CONDEMIMOTOR CO., INC v. HERNANDO J. BAUTISTA

NOT FOR PUBLICATION WITHOUT THE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-4526-15T1

CONDEMI MOTOR CO., INC.,

        Plaintiff-Respondent,

v.

HERNANDO J. BAUTISTA,

        Defendant-Appellant,

and

JUAN G. ARANGO,

     Defendant.
___________________________________

              Submitted January 10, 2018 – Decided March 6, 2018

              Before Judges Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-8992-12.

              Piekarsky & Associates, LLC, attorneys for
              appellant (Justin J. Walker, on the brief).

              Vincent J. D'Elia, attorney for respondent.

PER CURIAM

        Defendant Hernando Bautista appeals from an order dated March

6, 2015 granting partial summary judgment in favor of plaintiff
Condemi Motor Co., Inc. (Condemi Motor).           Bautista also appeals

from an order dated April 29, 2016, vacating the dismissal of

Condemi Motor's complaint and confirming the arbitration award in

favor of Condemi Motor.     We affirm.

     Anthony Condemi, President of Condemi Motor, is the landlord

and owner of real property in Lodi, New Jersey.          In 2002, Condemi

Motor   leased   the   property   to   Bautista,   as   officer   and   sole

shareholder for ESCO Motor Cars, Inc. (ESCO), and Juan G. Arango,1

for the operation of a car dealership.        Bautista also signed the

lease agreement (lease) as a tenant.        The final page of the 2002

lease contained a personal guarantee provision, which stated:

           HERNANDO J. BAUTISTA . . . does hereby,
           personally guarantee the performance of the
           terms   of  this   lease   by   the   [t]enant
           particularly any and all financial obligations
           incurred by the [t]enant under the terms of
           the lease.     Guarantor hereby waives any
           requirement that [l]andlord provided [sic]
           notice of any default on the part of the
           [t]enant.

Bautista's signature appears below the guarantee provision.

     A rider and addendum to the original lease was signed in

2007, which provided that "The core of the lease will remain as

it has been for the past five (5) years with the exceptions[.]"




1
   Service of process was not made against Arango, and he is not
part of this appeal.

                                       2                            A-4526-15T1
Seven "exceptions" were listed, one of which noted the lease to

begin April 1, 2007 and to end April 1, 2012, for $9166 per month.

     The underlying action is the second of two lawsuits wherein

Condemi Motor sought unpaid rent arising from the October 2002

lease for the rental of the property.

     The first lawsuit arose in June 2010, when ESCO, Bautista's

corporation,   filed   a   complaint   against   Condemi   Motor   seeking

return of the security deposit.        The case was tried to conclusion

in May 2012, prior to Condemi Motor filing suit against Bautista

as guarantor of the lease.        Condemi Motor filed a third-party

complaint against Bautista, and asserted a counterclaim for breach

of contract due to ESCO's failure to pay rent.         In June 2012, a

bench trial commenced over a ten-day period before Judge Kenneth

J. Slomienski.   In his decision, the judge held:

          It's undisputed that at the time of the
          vacating [of] the property, the monthly rent
          was $9166.09 a month.

          . . . it's undisputed that the rent wasn't
          paid June, July, August, September, and
          thereforth. . . . I find it highly incredible,
          a statement made by the plaintiff of the
          landlord, you don't have to pay rent. . . .
          Also, there's testimony from the plaintiff
          that Condemi wanted this property.      I find
          that highly unbelievable since Condemi had
          enough property to run his business. I find
          that highly unbelievable. . . . I find it more
          incredible . . . unbelievable that the tenant
          indicates that he left May 15[].          It's
          contrary to the lease, it's a default.

                                   3                               A-4526-15T1
           . . . Mr. Bautista [] tried to say he doesn't
           really understand what a personal guarantee
           is; [w]ell I find that not [] believable.

                 . . . .

           In regard to the lease itself, there is no
           speculation. . . . [Bautista] has not met the
           burden    that    [Condemi    Motor]    acted
           unreasonabl[y].

The judge entered judgment in favor of Condemi Motor.      The claims

against   Bautista,   originally   a   third-party   defendant,   were

dismissed without prejudice.

      The second lawsuit, from which this appeal stems, arose in

November 2012.    Condemi Motor filed a complaint against Bautista

seeking a judgment based on Bautista's signature on the lease as

tenant as well as personal guarantor as contained within the

lease.2   Condemi Motor asserted Bautista was personally liable for

the payment of outstanding rent, attorney fees and costs, and any

repairs made to the property.

      Following years of judicial proceedings, on March 6, 2015,

oral argument was heard before Judge Lisa Perez Friscia.           The

judge entered an order for partial summary judgment in favor of

Condemi Motor for back rent and expenses.      The order also denied




2
    Arango was never served by Condemi.

                                   4                          A-4526-15T1
Bautista's    application      to   dismiss   Condemi   Motor's    complaint

without prejudice.

