715 PARTNERS, LLC v. GS ASSIGNMENT, LLC

Annotate this Case
NOT FOR PUBLICATION WITHOUT THE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-2527-15T3

715 PARTNERS, LLC,
A New Jersey Limited
Liability Company,

        Plaintiff-Appellant,

v.

GS ASSIGNMENT, LLC,
715 GRAND REALTY LLC, and
GERARD STEIGLITZ,

        Defendants-Respondents,

and

715 GRAND STREET LLC and
DIMITRI PAPAGANNAKIS,

     Defendants.
_________________________________

              Argued July 18, 2017 – Decided May 25, 2018

              Before Judges Ostrer and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              2687-14.

              Gary D. Grant argued the cause for appellant
              (Grant Law Group, LLC, attorneys; Gary D.
              Grant and Janet S. Del Gaizo, on the briefs).
           Andrew J. Karas argued the cause for
           respondents (Fox Rothschild, LLP, attorneys;
           Andrew J. Karas, on the brief).

     The opinion of the court was delivered by

LEONE, J.A.D.

     Plaintiff 715 Partners, LLC, appeals from a December 28, 2015

order granting summary judgment to defendants GS Assignment, LLC,

Grand 715 Realty, LLC (improperly pled as 715 Grand Realty LLC),

and Gerard Steiglitz (collectively "defendants").1            We affirm.

                                  I.

     The following undisputed facts are derived from the parties'

statements of material facts and the pertinent documents.

     In an Agreement of Sale (Agreement) dated May 16, 2012 (the

Effective Date), 715 Grand Street LLC (Seller) agreed to sell to

plaintiff a property on Grand Street in Hoboken (the Property).

The purchase price was $3.2 million, which plaintiff agreed to pay

as follows in the Agreement's Section 2: (a) a $50,000 initial

deposit within ten business days of the Effective Date; (b) a

$50,000   second   deposit   within       five   business   days   after   the

expiration of the due diligence period; (c) a $150,000 third

deposit within five business days after the Hoboken zoning board



1
   The other defendants, 715 Grand Street LLC and Dimitri
Papagiannakis (mispled as Papagannakis), settled and are not
parties on appeal.

                                      2                               A-2527-15T3
granted final site plan approval; and (d) $2,950,000 closing

payment upon closing.

     Plaintiff did not have available funds to pay any of the

deposits required under the Agreement.   Plaintiff made the initial

$50,000 deposit by borrowing the money from Edwin Torres, who had

earmarked the money to pay a tax sale certificate on a Newark

property.

     Section 3.01 of the Agreement allowed plaintiff to survey the

Property and examine the title, and to "notify Seller by the end

of the 'Due Diligence Period' (as defined in Section 3.02) . . .

specifying any respects in which it appears from record title or

from such survey that Seller is unable to" provide marketable,

insurable title "free and clear of all liens and encumbrances."

     Section 3.03 of the Agreement provided:

            Purchaser shall have the right to terminate
            this Agreement on or prior to the end of the
            Due Diligence period for any or no reason, in
            Purchaser's sole and absolute discretion.
            Purchaser shall be deemed to have terminated
            this Agreement if Purchaser does not provide
            Seller with written notice prior to the end
            of the Due Diligence Period that Purchaser
            waives it[s] right to terminate this Agreement
            in accordance with this Section. If Purchaser
            terminates this Agreement, or is deemed to
            have terminated, as provided above, Purchaser
            shall immediately receive back the Deposit,
            and the parties hereto shall have no further
            obligations under this Agreement . . . .

            [(emphasis added).]

                                  3                          A-2527-15T3
     Section 3.02 of the Agreement defined "Due Diligence Period"

as "the period of time commencing on the first day after the date

of this Agreement, and expiring at 5:00 p.m. forty-five (45)

business days after (and excluding) the Effective Date."    As the

Effective Date was May 16, the due diligence period would end at

5:00 p.m. on July 18.

     On July 17, Seller agreed to extend the due diligence period

until July 31.     On August 1, plaintiff requested "a one day

extension of the Due Diligence – until 5:00 p.m., August 2, 2012."

