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NOT FOR PUBLICATION WITHOUT THE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.

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 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.
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 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:

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 [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.

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 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.

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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

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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.

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 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.

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 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

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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.
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 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

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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

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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'

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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

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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."

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 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

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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

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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

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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.

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 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

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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

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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

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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.

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