ERIC M. RAUCH VS. STUART RAUCH(L-4177-10, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-4745-14T4

ERIC M. RAUCH and SHAN CHIN,
individually and in their
capacity as officers of and
derivatively as shareholders
and members respectively of
PHYLCO, LTD, d/b/a DOCTORS
SUBACUTE CARE and SOUTHVIEW,
LLC,

Plaintiffs-Appellants,

v.

STUART RAUCH and PHYLLIS RAUCH,

Defendants-Respondents,

and

PHYLCO, LTD, d/b/a DOCTORS
SUBACUTE CARE and SOUTHVIEW,
LLC,

Nominal Defendants.
______________________________________

Argued March 16, 2017 – Decided August 30, 2017

Before Judges Espinosa, Suter and Guadagno.

On appeal from the Superior Court of New
Jersey, Law Division, Passaic County, Docket
No. L-4177-10.
 Stephen Schweizer (Quinn Emanuel Urquhart &
Sullivan, LLP) of the New York bar, admitted
pro hac vice, argued the cause for appellants
(Greenbaum, Rowe, Smith & Davis, LLP, and Mr.
Schweizer, attorneys; Justin P. Kolbenschlag
and Mr. Schweizer, on the brief).

Kevin H. Marino argued the cause for
respondents (Marino, Tortorella & Boyle, PC,
attorneys; Mr. Marino, John A. Boyle, and Erez
J. Davy, on the brief).

PER CURIAM

Plaintiffs Eric Rauch and Shan Chin appeal four orders arising

from their litigation against defendants Stuart and Phyllis Rauch. 1

The litigation, asserting legal and equitable causes of action,

requested declaratory judgment, specific performance damages and

injunctive relief stemming from a dispute over plaintiffs' claimed

ownership interest in defendants' business. The June 10, 2014

order denied defendants' motion for summary judgment and

plaintiffs' cross-motion for summary judgment. The January 20,

2015 order granted defendants' renewed motion for summary

judgment, and dismissed with prejudice eight counts of plaintiffs'

ten-count complaint. That order also denied plaintiffs' cross-

motion to dismiss three of defendants' affirmative defenses. The

May 4, 2015 order granted defendants' motion in limine to exclude

from the trial all testimony and evidence that was not related to

1
We use the parties' first names to avoid confusion.

2 A-4745-14T4
the reasonable value of plaintiffs' services. The May 19, 2015

order granted a directed verdict in favor of defendants on the

remaining counts of the complaint, dismissing it with prejudice.

We affirm all four orders.

I.

Plaintiff Eric Rauch is the son of Stuart and Phyllis Rauch,

and is married to plaintiff Shan Chin. In 2005, Stuart and Phyllis

purchased a nursing home (the facility) through Southview, LLC, a

company they formed in 2001, and operated the facility through

Phylco Limited LTD, d/b/a Doctors Subacute Care (DSC), another

company that they owned (collectively, the Rauch companies). The

facility suffered financial losses almost from the beginning of

its operation. At Eric's urging, Shan began working at the

facility in February 2006 with responsibility for bookkeeping and

billing insurance providers. By 2008, the facility's net losses

exceeded $585,000.

In February 2009, Eric lost his job in the merger and

acquisition section of a large law firm and immediately approached

Stuart about working for the Rauch companies. Eric was concerned

about his parents because "they had personal guarantees on [the

Rauch companies] and if [they] had gone under it would have meant

the end of them . . . they would go bankrupt personally." Eric

3 A-4745-14T4
began to work at the nursing facility in February 2009 without a

salary.

Eric's plan was to increase the number of Medicare and managed

care patients to improve the facility's reimbursement rates. None

of the parties dispute that the financial condition of the facility

improved markedly in 2009, earning $554,000, which meant the

business improved its performance by over one million dollars

during that year. Net revenues increased further in 2010.

In August 2009, Eric asked his father for a fifty percent

equity interest in the business, to be shared with Shan, and told

his father if he did not agree within a week, that he and Shan

would leave after a brief period of transition. However, if Eric

and Shan were given this fifty percent equity interest, they would

continue working. No other employment conditions were discussed,

nor was the length of time they would stay.

Stuart agreed and they shook hands. Both Eric and Shan

continued working at the Rauch companies for the next ten months.