The Seller confirmed it had extended the due diligence period

until August 2.   No written notice waiving the right to terminate

the Agreement was sent prior to 5:00 p.m. on August 2.

     On August 2, plaintiff entered into an assignment, which

plaintiff terms the Flip Contract.     The Flip Contract assigned

plaintiff's rights under the Agreement to GS Assignments, LLC

(GS), of which Steiglitz was the managing member.         The Flip

Contract provided GS would reimburse plaintiff for the $50,000

initial deposit, "pay[] when due the second deposit under paragraph

2(b) of the [Agreement]" and make the third deposit of $150,000.

The Flip Contract also provided that GS would       pay plaintiff

$250,000 at the closing under the Agreement, and give it 10% of

the profits from the development of the Property.



                                 4                          A-2527-15T3
     The Flip Contract had no due diligence period.                  Plaintiff

represented that it knew of no undisclosed facts "which might have

a material adverse affect on the transaction."

     GS's attorney Richard W. Mackiewicz, Jr. sent an August 2

letter (Mackiewicz letter) to Seller.            The letter confirmed the

Agreement "has been assigned" to GS.             The letter stated it was

"written in connection with Section 3.03" of the Agreement.                   The

letter referenced the purchaser's opportunity to notify Seller of

issues with title during the due diligence period under Section

3.01.     The letter contended there was both a mortgage on the

Property and a restriction imposing a setback requirement which

was uninsurable. The letter objected to the title's marketability,

asked Seller to clear the title, and stated: "Assuming that the

Seller    is   capable   of   clearing   these    title    issues    then     the

purchaser, in accordance with Section 3.03 of the Contract advises

that it waives any other right to terminate the agreement."

     The Mackiewicz letter said GS "will be forwarding a check"

for $100,000, and asked Seller to return the initial $50,000

deposit to plaintiff.         Steiglitz had the assets to cover the

$100,000 and to consummate the deal.             The $100,000 payment was

never made.

     On   August   20,   2012,   Seller's   counsel       sent   a   letter    to

plaintiff's counsel citing Sections 3.02 and 3.03 and stating:

                                     5                                  A-2527-15T3
             After the seller granted the purchaser with
             several extensions to the due diligence
             period, it ultimately expired to on or about
             August 2, 2012 [sic]. Having not received the
             required notice from the purchaser that waives
             its right to terminate the contract of sale,
             the agreement is now deemed terminated.     As
             such, I have enclosed a check for your
             client's deposit. The agreement is now null
             and void.

       In February 2013, Seller entered into a new agreement selling

the Property to Grand 715 Realty, LLC (Grand), of which Steiglitz

was the managing member.        The purchase price was $3.5 million.

       In June 2014, plaintiff filed a complaint against defendants,

with     counts    claiming   consumer     fraud,   common    law    fraud     and

conspiracy, breach of contract, breach of the implied duty of good

faith     and     fair   dealing,   tortious   interference,        and    unjust

enrichment, and seeking a constructive trust and to pierce the LLC

veil.2     After defendants filed an answer, plaintiff moved for

summary judgment.         Defendants filed a cross-motion for summary

judgment.

       After hearing argument, the trial court issued an order and

a written opinion on December 28, 2015, denying summary judgment

to    plaintiff,     granting   summary    judgment   to     defendants,       and

dismissing plaintiff's claims with prejudice.           In granting summary

judgment on plaintiff's counts alleging breach of contract and


2
    Plaintiff's count seeking a declaratory judgment was dismissed.

                                       6                                  A-2527-15T3
breach of the implied duty, the trial court noted it was undisputed

that on August 20, Seller advised plaintiff that the Agreement

terminated on August 2, due to plaintiff's failure to provide

written notice to Seller before the end of the due diligence period

that plaintiff was waiving its rights to terminate the Agreement

pursuant to Section 3.03.        The court emphasized that "[e]ven after

the due diligence period was extended to August 2, 2012, the

Plaintiff failed to issue the waiver."

                                       II.

