MING ZHANG VS. SONDRA MINUSKIN (L-3223-14, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-2702-17T2
MING ZHANG,
Plaintiff-Appellant,
v.
SONDRA MINUSKIN,
Defendant-Respondent.
__________________________
Submitted November 20, 2019 - Decided December 12, 2019
Before Judges Koblitz and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-3223-14.
B. David Jarashow, attorney for appellant.
Law Office of Michael A. D'Aquanni, LLC, attorneys
for respondent (Michael A. D'Aquanni, on the brief).
PER CURIAM
Plaintiff Ming Zhang appeals from a December 20, 2017 order granting
defendant Sondra Minuskin summary judgment dismissal of a complaint
sounding in breach of contract on a loan agreement and seeking replevin of an
iPad and earrings plaintiff gave defendant. Plaintiff's appeal only addresses the
decision on the loan, which we affirm.
The parties met through an online dating website and began dating in June
2013. During the relationship, plaintiff paid for numerous items for defendant,
including a pair of diamond earrings and an iPad he purchased in July 2013.
In July 2013, plaintiff also wrote a check for $65,000 to help defendant
pay off her student loans. In return, he contemporaneously prepared a
handwritten promissory note, which defendant signed, stating: "I [defendant] am
[borrowing] $65,000.00 from [plaintiff]. This is an unsecured loan used for
paying Sallie Mae student loans. The amount will be paid back by [July 21,
2033]."
In October 2013, the parties began residing together until defendant
moved out in August 2014. Shortly thereafter, plaintiff sent text messages to
defendant's sister, mother, and son, demanding defendant return the $65,000.
Plaintiff also contacted defendant at work with similar demands. As a result,
defendant obtained a temporary restraining order. A day later, she sent an email
to plaintiff stating: "Although you gave the money to me as a gift, the situation
between us has changed and I will pay you back the money."
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Defendant's domestic violence complaint was dismissed following a trial.
In addressing defendant's need for a final restraining order, the Family Part
judge discussed the fact that the parties had a financial relationship. However,
the judge determined a restraining order was unnecessary because the parties
"need not have any interaction with one another any longer." Notably, the judge
also stated she was not adjudicating the validity of the alleged contract to repay
the $65,000. She stated: "this forum is not to be used to give either party an
advantage in a civil lawsuit involving a claim that someone may or may not owe
$65,000."
In 2017, plaintiff filed a Law Division complaint, in response to which
defendant moved for its dismissal by summary judgment. She contended the
iPad, earrings, and $65,000 were gifts. In the alternative, she contended if the
$65,000 were a loan, plaintiff's claim for breach was not ripe because the loan
was not payable until 2033.
The motion judge concluded the $65,000 was not a gift, but instead a loan
because plaintiff provided a promissory note. However, the judge found there
was no breach of the promissory note because it
was never modified in a way that would require an
immediate payment of the $65,000. . . .
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Further, no terms were set forth that would alter
the payment schedule. . . . [Defendant's] email only
states that she intended to pay back the $65,000. . . .
[I]t does not say that she will pay it back immediately
or in any particular style. This coupled with the fact
that the . . . promissory note require[d] payment [by]
July 21st, 2033[,] convinces the [c]ourt that this matter
is not ripe.
A lender cannot claim damages arising out of a
breach of contract when the contract has not yet been
breached.
The motion judge further held
because there is no evidence of modification and the
performance date is July 21st, 2033, the matter is not
ripe.
....
Just to be clear, though, this does not leave . . .
plaintiff without any remedy. When the time comes for
the $65,000 to be paid and it's not paid, obviously, . . .
plaintiff could then bring a claim for breach of contract.
We review an order granting summary judgment de novo. See Graziano
v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999). We apply the same
standard as the trial court, consider all the evidence submitted in the "light most
favorable to the non-moving party," and determine if the moving party is entitled
to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995). The court may not weigh the evidence and determine
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the truth of the matter. Ibid. The court's role is to determine whether there is a
genuine issue for trial. Ibid.On appeal, plaintiff argues summary judgment was improper because
defendant's acknowledgement of the obligation to pay the debt in an email, a
statement she made to police, and the Family Part judge's findings proved the
repayment due date under the promissory note was modified. He asserts
defendant's attempt to obtain a restraining order against him proves she "was
trying to use the judicial system to get a leg up on [him] in his efforts to recover
the $65,000." He argues a jury should consider these factual allegations.
A contract arises from an offer and acceptance that must be sufficiently
definite so the performance by each party can be ascertained with reasonable
certainty. Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992). The parties
must also manifest an intention to be bound by the essential terms of the
agreement. Ibid. Whether an offer capable of acceptance has been made
depends upon "what meaning the words should have conveyed to a reasonable
person cognizant of the relationship between the parties and all of the antecedent
and surrounding facts and circumstances." Esslinger's, Inc. v. Alachnowicz, 68
N.J. Super. 339, 344 (App. Div. 1961). A modification to an existing contract
"can be proved by an explicit agreement to modify, or . . . by the actions and
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conduct of the parties, so long as the intention to modify is mutual and clear."
Cty. of Morris v. Fauver, 153 N.J. 80, 99-100 (1998).
Here, the record contains no credible evidence of a contract whereby
defendant agreed to pay the $65,000 immediately, or modification of the
existing contract to accelerate the payment due merely because defendant stated
she would pay plaintiff. No indicia of a mutual agreement to modify the original
due date for the $65,000 sum, let alone an indication of precisely what the new
due date was, exists in the record.
Similarly, we reject plaintiff's argument that the facts and findings from
the domestic violence matter were dispositive of the summary judgment motion.
As the motion judge noted, the Family Part judge expressly stated the domestic
violence proceedings were not determinative of the parties' rights in this contract
dispute. As a result, the domestic violence matter was not res judicata, because
there was no final determination of the merits of the contract dispute. See
Velasquez v. Franz, 123 N.J. 498, 505 (1991). Nor was it the law of the case
because the contract dispute was not litigated before the Family Part judge only
to be re-litigated in the Law Division. In re Estate of Stockdale, 196 N.J. 275,
311 (2008).
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For these reasons, summary judgment in defendant's favor was properly
granted. Plaintiff's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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