corp. is in the business of
selling gasoline to retail gas stations. In 2011, it began selling
gasoline to G&Y Realty LLC, which at the time operated a single
gas station. Over the next year and one-half, G&Y opened two
additional stations for which plaintiff supplied gasoline.
In March and April 2012, plaintiff delivered over $1,000,000
in gasoline to G&Y's three stations, but G&Y failed to pay
plaintiff's invoices. Plaintiff ceased making gas deliveries to
the stations. Plaintiff's employee, Robert Spiegel, conferred
with defendants, who are the members of G&Y, about the outstanding
indebtedness.
1
Amiel is also known as Val Amiel, Youval Amiel, Amiel Youval
and Yuval Aniel.
2
Madmon is also known as Guy Hrodmadka, Guy Nadmon and Guy
Kmadmon.
2 A-1900-16T2
Plaintiff and G&Y reached an agreement pursuant to which the
$1,052,143.85 G&Y owed to plaintiff was converted into a seven-
year loan. On April 26, 2012, defendants executed a promissory
note in that amount on G&Y's behalf.3 The note required that
principal and interest be repaid to plaintiff in eighty-four
monthly installments. G&Y made payments on the note until January
2014, when it defaulted.
Two months later, plaintiff filed a collection action
claiming defendants were obligated to pay the outstanding balance
on the note pursuant to a Personal Guarantee they each signed on
April 26, 2012. Defendants guaranteed G&Y's "full and punctual
payment, performance and discharge of all indebtedness,
liabilities and obligations" to plaintiff. Defendants filed an
answer denying plaintiff's allegations.
Plaintiff subsequently moved for summary judgment, arguing
the undisputed facts established G&Y's default and defendants'
obligation under the Personal Guarantee. Defendants filed a cross-
motion for summary judgment, asserting they had no obligation for
G&Y's indebtedness because there was no consideration for their
execution of the Personal Guarantee.
3 During the April 26, 2012 closing of the loan, defendants also
signed a Security Agreement and Collateral Assignment Of Leases
on behalf of G&Y.
3 A-1900-16T2
The court granted plaintiff's summary judgment motion and
denied defendants' cross-motion. The court found plaintiff's
forbearance of its right to take action to collect the sum owed
by G&Y and agreement to a repayment plan constituted consideration
for defendants' execution of the Personal Guarantee. The court
entered judgment against defendants for the full amount of G&Y's
indebtedness, interest and attorney's fees. Defendants appealed.
We reversed the court's order granting plaintiff's summary
judgment, and affirmed the denial of defendants' cross-motion. We
determined there was a genuine issue of material fact as to the
consideration for the Personal Guarantee that precluded an award
of summary judgment, and remanded to the trial court. M. Spiegel
& Sons Oil Corp. v. Amiel, A-3657-14 (App. Div. June 16, 2016)
(slip op. at 9-10).
At the subsequent bench trial, defendants did not dispute
they signed the Personal Guarantee. They testified, however,
there was no consideration for the guarantee because their
agreement to the guarantee was not a condition of G&Y's loan.
Defendants testified the loan documents were executed on April 26,
2012, and plaintiff never requested a guarantee, and they never
agreed to provide a guarantee, prior to the loan closing.
Defendants further testified the Personal Guarantee was
presented for the first time on April 27, 2012, the day following
4 A-1900-16T2
the loan closing, and they did not read the guarantee before
signing it. They stated that because the loan with G&Y closed the
previous day, plaintiff provided no consideration for their
putative guarantee of G&Y's obligations.
Robert Spiegel negotiated the loan agreement with defendant
Yuval Amiel. Spiegel testified plaintiff would not have extended
a loan to G&Y without defendants' personal guarantee. He explained
the Personal Guarantee was presented with the other loan documents
to Amiel prior to April 26, 2012, and defendants signed the
Personal Guarantee on April 26, 2012, when they executed the note
and other loan documents on G&Y's behalf. Spiegel testified the
consideration for the Personal Guarantee was plaintiff's agreement
to extend credit and provide a financial accommodation for the
payment of G&Y's indebtedness.
