deutsch v. binet, app. div. a3227-08
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NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEYAPPELLATE DIVISION
DOCKET NO. A-3227-08T2
MAURICE DEUTSCH,
Plaintiff-Respondent,
v.
DAVID BINET and ESTHER BINET,
Defendants/Third-PartyPlaintiffs-Appellants,
v.
ABRAHAM CENSOR,
Third-Party Defendant.
________________________________________________________________
Submitted October 5, 2010 - Decided
Before Judges Carchman, Graves and Messano.
On appeal from the Superior Court of NewJersey, Chancery Division, Ocean County,Docket No. C-17-07.
Reuel E. Topas, attorney for appellants.
Charles I. Epstein, attorney for respondent.
PER CURIAM
Defendants/third-party plaintiffs David Binet (Binet) and
Esther Binet (Esther) appeal from various trial court orders and
May 9, 2011
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a judgment entered on February 2, 2009, that (1) awarded
plaintiff Maurice Deutsch (Deutsch) damages in the amount of
$120,500, together with prejudgment interest; (2) declared
Deutsch to be the owner of the property at 208 Imperial Court in
Lakewood, New Jersey (the Property); (3) awarded Deutsch any
surplus proceeds up to $132,550 in the event of a foreclosure
sale of the Property; (4) ordered the Binets to pay Deutsch
$2000 per month for the use and occupancy of the Property
commencing December 1, 2007; and (5) discharged two lis pendens
filed by the Binets in January 2006 and March 2007. We affirm.
In December 2003, Binet signed a contract to purchase a
house located at 200 Imperial Court, with an anticipated closing
date of June 1, 2004. The contract was subsequently modified
for the purchase of the Property, with closing to take place on
August 1, 2004. However, Binet's low credit score precluded him
from obtaining a mortgage loan to finance the purchase.
Therefore, Binet and "a long-time friend," third-party defendant
Abraham Censor1 (Censor), entered into an oral agreement under
which Censor would purchase the Property in his name for the
Binets' use and later transfer it to them in exchange for a cash
payment. Pursuant to the agreement, Binet paid Censor between
1 The third-party claim against Censor was dismissed on June 6,2008, and he is not a party to this appeal.
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$1000 and $2000, and Censor obtained two mortgage loans from
Chase Bank totaling approximately $650,000.2 Binet and his
brother provided $160,000 for the down payment on the Property,
the legal services rendered in connection with the sale, and
closing costs. The transfer took place on September 27, 2004,
and Censor's deed was recorded on October 28, 2004. However,
Binet's credit score remained low, and he and Esther never
refinanced the Censor mortgage.
On January 11, 2006, the Binets filed a complaint against
Censor seeking a constructive trust to secure their interest in
the Property and an order compelling Censor to execute a deed
transferring title to them. They also filed a notice of lis
pendens the same day. The next day, January 12, 2006, Censor
executed a mortgage and security agreement in the sum of
$240,000 in favor of Deutsch. The mortgage was recorded on
January 23, 2006.
Approximately two months later, on March 29, 2006, Binet,
Censor, and Deutsch signed a four-page settlement agreement (the
Settlement Agreement) that purported "to settle the claims and
disputes between them" concerning the Property and two loans
given to Binet and Censor by Deutsch. Also involved in the
2 At trial, Binet could not recall the exact amounts involved,and the record does not contain the mortgage documents.
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negotiations was Benzion Frankel (Frankel), a New York attorney.
The Settlement Agreement stated that Binet would pay Deutsch the
total sum of $145,500 in eight installments, with the last
payment on or before November 1, 2006. Regarding the Property,
the contract stated:
2. Deutsch shall execute anAssignment of Mortgage ("Assignment") inrecordable form to Binet. The Assignmentshall be placed in escrow with BenzionFrankel P.C. pending full performance byBinet under . . . this Agreement. Any
assignment by Deutsch, except in [the] eventof default by Binet, shall be deemed abreach.
3. Censor shall execute a Deed inrecordable form to Binet or an entity to beformed. The Deed . . . shall be placed inescrow with Benzion Frankel P.C. pendingfull performance by Binet under . . . thisAgreement. Any lien or encumbrance executedor allowed by Censor shall be deemed a
breach.