There was no written agreement. Eric described the terms that

were discussed:

[W]e would continue to discuss significant
operating decisions collaboratively as we had,
that was in response to [Stuart's] concern
that he would have no more authority over the
business. Another term that was agreed to was
that we, Shan and I, would each have [twenty-
five] percent in Phylco and Southview as of

4 A-4745-14T4
 that moment. Another point that was discussed
was that he wanted to buy an apartment and
wanted to know if this fifty-percent deal
would prevent him from doing that. I told him
that I [didn't] think that it would . . . .
Other terms that were discussed on that day
were that he, after the agreement, offered me
again, a salary, and I told him that I didn't
need much money, but I would appreciate if the
business started paying my rent, and he said
that I should have to do that.

There was no discussion about the other fifty percent of the

Rauch companies until January 2010 at a family brunch. Stuart and

Phyllis wanted Daniel, their other son, to have twenty-five percent

of the business, and Eric objected.

In June 2010, Eric wanted Stuart and Phyllis to sign a

"Director Agreement" (the Agreement). The document identified

Stuart and Phyllis as owners and Eric as director. Under its

terms, the owners would "ensure that the [d]irector's judgment is

adhered to with regard to major decisions regarding the [b]usiness

including but not limited to transfer of ownership, assets, and

hiring of key personnel." The "[o]wners" also would "compensate

the [d]irector for service previously rendered." Plaintiffs

described the Agreement as setting forth "the manner in which

defendants were to grant Eric Rauch exclusive authority to make

certain decisions" about transfer of ownership interests, assets

and hiring. The Agreement was never signed.

5 A-4745-14T4
 Eric and Shan contend that they were fired by Stuart shortly

thereafter. Defendants contend that Eric and Shan simply did not

return to work once Stuart would not sign the Agreement.

On July 9, 2010, Stuart met with Eric and Shan at their

apartment but unknown to Stuart, Eric tape-recorded their

conversation. In the beginning of the recording, Stuart appeared

to make a financial proposal to Eric and Shan. Eric apologized

to his father. "I feel like I used the fact that you needed me

and Shan there to get you to agree to give us [fifty percent] of

the business. And I know that it was . . . a betrayal." His

father acknowledged an agreement, stating "what I agreed to . . .

was . . . a gentleman's agreement in principle." During the

conversation Stuart explained to Eric "[the business] will

definitely be [fifty percent] yours if you wait until the will is

executed, because that's my intention. And it's still my

intention." Toward the end of the recording, Stuart stated:

I would not have given you an agreement to
give you [fifty percent] if you hadn't coerced
me that day. The entire structure was
predicated on a coercion. And if you build a
structure on a bad foundation the whole thing
is going to topple. And it did topple. And
I believe that there was a flaw in the original
agreement that we had reached. If we had
reached an agreement that was a virtuous one,
by virtuous means, which I can't imagine how
that would take place, but I note that the
agreement that we reached was the farthest
thing in my mind from mutually agreed upon. I

6 A-4745-14T4
 was backed into a corner and I agreed on
something which I tried to stomach. But in
my mind, not only was it a bad and unfair
agreement to begin with, but it got worse and
worse and worse every week, every month that
our working together took place.

Stuart continued that he did not consider he was "breaking an

agreement that was a fair agreement or mutually agreed upon"

because he thought Shan and Eric were going to "leave that day if

I didn't agree in some way, shape, or form to the [fifty-fifty]

division."

In August 2010, Eric and Shan sued Stuart, Phyllis, and their

companies in a ten-count complaint.2 Defendants answered and filed

counterclaims. Following discovery and mediation, both sides

filed summary judgment motions.

On June 10, 2014, Judge Donald J. Volkert, Jr. denied

defendants' motion for summary judgment, which had requested

dismissal of the complaint on the grounds that the agreement was

unenforceable because of economic duress. Judge Volkert also

denied plaintiffs' cross-motion, which requested summary judgment

on their contract and conversion causes of action.

2
The claims included breach of contract (Count One); declaratory
judgment to transfer ownership (Count Two); oppression (Count
Three); promissory estoppel (Count Four); unjust enrichment (Count
Five); breach of fiduciary duty (Count Six); constructive trust
(Count Seven); wrongful termination (Count Eight); breach of
covenant of good faith and fair dealings (Count Nine); fraud and
conversion (Count Ten).