      Summary    judgment      must   be     granted    if    "the   pleadings,

depositions, answers to interrogatories and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law."                  R. 4:46-

2(c).   The court must "consider 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."       Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520, 540 (1995).          "[T]he court must accept as true all the

evidence which supports the position of the party defending against

the   motion    and   must   accord   [that    party]   the   benefit     of   all



                                        7                                 A-2527-15T3
legitimate inferences which can be deduced therefrom[.]"                Id. at

535 (citation omitted).

      An appellate court "review[s] the trial court's grant of

summary judgment de novo under the same standard as the trial

court."   Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.,


224 N.J. 189, 199 (2016).      We must hew to that standard of review.

                                   III.

      On appeal, plaintiff contends there was a genuine issue of

material fact regarding whether the Flip Contract was signed, and

the   Mackiewicz   letter   was    delivered      to     Seller,    before   the

expiration of the due diligence period at 5:00 p.m. on August 2.

Plaintiff   also    contends      the       Mackiewicz     letter    satisfied

plaintiff's obligation to produce a written waiver.                 Plaintiff's

contentions fail because it took the opposite positions in the

trial court.

      Plaintiff supported its motion for summary judgment with a

statement of material facts that stated "the Due diligence period

in the Agreement of Sale had expired prior to the Flip Contract

being signed."     Also, in opposition to defendants' cross-motion

for summary judgment, plaintiff filed a certification by George

Daley, its managing member.       Daley similarly certified that when

plaintiff assigned its rights to GS, "[t]he Due Diligence period

in the contract had expired."

                                        8                               A-2527-15T3
     Moreover, Daley attested that the Mackiewicz letter did not

constitute a proper written waiver of the right to terminate the

Agreement.   Daley certified that "Steiglitz was obligated to issue

a waiver thereof," but instead "Steiglitz had his attorney issue

a letter creating two bogus issues why he should not be obligated

to perform."     Daley attested that "the issues raised were pre-

textual excuses," and that "the Mackiewicz letter was just an

excuse to walk away from the deal."

     Likewise,   in   its   brief   opposing    defendants'      motion    for

summary judgment, plaintiff asserted that "[a]t the time of [the

Flip Contract's] signing . . . the time had expired for any 'Due

Diligence' as permitted in the Agreement of Sale."               Plaintiff's

position was that defendants had no right to raise title issues

in the Mackiewicz letter because the due diligence period had

already   expired.    Plaintiff     argued:    "Upon   signing    [the    Flip

Contract], it was the obligation of the Defendant to move forward

to close the deal with [Seller], not to come up with excuses why

it could breach both the Flip Contract and the Agreement of Sale."

Plaintiff said GS's "argument that there was 'Due Diligence' left

to be done is both factually bogus as well as not permitted in the

Flip Contract and subjected to an expired period in the Agreement

of Sale."



                                     9                               A-2527-15T3
     On appeal, however, plaintiff asserts there is a genuine

issue of material fact regarding "the timing of the execution of

the [Flip Contract] and service of the August 2, 2012 Mackiewicz

correspondence."        Plaintiff contends "there is nothing in the

record    to    contradict    the       inference       that     the   Plaintiff      and

Defendants GS and Steiglitz executed the [Flip Contract] before

5:00 p.m. on August 2, 2012, and that Mackiewicz drafted, signed,

and delivered the August 2, 2012 letter before the due diligence

period    expired."        Plaintiff           argues    the     Mackiewicz       letter

"satisfies      Plaintiff's      obligation      to     tender    a    written    waiver

before    the   end   of   the    due    diligence       period"       and   "satisfied

Paragraph 3.03 of the [Agreement]."                     Plaintiff concludes that

"[i]f Mackiewicz's letter was transmitted before 5:00 p.m. on

August 2, 2012, then the [Agreement] did not 'automatically'

terminate, and Plaintiff and its assigns did not breach the

[Agreement]."       All of plaintiff's arguments were contradicted by

its position in its summary judgment proceedings.

     In these circumstances, plaintiff cannot contend there was a

genuine issue of material fact.                 First, a statement of material

facts is required by rule to be "a concise statement of each

material fact as to which the movant contends there is no genuine

issue."        R.   4:46-2(a).      Thus,       plaintiff's       assertion      in   its

statement of material facts that the due diligence period had

                                          10                                     A-2527-15T3
expired before the Flip Contract was signed was an assertion that

there was no genuine issue concerning that fact.

