RIVERMOUNT DEVELOPMENT LLC VS. RICHARD B. LIVINGSTON, ESQ. (L-1215-14, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3736-16T2
RIVERMOUNT DEVELOPMENT
LLC,
Plaintiff-Appellant,
v.
RICHARD B. LIVINGSTON, ESQ.,
and LAW OFFICES OF RICHARD
B. LIVINGSTON,
Defendants,
and
BRIAN D. SCHOTTENHEIMER and
GEMMI A. SCHOTTENHEIMER,
Defendants-Respondents.
_______________________________
Argued October 4, 2018 – Decided August 14, 2019
Before Judges O'Connor and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-1215-14.
Gary D. Grant argued the cause for appellant (Grant
Law Group, LLC, attorneys; Gary D. Grant and Janet
S. Del Gaizo, on the brief).
Eric B. Levin argued the cause for respondents
(Lindabury, McCormick, Estabrook and Cooper, PC,
attorneys; Eric B. Levine and Sergio D. Simões, of
counsel and on the brief).
PER CURIAM
This dispute arises from a contract to purchase real estate. Plaintiff
Rivermount Development, LLC (Rivermount) appeals from three orders of the
Law Division granting summary judgment to defendants Brian D.
Schottenheimer and Gemmi A. Schottenheimer and the February 15, 2017 order
denying plaintiff's motion for reconsideration. We affirm.
I.
The following facts were derived from the record and viewed "in the light
most favorable to the non-moving party." Globe Motor Co. v. Igdalev, 225 N.J.
469, 479 (2016) (citing R. 4:46-2(c)). The Schottenheimers decided to move to
New Jersey because Brian's1 employer relocated to the State. In February 2008,
they executed a contract for the purchase of a single-family home being
constructed by Rivermount, a sophisticated real estate developer, in Morris
1
Because defendants share a last name, we use their first names for clarity.
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2
County. The contract contained an unequivocal clause making the
Schottenheimers' purchase of the home contingent on the sale of their residence
in New York. As consideration for the home sale contingency clause, the
Schottenheimers agreed to pay for all modifications and upgrades Rivermount
made to the home at their request and to forfeit those payments in the event they
terminated the contract.
The contract also specified a closing date of June 1, 2008. The
Schottenheimers negotiated that date based on Brian's need to be in New Jersey
at that time for his job. In addition, the couple wanted sufficient time to settle
into their new home before the start of the new academic year.
The record contains undisputed evidence that the Schottenheimers listed
their New York home for sale. They hired a real estate broker to market the
property. The broker arranged for several open houses. Having not sold the
home, the Schottenheimers reduced the listing price twice. As of May 19, 2008,
the New York property had not sold. As a result, the Schottenheimers exercised
their right to terminate the contract under the home sale contingency clause and
demanded a return of their deposit. They acknowledged they forfeited $16,000
they paid for customizations Rivermount made to the home at their request.
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Although the Schottenheimers exercised the home sale contingency clause
twelve days before the scheduled closing date, the record demonstrates that
Rivermount would not have been ready to close title on June 1, 2008.
Rivermount had not yet completed construction of the home, secured a
certificate of occupancy, or obtained a home warranty. After receiving the
Schottenheimers' letter terminating the contract, Rivermount's counsel stated in
writing to the Schottenheimers' counsel that Rivermount did not expect the
house to be complete until mid-July, and inquired into whether they would be
interested in extending the closing date in order to have more time to sell the
New York home. The Schottenheimers declined that offer. In addition, on or
about June 1, 2008, two real estate investors to whom Rivermount owed
substantial sums of money filed a lis pendens on the property.
On May 23, 2008, the Schottenheimers visited another property listed for
sale in Morris County. On July 17, 2008, they purchased that home, paying
more for that property then they had agreed to pay for the Rivermount house.
The purchase contract did not contain a home sale contingency clause. Brian's
employer provided significant financial assistance in purchasing the home. This
allowed the Schottenheimers to continue to pay the mortgage on their New York
property until it was sold nearly a year later.
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On June 16, 2009, Rivermount sold the property for less than the purchase
price in the Schottenheimer contract. On May 13, 2014, almost six years after
the Schottenheimers exercised their rights under the home sale contingency
clause, Rivermount filed a complaint against them and its prior counsel in the
Law Division. Rivermount alleged that its prior counsel was instructed to
remove the home sale contingency clause from the contract but failed to do so.