7 A-4745-14T4
 In his written opinion, Judge Volkert found that although

both parties appeared to benefit from the deal, "a rational fact

finder could well determine that plaintiffs' promise of continued

employment with the Rauch companies in exchange for a [fifty

percent] equitable share of [the] Rauch companies did not

constitute adequate consideration." He found a genuine issue of

material fact remained as to "whether or not the alleged

[a]greement contained adequate consideration." Regarding the

economic duress defense, he found there was a genuine issue of

fact about "whether or not defendants' unfettered will was

overcome."

The court denied plaintiffs' cross-motion for summary

judgment on the contract and conversion claims, concluding as an

initial matter, that defendants had only "accepted plaintiffs'

factual assertions as true in support of the [m]otion for [s]ummary

[j]udgment," and the claims were not barred by judicial estoppel.

The court then found there were essential terms that the parties

"never agreed to or even discussed." These included "the

possibility of transferring ownership interests to other members

of the family, assumption of corporate liabilities and debts, and

pre-existing encumbrances." Other essential terms were disputed

by the parties. These included "the timing of the alleged

transfer, the composition/source of the alleged transfer, the

8 A-4745-14T4
recipients of the alleged transfer, the allocation of the alleged

transfer, and the corresponding liability and/or conditions

contingent upon or accompanying the transfer." The court denied

the cross-motion for summary judgment because "when presented with

the terms of the agreement, or lack thereof, the trier of fact

would be required to engage in 'sheer speculation' to determine

whether the parties lived up to their respective obligations."

Defendants renewed their motion for summary judgment after

Judge Volkert's decision, alleging the agreement was unenforceable

because of the absence of the essential terms that Judge Volkert

had identified. Plaintiffs filed a cross-motion to dismiss certain

of defendants' affirmative defenses.3

By order dated January 9, 2015, Judge Thomas J. LaConte

granted defendants' summary judgment motion in part by dismissing

all of the complaint except for Count Four (promissory estoppel)

and Count Five (unjust enrichment), and denied plaintiffs' cross-

motion for summary judgment in its entirety. In analyzing the

four required elements to prove a claim of promissory estoppel,

the court found that there was a clear and definite promise to

give a fifty percent equity interest in the company, that the

3
These included the failure of consideration defense, the no
meeting of the minds defense, and the no clear and definite promise
defense.

9 A-4745-14T4
promise was made with the expectation that it would be relied upon

by Eric and Shan, and that Shan and Eric relied upon the promise

by continuing to work for another ten months. However, the court

found an issue of fact about whether they had incurred a detriment

of a definite and substantial nature, which must be incurred in

reliance on the promise.

The court dismissed the remaining counts of the complaint,

finding that essential terms were missing. In addition to the

three missing essential terms found by Judge Volkert, Judge LaConte

found the "contract was somewhat illusory from the standpoint that

there was no firm commitment [by] Shan and Eric as to how long

they would stay in exchange for getting [fifty] percent of this

company." It would be "sheer speculation" as to what Eric and

Shan agreed to by way of continued employment. Therefore, the

agreement was unenforceable.

Defendants filed a motion in limine to exclude from trial any

testimony and evidence that was unrelated to the reasonable value

of plaintiffs' services for the ten months they worked at the

facility. The court's May 4, 2015 order precluded plaintiffs'

expert, Gerald V. Rasmussen, from testifying on any matter that

was not related to the reasonable value of plaintiffs' services

during the ten-month period. The court found that in this case,

"the proper measure of damages for promissory estoppel and unjust

10 A-4745-14T4
enrichment [was] . . . the value of Eric and Shan's services for

those ten months, minus what they received." The court rejected

plaintiffs' claim that they were entitled to expectation damages,

holding that it was "not going to measure damages based upon their

owning [fifty] percent of the company."

Trial commenced on the promissory estoppel and unjust

enrichment claims. After Eric testified, the court conducted a

hearing under N.J.R.E. 104 to determine whether plaintiffs' expert

was competent to testify about the reasonable value of plaintiffs'

services. During questioning, Rasmussen acknowledged there was

nothing in his report that talked about the reasonable value of

Eric and Shan's services to the Rauch Companies from August 2009

to June 2010. He was not able to tell the judge how much a person

in Eric's position would have been paid by a facility of this size

and scope with his duties and responsibilities, but only what an

outside management firm would charge. The court excluded

Rasmussen's testimony.