     Plaintiff notes that "[w]here there are cross motions for

summary judgment, a party may make concessions for the purposes

of his motion that do not carry over and support the motion of his

adversary."     O'Keeffe v. Snyder, 
83 N.J. 478, 487 (1980).             In

O'Keeffe, the defendant moved for summary judgment on the premise

that he acquired paintings by adverse possession even if they had

originally been stolen, which he assumed "[f]or purposes of his

motion."   Id. at 486.   Here, by contrast, plaintiff was not merely

assuming arguendo that the due diligence period had expired, but

was asserting as a fact that the due diligence period had expired

to show the Mackiewicz letter was untimely.

     Moreover, plaintiff's contrary assertion on appeal lacks any

evidentiary support.     Plaintiff concedes "[t]here is nothing in

the record indicating what time the [Flip Contract] was signed or

what time the August 2 . . . letter was sent out."                A party

opposing summary judgment "must do more than simply show that

there is some 'metaphysical doubt' as to the material facts."

Horizon Blue Cross Blue Shield of N.J. v. State, 
425 N.J. Super.
 1, 32 (App. Div. 2012) (citation omitted).

     In any event, plaintiff took the same position in Daley's

certification    submitted   in   opposition   to   defendants'   summary

                                   11                             A-2527-15T3
judgment motion.   Thus, the Daley certification similarly assured

the trial court "that there is no genuine issue as to any material

fact."   R. 4:46-2(c).

     Second, plaintiff's brief explicitly took the position that

the due diligence period had expired before the Mackiewicz letter

was sent.3    Moreover, plaintiff took the position in Daley's

certification and in its brief that the Mackiewicz letter was not

a legitimate waiver, but a bad faith assertion of bogus title

problems intended only to avoid the Agreement.

     "[C]oncessions      made   during   a   summary   judgment    motion

foreclose a contrary argument on appeal."       Sullivan v. Port Auth.

of N.Y. & N.J., 
449 N.J. Super. 276, 281 (App. Div. 2017), cert.

denied, 
232 N.J. 282 (2018).      Because plaintiff conceded the due

diligence period expired before the Mackiewicz letter was sent "on

the motion for summary judgment, it is foreclosed from arguing the

contrary on this appeal."        First Am. Title Ins. Co. v. Vision

Mortg. Corp., 
298 N.J. Super. 138, 143 (App. Div. 1997) (precluding

the plaintiff from arguing there was no fraud where it conceded


3
   That was also the unavoidable implication of plaintiff's
statement of material facts and the Daley certification. It is
undisputed the Mackiewicz letter was sent after the Flip Contract
was signed.   Indeed, the letter states the Agreement "has been
assigned." Moreover, there was no reason or justification for GS,
a stranger to the Agreement, to send such a letter to Seller until
after GS had signed the Flip Contract assigning plaintiff's rights
under the Agreement to GS.

                                   12                             A-2527-15T3
fraud on summary judgment) (citing Misani v. Ortho Pharm. Corp.,


44 N.J. 552, 555-56 (1965), and State by Van Riper v. Atl. City

Elec. Co., 
23 N.J. 259, 264 (1957)).

     Additionally, the trial court based its summary judgment

ruling on the "undisputed [fact] that the Plaintiff did not provide

timely written notice to [Seller] that Plaintiff was waiving its

right to terminate the [Agreement]" prior to the expiration of the

due diligence period.   "Because of the concession by plaintiff['s]

counsel, . . . it was unnecessary to decide th[e] issues" of the

timing of the Flip Contract and Mackiewicz letter.       See Ji v.

Palmer, 
333 N.J. Super. 451, 459 (App. Div. 2000). A party "should

not be permitted upon appeal to alter its interpretation of the

facts upon which the issue was framed."     Van Riper, 
23 N.J. at
 264; see Misani, 
44 N.J. at 555-56.

     In any event, under the invited error doctrine, "errors that

'"were induced, encouraged or acquiesced in or consented to by

[appellant's] counsel ordinarily are not a basis for reversal on

appeal."'"   State v. A.R., 
213 N.J. 542, 561 (2013); Harris v.