In addition, Rivermount alleged the Schottenheimers waived the home sale
contingency clause in conversations with Rivermount's counsel, real estate
brokers, and principals of Rivermount after execution of the contract , and that
Brian made misrepresentations to a principal of Rivermount when he stated that
he was unconcerned about the sale of the New York property and that his
employer would provide any financial assistance needed to facilitate the
Schottenheimers' move to New Jersey. Rivermount alleged professional
malpractice claims against its former counsel, and alleged that the
Schottenheimers violated the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1
to -210, and breached the sales contract. Rivermount also sought relief from the
Schottenheimers under quantum meruit.
On February 20, 2015, the trial court entered an order dismissing the
allegations against the Schottenheimers and granting Rivermount leave to file
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an amended complaint. On March 3, 2015, Rivermount filed an amended
complaint reiterating the factual allegations in the original complaint. The
amended complaint restated its allegations of professional malpractice against
its prior counsel. In addition, Rivermount alleged the Schottenheimers breached
the implied covenant of good faith and fair dealing in the sales contract,
committed common law fraud, and are subject to equitable estoppel.
Rivermount alleged Brian falsely stated he was invoking the home sale
contingency clause because he could not afford to pay two mortgages, but was
planning to purchase another house without first selling his New York property.
On November 3, 2016, the court entered an order granting summary
judgment to the Schottenheimers on all claims in the amended complaint. The
court issued an oral opinion relying on the unequivocal language of the home
sale contingency clause. As the court explained,
I don't think it's up to the buyers to provide any reason
why they couldn't take title.
....
And I agree, there's nothing to show that the defendants
Schottenheimer were able to sell the [New York]
property . . . . And there's no proof to show that their
inability to sell it was in any way due to any type of bad
faith on their part.
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I think the long and short of it is that there was ample
reason for the buyers to terminate and they, for that
reason, exercised their right to terminate.
....
Anything they may have said after they did exercise
that right really has no bearing on the case whatsoever.
I think neither does it have any bearing on whether they
did a few days later buy a different house, no matter
what the price.
But certainly any representations or statements made
after termination didn't amount to any type of fraud or
common law fraud which could have, which any way
affected their rights which had already . . . previously
been negotiated, and previously been exercised.
Nor can I see any bad faith in what simply was their
exercise of a contractual right that they had. So that
there would not be any violation of any good faith and
fair dealing.
And I certainly, because of this, can't see any reason for
equitable estoppel so that I will grant the motion in
favor of the Schottenheimers.
On November 17, 2016, the court entered an amended order granting summary
judgment in favor of the Schottenheimers and noting that all claims against them
were dismissed with prejudice.
On February 15, 2017, the court entered an order denying Rivermount's
motion for reconsideration. The court rejected the argument that it misapplied
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the holding in Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420 (1997),
when deciding the summary judgment motion. The court explained:
In [my] reading [of the] Sons of Thunder case it did
point out that where a contractual right to terminate is
expressed and unambiguous then the motive of the
terminating party is irrelevant. And, certainly, the
home sale clause in this particular contract, which was
actually an added on rider, was, I think as clear and as
unambiguous as you can be. It gave the
Schottenheimers a right to terminate if they did fail to
sell the [New York] property. And when it was
terminated they hadn't been able to sell it, plain and
simply [sic].
So that any of their other motives really are irrelevant.
I certainly don't find that my [grant] of the summary
judgment was at all palpably unreasonable or incorrect.
So I will deny the motion.
Rivermount thereafter stipulated to the dismissal of its claims against its prior
attorney. This appeal followed. 2
2
The Schottenheimers argue that Rivermount's appeal should be limited to the
February 15, 2017 order because that is the only order listed in its notice of
appeal. Normally, we do not consider judgments or orders not identified in the
notice of appeal. See R. 2:5-1(e)(3)(i) (stating that a notice of appeal "shall
designate the judgment, decision, action or rule, or part thereof appealed from");
Fusco v. Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div. 2002) (stating
that appellate review pertains only to judgments or orders specified in the notice
of appeal). However, Rivermount's accompanying case information statement
and an attachment thereto identifies the February 20, 2015, November 3, 2016
and November 17, 2016 orders as being appealed. We will, therefore, consider
its appeal from those orders. There is no merit to the Schottenheimers' argument
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II.
We review the trial court's decision granting summary judgment de novo,
using "the same standard that governs trial courts in reviewing summary
judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.
162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant
summary judgment when "the pleadings, depositions, answers to interrogatories
and admissions on file, together with the 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." "Thus, the movant must
show that there does not exist a 'genuine issue' as to a material fact and not
simply one 'of an insubstantial nature'; a non-movant will be unsuccessful
'merely by pointing to any fact in dispute.'" Prudential, 307 N.J. Super. at 167
(quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 529-30 (1995)). Our
review is "based on our consideration of the evidence in the light most favorable
to the parties opposing summary judgment." Brill, 142 N.J. at 523-24.