The next day, plaintiffs requested that the court take

judicial notice of the Department of Labor's Occupational

Employment statistics that reported the mean salary for a chief

executive was $221,300. The judge observed that, even if he were

to take judicial notice of that statistic, it would not be "a

terribly compelling piece of evidence." The judge found he had

11 A-4745-14T4
"no competent evidential material . . . that would lead [him] to

come up with a rational salary for Eric for those ten months

. . . that would create a base line against which we could then

litigate the issues involving what the defense says his actual

compensation was." The court granted defendants' motion for a

directed verdict, and dismissed the remaining counts of the

complaint.

On appeal, plaintiffs contend the trial court erred in

dismissing their complaint. Plaintiffs argue that the court erred

because Stuart and Eric intended to be bound by the agreement, and

that it was not illusory or unenforceable. Plaintiffs assert the

trial court ruled sua sponte that the agreement lacked

consideration, and that the ruling was wrong as a matter of law

and fact. Furthermore, plaintiffs contend that the agreement was

not rendered unenforceable due to missing terms. Rather, it was

error to grant summary judgment because defendants waived their

defenses of indefiniteness and lack of consideration by accepting

performance from Eric and Shan for ten months.

Plaintiffs assert it was error to deny their initial cross-

motion for summary judgment on the contract claim. Also,

defendants' defense of "economic duress" was legally insufficient

and should have been rejected by the court. Plaintiffs claim that

the court's in limine ruling was erroneous, and that they should

12 A-4745-14T4
not have been limited to proving reliance damages because the

proper measure was compensation for their expectations.

Therefore, it was error to exclude the testimony of their damages

expert.

II.

A.

We review a trial court's orders granting or denying summary

judgment under the same standard employed by the motion judge.

Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016). The question

is whether the evidence, when viewed in a light most favorable to

the non-moving party, raises genuinely disputed issues of fact

sufficient to warrant resolution by the trier of fact, or whether

the evidence is so one-sided that one party must prevail as a

matter of law. Templo Fuente De Vida Corp. v. Nat'l Union Fire

Ins. Co., 224 N.J. 189, 199 (2016); see also Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). However, we review

issues of law de novo and accord no deference to the trial judge's

legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Here, we agree with the trial court that the agreement between

Stuart and Eric was unenforceable because it was lacking essential

terms.

"A contract arises from offer and acceptance, and must be

sufficiently definite 'that the performance to be rendered by each

13 A-4745-14T4
party can be ascertained with reasonable certainty.'" Weichert

Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992) (quoting Friedman

v. Tappan Dev. Corp., 22 N.J. 523, 531 (1956)) (other citations

omitted). Where the "parties agree on essential terms and manifest

an intention to be bound by those terms, they have created an

enforceable contract." Ibid. (citations omitted). "An essential

characteristic of an enforceable contract is that its obligations

be specifically described in order to enable a court or a trier

of fact to ascertain what it was the [promisor] undertook to do."

Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat'l

Bank, 163 N.J. Super. 463, 474 (App. Div. 1978) (citations

omitted), certif. denied, 79 N.J. 488 (1979). However, an

agreement is unenforceable when the parties do not agree to one

or more essential terms. Ibid.

The degree of specificity required in the contract terms is

even greater when equitable remedies are requested. Alnor Const.

Co. v. Herchet, 10 N.J. 246, 250 (1952). This is so because a

"precise understanding of all the terms" is required before

performance can be enforced. Id. at 250-51.

Essential terms are those that are "[o]f the utmost

importance" or are "basic and necessary" to the parties' agreement.

Black's Law Dictionary 663 (10th ed. 2014). See also McCoy v.

Alden Indus., 469 S.W.3d 716, 725 (Tex. Ct. App. 2015) ("Essential

14 A-4745-14T4
terms are those that the parties would reasonably regard as vitally

important elements of their bargain, an inquiry that depends

primarily on the intent of the parties."). "Each case, being

unique, turns on its facts." Malaker, supra, 163 N.J. Super. at

474. The terms that are deemed "essential" will vary depending

on the nature of the underlying agreement. Satellite Entm't Ctr.

v. Keaton, 347 N.J. Super. 268, 277 (App. Div. 2002) (noting that

"incidental terms . . . do not bar enforcement of the essential

agreement between the parties"). "Whether an agreement contains

all essential terms, and is therefore enforceable, is a question

of law." McCoy, supra, 469 S.W.3d at 725 (citations omitted).

"So long as the basic essentials are sufficiently definite,

any gap left by the parties should not frustrate their intention

to be bound." Hagrish v. Olson, 254 N.J. Super. 133, 138 (App.

