TOWNE REALTY GROUP, LLC VS. NRK OF NEW JERSEY, INC. (L-2529-16, UNION 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NOT FOR PUBLICATION WITHOUT THE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-5204-18T2
TOWNE REALTY GROUP,
LLC, MARK BIGOS, KAREN
EASTMAN BIGOS, and
DANIEL CANNIZZO,
Plaintiffs-Appellants,
v.
NRK OF NEW JERSEY, INC.,
CHARLES OPPLER, RANDY
LYN KETIVE, and SOTHEBY'S
INTERNATIONAL REALTY,
Defendants-Respondents.
_____________________________
Argued November 17, 2020 – Decided January 5, 2021
Before Judges Yannotti, Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-2529-16.
Mark A. Berman argued the cause for appellants
(Hartmann, Doherty, Rosa, Berman & Bulbulia, LLC,
attorneys; Mark A. Berman and Kelly A. Zampino, on
the briefs).
Michael R. Scully argued the cause for respondents
(Michael R. Scully, LLC, attorneys; Michael R. Scully
and Maurice Napolitano, on the brief).
PER CURIAM
Plaintiffs appeal from the order of judgment dated June 17, 2019, and
certain orders previously entered in this case. Plaintiffs contend the trial judge
erred by dismissing their claims at trial pursuant to Rule 4:37-2(d). They also
contend the trial court erred by limiting the scope of discovery. We affirm.
I.
This appeal arises from the following facts. In 2016, Towne Realty
Group, LLC (TRG) was a real estate brokerage business with an office in Short
Hills. Mark and Karen Bigos (the Bigoses) and Daniel Cannizzo (Cannizzo)
were members of TRG (collectively, the TRG Members). The Bigoses were
licensed real estate brokers, and Cannizzo had a real estate salesperson's license.
In 2016, NRK of New Jersey, Inc. (NRK), a franchisee of Sotheby's
International Realty (Sotheby's), also was a licensed real estate brokerage
business. NRK had thirteen offices, including an office in Short Hills. Charles
Oppler was the Chief Operating Officer and a broker/owner of NRK, and he was
apparently well known in the New Jersey real estate business.
A-5204-18T2
2
In July 2016, plaintiffs entered into an Asset Purchase Agreement (APA)
with NRK.1 Plaintiffs executed the APA on July 7, 2016. NRK executed the
agreement the following day.
In the APA, plaintiffs agreed to sell, and NRK agreed to purchase,
substantially all of TRG's operating assets including its inventory of contracts
for the sale and purchase of real or personal property, leases of real property ,
executed listing agreements, sales records, customer lists, interests in social
media sites, furniture, supplies, and equipment. To acquire these assets, NRK
agreed to pay TRG and the TRG Members an amount equal to a minimum of
$1,700,000.
The APA provided that at the closing, NRK would deliver a cash payment
of $925,000 and a promissory note for $775,000 according to certain terms and
conditions. The APA further provided that after the closing date, NRK would
pay TRG an additional purchase price, which included amounts NRK received
in connection with certain contracts and agreements between TRG and third
parties that were "fully executed" prior to the closing date. The closing was to
take place on July 26, 2016.
1
We note that in the APA, the TRG Members are referred to as the TRG
Partners.
A-5204-18T2
3
The APA also stated that the TRG Members would remain as independent
contractors of NRK for a two-year period , commencing on the closing date.
TRG and the TRG Members agreed "to exercise reasonable efforts to cause" the
sales and broker associates who were then affiliated with TRG to become
independent contractors of NRK.
The TRG Members additionally agreed to "personally address" the current
TRG associates at a meeting or meetings to announce the APA and recommend
that they become independent contractors with NRK. The APA stated, however,
that nothing in the agreement "shall be construed to obligate [NRK] to retain,
after the [c]losing, any current" sales or broker associate "currently associated
or affiliated with" TRG.