4. Binet shall continue paying theexisting Mortgages and keep them current.The existing Mortgages will be refinancedand paid off. In no event will the Deed bedelivered prior to the closing of therefinance.
5. All actions currently pending withrespect to the loans and the [Property]
shall be stayed and no new actions shall becommenced.
Under the terms of the Settlement Agreement, Binet was to
receive the deed and assignment "[u]pon full performance" of his
payment obligations. If Binet breached or defaulted, the escrow
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agent, Frankel, was authorized to return the deed to Censor and
the assignment of mortgage to Deutsch.
Pursuant to the Settlement Agreement, Binet paid a total of
$25,000 to Deutsch with the last payment on September 1, 2006.
On December 13, 2006, Censor executed a deed granting the
Property to Deutsch. The deed was recorded on December 27,
2006.
On January 10, 2007, Deutsch filed a complaint against
Binet and his wife, Esther, alleging that Binet had breached the
Settlement Agreement. The complaint sought (1) enforcement of
the Settlement Agreement; (2) "declaratory judgment . . . that
[Binet] breached and [was] in default of the Settlement
Agreement"; (3) declaratory judgment that the Binets had no
interest in the Property; (4) an order discharging the notice of
lis pendens filed by the Binets; (5) declaratory judgment that
the Binets had no right of possession or interest in the
Property; (6) a writ of possession in favor of Deutsch; (7)
judgment against Binet for the balance due under the Settlement
Agreement; and (8) interest, counsel fees, and costs of suit.
In their answer, counterclaim, and third-party complaint
filed on March 28, 2007, the Binets claimed that they were "no
longer bound by the obligations of the Settlement Agreement"
because Deutsch and Censor committed a material breach by
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failing to deposit the executed deed and assignment of mortgage
into escrow.3 The counterclaim and third-party complaint sought
(1) a determination that the Settlement Agreement and the deed
from Censor to Deutsch were both "null and void"; (2) imposition
of a constructive trust in favor of the Binets; (3) a judgment
quieting title in favor of the Binets and declaring that neither
Deutsch nor Censor had any interest in the Property; (4) a
determination that the Binets had the sole right of possession
to the Property; and (5) damages, counsel fees, and costs.
The court entered a case management order scheduling
discovery on March 31, 2008. The order stated that
interrogatories were to be served by April 10, 2008, and
answered by May 15, 2008, and that all depositions were to be
completed by June 1, 2008.
In April 2008, Deutsch filed a motion for summary judgment,
ejectment, and sanctions. In a supporting certification,
Deutsch stated he was "ready, willing and able" to sign a deed
to Binet and to assign the mortgage he was holding on the
Property to Binet as soon as he received "all sums due and owing
to [him] under the Settlement Agreement." He also certified
that his attorney, Frankel, "was never notified as to whom the
3 The Binets also filed a second notice of lis pendens on March30, 2009.
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mortgage should be assigned to." Additionally, Frankel
confirmed in his certification that he was unable to prepare a
deed and an assignment of the mortgage to be placed in escrow
because Binet was either unable or unwilling to identify the
entities or the individuals that were to receive the documents.
Frankel certified: "Despite several attempts to obtain the
information, I was never told to whom I should place title in,
nor was I ever told to whom the mortgage of [Deutsch] should be
assigned to." The Binets opposed the motion, claiming that "the
validity of the [Settlement] Agreement, the circumstances of its
execution and the specifics of performance of each party of
their respective obligations need[ed] to be developed through
the discovery process."
Before the court ruled on Deutsch's motion, Censor filed a
motion to dismiss the Binets' third-party complaint. The motion
and an accompanying certification by Censor's attorney alleged
that the Binets had failed to respond to interrogatories and
document requests as required by the court's March 31, 2008 case
management order.
The parties appeared for oral argument on May 23, 2008. At
that time, the court noted the parties had resorted to self-help
rather than seeking judicial enforcement of the Settlement
Agreement and that neither party "acted with clean hands."
