MAXTRADE, LLC VS. POWERSPORTS WAREHOUSE, LLC(L-8191-13, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-0294-16T3
    MAXTRADE, LLC,
    Plaintiff-Appellant,
    v.
    POWERSPORTS WAREHOUSE, LLC,
    a/k/a POWERSPORTS WAREHOUSE or
    POWERSPORT WAREHOUSE,
    SCOOTERLANDUSA, LLC, a/k/a
    SCOOTERLAND OR SCOOTERLAND USA,
    TAI LUU, a/k/a TOM LUU and
    MAI LIN NGUYEN, a/k/a LYNN LUU,
    doing business as POWERSPORT
    WAREHOUSE and SCOOTERLANDUSA,
    Defendants-Respondents.
    ___________________________________
    Submitted October 2, 2017 – Decided November 20, 2017
    Before Judges Whipple and Rose.
    On appeal from Superior Court of New Jersey,
    Law Division, Middlesex County, Docket No. L-
    8191-13.
    Greg Riley, attorney for appellant.
    Gerard J. Jackson, attorney for respondents.
    PER CURIAM
    Plaintiff Maxtrade, LLC appeals from the trial court’s August
    12, 2016 order denying its motion to amend the judgment, pursuant
    to the terms of a settlement agreement with defendants Powersports
    Warehouse,   LLC,    a/k/a   Powersports    Warehouses    or   Powersport
    Warehouse (“Powersports”), ScooterlandUSA, LLC, a/k/a Scooterland
    or Scooterland USA ("Scooterland"), Tai Luu a/k/a Tom Luu ("Luu"),
    and Mai Lien Nguyen, a/k/a Lynn Luu ("Nguyen"),1 d/b/a Powersport
    Warehouse and ScooterlandUSA.     Having reviewed the record in light
    of applicable principles of law, we affirm.
    We recite the following key facts and procedural history from
    the motion record.     The underlying lawsuit arises from a dispute
    between two commercial entities.         In December 2012, plaintiff
    agreed to sell ninety-one all-terrain vehicles to defendants for
    the sum of $41,401.      Following an initial payment of $10,000,
    defendants failed to pay the remaining balance.
    In   December   2013,   plaintiff     filed   a   complaint   against
    Powersports and Luu, alleging causes of action for book account
    (count one), breach of contract (count two), quantum meruit/unjust
    enrichment (count three), personal liability of Luu (count four),
    and fraud (count five).      In September 2015, plaintiff filed its
    1
    Luu and Nguyen are husband and wife. We use Nguyen's presumed
    maiden name to avoid confusion. We mean no disrespect in so doing.
    2                               A-0294-16T3
    first   amended   complaint,       naming   Scooterland      and    Nguyen,     and
    revising    and   adding    the    following       counts:        conversion      by
    Scooterland (count four), personal liability of Luu (count five),
    fraud (count six), and conversion by Luu and Nguyen (count seven).
    Plaintiff moved for partial summary judgment on counts one
    and two.    By order entered January 9, 2015, the court granted the
    motion and entered judgment in the amount of $32,629.                      Despite
    various orders entered by the court, relating to enforcement of
    the judgment, the full amount of the judgment remained unsatisfied.
    On    November   6,   2015,    three   days    prior    to    trial   on   the
    remaining claims, the parties entered into a written settlement
    agreement, providing as follows:
    1. The total amount of the settlement is $20,000.
    2. Defendants will make payments as follows:
    a)     $10,000 upon receipt of the closing
    documents which shall be a Release and a
    Stipulation of Dismissal
    b)     $5,000 to be paid on January 1, 2016.
    c)     $2,500 to be paid on April 1, 2016.
    d)     $2,500 to be paid on July, 1, 2016.
    3. All payments shall be made payable to Greg
    Riley Trust Account.
    4. Upon receipt, deposit, and after allowance of
    sufficient time to clear, [p]laintiff will
    provide [d]efendants with a Warrant in
    Satisfaction of the Judgment entered on
    January 9, 2015.
    5. In the event of a material default by the
    [d]efendants, [p]laintiff shall have the right
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    to amend the Judgment entered on January 9,
    2015, to include [Nguyen] as a judgment
    debtor.
