MAXTRADE, LLC VS. POWERSPORTS WAREHOUSE, LLC(L-8191-13, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-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

3 A-0294-16T3
 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,

4 A-0294-16T3
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.

5 A-0294-16T3
 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.

9 A-0294-16T3