The APA also stated that Barbara Birkitt (Birkitt) was TRG's broker of
record and she would assist in the transition. The parties agreed they would
communicate with Birkitt and make "reasonable efforts to cause Birkitt to
become the manager/designated realtor" of NRK's Short Hills office.
The APA further provided that NRK's obligation to proceed with the
closing "shall be subject to the fulfillment of the obligations [therein] contained
. . . and the fulfillment of the conditions set forth below . . . ." One of the
conditions precedent, which was set forth in Section 11.07, stated that:
A-5204-18T2
4
[NRK] shall be satisfied, in its sole discretion, that the
real estate licenses of the sales associates and broker
associates currently associated or affiliated with [TRG]
will be transferred to [NRK] on substantially the same
or similar terms as currently exists between the sales
associates or broker associates currently associated or
affiliated with [TRG].
At the time the parties signed the APA, TRG had thirty-seven licensed
sales associates, which included the three TRP Principals and other persons who
held real estate licenses but were not involved in the real estate business.
According to plaintiffs, TRG was a stronger performer than NRK in the Short
Hills real estate market.
Plaintiffs assert that the purpose of the APA was to strengthen NRK's
presence in Short Hills by having the associates at TRG transfer to NRK, along
with their listing agreements and books of business. NRK contends it was its
understanding that the TRG associates would transfer to NRK as a group.
On July 12, 2016, the parties announced the proposed transaction to TRG's
associates. Plaintiffs claim that thereafter, Oppler made little to no effort to
cause TRG's associates to become affiliated with NRK. They allege Oppler
alienated the TRG associates by announcing NRK had not decided who would
manage the Short Hills office, even though the APA provided that NRK would
make "reasonable efforts to cause" Birkitt to take that position.
A-5204-18T2
5
It appears that, as the scheduled closing date approached, none of the TRG
associates had agreed to join NRK. Many took positions with competing firms.
According to plaintiffs, NRK refused to commit to the agreed upon closing date
or any other date. On July 25, 2016, plaintiffs demanded that NRK close
immediately, asserting that time was of the essence.
On that same day, NRK announced Jacqueline Elliott would be manager
of NRK's Short Hills office. On July 26, 2016, Oppler told Cannizzo that NRK
did not intend to go forward with the APA, and he asked plaintiffs to drop the
purchase price or he would cancel the agreement. Plaintiffs refused to reduce
the agreed-upon price.
On August 2, 2016, plaintiffs filed a complaint in the Law Division,
naming NRK, Oppler, Randy Lyn Ketive (Ketive), and Sotheby's as defendants.
Among other things, plaintiffs alleged they fulfilled their obligations under the
APA and defendants did not. Plaintiffs claimed defendants failed to promote
the transaction, did not make timely offers to TRG's associates, and made false
and misleading statements that induced them to enter the agreement.
Plaintiffs asserted claims of breach of contract, breach of the covenant of
good faith and fair dealing, unfair competition, fraudulent inducement, tortious
interference with prospective economic advantage and contractual relationships.
A-5204-18T2
6
They sought compensatory and punitive damages, equitable relief, interest, costs
of suit, and attorney's fees.
On August 3, 2016, NRK notified TRG that it was cancelling the APA due
to TRG's failure to fulfill the conditions precedent under the agreement,
including Section 11.07. Defendants thereafter filed a motion to dismiss the
complaint.
On October 28, 2016, Judge Thomas J. Walsh entered an order dismissing
the claims against Ketive and Sotheby's. Judge Walsh also dismissed plaintiffs'
demands for equitable relief and punitive damages claims against NRK and
Oppler but denied the motion to dismiss the other claims against NRK and
Oppler.
In November 2016, NRK and Oppler filed an answer to the complaint,
along with counterclaims against plaintiffs for breach of contract, breach of the
covenant of good faith and fair dealing, and fraudulent inducement. On
November 17, 2016, Judge Walsh filed an order stating that the previously
dismissed claims were dismissed without prejudice.