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Nevertheless, it ordered the parties to proceed with depositions
and reserved judgment on Deutsch's summary judgment motion. On
May 29, 2008, J.P. Morgan Chase Bank commenced foreclosure
proceedings on the Property.
Both Frankel and Deutsch were deposed on May 30, 2008.
Frankel testified that although he had represented Deutsch "a
handful" of times in the past, including a loan to Censor, he
acted only as a "facilitator" or "go-between" when the
Settlement Agreement was negotiated. Frankel also stated that
Binet was represented during the negotiations by Morris
Birenbaum. According to Frankel, he waited for Binet "to form
an entity" to receive the deed and assignment and had "many,
many phone calls" with Birenbaum, but ultimately "was told that
Mr. Binet and Mr. Birenbaum did not know where [the documents]
would be going" and that he "would be advised."
Deutsch testified Frankel was acting as his attorney during
the settlement negotiations. He further testified that he had
provided "[m]ore than 15" loans to Censor amounting to "at
least" $240,000 by 2006, and that he had loaned Binet $100,000
in "early 2000," which by 2006 had accumulated interest of
"somewhere between $75,000 and $90,000." Deutsch stated that
since receiving the loan, Binet had avoided him "for years on
end," so he was willing to compromise on a reduced sum in
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exchange for actual payment. Following negotiations, Frankel
told Deutsch that he would have to sign an assignment of
mortgage "as soon as [Binet] determined who the recipient would
be." Deutsch also indicated that after payments from Binet had
ceased, he requested a deed to the Property from Censor.
The Binets answered Deutsch's first set of interrogatories
on June 4, 2008. Although they did not state whether they had
made mortgage payments on the Property, they indicated that they
had paid all maintenance and utility costs since October 2004.
In addition, the answers stated that Binet had contacted Censor
in December 2005 "to notify him that he was prepared to
refinance the mortgage" and that Censor responded with "a demand
for $10,000.00 in return for executing a Deed." The Binets also
indicated that payments under the Settlement Agreement were made
as scheduled until July 2006.
Nevertheless, on June 6, 2008, the court dismissed the
third-party complaint against Censor pursuant to Rule 4:23-5,
citing the Binets' failure to timely respond to Censor's
interrogatories and document requests in accordance with the
schedule imposed by the March 31, 2008 case management order.
On June 13, 2008, the Binets' filed a motion to reinstate the
pleading, which was ultimately unsuccessful.
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On June 20, 2008, the court heard further arguments on
Deutsch's summary judgment motion. Deutsch and Censor
essentially argued they were entitled to summary judgment based
on the Settlement Agreement, and the Binets asserted this relief
would be premature because further discovery was needed. In
addition, the Binets' attorney advised the court that they did
not have sufficient funds to satisfy the terms of the Settlement
Agreement but could obtain the money within sixty to ninety
days. The court reserved judgment and ordered all parties and
attorneys to appear in person on July 16, 2008.
The next hearing occurred on July 17, 2008. After allowing
the attorneys to present additional arguments, the court found
that the Settlement Agreement was "clear," "unambiguous," and
"enforceable." The court's decision, which was memorialized in
a July 25, 2008 order, required (1) Deutsch to execute a deed
and assignment of mortgage to the person or entity named by
Binet, and (2) Binet to pay Deutsch $25,000 within thirty days
after the deed and the assignment of the mortgage were filed
with the court. The order also stated that the failure to make
the payment would be considered "a material breach of the
Settlement Agreement." Deutsch submitted an original deed and
assignment to the court on July 30, 2008, with the grantee
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designated as "L.H. Development Group, LLC," a company owned
exclusively by Binet.
Censor was deposed on July 24, 2008. He testified that he
did not negotiate the contract to purchase the Property and did
not pay "any of the money to purchase the house." According to
Censor, Binet assigned him the purchase contract for the
Property "approximately five to six weeks" prior to closing, but
they had a verbal agreement that Binet would become the true
owner once "[c]ertain outstanding monies," had been "taken care
of." These "monies" included $150,000 to $200,000 that Censor
claimed to have personally "lent [to Binet's] company" and
$100,000 that he "borrowed on [Binet's] behalf." Censor also
testified that Esther did not participate in any of his dealings
or discussions with Binet.