In a detailed written decision, the court found defendants
were not credible witnesses, and that Robert Spiegel and Jeffrey
Spiegel, who also testified, were credible witnesses. The court
found defendants signed the Personal Guarantee when the other loan
documents were executed, and concluded plaintiff's forbearance
from instituting a collection action against G&Y and the conversion
of the debt into a loan constituted sufficient consideration for
defendants' guarantee. The court directed that plaintiff submit
5 A-1900-16T2
a proposed judgment for the amount due, interest, and the
attorney's fees authorized under the Personal Guarantee.
Plaintiff submitted certifications from counsel showing total
attorney's fees and costs in the amount of $72,626.62, and a
proposed judgment totaling $1,088,747.15, which included the
amount of outstanding indebtedness, interest and the attorney's
fees. Defendants did not object to defendants' form of judgment,
and the court entered the judgment in accordance with Rule 4:42-
1(c). This appeal followed.
Defendants present the following arguments for our
consideration:
POINT I
THE TRIAL COURT ERRED BY NOT INVOKING THE
DOCTRINE OF JUDICIAL ESTOPPEL TO PRECLUDE
PLAINTIFF FROM TAKING A POSITION INCONSISTENT
WITH THE POSITION SUCCESSFULLY ARGUED TO
DEFEAT DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT.
POINT II
THE PERSONAL GUARANTEE LACKED CONSIDERATION
REQUIRING THE TRIAL COURT'S DECEMBER 2, 2016
ORDER TO BE VACATED WITH JUDGMENT ENTERED IN
FAVOR OF DEFENDANTS.
POINT III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
PERMITTING TESTIMONY RELATED TO P-1 AND
ENTERING SAME INTO EVIDENCE.
6 A-1900-16T2
POINT IV
THE TRIAL COURT ABUSED ITS DISCRETION IN
CHARGING THE FULL AMOUNT OF PLAINTIFF'S
COUNSEL FEES TO DEFENDANTS WITH NARY AN
EXPLANATION.
II.
We defer to a judge's findings and conclusions after a bench
trial, based on his or her ability to perceive witnesses and assess
credibility. See Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of
Am.,
65 N.J. 474, 484 (1974); see also Pascale v. Pascale,
113 N.J. 20, 33 (1988). We shall not disturb the trial court's
findings "unless they are so clearly insupportable as to result
in their denial of justice." Estate of Ostlund v. Ostlund,
391 N.J. Super. 390, 400 (App. Div. 2007). We do not "engage in an
independent assessment of the evidence as if [we] were the court
of first instance." State v. Locurto,
157 N.J. 463, 471 (1999).
However, we review de novo the trial court's interpretation of the
law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J.
366, 378 (1995).
We reject defendants' claim the evidence does not support the
court's determination there was consideration for the guarantee.
Their claim is founded solely on the assertion that the guarantee
was not a condition of the loan to G&Y, and plaintiff did not
request the guarantee until after the loan closing. The court,
7 A-1900-16T2
however, rejected the version of the facts upon which defendants'
argument is based, and instead found defendants agreed to provide
the guarantee as a condition of plaintiff's agreement to forego
collection efforts and convert G&Y's indebtedness into a loan.
The court also found defendants signed the Personal Guarantee at
the loan closing. There is substantial credible evidence
supporting the court's findings, and we discern no basis to disturb
them.
Moreover, the court's findings support its determination
plaintiff's forbearance from proceeding with collection efforts
and agreement to convert G&Y's indebtedness into a loan constituted
consideration for the guarantee. It is well-settled that
forbearance from legal action is a sufficient detriment providing
consideration for a binding contract. Onorato Constr., Inc. v.