Peridot Chem. (N.J.), Inc., 
313 N.J. Super. 257, 296 (App. Div.

1998).   "The doctrine of invited error bars a litigant from

claiming on appeal that a position it advocated and that the judge

adopted at trial was error."   Donofry v. Autotote Sys., Inc., 
350 N.J. Super. 276, 296 (App. Div. 2001). "The invited error doctrine

                                13                          A-2527-15T3
. . . is particularly applicable where a party attempts to present

a different theory on which to decide the case than the one

advocated below."           Brett v. Great Am. Rec., 
144 N.J. 479, 504

(1996).    Here, plaintiff sought "tactical advantage" by advancing

the theory that GS had no right to submit the Mackiewicz letter

raising title issues because the due diligence period had expired.

See id. at 503.             Plaintiff cannot "argue to the contrary on

appeal."    Reynolds v. Lancaster Cty. Prison, 
325 N.J. Super. 298,

315 n.2 (App. Div. 1999).

                                        IV.

     Even if we could ignore plaintiff's own position in the trial

court that the Mackiewicz letter was an untimely attempt to avoid

the Agreement, we would reject plaintiff's contention on appeal

that the letter "clearly waived the right to terminate 'for any

reason     or   no     reason'    pursuant    to    paragraph    3.03   of    the

[Agreement]."

     Section         3.03    of   the   Agreement     requires    a     present,

unconditional waiver of the right to terminate before April 2: the

Purchaser must "provide the Seller with written notice prior to

the end of the Due Diligence Period that Purchaser waives it[s]

right to terminate this Agreement in accordance with this Section."

However, the Mackiewicz letter stated it was not waiving that

right at that time.           Rather, after raising the existence of a

                                        14                               A-2527-15T3
mortgage   and   an   uninsurable   restriction      containing   a    setback

requirement as issues with the title, the letter stated: "In

accordance with Section 3.01 the Purchaser hereby objects to the

marketability of title, provides notice of such objection and

requests that Seller make a good effort to clear title."                   That

language invoked Section 3.01(b), which requires Seller to "make

a good faith effort to clear title" within thirty days. The letter

then offered only a future, conditional waiver of its right to

terminate: "Assuming that the Seller is capable of clearing these

title issues then the purchaser, in accordance with Section 3.03

of the Contract advises that it waives any other right to terminate

the agreement" (emphasis added).

     That conditional future waiver did not meet the requirements

of Section 3.03 for an absolute "waiver of the right to terminate"

before August 2.      Thus, the Mackiewicz letter could not serve as

the "written notice prior to the end of the Due Diligence Period"

required by Section 3.03.

     Plaintiff    notes   that   after   the   "Assuming"   sentence,       the

Mackiewicz   letter    asserted:    "Thus,     the   agreement    is    firm."

However, one party's assertion in a letter cannot rewrite the

requirements of the parties' Agreement.

     Plaintiff argues Section 9(a) of the Agreement gave the

Purchaser the "sole and exclusive discretion" to waive "(iii)

                                    15                                 A-2527-15T3
Receipt by Seller of timely written notice from Purchaser that

Purchaser   waives   it[s]   right   to     terminate   this   Agreement    in

accordance with this Section 3.03."            However, neither plaintiff

nor GS ever waived that right.            To the contrary, the Mackiewicz

letter reserved the right to terminate unless and until Seller was

able to clear the title.

                                     V.

     Under Section 3.03, because neither plaintiff nor GS provided

the requisite written notice prior to the expiration of the due

diligence period, "Purchaser shall be deemed to have terminated

this Agreement."     Section 3.03 provided: "If Purchaser . . . is

deemed to have terminated, as provided above, Purchaser shall

immediately receive back the Deposit, and the parties hereto shall

have no further obligations under this Agreement[.]"

     Seller's August 20 letter recognized that because Seller had

not "received the required notice from the purchaser that waives

its right to terminate the contract of sale" before the due

diligence period expired on August 2, 2012, the Agreement was

"deemed terminated" and was "null and void."            As Seller enclosed

a check returning plaintiff's deposit, neither party had any rights

or obligations under the Agreement.