The parties again appeared before the court on September
12, 2008. At the outset, the court noted that Binet had failed
to pay $25,000, as required by the July 25, 2008 order. Counsel
for the Binets explained that Binet failed to make the payment
because "he [didn't] have the money." The court then entered a
judgment against Binet in the amount of $25,000 and scheduled
the matter for an evidentiary hearing. The order memorializing
this decision was entered on October 1, 2008.
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A trial was held on January 6 and 7, 2009, to determine the
merits of Deutsch's remaining claims and the Binets' claim that
they were the equitable owners of the Property. Deutsch called
Binet as the first witness. Binet testified that his "business
background" was in construction and that, in 2001, he had
commenced employment with "Dynamic," a "real estate company."
Binet indicated that he made $120,000 per year in this position
from 2003 to 2006 before Dynamic closed in 2007, leaving him
with no income in 2007 and 2008.
Binet further stated that although he negotiated the
contract to purchase the Property and contributed $160,000 of
his family's money toward the purchase, his low credit score
prevented him from obtaining a mortgage loan. Therefore, the
Property was purchased in Censor's name, and Binet paid Censor
to obtain two mortgage loans for the purchase. However, Binet
acknowledged he was responsible for the mortgage payments. He
also testified that he discussed the arrangement with Esther,
and she was "aware that Mr. Censor owned the home."
Binet said that he "didn't try" to refinance the mortgages
because his "credit score was not sufficient enough to get it
done." He further stated that on December 15, 2005, he provided
Censor with $30,000$20,000 to be given to Deutsch, and $10,000
to Censor "for keeping the house in his name"but Censor
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demanded an additional $10,000. According to Binet, the $20,000
for Deutsch was partial repayment for a separate $50,000 loan
that Deutsch had given him.
In addition, Binet confirmed that during the subsequent
settlement negotiations he was represented by Morris Birenbaum.
Binet further stated that he was not acting on behalf of Esther
at that time and that Esther only found out that the Settlement
Agreement existed "through the Court proceedings." Binet also
accounted for the difference between the $50,000 loaned to him
by Deutsch and the $145,500 that he agreed to pay in the
Settlement Agreement as "some profit to Deutsch" and "to help
out Censor" because "he needed money."
Binet admitted that he never contacted Frankel to advise
him of the name in which he wanted the deed and assignment
prepared. He also acknowledged that after making $25,0004 in
payments pursuant to the Settlement Agreement, he ceased
performance "[sometime] in the summer of [2006]" because he
"didn't get any notice" that Deutsch and Censor had placed the
deed and assignment in escrow. Binet further indicated he
learned that Censor had granted the Property to Deutsch after
Deutsch filed the complaint.
4 The parties stipulated to this amount.
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The next witness was Deutsch, who testified that he had
loaned Binet $100,000, not $50,000, in 1999 or 2000 and that
Binet "hadn't paid [him] back a dime." He further stated that
by 2006, Censor owed him approximately $400,000.
Deutsch confirmed that Binet had paid him $25,000 under the
Settlement Agreement and indicated that despite "repeatedly"
asking Binet for payment, he received few responses:
[Binet] avoided me at all costs, ignored myphone calls, agreed to meet with me on a
number of occasions, cancelled the meetings,never showed up. When I finally did get himto the table he promised that he'd getthings to work out. At certain points heresponded to my emails by saying that he
wants to take care of payments. Basicallyit was all a bunch of baloney and he nevermade a payment since his last payment.
Deutsch also testified that when Censor deeded the Property
to him, Censor "led [him] to believe that the house [was]
entirely his and that he had every right to do what he did."
Deutsch indicated that he believed the Property had been placed
in Censor's name because Binet owed Censor money. In addition,
Deutsch testified that he "did not oppose" the foreclosure
action.
Esther testified on January 7, 2009. After stating she was
born in Israel and had a "very limited" English vocabulary,
Esther gave a synopsis of the roles she and her husband played:
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The husband is taking care [of] thefinancial situation in the house and reallythe woman does not get involved. By thisespecially because English is not mylanguage, I was limited . . . to understand
. . . whatever [deal was] made. So . . . I was trusting my husband to take care [of]everything, taking care of [the] financialsituation in the house. And the woman istaking care [of] the household, thechildren, raising the children, cooking,baking, cleaning, doing whatever she'ssupposed to do . . . to have a normal lifeand a family life.
