NOT FOR PUBLICATION WITHOUT THE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-1534-18T4
VILLAGE 35 LP,
Plaintiff-Respondent,
v.
MOUNTAIN HILL, LLC,
Defendant-Appellant.
_________________________
Argued November 7, 2019 – Decided November 20, 2019
Before Judges Mayer and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-1191-18.
Gary E. Fox argued the cause for appellant (Fox &
Melofchik LLC, attorneys; Gary E. Fox, on the briefs).
Paul H. Schneider argued the cause for respondent
(Giordano Halleran & Ciesla, PC, attorneys; Paul H.
Schneider, on the brief).
PER CURIAM
Defendant appeals from an October 26, 2018 order granting summary
judgment in favor of plaintiff. We affirm.
In 2014, defendant contracted to sell real property located in Middletown
to plaintiff (contracted property). Plaintiff intended to develop a shopping
center on the property. The closing date for the real estate transaction was
contingent on plaintiff obtaining development approval for a shopping center
within a certain period of time (approval period). The approval period could be
extended for two additional years provided plaintiff paid $250,000 to defendant
for each year of the extension.
The contract also contained a tolling provision, suspending all relevant
time periods, including the approval period and closing date, "during the
pendency of litigation in connection with any of the approvals, permits and/or
utilities . . . for the Property (or any portion thereof)" or "in the event of any
governmental delays in connection with the Approvals process; however in no
event shall the tolling exceed [two] years total."
In 2015, the Middletown Planning Board (Board) granted plaintiff's
general development plan (GDP) for the contracted property. The GDP
contemplated additional approvals and permits to construct the shopping center.
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Thereafter, plaintiff applied for subdivision and site plan approval. The
Board held six public hearings on non-consecutive dates starting on June 1, 2016
and continuing until July 12, 2017. On July 17, 2017, the Middletown Township
Committee (Committee) adopted a resolution authorizing the Board to
determine if the contracted property and adjacent parcels met the requirements
for an area in need of redevelopment under the Local Redevelopment and
Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49 (Investigation Resolution).
Representatives for plaintiff, defendant, and a third party to whom
defendant was selling another parcel allegedly met with municipal officials on
August 18, 2017. Municipal officials purportedly advised the Board "did not
like and would not approve [plaintiff's] site plan application ." The municipal
officials suggested that in the event the contracted property was recommended
for redevelopment, it would need to be developed pursuant to the LRHL and
would require changes to plaintiff's pending application. Defendant denies such
a conversation occurred.
After adoption of the Investigation Resolution, plaintiff claimed the Board
refused to continue hearings on its application. Defendant claimed plaintiff
"chose to suspend the processing of its application as of October 2017."
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On December 6, 2017, the Board recommended the Committee designate
the area, including the contracted property, an "area in need of redevelopment"
under the LRHL. The Committee agreed and, on December 18, 2017, adopted
Resolution No. 2017-294 (Redevelopment Resolution), designating the
contracted property suitable for redevelopment.
About a month after adoption of the Redevelopment Resolution, a group
of local residents, known as Minding Middletown, LLC, filed a complaint in
lieu of prerogative writs, challenging the resolution designating portions of the
municipality for redevelopment (Minding Middletown Litigation).
Based on the designation of the contracted property as an area in need of
redevelopment and the Minding Middletown Litigation, on February 27, 2018,
plaintiff notified defendant the tolling provision in the contract was triggered.
Defendant denied the contract was tolled as a result of either event, and claimed
"there [was] nothing prohibiting [plaintiff] from proceeding with the pending
application."
Plaintiff filed an action on April 3, 2018, seeking a declaration that the
parties' contract was tolled. After defendant filed its answer, plaintiff moved
for summary judgment. Defendant filed opposition to plaintiff's motion and
cross-moved for summary judgment.
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On August 3, 2018, the motion judge heard the arguments of counsel on
the summary judgment motions. The judge issued an oral decision on August
31, 2018, granting plaintiff's motion and denying defendant's cross-motion.1
The judge found "the terms of the contract must govern." The judge explained
"the record plainly contradicts that [plaintiff] voluntarily withdrew and
suspended its application. . . . [W]hat is shown is that each of the parties were
advised that further hearings on the application would be suspended pending the
results of the [redevelopment] investigation." According to the judge, once the
municipality "determined that the subject property was, indeed, in need of
redevelopment . . . it can hardly be argued that [plaintiff] would be able to
comply with the terms of the contract" by obtaining non-appealable
governmental approvals. The judge also determined "[t]he Minding Middletown
litigation is a direct challenge to [the municipality]'s redevelopment plan. It can
hardly be argued that any result of that litigation is entirely independent or
concerning to this matter." Based on these findings, the judge concluded the
time periods under the contract tolled as of December 18, 2017.