On December 9, 2016, Judge Walsh entered an order that, among other
things, limited discovery to the period from January 1, 2016, to August 3, 2016.
The order also precluded discovery on any acquisition, merger or consolidation
A-5204-18T2
7
involving defendants to which plaintiffs were not a party. Plaintiffs later filed
a motion for reconsideration of the December 9, 2016 order. On November 3,
2017, Judge Kenneth J. Grispin denied the motion.
After the close of discovery, NRK and Oppler filed a motion for summary
judgment on the remaining claims against them. Plaintiffs opposed the motion
and filed a cross-motion seeking summary judgment on NRK and Oppler's
counterclaims. On July 10, 2018, Judge Grispin filed an opinion in which he
concluded that NRK and Oppler's motion should be granted in part and denied
in part, and plaintiffs' cross-motion should be denied. The judge memorialized
his decision in an order filed with the opinion.
The July 10, 2018 order granted Oppler's motion for summary judgment
on the claims for breach of contract and the covenant of good faith and fair
dealing and granted NRK and Oppler's motion for summary judgment on the
fraudulent inducement claims. The order denied the motion for summary
judgment on the claim against Oppler for unfair competition and the claims
against NRK for breach of contract, breach of the implied covenant of good faith
and fair dealing, and unfair competition. In addition, the order denied plaintiffs'
cross-motion for summary judgment.
A-5204-18T2
8
Thereafter, NRK and Oppler filed a motion to bar the report and opinions
of plaintiffs' liability expert, Stephen H. Murray (Murray). On September 21,
2018, Judge Alan G. Lesnewich filed an order granting the motion. The judge
stated that Murray's report was an inadmissible "net opinion," which was not
supported by any industry standard and would encroach upon the province of
the jury. Plaintiffs filed a motion for leave to serve an "amended" expert report.
Judge Mark P. Ciarrocca entered an order dated October 12, 2018, denying the
motion.
The remaining claims against NRK and Oppler were tried before a jury,
with Judge Lesnewich presiding. On the first day of trial, plaintiffs moved for
reconsideration of the court's December 9, 2016 protective order. Judge
Lesnewich denied the motion and ruled that all evidence introduced at trial must
conform to the parameters of the protective order.
At trial, plaintiffs presented testimony from Cannizzo, the Bigoses,
Birkitt, Elliott, and several individuals who were TRG associates at the time of
the NRK's anticipated acquisition of TRG. Plaintiffs also introduced excerpts
from interrogatory answers and deposition testimony, following which plaintiffs
rested.
A-5204-18T2
9
NRK and Oppler then moved for involuntary dismissal of the claims
pursuant to Rule 4:37-2(b). Judge Lesnewich heard oral argument and granted
the motion as to the claims for breach of the covenant of good faith and fair
dealing and unfair competition but denied the motion as to the claim for breach
of contract. The judge found that based on the evidence presented, no reasonable
jury could determine that plaintiffs had established the elements of the dismissed
claims.
Oppler was defendants' only witness. After he completed his testimony,
NRK and Oppler moved pursuant to Rule 4:37-2(b) for involuntary dismissal of
the breach of contract claim. The judge heard oral argument, reserved his
decision, and the following day granted the motion.
The judge found that Section 11.07 gave NRK the right to terminate the
agreement if, in its sole discretion, it determined that an insufficient number of
TRG associates had agreed to become independent contractors with NRK and
transfer their licenses to NRK. The judge found no reasonable jury could reach
a different interpretation of the agreement.
Judge Lesnewich filed an order of judgment dated June 17, 2019, which
dismissed plaintiffs' breach of contract claim with prejudice. The order noted
A-5204-18T2
10
that all other claims and counterclaims had been dismissed by court order or by
defendants. This appeal followed.
On appeal, plaintiffs argue: (1) the trial judge erred by granting the motion
for involuntary dismissal of the claims at trial; (2) the motion judge abused his
discretion by entering the December 9, 2016 protective order and limiting their
cross-examination at trial in accordance with that order; and (3) the claims for
breach of contract, breach of the covenant of good faith and fair dealing, and
unfair competition should be remanded for a new trial before a new judge.