Eastman Constr. Co.,
312 N.J. Super. 565, 571 (App. Div. 1998);
accord Cedar Ridge Trailer Sales, Inc. v. Nat. Comm. Bank of N.J.,
312 N.J. Super. 51, 63 (App. Div. 1998) (finding forbearance from
suit is adequate consideration to support a settlement agreement).
Thus, the court correctly found consideration for defendants'
8 A-1900-16T2
guarantee and concluded defendants are obligated to pay plaintiff
the full amount of G&Y's outstanding indebtedness.4
We are not persuaded by defendants' contention the court
erred by admitting into evidence two April 24, 2012 emails between
Robert Spiegel and Yuval Amiel.5 The emails showed Spiegel
delivered the Personal Guarantee and other loan documents to Amiel
two days prior to the April 26, 2012 loan closing, and Amiel's
acknowledgement of receipt of the guarantee and other documents
at that time. The emails undermined defendants' testimony the
guarantee was first presented the day after the loan closing.
Defendants objected to Spiegel's testimony concerning the
emails and their introduction into evidence because they were not
provided during discovery in response to defendants' requests for
documents. Plaintiff's counsel first indicated he understood the
emails had been provided in discovery, but later indicated that a
check of the discovery responses revealed the emails were not
provided. Counsel explained the discovery responses were prepared
by other counsel on plaintiff's behalf. He then withdrew his
request for admission of the emails, but argued Spiegel's testimony
4
It is not disputed the Personal Guarantee also requires that
defendants pay plaintiff's attorney's fees in an action to enforce
the guarantee.
5
The emails were admitted as exhibit P-1 in evidence.
9 A-1900-16T2
concerning the emails was admissible. Defendants disagreed, and
the court reserved decision on their objection.
During Amiel's testimony, he admitted that the email address
to which Robert Spiegel sent the April 24, 2012 email, and from
which the response was sent, was his. Amiel, however, denied
receiving Spiegel's email and sending the email response.
Plaintiff's counsel then revived his request that the emails be
admitted in evidence, and defendants objected. The court again
reserved decision on the issue pending receipt of the parties'
post-trial written submissions.
In its written decision, the court overruled the objection,
finding the emails were essential to its search for truth, material
and probative, and in defendants' possession because they were
exchanged between Robert Spiegel and Amiel. The court determined
plaintiff's failure to supply the emails during discovery did not
warrant the sanction of exclusion of the emails or the testimony
concerning them.
"It is peculiarly within the sound discretion of the trial
court" to address issues related to a litigant's failure to comply
with its discovery obligations. Allegro v. Afton Vill. Corp.,
9 N.J. 156, 161 (1952). "A trial court has inherent discretionary
power to impose sanctions for failure to make discovery, subject
only to the requirement that they be just and reasonable in the
10 A-1900-16T2
circumstances." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc.,
139 N.J. 499, 513 (1995) (quoting Calabrese v. Trenton State Coll.,
162 N.J. Super. 145, 151-52 (App. Div. 1978)). See also R. 4:23-
2(b) (providing sanctions for a litigant's failure to comply with
discovery obligations).
We review a court's decision concerning a request for
sanctions for a discovery violation for an abuse of discretion.
N.J. Dep't. of Children & Families v. E.L., __ N.J. Super. __, __
(App. Div. 2018) (slip op. at 11). An abuse of discretion occurs
"when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis.'" U.S. Bank Nat. Ass'n v. Guillaume,
209 N.J. 449, 467-68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc.,
191 N.J. 88, 123 (2007)).
We discern no abuse of the court's discretion in rejecting
defendants' request to exclude the emails and the testimony
concerning them based on plaintiff's failure to provide the emails
during discovery. The court did not find that plaintiff withheld
the emails with an intent to mislead defendants. Moreover, as the
court aptly recognized, the emails were exchanged between Robert
11 A-1900-16T2
Spiegel and Amiel,6 and thus admission of the emails did not result
in any unfair surprise or prejudice to defendants. See Westphal
v. Guarino,
163 N.J. Super. 139, 145-46 (App. Div. 1978) (finding
factors that "strongly urge" against imposition of sanctions for
a discovery violation include absence of an intent to mislead,
surprise and prejudice).