Div. 1992) (quoting Berg Agency v. Sleepworld-Willingboro, Inc.,

136 N.J. Super. 369, 377 (App. Div. 1975)). The Restatement

(Second) of Contracts acknowledges that a court may supply

"reasonable" terms that may be missing.4 Restatement (Second) of

Contracts § 204. However, the supplying of reasonable terms "is

intended to be applied in cases in which the parties failed to

4
We give "considerable weight" to the Restatement. See Pop's
Cones, Inc. v. Resorts Intern. Hotel, Inc., 307 N.J. Super. 461,
471 (App Div. 1998) (quoting Mazza v. Scoleri, 304 N.J. Super. 555
(App. Div. 1997)).

15 A-4745-14T4
agree regarding an issue, generally because they did not anticipate

that it would arise or merely overlooked it." Pacifico v.

Pacifico, 190 N.J. 258, 266 (2007) (citing Restatement (Second)

of Contracts § 204 (1981)).

Here, Judge Volkert found there were three essential terms

missing from the agreement which included 1) the possibility of

transferring ownership interest to other family members, 2)

assumption of corporate liabilities and debts, and 3) treatment

of preexisting encumbrances. Judge LaConte found as an additional

missing but essential term that the parties never discussed how

long plaintiffs would continue working for the Rauch companies.

There is much discussion in the record by the parties about

the timing of the transfer, the composition and source of the

transfer, the recipients of the transfer, and the allocation of

the transfer. The parties dispute these issues. That said,

however, there is no dispute that in August 2009, there was no

discussion about giving Daniel an equity interest, or whether

plaintiffs would assume the companies' liabilities or debts, the

treatment of preexisting encumbrances, or how long plaintiffs

would continue to work.

Plaintiffs contend that because these issues were not

discussed, they were not important and thus, were not essential

to the agreement. It was vitally important to the promisor that

16 A-4745-14T4
Eric and Shan stay. Eric and Shan contend they turned around

these financially failing companies, an issue that is not disputed

here by Stuart. Stuart acknowledged in the taped conversation

that their staying was the raison d'être for his promise to

transfer half the equity in his companies. We agree with Judge

LaConte that this term was essential and its omission made

sufficiently indefinite the obligation undertaken by Eric and Shan

that the promise by Stuart should not be enforced as a contract.

This was not the type of term the parties would merely overlook.

It was central to the agreement.

The parties also did not discuss the companies' debts,

liabilities or prior encumbrances. These also were not issues

these parties would have overlooked. Eric acknowledged that his

parents had "personal guarantees" on the companies, and if the

companies failed "it would have meant the end of them." With no

discussion of assets and liabilities, the agreement lacked terms

"normal to an obligation of this magnitude." Malaker, supra, 163

N.J. Super. at 475.

Although "part performance may give meaning to indefinite

terms of an agreement," Restatement (Second) of Contracts § 34

comment c, the fact that Eric and Shan worked for ten months did

not define the scope of nor the conditions of their commitment.

17 A-4745-14T4
It also gave no meaning to the other missing essential terms,

which were not supplemented by their performance.

Finding no enforceable contract, the court dismissed most of

the complaint on January 20, 2015. Only Count Four (promissory

estoppel) and Count Five (unjust enrichment) remained after the

court's January 20, 2015 order of dismissal.5

B.

Promissory estoppel arises where "[t]he reliance is on a

promise, and not on a misstatement of fact, and so the estoppel

is termed 'promissory' to mark the distinction." Friedman, supra,

22 N.J. at 536 (citation omitted). "Four separate factual elements

must be proved prima facie to justify application of the doctrine."

Malaker, supra, 163 N.J. Super. at 479. These include:

(1) a clear and definite promise by the
promisor; (2) the promise must be made with
the expectation that the promisee will rely
thereon; (3) the promisee must in fact
reasonably rely on the promise, and (4)
detriment of a definite and substantial nature
must be incurred in reliance on the promise.

5
The remaining counts of the complaint centered on the allegation
there was a contract and, having ruled there was not an enforceable
contract, those causes of action were dismissed. Plaintiffs have
not pursued their claims for wrongful termination, breach of
fiduciary duty, or fraud in this appeal and, having not done so,
waived any alleged error in the court's order. See Gormley v.
Wood-El, 218 N.J. 72, 95 n. 8 (2014); Drinker Biddle v. N.J. Dep't
of Law & Pub. Safety, Div. of Law, 421 N.J. Super. 489, 496 n. 5
(App. Div. 2011) (noting that claims not address in merits brief
are deemed abandoned).