     Plaintiff argues Seller waived its right to terminate the

Agreement because it failed to notify GS immediately if it was

                                     16                              A-2527-15T3
rejecting the Mankiewicz letter, and because it sent its August

20 notice to plaintiff rather than GS.         However, Section 3.03 did

not require any action by Seller to terminate the Agreement.

Instead, it stated that if the Purchaser did not provide the

required timely notice, then "Purchaser shall be deemed to have

terminated this Agreement." "In its normal usage the word 'deemed'

means 'adjudged' or 'considered.'"        Switz v. Kingsley, 
69 N.J.

Super. 27, 33 (Law Div. 1961), aff'd as modified, 
37 N.J. 566

(1962); see Webster's II New Coll. Dictionary 301 (3d ed. 2005).

Moreover, the use of the word "shall" shows the parties intended

the termination to be "mandatory."      See State v. Thomas, 
188 N.J.
 137, 150 (2006).

     Under the plain meaning of Section 3.03's terms, the Agreement

automatically and mandatorily terminated when the Seller did not

receive a written waiver of the Purchaser's termination right

before the expiration of the due diligence period.          "Our task is

to enforce the contract according to its terms, giving those terms

'their   plain   and   ordinary   meaning.'"      GMAC   Mortg.,   LLC    v.

Willoughby, 
230 N.J. 172, 186 (2017) (citations omitted).

     To contradict the plain language of the Agreement, plaintiff

cites a certification by Papagiannakis, Seller's authorized agent.

Papagiannakis certified: "At all times [Seller] was prepared to

abide by the terms and conditions of the Agreement"; had the second

                                   17                              A-2527-15T3
deposit of $50,000 "been received within a reasonable time after

[August 2, Seller] would have accepted same and not declared a

breach"; but "[w]hen the second deposit of $50,000 was not received

on or before August 20, 2012, I authorized [Seller]'s attorney to

declare the Agreement of Sale null and void."

     Plaintiff argues Papagiannakis's certification shows Seller

terminated because of the purchaser's failure to pay the second

$50,000 deposit, and "had absolutely nothing to do with" Section

3.03's   provision   that:   "Purchaser    shall    be    deemed   to   have

terminated this Agreement if Purchaser does not provide Seller

with written notice prior to the end of the Due Diligence Period

that Purchaser waives it[s] right to terminate this Agreement in

accordance with this Section."     To the contrary, the letter cited

Section 3.03, quoted that language from Section 3.03, and stated

the Agreement was "deemed terminated" because the Seller had "not

received the required notice from the purchaser that waives its

right to terminate the [Agreement]."        As the trial court noted,

Seller's "August 20, 2012 letter only cites the failure to waive,"

and says nothing about the second $50,000 deposit.

     Even   if   Papagiannakis   could   rewrite   that    history,     "[w]e

cannot 'rewrite a contract for the parties better than or different

from the one they wrote for themselves.'"          GMAC Mortg., 
230 N.J.

at 186 (citation omitted).       The Agreement clearly provided that

                                  18                                A-2527-15T3
it must be deemed terminated if notice of waiver was not received

by the end of the due diligence period.            Moreover, we are not

reviewing    a   dispute   between   plaintiff   and   Papagiannakis,   who

settled with plaintiff within days of the certification, but

between plaintiff and GS, to whom plaintiff had assigned its rights

under the Agreement three years earlier.          Even if plaintiff and

Papagiannakis could renegotiate or reinterpret the Agreement while

plaintiff and Seller were the only parties to the Agreement, they

cannot renegotiate or reinterpret the Agreement to the detriment

of GS after any rights plaintiff had under the Agreement were

assigned to GS.4

     In any event, even if we ignore the Agreement's automatic

termination on August 2, it is undisputed that neither plaintiff

nor GS paid the $50,000 deposit when due, or before Seller's August

20 letter.       Plaintiff argues it was GS's obligation to pay that

deposit under the Flip Contract.          However, an examination of the

Flip Contract shows plaintiff had violated a condition precedent

to that contract before GS could have any such obligation.