We note that in their notice of appeal, plaintiffs state they are appealing
from various orders including the order of September 21, 2018, which barred
their expert's report and testimony, and the order of October 28, 2016, which
dismissed the claims against Ketive and Sotheby's.
However, in their briefs, plaintiffs present no arguments regarding the
orders of September 21, 2018, and October 28, 2016. Therefore, plaintiffs are
deemed to have waived any argument for reversal of these orders. See Gormley
v. Wood-El, 218 N.J. 72, 95 n.8 (2014); Zavodnick v. Leven, 340 N.J. Super.
94, 103 (App. Div. 2001). 2
2
Since plaintiffs' arguments on appeal are addressed to the claims against NRK
and Oppler, any further reference to defendants in this opinion is a reference to
these two parties.
A-5204-18T2
11
II.
As noted, in this appeal, plaintiffs contend the trial judge erred by granting
defendants' motion for involuntary dismissal at trial of their claims pursuant to
Rule 4:37-2(b). Plaintiffs assert that they presented sufficient evidence to have
the jury consider these claims.
Rule 4:37-2(b) provides that at trial, after the plaintiff has presented all
evidence on matters other than damages, the defendant may seek the involuntary
dismissal "of the action or any claim on the ground that upon the facts and upon
the law the plaintiff has shown no right to relief." The Rule further provides
that the trial judge shall deny the motion "if the evidence, together with the
legitimate inferences therefrom, could sustain a judgment in plaintiff's favor."
Ibid."The judicial response to a motion for involuntary dismissal at trial 'is
quite a mechanical one.'" Perez v. Professionally Green, LLC, 215 N.J. 388,
407 (2013) (quoting Dolson v. Anastasia, 55 N.J. 2, 5 (1969)). The judge should
deny the motion "if, accepting as true all the evidence which supports the
position of the party defending against the motion and according [that party] the
benefit of all inferences which can reasonably and legitimately be deduced
A-5204-18T2
12
therefrom, reasonable minds could differ . . . ." Smith v. Millville Rescue Squad,
225 N.J. 373, 397 (2016) (quoting Verdicchio v. Ricci, 179 N.J. 1, 30 (2004)).
Furthermore, the motion for involuntary dismissal should only "be granted
where no rational juror could conclude that the plaintiff marshaled sufficient
evidence to satisfy each prima facie element of a cause of action." Ibid. (quoting
Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008)). When
reviewing a decision on a motion for involuntary dismissal, we apply the same
standard that governs the trial court. Ibid. (citing ADS Assocs. Grp. v. Oritani
Sav. Bank, 219 N.J. 496, 511 (2014); Frugis v. Bracigliano, 177 N.J. 250, 269
(2003)).
A. Claimed Breach of the Covenant of Good Faith and Fair Dealing.
Every party to an agreement "is bound by a duty of good faith and fair
dealing in both the performance and enforcement of the contract." Brunswick
Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 224
(2005) (citing Wilson v. Amerada Hess Corp., 168 N.J. 236, 241, 244 (2001)).
"Good faith is a concept that defies precise definition." Ibid. However, "[g]ood
faith conduct" is generally considered to be "conduct that does not 'violate
community standards of decency, fairness or reasonableness.'" Ibid. (quoting
A-5204-18T2
13
Wilson, 168 N.J. at 245; Restatement (Second) of Contracts, § 205 cmt. a (Am.
Law Inst. 1981)).
"Good faith performance or enforcement of a contract
emphasizes faithfulness to an agreed common purpose
and consistency with the justified expectations of the
other party." Ibid. The covenant of good faith and fair
dealing calls for parties to a contract to refrain from
doing "anything which will have the effect of
destroying or injuring the right of the other party to
receive' the benefits of the contract."
[Id. at 224-25 (quoting Palisades Props., Inc. v.