Esther stated that at the time of the purchase, she
believed that she and her husband owned the Property and that
she had no knowledge of Censor's involvement. However, Censor
called the house in 2007 and told her that the house was in his
name. According to Esther, she never saw the Settlement
Agreement and never gave Binet "permission to make any deal to
give [her] home away."
Esther testified that she had no knowledge of the
foreclosure proceeding, even though she was aware that her
husband was not making mortgage payments. She further testified
that when she discussed the matter with her husband, he told her
he was "in touch with the lawyer and . . . taking care of it."
In addition, Esther stated that she trusted her husband to "take
care of whatever was supposed to be taken care of."
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Following closing arguments, the court rendered an oral
decision on January 7, 2009. With regard to Esther, the court
stated:
Of great concern to the Court in listeningto Mrs. Binet's testimony today [is] whetheror not she even understands what her lawyertold her . . . . As she sits here today shedoesn't even know that the Deed is [in] Mr.Deutsch's name. She still thinks it's inMr. Censor's name, and this has been goingon for several years at this point. Sheclearly relies upon her husband to doeverything. She's really not had any assets
in her name. She's just simply [living a]very traditional lifestyle where she tookcare of the children and the home . . . andhe took care of the business. She's noteven clear on exactly what [her husband]does for a living. She doesn't know thesettlement terms, she doesn't know theagreement that her husband entered toresolve the litigation, to keep her in thehome. . . . I don't even think she knows ifher husband has defaulted on the agreement.
I have serious concerns [about] whether sheeven understands that's the reason why she'sreally here today . . . .
Therefore, the court found that the Settlement Agreement
was enforceable only against Binet, and judgment was entered
against him in the amount of $120,500:
As far as enforcing the terms of the
Settlement Agreement, I'm satisfied it is anenforceable Agreement. I am satisfied thatthere is a material breach of the Agreement,and I am satisfied Mr. Binet has breachedthat Agreement and as a result of thatbreach there [are] substantial monies dueand owing. . . . Deutsch had previouslyloaned monies to Binet and Deutsch had
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previously loaned monies to Censor, andCensor had previously loaned money to Mr.Binet. So when all of that is together,this was a settlement for that. . . .[Binet] agreed to pay these monies back as a
result of those loans . . . . [I]t was atotal of $145,500 of which [Binet] paid$25,000 [and] owes $120,500 . . . based onthe preponderance of credible evidence. Heowes that money and the Judgment [will] beentered against Mr. Binet for that amount.
The court declined to enforce the Settlement Agreement's
$175-per-day late payment penalty but awarded Deutsch
prejudgment interest from September 1, 2006. In addition, the
court concluded that it was "inequitable and unfair" for the
Binets "not to pay anything" while they remained in the
Property. Therefore, it ordered them to pay Deutsch $2000 per
month for the use and occupancy of the Property commencing on
December 1, 2007, after Binet stopped paying the mortgages. A
judgment memorializing the court's decision was entered on
February 2, 2009. The judgment also discharged the two lis
pendens on the Property.
On February 11, 2009, the court denied the Binets' motion
for reconsideration. They filed a notice of appeal on March 9,
2009,5
and now present the following arguments:
5 In addition to the appeal, we have been advised that Estherfiled a separate complaint against Deutsch and Censor allegingthat the deed from Censor to Deutsch was subject to herownership and possessory interests in the Property.
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POINT ONE
DEUTSCH'S MATERIAL BREACH OF THE "SETTLEMENTAGREEMENT" EXCUSES FURTHER PERFORMANCE BYBINET AND SUMMARY JUDGMENT SHOULD HAVE BEEN
DENIED.
POINT TWO
SELF-CREATED OR IMPOSED IMPOSSIBILITY OFPERFORMANCE DOES NOT EXCUSE THATPERFORMANCE.
POINT THREE
THE SETTLEMENT AGREEMENT IS INADMISSIBLE,
AND THEREFORE, UNENFORCEABLE BY ITS TERMS.