4
 Plaintiff argues that the assignment was permitted under Section
18(h) of the Agreement and that Seller waived any right to object
to the assignment or to GS presenting the written notice. However,
nothing in the August 20 letter or Papagiannakis's certification
suggested that Seller objected to the assignment to GS of
plaintiff's rights, or believed the Agreement was terminated due
to the assignment.

                                     19                           A-2527-15T3
                                     VI.

      As set forth above, plaintiff conceded the Flip Contract was

not   signed   until   after   the   Agreement's   due   diligence    period

expired.   Because plaintiff failed to comply with the Agreement's

requirement in Section 3.03 to provide written notice "prior to

the end of the Due Diligence Period," plaintiff was "deemed to

have terminated this Agreement" and the parties had "no further

obligations under this Agreement."         Thus, when plaintiff executed

the Flip Contract to assign to GS plaintiff's rights under the

Agreement, the Agreement was already terminated and plaintiff had

no rights under it.

      Under the express terms of the Flip Contract, that relieved

GS of its obligations.     "As an inducement for [GS] to enter into"

the Flip Contract, plaintiff did "hereby represent, warrant and

covenant" that when the Flip Contract was executed and thereafter,

plaintiff "was not in breach of the [Agreement], has full rights

to the [Agreement], and may freely assign the [Agreement]."5

Moreover, the parties agreed one of the "conditions precedent to



5
 Plaintiff also represented, warranted, and covenanted that "[n]o
representation, warranty or covenant of" plaintiff "contains any
misstatement of a material fact or knowingly omits to state a
material fact necessary to make the statements contained herein
not false or misleading," and that "[t]here are no facts known to"
plaintiff "which might have a material adverse [e]ffect on the
transaction contemplated by" the Flip Contract.

                                     20                              A-2527-15T3
the obligations of" GS under the Flip Contract was "[t]hat all

representations and warranties made hereunder are true."

       However, when plaintiff and GS executed the Flip Contract,

plaintiff was in breach of the Agreement, had no rights under the

Agreement, and was deemed to have terminated the Agreement, leaving

nothing      it   could     assign     to     GS.          Plaintiff's        contrary

representations     in    the   Flip    Contract      were      not   true.      Thus,

plaintiff failed to meet a condition precedent to any obligation

of GS under the Flip Contract.                That included GS's obligation

under the Flip Contract to pay "when due the second deposit" under

the Agreement.

       A "condition precedent" is "[a]n act or event, other than a

lapse of time, that must exist or occur before a duty to perform

something promised arises.           If the condition does not occur and

is not excused, the promised performance need not be rendered."

Black's Law Dictionary 334 (9th ed. 2009); see Restatement (Second)

Contracts, §§ 224, 225 (1981).               "The parties to a contract 'may

make contractual liability dependent upon the performance of a

condition     precedent.'"         Liberty     Mut.   Ins.      Co.   v.    President

Container, Inc., 
297 N.J. Super. 24, 34 (App. Div. 1997) (quoting

Duff    v.   Trenton      Beverage     Co.,    
4 N.J.     595,     604     (1950)).

"[G]enerally, 'no liability can arise on a promise subject to a

condition     precedent    until     the    condition      is   met.'"        Allstate

                                        21                                     A-2527-15T3
Redevelopment Corp. v. Summit Assocs., 
206 N.J. Super. 318, 324

(App. Div. 1985) (quoting Duff, 
4 N.J. at 604). "Moreover, because

a promisor's duty does not become absolute unless and until the

condition precedent occurs, the failure or non-performance of the

condition is a defense to an action against the promisor for breach

of its promise."     4 Williston on Contracts 4th § 38.7 (Lord ed.

2013).

     The   parties   expressly   and   clearly   made   it    a   "condition

precedent"   of   GS's   obligations   under   the   Flip    Contract    that

plaintiff truly stated it "was not in breach of the [Agreement],

has full rights to the [Agreement], and may freely assign the

[Agreement]."     Moreover, that condition plainly was "a material

part of the agreed exchange" under the Flip Contract, whose entire

purpose was to assign plaintiff's rights under the Agreement.

Conley v. Guerrero, 
443 N.J. Super. 62, 69 (App. Div. 2015)

(citation omitted), aff'd as modified, 
228 N.J. 339 (2017).             Thus,

under the express terms of the Flip Contract, the failure of this

condition precedent relieved GS of its obligation under the Flip

Contract to pay the second $50,000 deposit.