Brunetti, 44 N.J. 117, 130 (1965)).]
"Proof of 'bad motive or intention' is vital to an action for breach of the
covenant." Id. at 225 (quoting Wilson, 168 N.J. at 251). "The party claiming
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.'" Ibid. (quoting 23 Williston on Contracts § 63:22 (Lord
ed. 2002)).
Here, Judge Lesnewich found that upon consideration of the evidence
presented by plaintiffs, and giving plaintiffs the benefit of all favorable
inferences, no reasonable jury could conclude that defendants had acted in bad
faith, with ill motive, or without any legitimate purpose to destroy plaintiffs'
A-5204-18T2
14
reasonable expectations under the APA. Plaintiffs argue, however, that the
judge erred by refusing to allow the jury to consider this claim.
Plaintiffs assert they presented evidence which established that after the
parties announced the APA, Oppler did not take sufficient steps to cause TRG's
associates to become affiliated with NRK. Plaintiffs contend Oppler failed to:
meet promptly with the TRG associates; make timely offers to these associates,
promptly conduct a tour of NRK's Short Hills offices; provide TRG's associates
with information about resources that would be made available to them at NRK;
or make TRG agents "feel wanted" by NRK.
Plaintiffs further contend their evidence showed that Oppler alienated the
TRG associates and he hired Elliott to manage the Short Hills office, "after
wooing her for months in secret," even though the APA indicated Birkitt would
have that position. According to plaintiffs, NRK cancelled the agreement
because an insufficient number of TRG's existing associates had not agreed to
join NRK. They contend defendants' actions were motivated by a desire to avoid
payment of the $1.7 million contract price and destroy TRG's business.
We are convinced, however, the record supports the judge's finding that,
even viewing the evidence in a light favorable to plaintiffs, a reasonable jury
could not find that plaintiffs had established the essential elements of a claim
A-5204-18T2
15
for breach of the covenant of good faith and fair dealing. As the judge found,
plaintiffs did not present sufficient evidence that would have allowed a
reasonable jury to conclude defendants had acted in bad faith, with ill will, and
without a legitimate purpose to deny plaintiffs their reasonable expectations
under the APA.
As defendants note, a key element of the APA, and the principal reason
why NRK agreed to pay plaintiffs $1.7 million to acquire TRG and substantially
all of its assets, was the expectation that the TRP Members and its other TRP
licensed associates would become affiliated with NRK. Plaintiffs could not
compel the TRP associates to transfer to NRK. Thus, the APA provided the
parties would make "reasonable efforts" to have the TRP associates become
sales and broker associates with NRK.
Plaintiffs claim defendants failed to take timely and effective steps to have
TRP's associates join NRK. At trial, Stephanie Mallios, who was one of TRG's
more productive associates, testified that Oppler's efforts to sign the TRP
associates were "disappointing." She said that she thought Oppler was either
"distracted . . . not paying attention, . . . not really interested, or not informed. "
She stated she did not "feel confident . . . in the way he was running the
business."
A-5204-18T2
16
Another TRG associate, Wendy Drucker, testified that she went to meet
with Oppler thinking she would join NRK. She said Oppler did not discuss
specifics, and she described her meeting as more of a "meet and greet . . . just
kind of a very relaxed meet and chat." She stated that based on her meeting with
Oppler, she had "doubts" as to whether NRK "was the right place for [her]."
TRG associate Alyssa Russo also testified. She said she had a feeling of
"uncertainty" after meeting with Oppler and she decided to explore other
opportunities. In addition, TRG associate Sindee Buchalter testified that after
the APA was announced on July 12, 2016, she met with Oppler, but she did not
feel "valued." She stated that Oppler never made a firm offer to her.
Moreover, the record shows that Elliott had agreed to work for NRK in
May 2016. It was agreed she would join NRK on August 3, 2016. Furthermore,
although the APA stated that the parties would make reasonable efforts to have
Birkitt manage the Short Hills office, NRK was under no contractual obligation
to hire her for that position.