POINT FOUR
THE SETTLEMENT AGREEMENT IS ANUNCONSCIONABLE CONTRACT OF ADHESION, ANDTHEREFORE, UNENFORCEABLE. (Not Raised Below)
POINT FIVE
DEUTSCH IS NOT ENTITLED TO RENT, EJECTMENT
OR DISCHARGE OF THE LIS PENDENS.
POINT SIX
THE COURT ERRED WHEN IT DISMISSED AND THENREFUSED TO REINSTATE THE BINETS' THIRD-PARTYCOMPLAINT AGAINST CENSOR.
POINT SEVEN
DEUTSCH IS NOT ENTITLED TO POSSESSION OF THE
PREMISES BECAUSE ESTHER BINET'S POSSESSORYINTERESTS IN THE PROPERTY UNDER N.J.S.A.3B:28-3 WERE NOT DECIDED BY THE TRIAL COURT.(Not Raised Below)
When reviewing the July 25, 2008 order for summary
judgment, we use the same standard as the trial court.
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Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162,
167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must
"first decide[] whether there was a genuine issue of material
fact and, if there was not, [we] then decide[] whether the trial
judge's ruling on the law was correct." Walker v. Atl. Chrysler
Plymouth, Inc., 216 N.J. Super. 255, 258 (App. Div. 1987).
[A] determination whether there exists a"genuine issue" of material fact thatprecludes summary judgment requires themotion judge to consider whether the
competent evidential materials presented, when viewed in the light most favorable tothe non-moving party, are sufficient topermit a rational fact-finder to resolve thealleged disputed issue in favor of the non-moving party. The "judge's function is nothimself [or herself] to weigh the evidenceand determine the truth of the matter but todetermine whether there is a genuine issuefor trial."
[Brill v. Guardian Life Ins. Co. of Am., 142N.J. 520, 540 (1995) (quoting Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 249, 106S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212(1986)); see also R. 4:46-2.]
Our review of the determinations made following the January
2009 trial is more limited. We must uphold the court's factual
findings where they are "supported by adequate, substantial and
credible evidence." Rova Farms Resort, Inc. v. Investors Ins.
Co. of Am., 65 N.J. 474, 484 (1974). All legal conclusions will
be reviewed de novo. Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
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As the trial court recognized, settlement agreements are
contracts to be honored and enforced by the courts. Brundage v.
Estate of Carambio, 195 N.J. 575, 601 (2008) (citing Pascarella
v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.), certif.
denied, 94 N.J. 600 (1983)). Furthermore, "a material breach by
either party to a bilateral contract excuses the other party
from rendering any further contractual performance." Magnet
Resources, Inc. v. Summit MRI, Inc., 318 N.J. Super. 275, 285
(App Div. 1998).
A material breach is one that "'goes to the essence of a
contract,'" Goldman S. Brunswick Partners v. Stern, 265 N.J.
Super. 489, 494 (App. Div. 1993) (quoting Ross Sys. v. Linden
Dari-Delite, Inc., 35 N.J. 329, 341 (1961)), and should be
evaluated under the following "flexible criteria":
"(a) the extent to which the injured party will be deprived of the benefit which hereasonably expected;
(b) the extent to which the injured partycan be adequately compensated for the partof that benefit of which he will bedeprived;
(c) the extent to which the party failing to
perform or to offer to perform will sufferforfeiture;
(d) the likelihood that the party failing toperform or to offer to perform will cure hisfailure, taking account of all thecircumstances including any reasonableassurances;
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(e) the extent to which the behavior of theparty failing to perform or to offer toperform comports with standards of goodfaith and fair dealing."
[Neptune Research & Dev., Inc. v. TeknicsIndus. Sys., Inc., 235 N.J. Super. 522, 532(App. Div. 1989) (quoting Restatement(Second) of Contracts 241 (1981)).]
After considering these factors, we agree that Deutsch's
failure to place the deed and assignment in escrow did not
constitute a material breach of the Settlement Agreement that
would have excused Binet's failure to (1) keep the existing
mortgages current, and (2) pay the sum of $145,500 to Deutsch.