1
The motion judge entered inconsistent orders memorializing his oral decision.
Amended orders, correcting the original motion judge's inadvertent error, were
signed by a different judge on October 26, 2018.
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On appeal, defendant argues there were genuine issues of material fact
concerning "governmental delay in connection with the Approvals process,"
precluding a determination as a matter of law that the contract's tolling provision
was triggered. In addition, defendant contends the Minding Middletown
Litigation was not "in connection with any of the approvals for the property"
and therefore did not trigger the contract's tolling requirement.
Our review of rulings on motions for summary judgment is de novo,
applying the same legal standard as the trial court. Lee v. Brown, 232 N.J. 114,
126 (2018). Summary judgment shall be granted when there is no genuine issue
of material fact and the movant is entitled to judgment as a matter of law. R.
4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
When a party files a cross-motion for summary judgment, alleging no
genuine disputes of material fact, that party's ability to argue genuine factual
issues is limited on appeal. Spring Creek Holding Co. v. Shinnihon U.S.A., 399
N.J. Super. 158, 177 (App. Div. 2008). "[S]ince both sides moved for summary
judgment, one may fairly assume that the evidence was all there and the matter
was ripe for adjudication." Morton Int'l Inc. v. Gen. Accident Ins. Co. of Am.,
266 N.J. Super. 300, 323 (App. Div. 1991). A cross-movant may defeat
summary judgment if the cross-movant can prove a genuine issue of material
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fact would exist if the moving party's version of the facts is accepted. O'Keeffe
v. Snyder, 83 N.J. 478, 487 (1980). However, a factual dispute of an
"insubstantial nature" is not sufficient to defeat summary judgment. Inv'rs Bank
v. Torres, 457 N.J. Super. 53, 64 (App. Div. 2018) (citing Brill, 142 N.J. at 529-
30).
"The interpretation of a contract is ordinarily a legal question for the court
and may be decided on summary judgment unless 'there is uncertainty,
ambiguity or the need for parol evidence in aid of interpretation. . . .'" Celanese
Ltd. v. Essex Cty. Improvement Auth., 404 N.J. Super. 514, 528 (App. Div.
2009) (omission in original) (quoting Great Atl. & Pac. Tea Co. v. Checchio,
335 N.J. Super. 495, 502 (App. Div. 2000)). In reviewing contract terms, the
term should be interpreted to give effect to the parties' objectively reasonable
expectations, considering the attendant circumstances and purpose of the
contract. Ibid. (citing Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171,
183-84 (1981)).
An appellate "court must consider contractual language in the context of
the circumstances at the time of drafting and . . . apply a rational meaning in
keeping with the expressed general purpose. [I]f the contract into which the
parties have entered is clear, then it must be enforced as written." Serico v.
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Rothberg, 234 N.J. 168, 178 (2018) (alterations in original) (quoting In re
County of Atlantic, 230 N.J. 237, 254-55 (2017)). "Where the terms of an
agreement are clear, [courts] ordinarily will not make a better contract for parties
than they have voluntarily made for themselves, nor alter their contract for the
benefit or detriment of either, particularly in a commercial, arms-length setting."
Carroll v. United Airlines, Inc., 325 N.J. Super. 353, 358-59 (App. Div. 1999).
Applying these principles, we are satisfied that the time periods under the
parties' contract were tolled until the earlier of two years from December 18,
2017 or the "final disposition of the Minding Middletown [L]itigation and the
end of governmental delay in connection with the Approvals process." The
governmental delay occurred when the Committee adopted the Redevelopment
Resolution that included the contracted property. While defendant disputes
what may or may not have been said at the August 2017 meeting with municipal
officials, defendant does not, and cannot, dispute that, on September 13, 2017,
the Board declined to proceed with plaintiff's subdivision application
contemplation of redevelopment, thereby triggering the contract's tolling
provision based on a governmental delay in connection with the approval
process.
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We also conclude the judge properly determined that the Minding
Middletown Litigation triggered the contract's tolling provision because that
matter was "litigation in connection with" plaintiff's development approvals.
The Redevelopment Resolution did not indicate whether the redevelopment plan
would displace the existing underlying zoning or create overlay zoning. If
Minding Middletown, LLC was successful in its litigation challenging the
Redevelopment Resolution, plaintiff's application could have been impacted.
See N.J.S.A. 40A:12A-7(a) (requiring redevelopment projects to proceed only
"in accordance with a redevelopment plan adopted by ordinance of the municipal
governing body, upon its finding that the specifically delineated project area is
located in an area in need of redevelopment . . . according to [statutory]
criteria.").
We are satisfied the contract's tolling provision was triggered by both the
"litigation in connection with" clause and the "governmental delay in connection
with" clause.
Affirmed.
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