Plaintiffs also claimed Oppler failed to make offers to most TRG
associates and did not offer any financial incentives to have the associates join
NRK. Cannizzo conceded, however, that the APA required no such incentives.
Even so, the record shows that NRK offered financial incentives to several of
A-5204-18T2
17
TRG's top producing associates, including Mallios. They chose to take positions
elsewhere.
We are therefore convinced the judge did not err by concluding that, based
on the evidence presented, a reasonable jury could not find defendants had acted
in bad faith, with ill will, or without a legitimate purpose to destroy plaintiffs'
expectations under the APA. We conclude the judge did not err by granting
defendants' motion for involuntary dismissal of this claim.
B. Claim of Unfair Competition.
"The essence of unfair competition is fair play." Ryan v. Carmona Bolen
Home for Funerals, 341 N.J. Super. 87, 92 (App. Div. 2001) (quoting Columbia
Broad. Sys. v. Melody Recordings, 134 N.J. Super. 368, 376 (App. Div. 1975)).
The purpose of the law on unfair competition "is to promote higher ethical
standards in the business world." Ibid. (citing N.J. Optometric Ass'n v. Hillman-
Kohan, 144 N.J. Super. 411, 427 (Ch. Div. 1976)). The concept of unfair
competition is deemed to be "as flexible and elastic as the evolving standards of
commercial morality demand." Ibid.In support of this claim, plaintiffs essentially rely upon the same evidence
they relied upon for their claim of breach of the covenant of good faith and fair
dealing. They contend defendants failed to make reasonable efforts to retain the
A-5204-18T2
18
TRG associates, and they acted in bad faith with ill motive in cancelling and
terminating the agreement.
Plaintiffs assert that they cancelled the lease on TRG's Short Hills office
after the APA was announced, and TRG lost many of its associates because they
chose to work somewhere other than at NRK. Plaintiffs contend that as a result
of defendants' termination of the agreement, TRG's business was destroyed.
They claim this paved the way for NRK to take over its market share without
paying for it.
We are convinced, however, that Judge Lesnewich did not err by finding
that plaintiffs had not presented sufficient evidence to support a finding by the
jury that defendants engaged in unfair competition. The evidence does support
the claim that defendants purposely failed to convince a sufficient number of
TRG associates to become affiliated with NRK, and then terminated the APA
on this basis in order to destroy TRG's business and take over its share of the
market.
The judge found that based on the evidence presented, and giving
plaintiffs the benefit of all favorable inferences, a reasonable fact finder could
not determine that "there was some commercial immorality or lack of fair play
involved in this particular failed business transaction, . . . " The record fully
A-5204-18T2
19
supports that determination. The judge did not err by dismissing plaintiffs' claim
of unfair competition.
C. Breach of Contract Claim.
On appeal, plaintiffs argue NRK breached the APA by invoking Section
11.07 as a basis for cancelling of the agreement. They contend a reasonable jury
could find Section 11.07 did not provide a basis for defendants to cancel the
contract. Plaintiffs therefore argue the judge erred by granting defendants'
motion for involuntary dismissal of this claim.
Plaintiffs' breach of contract claim is grounded upon Section 11.07 of the
APA. They claimed Section 11.07 only allows termination of the agreement if
TRG's associates do not transfer their real estate licenses to NRK. At trial,
Cannizzo and Karen Bigos testified that this was their interpretation of Section
11.07. However, defendants contended there is no meaningful distinction
between "license" and "licensees."
Defendants asserted that the essential purposes of the transaction required
transfer of both. They contended that, at is core, the transfer of the TRG
licensees, along with their licenses, clients, listing, market share, and stream of
business, was essential to the transaction. They maintained the transfer of the
TRG licensees was at the heart of the agreement.
A-5204-18T2
20
When construing provisions of a contract, the court must ascertain the
"intention of the parties in the light not only of the language used but also of the
surrounding circumstances and the objects sought to be attained by them under
their agreement." Great Atl. & Pac. Tea Co., Inc. v. Checchio, 335 N.J. Super.