Pursuant to the Settlement Agreement, Binet was not entitled to
receive the deed and the assignment because he never performed
his payment obligations and never advised Deutsch of the name or
entity he wished to designate as grantee. Moreover, Deutsch's
alleged "breach" was a problem with a clear-cut remedy. As the
trial court observed, "a simple motion" would have resolved the
issue. Under these circumstances, we find no justification for
Binet's failure to comply with the terms of the Settlement
Agreement.
In their third point, the Binets contend that the
Settlement Agreement "is unenforceable because it cannot be
disclosed or serve as proof of liability." "'[F]undamental
canons of contract construction require that we examine the
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plain language of the contract and the parties' intent, as
evidenced by the contract's purpose and surrounding
circumstances.'" Highland Lakes Country Club & Cmty. Ass'n v.
Franzino, 186 N.J. 99, 115 (2006) (quoting State Troopers
Fraternal Ass'n v. State, 149 N.J. 38, 47 (1997)). Thus, we
must first read the terms of the contract "in light of the
common usage and custom." Pacifico v. Pacifico, 190 N.J. 258,
267 (2007).
The Binets claim that the Settlement Agreement's
confidentiality clause, contained in paragraph fourteen, renders
it "inadmissible and therefore, unenforceable." They cite no
authority for this proposition. Moreover, adoption of the
Binets' position would render any contract with a
confidentiality provision unenforceable, a result that would be
squarely at odds with the Court's predisposition toward
settlement. See State v. Williams, 184 N.J. 432, 446 (2005)
("Courts have long-recognized that public policy favors
settlement of legal disputes and that confidentiality is a
fundamental ingredient of the settlement process.") (citations
and quotation marks omitted).
We next address the Binets' claim that the judgment should
be reversed because the Settlement Agreement was an
"unconscionable contract of adhesion." The Court has recognized
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that adhesion contracts "necessarily involve indicia of
procedural unconscionability." Muhammad v. Cnty. Bank of
Rehoboth Beach, Del., 189 N.J. 1, 15 (2006), cert. denied, 549
U.S. 1338, 127 S. Ct. 2032, 167 L. Ed. 2d 763 (2007). However,
even when a contract of adhesion requires a party "either to
accept or reject the contract as is, the agreement nevertheless
may be enforced." Stelluti v. Casapenn Enters., LLC, 203 N.J.
286, 301 (2010) (citing Rudbart v. N. Jersey Dist. Water Supply
Comm'n, 127 N.J. 344, 353, 356-61, cert. denied, 506 U.S. 871,
113 S. Ct. 203, 121 L. Ed. 2d 145 (1992)). Factors to be
considered include "the subject matter of the contract, the
parties' relative bargaining positions, the degree of economic
compulsion motivating the 'adhering' party, and the public
interests affected by the contract." Rudbart, supra, 127 N.J.
at 356.
Here, the thrust of the Binets' argument is that the
economic relationship between Binet and Deutsch placed the
former "at a terrible bargaining disadvantage." However, the
record reveals that Binet was represented by counsel throughout
the settlement negotiations and that he successfully negotiated
to omit any provision that would impact his initial lawsuit
against Censor. Moreover, Binet testified that he reviewed the
Settlement Agreement with counsel prior to signing it. Given
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these facts, we reject the claim that the Settlement Agreement
is unconscionable and unenforceable. See, e.g., Delta Funding
Corp. v. Harris, 189 N.J. 28, 40 (2006) (enforcing a contract of
adhesion despite finding that Delta "possessed superior
bargaining power and was the more sophisticated party in the
transaction").
In point five, the Binets assert that Censor's transfer of
title to Deutsch was "a textbook example of unclean hands and
should never have enjoyed the sanction of the Court." We do not
agree.
Application of the doctrine of unclean hands rests within
the discretion of the trial court. Heuer v. Heuer, 152 N.J.
226, 238 (1998). "The essence of [the] doctrine . . . is that
'[a] suitor in equity must come into court with clean hands and
he must keep them clean after his entry and throughout the
proceedings.'" Borough of Princeton v. Bd. of Chosen
Freeholders of Mercer, 169 N.J. 135, 158 (2001) (second
alteration in original) (quoting A. Hollander & Son, Inc. v.