     The parties engaged in non-binding arbitration on the issue

of attorney's fees and costs, which resulted in an award in favor

of Condemi Motor.     Due to an illness affecting Condemi's attorney,

no timely action was taken upon the arbitration award and the

matter was administratively dismissed for the third time.3

     A year later, Condemi Motor filed a motion to vacate the

dismissal and confirm the award.           Bautista filed an opposition.

Based upon the health issues of Condemi's counsel, the matter was

reinstated. On April 29, 2016, Judge Perez Friscia granted Condemi

Motor's   motion    and   entered     judgment   that   restored   Condemi's

complaint    and   confirmed    the   arbitration   award.     This    appeal

followed.

     Bautista raises the following points on appeal:

                                    POINT I

            THE TRIAL COURT COMMITTED HARMFUL ERROR
            PRODUCING AN UNJUST RESULT BY GRANTING PARTIAL
            SUMMARY JUDGMENT TO CONDEMI WHERE A MATERIAL
            DISPUTED FACT WAS RAISED BY BAUTISTA THAT WAS
            NOT ADDRESSED BY THE TRIAL COURT OR CONDEMI
            GOING    TO    CREDIBILITY    AND    REQUIRING
            DETERMINATION BY A FACT-FINDER AS TO WHETHER
            CONDEMI RESPRESENTED TO BAUTISTA THAT IT WOULD

3
  At the time the parties entered into the lease in 2002, 
N.J.S.A.
2A:24-7, the then controlling statute, required actions to confirm
an arbitrator's award to be brought within three months of
issuance.

                                       5                              A-4526-15T1
          NOT HOLD BAUTISTA LIABLE FOR THE BALANCE OF
          RENT UNDER THE LEASE.

                             POINT II

          THE TRIAL COURT COMMITTED HARMFUL ERROR
          PRODUCING AN UNJUST RESULT BY GRANTING PARTIAL
          SUMMARY JUDGMENT TO CONDEMI WHERE DISCOVERY
          WAS INCOMPLETE AND BAUTISTA HAD A PENDING
          MOTION   CONCERNING   THE   INSUFFICIENCY   OF
          CONDEMI'S DISCOVERY RESPONSES.

                            POINT III

          THE TRIAL COURT'S ORDER REINSTATING CONDEMI'S
          COMPLAINT FOR THE THIRD TIME AND CONFIRMING
          THE ARBITRATION AWARD IN FAVOR OF CONDEMI
          SHOULD BE REVERSED SINCE THE BASIS FOR
          LIABILITY IS ONE THAT REQUIRES A FACT-FINDING
          DETERMINATION AS TO BAUTISTA'S CONTENTION THAT
          CONDEMI ASSERTED THAT HE WOULD NOT SEEK RENTAL
          ARREARAGES FROM BAUTISTA.

     We review de novo the trial court's summary judgment decision,

applying the same standard that governs the trial court.      Henry

v. N.J. Dep't of Human Servs., 
204 N.J. 320, 330 (2010).    We must

determine whether the evidence presented, "when viewed in the

light most favorable to the non-moving party, [is] 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).         The evidence must be

"competent."   Ibid.; see also Jeter v. Stevenson, 
284 N.J. Super.
 229, 233 (App. Div. 1995) ("[E]vidence submitted in support of a

motion for summary judgment must be admissible."); R. 1:6-6.


                                 6                          A-4526-15T1
"[B]are conclusions in the pleadings without factual support in

tendered affidavits, will not defeat a meritorious application for

summary judgment."         Cortez v. Gindhart, 
435 N.J. Super. 589, 606

(App. Div. 2014) (quoting Brae Asset Fund, LP v. Newman, 
327 N.J.

Super. 129, 134 (App. Div. 1999)).

     It is fundamental that unsworn statements, such as Bautista's

letter,   do     not    constitute   admissible    evidential   material   for

purposes of summary judgment.           Gonzalez v. Ideal Tile Importing

Co., 
371 N.J. Super. 349, 358 (App. Div. 2004) (holding "counsel's

unsworn opposing letter was incapable of conveying any facts for

summary judgment purposes.").           See Oakley v. Wianecki, 
345 N.J.

Super.    194,    201    (App.   Div.   2001)     (holding   "unsubstantiated

inferences and feelings" are insufficient to defeat a motion for

summary judgment).