     Moreover, if a party commits "a 'breach of a material term

of an agreement, the non-breaching party is relieved of its

obligations under the agreement.'"      Roach v. BM Motoring, LLC, 
228 N.J. 163, 174 (2017) (citation omitted).         "[A] breach is material

                                  22                                 A-2527-15T3
if it 'goes to the essence of the contract.'"              Ibid. (citation

omitted).     Plaintiff's misstatements that it was not in breach,

had full rights under the Agreement, and could freely assign the

Agreement went to the essence of the Flip Contract.             As the trial

court ruled, plaintiff's misstatements were material breaches.

Thus, GS was excused from any subsequent obligations or breaches.

      Plaintiff argues an assignment of a party's rights under a

contract generally "is a delegation of performance of the duties

of the assignor and its acceptance by the assignee constitutes a

promise by him to perform those duties."           
N.J.S.A. 12A:2-210(4).

However, when plaintiff and GS entered into the Flip Contract,

plaintiff had no rights or duties under the Agreement.                As the

Agreement    was   deemed    terminated,    plaintiff    had    "no   further

obligations under this Agreement."          Thus, GS had no obligations

either, as "an assignee can have no greater duties than [it]s

assignor."     Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt.

Osteopathic Med., 
210 N.J. 597, 607 (2012).

      The Agreement was deemed terminated before the second deposit

became due.     Moreover, the Agreement provided that once it was

deemed terminated, Seller was obliged to return any deposit paid

by   the   purchaser.       Plaintiff    again   cites   the   Papagiannakis

certification to argue that Seller would have accepted the second

deposit until August 20.      However, the Papagiannakis certification

                                    23                                A-2527-15T3
could not change the terms of the Agreement which plaintiff was

purporting to assign to GS; it certainly was incapable of changing

the terms of the Flip Contract, to which neither Papagiannakis nor

the Seller were parties.      Once plaintiff failed to meet the

condition precedent to the Flip Contract, GS was relieved of any

obligations to plaintiff and acquired no obligations to Seller.

     As a result, we do not determine whether GS's August 2 letter

raised "virtually irrelevant" title issues or was "a flimsy excuse"

to avoid making the second deposit, as plaintiff again claims on

appeal.   It is equally irrelevant whether the second deposit would

have been due while the title issues were unresolved had the

Agreement still been in force.   Finally, it is irrelevant that the

Property was eventually purchased by Grand, another LLC in which

Steiglitz was the managing member.      Once plaintiff caused the

termination of the Agreement, and failed to meet the condition

precedent of the Flip Contract, Seller was free to sell the

Property to anyone, and Grand was free to buy it.

     As plaintiff concedes, the issue in this case was "whether

or not the [Agreement] was valid at the time the [Flip Contract]

was executed."   Because the Agreement was deemed terminated before

the Flip Contract was signed, plaintiff failed to show defendants

breached the Flip Contract or the implied duty of good faith and

fair dealing, and those counts were properly dismissed.   Plaintiff

                                 24                         A-2527-15T3
makes no additional arguments on appeal challenging the dismissal

of the other counts.         See Liebling v. Garden State Indem., 
337 N.J. Super. 447, 465-66 (App. Div. 2001) ("an issue not briefed

. . . is deemed waived").           Therefore, we affirm the dismissal of

plaintiff's complaint.6

     Accordingly,      we    have    no     occasion      to    consider    whether

plaintiff   could    pierce       either    LLC's   veil       and   sue   Steiglitz

directly.    We     need    not   reach     the   trial    court's     ruling    that

plaintiff materially breached the Flip Contract by failing to

disclose the Torres loan, or that plaintiff's only remedy was

specific performance where there was "no valid contract to be

specifically performed."

     Affirmed.




6
 We note that the Papagiannakis certification, on which plaintiff
relies, denies plaintiff's contention that Seller conspired with
defendants to terminate the Agreement, and that the trial court
found no evidence supporting plaintiff's claims of conspiracy,
fraud, and bad faith.

                                       25                                    A-2527-15T3