Imperial Fur Blending Corp., 2 N.J. 235, 246 (1949)). The
doctrine of unclean hands "'gives expression to the equitable
principle that a court should not grant relief to one who is a
wrongdoer with respect to the subject matter in suit.'" Ibid.
(quoting Faustin v. Lewis, 85 N.J. 507, 511 (1981)).
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As previously noted, the Settlement Agreement required
Censor to "execute a deed in recordable form to Binet or an
entity to be formed" and to place the deed in escrow "pending
full performance by Binet." If that had been done, the transfer
of title from Censor to Deutsch would not have occurred.
Nevertheless, pursuant to the July 30, 2008 order, Deutsch
ultimately executed and filed with the court a deed to the
Property, whereas Binet has consistently failed to fulfill his
payment obligations. We therefore find no misuse of discretion
or legal error in the court's decision to enter judgment in
favor of Deutsch; to impose a use and occupancy fee for the fair
rental value of the Property, N.J.S.A. 2A:42-13; and to
discharge the lis pendens, see Manzo v. Shawmut Bank, N.A., 291
N.J. Super. 194, 199 (App. Div. 1996) (noting that notices of
lis pendens relate only to ongoing disputes regarding title to
real property).
Next, we consider the Binets' claim that the court erred by
dismissing and refusing to reinstate their third-party complaint
against Censor. They argue that these decisions prevented them
from "establishing the priority of their claim of ownership over
the Censor [m]ortgage and [d]eed given to Deutsch." We
disagree.
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Rule 4:23-5(a)(1) permits the court to dismiss a claim
without prejudice where a party has failed to properly provide
discovery and cannot show "good cause for other relief." The
rule also "expressly permits a plaintiff, whose complaint has
been dismissed without prejudice under [Rule 4:23-5(a)(1)], to
seek restoration of the complaint at any time prior to its
dismissal with prejudice." Sullivan v. Coverings &
Installation, Inc., 403 N.J. Super. 86, 96 (App. Div. 2008).
In this case, the court dismissed the third-party complaint
without prejudice on June 6, 2008. At that time, the Binets had
provided answers to interrogatories but had not responded to
Censor's request for documents. Those followed by mail on June
19, 2008. Once this discovery was completed, the court should
have granted the Binets' cross-motion to reinstate the third-
party complaint. The failure to do so constituted error.
However, we are satisfied that the error was not clearly
capable of producing an unjust result. See Rule 2:10-2 (stating
that any error "shall be disregarded by the appellate court
unless it is of such a nature as to have been clearly capable of
producing an unjust result"). This rule requires a "'degree of
possibility'" sufficient to raise doubts about whether the
result would have been the same had the error not occurred.
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State v. Ingram, 196 N.J. 23, 49 (2008) (quoting State v. R.B.,
183 N.J. 308, 330 (2005)).
Counsel for the Binets acknowledged at the outset of the
trial that Binets' claims against Censor and Deutsch were almost
identical because the Binets sought to quiet title to the
Property. Moreover, the disputes between the Binets and Deutsch
were ultimately decided on their merits, and we find no error in
the trial judge's substantive analysis. Furthermore, we
conclude from our review of the record that the Binets were
afforded a full and fair opportunity to present their claims and
there has been no showing that the result would have been any
different if the third-party claim against Censor had been
reinstated. We therefore find the failure to reinstate the
Binets' claim against Censor to be harmless error. R. 2:10-2.
Finally, we decline to consider the arguments raised in
point seven. As the Binets themselves concede, Esther's
individual interests were not fully litigated in the trial
court. Moreover, Esther asserted those interests in a separate
complaint. Therefore, we do not address them here. See Nieder
v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting the
"well-settled principle that our appellate courts will decline
to consider questions or issues not properly presented to the
trial court when an opportunity for such presentation [was]
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available" unless they concern the court's jurisdiction or a
matter of public importance).
The Binets' remaining arguments are without sufficient
merit to warrant additional discussion. R. 2:11-3(e)(1)(A),
(E).
Affirmed.