495, 501 (App. Div. 2000) (quoting Cozzi v. Owens Corning Fiber Glass Corp.,
63 N.J. Super. 117, 121 (App. Div. 1960)).
The court's role is to interpret the terms of the agreement, "not to rewrite
a contract for the parties better than or different from the one they wrote for
themselves." Kieffer v. Best Buy, 205 N.J. 213, 223 (2011). The court must
"read the document as a whole in a fair and common-sense manner." Hardy v.
Abdul-Matin, 198 N.J. 95, 103 (2009).
Here, Judge Lesnewich found that no reasonable juror could accept
plaintiffs' interpretation of Section 11.07. The judge stated that the APA gave
NRK the right to terminate the agreement if, in its sole discretion, a sufficient
number of TRG associates did not agree to transfer and become affiliated with
NRK. The judge found that plaintiffs' interpretation of Section 11.07 was so
illogical, "no rational fact finder could find" it made "any sense."
The judge found that Section 11.07 pertained not simply to the transfer of
a real estate license, but to both the licensee and the license. The evidence
A-5204-18T2
21
showed that a real estate license cannot be transferred without the licensee who
holds it. Moreover, the licensee could not become affiliated with a real estate
brokerage firm unless the license was transferred to that entity.
The evidence also showed that transfer of both the TRG associates and
their licenses was an essential purpose of the agreement. It is undisputed that
while the APA provided that the TRG Principals would become independent
contractors at NRK, the TRG associates had the discretion to determine whether
they wanted to become affiliated with NRK. None of the other TRG associates
agreed to become affiliated with NRK.
The judge correctly determined that based on the evidence presented, no
reasonable jury could find that defendants breached the contract. The judge did
not err by granting involuntary dismissal of the breach of contract claim.
III.
Plaintiffs further argue that the trial court erred by limiting the scope of
discovery. Here, plaintiffs sought to engage in discovery regarding NRK's prior
mergers and acquisitions. Plaintiffs indicated they wanted to compare NRK's
actions in this matter with actions they took in other mergers or acquisitions.
Judge Walsh granted defendants' motion and entered a protective order
dated December 9, 2016, which provided, among other things, that plaintiffs
A-5204-18T2
22
could not seek discovery as to "any acquisition, merger or consolidation " that
involved defendants, in which plaintiffs "were not a party." The order also
barred any discovery as to matters that pre-dated January 1, 2016.
Plaintiffs later sought reconsideration of the order. Judge Grispin denied
the motion. The judge noted that the limit on discovery before January 1, 2016
was consistent with the timing of the transaction that was the basis for plaintiffs'
claims. The judge also noted that plaintiffs had not shown discovery regarding
unrelated transactions could lead to the production of relevant, admissible
evidence.
On appeal, plaintiffs argue that the court erred by entering the protective
order and refusing to reconsider the order because evidence regarding NRK's
previous mergers or acquisitions would show that defendants "knew how to
successfully acquire real estate brokerages and retain agents, which they
inexplicably failed to do here." Plaintiffs assert such discovery was critical to
their claims.
They contend evidence regarding other transactions could show that NRK
and Oppler's efforts in this matter were "grossly inadequate." They contend the
trial judge erred by limiting cross examination based on this order. T hese
A-5204-18T2
23
arguments lack sufficient merit to warrant extended comment. R. 2:11-
3(e)(1)(E).
We note, however, that before the December 9, 2016 order was entered,
plaintiffs' counsel agreed to limit discovery to matters that occurred after
January 1, 2016. In any event, the time frames established by the trial court
were entirely in accord with the time frame in which the subject agreement was
executed. Moreover, as Judge Grispin found in ruling on the motion for
reconsideration, plaintiffs failed to show discovery regarding NRK's unrelated
transactions would lead to the discovery of evidence relevant to the claims
asserted in this matter.
Affirmed.
A-5204-18T2
24