After carefully reviewing Rivermount's arguments in light of the record
and applicable legal principles, we affirm the November 3, 2016 and November
that it is improper to appeal four orders in one appeal. To the contrary, an
appellant may not file separate notices of appeal for each order for which review
is sought. In re Unanue, 311 N.J. Super. 589, 598 (App. Div. 1998).
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17, 2016 orders granting summary judgment to the Schottenheimers, for the
reasons stated by the trial court in its oral opinion. We add these comments.
"[E]very contract in New Jersey contains an implied covenant of good
faith and fair dealing." Sons of Thunder, 148 N.J. at 420. "The party claiming
a breach of the covenant of good faith and fair dealing 'must provide evidence
sufficient to support a conclusion that the party alleged to have acted in bad faith
has engaged in some conduct that denied the benefit of the bargain originally
intended by the parties.'" Brunswick Hills Racquet Club, Inc. v. Route 18
Shopping Ctr. Assocs., 182 N.J. 210, 225 (2005) (quoting 23 Willison on
Contracts § 63:22, at 513-14 (footnotes omitted)). However, "the implied
covenant of good faith and fair dealing cannot override an express termination
clause[,]" Sons of Thunder, 148 N.J. at 419, and "where the contractual right to
terminate is express and unambiguous, the motive of the terminating party is
irrelevant." Id. at 423.
The record clearly establishes that Rivermount agreed to a contract with
the Schottenheimers that contained an unequivocal house sale contingency
clause. The clause does not predicate the Schottenheimers' right to terminate
the contract on a financial inability to purchase the Rivermount house. It d oes
not obligate the Schottenheimers to seek financial assistance from Brian's
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employer to purchase the home. The Schottenheimers do not have a contractual
obligation to refrain from purchasing a different home after termination of the
contract. The Schottenheimers had a contractual right to terminate the contract
if they were unable to sell their home after making a good faith effort to do so.
Rivermount does not dispute the trial court's finding that the Schottenheimers
made a good faith effort to sell their home before exercising their rights under
clause.
It belies credulity for a sophisticated real estate developer to argue it
believed the home sale contingency clause had no force because Brian allegedly
stated either before or after execution of the contract that he was unconcerned
about the sale of the New York home and could buy the Rivermount property
with the assistance of his employer if necessary. A claim that the developer
relied to its detriment on oral statements by Brian after execution of the contract
that were impliedly contrary to the express terms of the home sales contingency
clause is similarly incredible.
With respect to the February 15, 2017 order, Rule 4:49-2 provides:
Except as otherwise provided by R. 1:13-1 (clerical
errors) a motion for rehearing or reconsideration
seeking to alter or amend a judgment or order shall . . .
state with specificity the basis on which it is made,
including a statement of the matters or controlling
decisions which counsel believes the court has
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overlooked or as to which it has erred, and shall have
annexed thereto a copy of the judgment or order sought
to be reconsidered and a copy of the court’s
corresponding written opinion, if any.
"A motion for reconsideration . . . is a matter left to the trial court's sound
discretion." Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Guido v. Duane
Morris, LLP, 202 N.J. 79, 87 (2010)); see also Cummings v. Bahr, 295 N.J.
Super. 374, 389 (App. Div. 1996). A party may move for reconsideration of a
court's decision pursuant to Rule 4:49-2, on the grounds that (1) the court based
its decision on "a palpably incorrect or irrational basis," (2) the court either
failed to consider or "appreciate the significance of probative, competent
evidence," or (3) the moving party is presenting "new or additional information
. . . which it could not have provided on the first application." Id. at 384 (quoting
D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).
The moving party must "initially demonstrate that the [c]ourt acted in an
arbitrary, capricious, or unreasonable manner, before the [c]ourt should engage
in the actual reconsideration process." D'Atria, 242 N.J. Super. at 401. A
motion for reconsideration is not an opportunity to "expand the record and
reargue a motion. [It] is designed to seek review of an order based on the
evidence before the court on the initial motion, . . . not to serve as a vehicle to
introduce new evidence in order to cure an inadequacy in the motion record.''
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Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App.
Div. 2008).
Our review of the record and applicable legal principles leads us to affirm
the February 15, 2017 order denying reconsideration for the reasons stated by
the trial court in its oral opinion. To the extent we have not specifically
addressed any of Rivermount's remaining contentions, we conclude they lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).3
Affirmed.
3
Rivermount's brief does not address the February 20, 2015 order, although that
order is listed in the attachment to its case information statement. We consider
its appeal from that order waived. "[A]n issue not briefed is deemed waived."
Pressler and Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019);
Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J. Super. 384, 393 (App.
Div. 2012) (deeming a contention waived when the party failed to include any
arguments supporting the contention in its brief).
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