18 A-4745-14T4
 [Pop's Cones, supra, 307 N.J. Super. at 469
(quoting Malaker, supra, 163 N.J. Super. at
479).]

"The essential justification for the promissory estoppel

doctrine is to avoid the substantial hardship or injustice which

would result if such a promise were not enforced." Ibid. (citing

Malaker, supra, 163 N.J. Super. at 484).

Here, the parties did not dispute that Stuart made a promise

to Eric of a fifty percent equity interest for continued

employment. Based on that promise, the trial court found that the

first three elements necessary to establish a claim for promissory

estoppel were met. It was the last element, involving a definite

and substantial detriment incurred in reliance on the promise,

that remained for trial.6 Plaintiffs asserted no claim of error

regarding the court's analysis of the factors.

6
Unjust enrichment is a remedy that may be imposed when there is
"no express contract providing for remuneration." Caputo v. Nice-
Pak Prods., Inc., 300 N.J. Super. 498, 507 (App. Div.), certif.
denied, 151 N.J. 463 (1997). It applies where a plaintiff shows
that it "expected remuneration from the defendant at the time it
performed or conferred a benefit on defendant and that the failure
of remuneration enriched defendant beyond its contractual rights."
VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994) (citations
omitted).
Here, plaintiffs were claiming defendants were unjustly
enriched by breaching the agreement and should be estopped from
doing so. The court focused its analysis on the promissory
estoppel claim.

19 A-4745-14T4
 Plaintiffs sought damages in the litigation for the benefit

the Rauch companies received from them, asserting the proper

measure was the benefit obtained by the promisor, which in this

case was fifty percent of the value of the companies, not their

profits. Defendants contended plaintiffs were limited in their

damages to the reasonable value of their services, describing the

factual issue for trial as the "difference between the compensation

[Eric and Shan] received for that ten months and the fair

compensation for that ten months," namely, their detriment. The

court found that the "proper measure of damages for [the]

promissory estoppel and unjust enrichment [causes of action] are

. . . the value of Eric and Shan's services for those ten months

minus what they received." The trial court rejected plaintiffs'

"measure [of] damages based upon their owning [fifty] percent of

the company."

The trial court did not err in limiting plaintiffs to reliance

rather than expectation damages. A claim for expectation damages

requires a court to "ascertain what it was the promisor undertook

to do," which cannot be done in the absence of agreement on

essential terms. Malaker, supra, 163 N.J. Super. at 474. Here,

the agreement lacked essential terms.

Where an agreement is unenforceable because of a lack of

essential terms, a party may still be entitled to the reasonable

20 A-4745-14T4
value of his services based on the promise. See Restatement

(Second) of Contracts § 90 comment d (where the promise central

to a claimed expectation interest is unenforceable because of lack

of definitiveness, "relief may sometimes be limited to restitution

or to damages or specific relief measured by the extent of the

promisee's reliance rather than by the terms of the promise").

The Restatement explained through illustration 10 in the comments

to Section 90 that the promisee of a franchise agreement where

negotiations collapse is "entitled to his actual losses . . . and

for his moving and temporary living expenses," but "is not entitled

to lost profits . . . or to his expectation interest in the

proposed franchise." Pop's Cones, supra, 307 N.J. Super. at 471

(citing Restatement (Second) of Contracts, § 90 comment d,

illustration 10 (1979)). Thus, we agree with the trial court that

plaintiffs' remedy was limited to the extent of their detrimental

reliance on the promise, and not to the extent of their

expectations.

As a general matter, substantial deference is given to a

trial judge's evidentiary rulings. State v. Morton, 155 N.J. 383,

453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L.

Ed. 2d 306 (2001). The trial court did not abuse its discretion

by excluding testimony from plaintiffs' expert. The expert

acknowledged he could not address the reasonable value of

21 A-4745-14T4
plaintiffs' services to the Rauch companies during the ten months

Eric and Shan remained. Although plaintiffs presented the trial

court with general statistics compiled by the Department of Labor,

the trial court did not abuse its discretion by declining to rely

upon those statistics, which did not provide a fair market value

for the services that these plaintiffs provided to the companies.

Without creditable proof of damages, the court did not err in

directing a verdict in defendants' favor on the remaining two

counts of the complaint.7

Affirmed.

7
Plaintiffs' claim the court erred by not dismissing defendants'
economic duress defense is irrelevant given our decision on the
other issues and does not warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).

22 A-4745-14T4