    6. Defendants shall be in material default of the
    settlement if any payment is not received
    within ten (10) days of the due date.
    7. This settlement includes any and all claim
    [sic] against the [d]efendants.
    [(Emphasis added)].
    On    November     18,   2015,    plaintiff's         counsel   delivered    to
    defense counsel the closing documents referenced in paragraph 2(a)
    of the settlement agreement.             Contrary to the settlement terms,
    defendants     did     not    remit    payment      within     ten    days.       By
    correspondence       dated    December       14,   2015,    plaintiff's    counsel
    notified     defense    counsel       that    defendants      had    breached    the
    settlement agreement by failing to make the first payment.
    The following day, by correspondence dated December 15, 2015,
    plaintiff's counsel acknowledged receipt of a $10,000 check from
    Scooterland, and indicated the second payment of $5,000 was due
    on January 1, 2016.
    By correspondence dated January 26, 2016, plaintiff's counsel
    notified defense counsel that the second payment had not been
    made, and as such, defendants were in default, pursuant to the
    terms of the settlement agreement.             On or about February 5, 2016,
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    plaintiff's counsel deposited into his trust account a check from
    Scooterland in the amount of $5,000.
    Defendants failed to make the remaining two payments.                    On
    July 13, 2016, plaintiff filed a motion to amend the judgment to
    add Nguyen as a judgment debtor, pursuant to paragraph 5 of the
    settlement agreement.    Plaintiff sought to execute on assets owned
    jointly by Luu and Nguyen.
    On July 26, 2016, plaintiff's counsel received, and accepted,
    a check in the amount of $5,000 from Scooterland, representing the
    total amount due under the third and fourth payments.
    On August 12, 2016, the trial court entered an order denying
    plaintiff’s motion to amend the judgment.           The trial court did not
    issue findings of fact or an opinion.               However, following the
    filing of the instant appeal, the court issued a statement of
    reasons, pursuant to Rule 2:5-1(b), finding plaintiff by accepting
    payment   had   waived   its   rights      to    repudiate   the    settlement
    agreement.
    On appeal, plaintiff argues:           it did not waive its rights
    under the settlement agreement; the trial court failed to enforce
    the   settlement   agreement;    and       the   trial   court     rewrote   the
    settlement agreement to provide defendants with a better bargain.
    Having fully considered these contentions, we affirm.
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    A settlement agreement is subject to the ordinary principles
    of contract law.    Thompson v. City of Atlantic City, 
    190 N.J. 359
    ,
    374 (2007).     "Interpretation and construction of a contract is a
    matter of law for the court subject to de novo review." Fastenberg
    v. Prudential Ins. Co. of Am., 
    309 N.J. Super. 415
    , 420 (App. Div.
    1998).    "Accordingly, we pay no special deference to the trial
    court's interpretation and look at the contract with fresh eyes."
    Kieffer v. Best Buy, 
    205 N.J. 213
    , 223 (2011); see Manalapan
    Realty, L.P. v. Twp. Comm., 
    140 N.J. 366
    , 378 (1995) ("A trial
    court's interpretation of the law and the legal consequences that
    flow from established facts are not entitled to any special
    deference.").
    A party waives its right to sue for breach of contract where
    it continues performance under the contract, even after a breach
    has occurred.    See, e.g., Garden State Bldgs., L.P. v. First Fid.
    Bank, N.A., 
    305 N.J. Super. 510
    , 524 (App. Div. 1997), certif.
    denied,   
    153 N.J. 50
       (1998).   "Waiver   is   the    voluntary
    relinquishment of a known right."        Clarke v. Clarke ex rel.
    Costine, 
    359 N.J. Super. 562
    , 571 (App. Div. 2003).          It "must
    occur by a 'clear[,] unequivocal and decisive act.'"        Borough of
    Closter v. Abram Demaree Homestead, Inc., 
    365 N.J. Super. 338
    ,
    354, certif. denied, 
    179 N.J. 372
     (2004)(quoting W. Jersey Title
    & Guar. Co. v. Indus. Tr. Co., 
    27 N.J. 144
    , 152 (1958)).           "The
    6                           A-0294-16T3
    intent   to   waive       need   not   be   stated   expressly,   provided     the
    circumstances clearly show that the party knew of the right and
    then abandoned it, either by design or indifference."                    Knorr v.