Admission of the emails also aided the court's search for the
truth and permitted the court to adjudicate the case on the merits.
See Abtrax Pharms., Inc.,
139 N.J. at 513 (noting that a party's
right to require compliance with the discovery rules competes with
the other party's right to an adjudication on the merits). The
court's determination is supported by a reasoned explanation
supported by the record, does not rest on an impermissible basis,
and is consistent with the policy that the case be decided on the
merits. See Guillaume,
209 N.J. at 467-68. We therefore are
6
We recognize Amiel testified he never received the email from
Spiegel and never sent the reply to Spiegel, but the court
determined Amiel was not a credible witness, and the evidence
otherwise supports the court's determination that the emails were
exchanged between Robert Spiegel and Amiel. Amiel admitted that
the email address to which Spiegel sent the email, and from which
the reply to Spiegel's email was sent, was his.
12 A-1900-16T2
satisfied the court did not err by admitting the emails into
evidence.7
We also find no merit in defendants' contention plaintiff was
judicially estopped from arguing at trial that its forbearance
from instituting legal action against G&Y was consideration for
the Personal Guarantee. Defendants claim plaintiff should have
been precluded from relying on forbearance as consideration
because in its opposition to defendants' cross-motion for summary
judgment and on the appeal of the court's summary judgment order,
plaintiff "successfully argued that the sole consideration for the
Personal Guarantee was to induce [p]laintiff to make future
deliveries" of gasoline to defendants' stations. Defendants
therefore claim plaintiff was judicially estopped from asserting
at trial that its forbearance from initiating a collection action
was consideration for the guarantee.
"The purpose of the judicial estoppel doctrine is to protect
'the integrity of the judicial process.'" Kimball Int'l, Inc. v.
7
We are also satisfied that even if admission of the emails and
the testimony concerning them was error, it was clearly not capable
of producing an unjust result. R. 2:10-2. Although the emails
contradicted Amiel's testimony, the court explained that its
determination defendants' testimony was not credible was made
independently of the emails and the testimony concerning them.
Thus, even if the emails were not admitted and there was no
testimony about them, the court had otherwise determined
defendants' testimony that the Personal Guarantee was not a
condition of the loan closing was not credible.
13 A-1900-16T2
Northfield Med. Prods.,
334 N.J. Super. 596, 606 (App. Div. 2000)
(quoting Cummings v. Bahr,
295 N.J. Super. 374, 387 (App. Div.
1996)); see also Bhagat v. Bhagat,
217 N.J. 22, 37 (2014) (noting
"the heart of the doctrine is protection of the integrity of the
judicial process"). "A party who advances a position in earlier
litigation that is accepted and permits the party to prevail in
that litigation is barred from advocating a contrary position in
subsequent litigation to the prejudice of the adverse party."
Bhagat,
217 N.J. at 36 (citing Kimball Int'l, Inc.,
334 N.J. Super.
at 606).
"Judicial estoppel is an extraordinary remedy" that has been
"harshly criticized," and "should be invoked only to prevent a
miscarriage of justice." Id. at 37. The doctrine is properly
invoked only where "a court has accepted the previously advanced
inconsistent position and the party advancing the inconsistent
position prevails in the earlier litigation." Ibid. "If a court
has not accepted a litigant's prior position, there is no threat
to the integrity of the judicial system in allowing the litigant
to maintain an inconsistent position in subsequent litigation or
at a later stage of the same litigation, and thus the doctrine of
judicial estoppel does not apply." Kimball Int'l, Inc.,
334 N.J.
Super. at 610.