     Bautista claims that there was an oral modification of the

lease that released him from the personal guarantee.             In paragraph

"5th" of the lease relating to assignment it is stated:

                 That the [t]enant shall not assign this
            agreement, or underlet or underlease the
            premises or any part thereof, of occupy, or
            permit or suffer the same to be occupied for
            any business or purpose deemed disreputable
            or extra-hazardous on account of fire or other
            hazards,   under   penalty   of  damages   and
            forfeiture without the express written consent
            of the [l]andlord which consent shall not be
            unreasonably withheld. Any assignment of this
            lease shall be subject to [l]andlord's written

                                        7                             A-4526-15T1
           approval including but not limited to the
           proposed assignee's financial ability to honor
           the terms of this lease and the proposed
           assignee's ability to operate the business
           proposed on the premises.        Landlord may
           require additional security deposit upon any
           approved assignment.     Any said assignment
           shall not void the personal guarantee made a
           part of this lease but said personal guarantee
           shall continue in full force and effect unless
           otherwise agreed to by the [l]andlord, in
           writing.

     We note that there is no other discrete paragraph in the

lease that directly references the manner by which the personal

guarantee may be voided or modified.        However, a plain reading of

paragraph "5th" evinces the parties' intent that the landlord must

agree "in writing" to an alteration of the "full force and effect"

of the personal guarantee.

     It   is   well-settled   that    a   contract    provision   requiring

modification by writing "may be expressly or impliedly waived by

the clear conduct or agreement of the parties or their duly

authorized representatives."     Home Owners Constr. Co. v. Borough

of Glen Rock, 
34 N.J. 305, 316 (1961); Lewis v. Travelers Ins.

Co., 
51 N.J. 244, 253 (1968).        "An offeree may manifest assent to

terms of an offer through words, creating an express contract, or

by conduct, creating a contract implied-in-fact."            Weichert Co.

Realtors v. Ryan, 
128 N.J. 427, 436 (1992) (citing Restatement

(Second) of Contracts § 19(1) (1981)).               Clear and convincing


                                      8                             A-4526-15T1
evidence is required to prove waiver of a writing requirement.

Home Owners, 
34 N.J. at 317.

     Here, there is no competent proof, other than Bautista's

unsworn letter submitted in opposition to the summary judgment

motion, that there was an oral modification to the lease agreed

to by Condemi relative to the personal guarantee.                  Given the

factual record, the terms of the lease and the applicable law, we

discern no error in Judge Perez Friscia's rejection of Bautista's

claim of oral modification.

     As   well,    we   find    no   merit   to   Bautista's   argument     that

outstanding discovery would have changed the outcome of the motion.

"Generally,    summary    judgment      is    inappropriate    prior   to    the

completion of discovery."        Wellington v. Estate of Wellington, 
359 N.J. Super. 484, 496 (App. Div.), certif. denied, 
177 N.J. 493

(2003); see also, e.g., Crippen v. Cent. Jersey Concrete Pipe Co.,


176 N.J. 397, 409-10 (2003); Laidlow v. Hariton Mach. Co., 
170 N.J. 602, 619-20 (2002).             Indeed, "[w]hen 'critical facts are

peculiarly within the moving party's knowledge,' it is especially

inappropriate     to    grant    summary     judgment   when   discovery      is

incomplete."      Velantzas v. Colgate-Palmolive Co., 
109 N.J. 189,

193 (1988) (quoting Martin v. Educ. Testing Serv., Inc., 
179 N.J.

Super. 317, 326 (Ch. Div. 1981)); see Wilson v. Amerada Hess Corp.,


168 N.J. 236, 253-54 (2001).                But, a party opposing summary

                                        9                              A-4526-15T1
judgment based on incomplete discovery must nonetheless establish,

"with some degree of particularity [,] the likelihood that further

discovery will supply the missing elements of the cause of action

or defense."     Wellington, 
359 N.J. Super. at 496 (quoting Auster

v. Kinoian, 
153 N.J. Super. 52, 56 (App. Div. 1977)).

     The     incomplete    discovery,     was     Condemi's    "insufficient"

responses to discovery.       Bautista argued that through additional

discovery,    Condemi     might   confirm   the    existence    of   the   oral

agreement.     Yet, nothing in the discovery record nor the action

taken by Condemi to enforce the guarantee would even suggest that

this "admission" by Condemi would be forthcoming.4

     Finally, having considered the remaining arguments raised by

Bautista relative to the reinstatement of the complaint, we affirm

for the reasons stated in Judge Perez Friscia's order of April 29,

2016.

     Affirmed.




4
   Although unclear on this record, if the discovery period has
ended and the standard for re-opening discovery has not been
satisfied, summary judgment may be granted even if the opposing
party claims that additional discovery will provide evidence to
demonstrate a disputed issue of fact. See Schettino v. Roizman
Dev., 
310 N.J. Super. 159, 165 (App. Div. 1998), aff'd, 
158 N.J. 476 (1999).

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