    Smeal, 
    178 N.J. 169
    , 177 (2003).
    Waiver can also be "'found if the conduct of [an entity]
    after information of . . . breach of contract is such as to justify
    an   inference       of   affirmation       rather   than   rescission    of   the
    contract.'"      Iafelice ex rel. Wright v. Arpino, 
    319 N.J. Super. 581
    , 588 (App. Div. 1999)(quoting Bonnet v. Stewart, 
    68 N.J. 287
    ,
    294 (1975)).         In terms of waiver of rights or enforcement of
    rights, a party must elect which course it wishes to follow; it
    cannot pursue both.         Merchants Indem. Corp. v. Eggleston, 
    37 N.J. 114
    , 130-31 (1962).
    Guided by these principles, we find plaintiff's acceptance
    of the late payments constitutes a waiver of any claimed breach
    pursuant to paragraph 6 of the settlement agreement.               Rather than
    rejecting     each    untimely     payment,     plaintiff    accepted    payment,
    reminding defendants of the upcoming due dates for the next
    payments.     By warning defendants of their breach, more than once,
    and nonetheless accepting late payments after the breach had
    occurred each time, plaintiff voluntarily relinquished its rights
    under the settlement agreement "by a clear[,] unequivocal and
    decisive act." Abram, 
    supra,
     
    365 N.J. Super. at 354
    . In so doing,
    7                             A-0294-16T3
    plaintiff waived its rights to enforce the terms of the settlement
    agreement.    Arpino, 
    supra,
     
    319 N.J. Super. at 588
    .
    Because we are satisfied plaintiff waived its rights under
    the settlement agreement, plaintiff's contention that the court
    failed to enforce the agreement likewise fails.                  Plaintiff cannot
    waive its rights under the settlement agreement, by accepting late
    payments,    and    seek   to    enforce      the    settlement    agreement,     by
    attempting to amend the January 9, 2015 judgment.                       Merchants,
    supra, 
    37 N.J. at 130-31
    .
    Similarly, plaintiff's claim that, by denying its motion to
    amend the judgment the trial court rewrote the settlement agreement
    in defendants’ favor, lacks merit.                  Courts do not, and cannot,
    rewrite contracts in order to provide a better bargain than
    contained in their writing.             Christafano v. N.J. Mfg. Ins. Co.,
    
    361 N.J. Super. 228
    , 237 (App. Div. 2003).                 Rather, courts allow
    experienced commercial parties to negotiate for themselves, and
    "do not seek to 'introduce intolerable uncertainty into a carefully
    structured    contractual        relationship'        by   balancing    equities."
    Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr.
    Assocs., 
    182 N.J. 210
    , 230 (2005) (quoting Brick Plaza Inc. v.
    Humble Oil & Ref. Co., 
    218 N.J. Super. 101
    , 105 (App. Div. 1987)).
    Here,    the    trial      court   did    not     rewrite    the   settlement
    agreement.    Instead, the court interpreted the agreement under
    8                                 A-0294-16T3
    principles of contract law and waiver, correctly ruling plaintiff
    had waived its rights under the settlement agreement. Furthermore,
    the parties are commercial entities that bargained at arm's length,
    with the assistance of counsel.                  The parties agreed to the due
    date for each payment, and the definition of a material default.
    Plaintiff    waived      its    rights     to    enforce    the    material   default
    provision    of    the    settlement       agreement       by   accepting     untimely
    payments    that    were       not   in   conformance       with    the     settlement
    agreement.
    Moreover, there was no provision in the settlement agreement
    stating that acceptance of a late payment would not constitute a
    waiver of plaintiff's rights. Nor did plaintiff accept defendants'
    untimely payments under protest.                  As such, we have no basis to
    address the effectiveness of doing so.
    We    are    satisfied      the      trial    judge    appropriately       denied
    plaintiff's      motion    to    amend     the    judgment,       finding   plaintiff
    assented to the untimely payments, and defendant ultimately paid
    the entire amount due under the terms of the settlement agreement.
    Affirmed.
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