14 A-1900-16T2
Defendants' reliance on the doctrine is misplaced. They
claim the summary judgment court and this court on the initial
appeal accepted plaintiff's assertion that the "sole
consideration" for the Personal Guarantee was the promise of future
deliveries of gasoline. That is not the case. Although plaintiff
relied on Robert Spiegel's certification stating the delivery of
gasoline constituted consideration for the guarantee, he did not
represent that delivery constituted the "sole consideration."
More importantly, the summary judgment court and this court
neither accepted Spiegel's certification as a declaration that the
delivery of gasoline was the sole consideration for the guarantee
nor determined that delivery of gasoline constituted consideration
for the personal guarantee. To the contrary, the summary judgment
court found defendants' forbearance from its right to collect the
amount due from G&Y was consideration for the guarantee, and we
determined only that Spiegel's certification and defendants'
contrary assertions created a fact issue "as to whether there was
consideration for" the guarantee. M. Spiegel & Sons Oil Corp.,
slip op. at 7. There was no acceptance of Spiegel's position that
delivery of gasoline was the sole consideration for the guarantee,
and plaintiff did not prevail on the summary judgment motions
based on a finding that delivery was the sole consideration for
the guarantee. Therefore, there was no threat to the integrity
15 A-1900-16T2
of the judiciary by permitting plaintiff to take an arguably
inconsistent position at trial, and plaintiff was not judicially
estopped from advocating that its forbearance was consideration
for the guarantee. See Kimball Int'l, Inc.,
334 N.J. Super. at
610.
Defendants also argue the court erred by awarding attorney's
fees. Defendants do not dispute that plaintiff prevailed in the
litigation and is otherwise entitled to attorney's fees under the
Personal Guarantee for its enforcement of defendants' obligations.
See Litton Indus., Inc. v. IMO Indus., Inc.,
200 N.J. 372, 386
(2009) (finding the party seeking attorney's fees in contract
cases must establish it prevailed in the litigation and a
contractual entitlement to attorney's fees). Defendants instead
claim the court did not calculate the lodestar for an award of
fees, consider the factors necessary for a determination of a
reasonable attorney fee award under Rule of Profession Conduct
(RPC) 1.5(a), and did not make findings of fact supporting its fee
determination as required under Rule 1:7-4. See id. at 386-87
(finding court must determine the lodestar and consider the factors
set forth in RPC 1.5(a) to determine the reasonableness of an
attorney fee award).
We review an award of attorney's fees for abuse of discretion.
Noren v. Heartland Payment Sys., Inc.,
448 N.J. Super. 486, 497
16 A-1900-16T2
(App. Div. 2017). Determinations regarding attorney's fees will
be disturbed "only on the rarest of occasions, and then only
because of a clear abuse of discretion." Litton Indus., Inc.,
200 N.J. at 386 (citation omitted).
Plaintiff submitted certifications8 from counsel in support
of its attorney's fee request and, in response, defendants did
nothing. Defendants opted not to contest the reasonableness of
the requested attorney's fees before the trial court, and instead
chose to challenge the requested fees for the first time on appeal.
We decline to consider claimant's argument because it was not
raised before the trial court and does not involve jurisdictional
or public interest concerns. Zaman v. Felton,
219 N.J. 199, 226-
27 (2014); see also Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229,
234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer,
58 N.J.
Super. 542, 548 (App. Div. 1959)) ("[O]ur appellate courts will
decline to consider questions or issues not properly presented to
the trial court when an opportunity for such a presentation is
available unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public
8
Plaintiff's counsel relied on a certification of services
submitted when summary judgment was entered and a second
certification detailing the attorney's fees for services following
the award of summary judgment and through the conclusion of the
trial.
17 A-1900-16T2
interest"). Indeed, defendants acknowledged at oral argument that
their failure to contest the attorney's fees request before the
trial court constituted a waiver of their right to challenge the
fee award on appeal. In addition, in their submissions on appeal,
defendants do not demonstrate the court's award constitutes an
abuse of discretion. See Litton Indus., Inc.,
200 N.J. at 386.
Affirmed.
18 A-1900-16T2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
