Elizabeth Dev. Co.v.B.F.L.F. Land Corp.

DOCKET NO. A-0414-13T4 (N.J. Super. Mar. 10, 2015)

DOCKET NO. A-0414-13T4



Hadley Perkins, PC, attorneys for appellants (Paul I. Perkins and Marti B. Alhante, of counsel and on the briefs). Hill Wallack, LLP, attorneys for respondent (Ryan P. Kennedy, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3306-12. Hadley Perkins, PC, attorneys for appellants (Paul I. Perkins and Marti B. Alhante, of counsel and on the briefs). Hill Wallack, LLP, attorneys for respondent (Ryan P. Kennedy, of counsel and on the brief). PER CURIAM

In this commercial loan guaranty case, defendants Americo Seabra and Jack Pires appeal from the August 9, 2013 Law Division order granting plaintiff Elizabeth Development Company of New Jersey's (EDC's) motion for summary judgment and finding defendants liable as the guarantors of a promissory note executed by their company, B.F.L.F. Land Corporation, Inc. (BFLF). We affirm.

The following material facts are derived from the evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to defendants, the non-moving parties. Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

On July 2, 2007, EDC made a $150,000 loan to BFLF and, in return, BFLF executed a promissory note (the Note) and delivered it to EDC. In addition to the $150,000 principal amount of the loan, BFLF agreed to pay four percent interest on the unpaid balance. The Note required BFLF to make "interest only" payments of $500 per month beginning on August 2, 2007 "for a period not to exceed 24 months . . . ." At the end of this period, all outstanding principal and unpaid interest was due. If BFLF defaulted on the loan, the Note required BFLF to "immediately pay the full amount of all unpaid principal, interest, other amounts due . . . and [EDC's] costs of collection and reasonable attorneys fees."

The Note stated that "[r]easonable attorney's fees shall be a minimum of fifteen (15%) percent of uncollected principal and interest [and] shall be added to the total obligation due and owing [EDC]."

The Note further stated that defendants and a third individual "shall guaranty payment of all amounts due under the financing documents." Accordingly, on July 2, 2007, defendants and the third guarantor executed an "Unlimited Continuing Guarantee" (the Guaranty). Pursuant to the Guaranty, defendants and the other guarantor "agreed to guaranty . . . the performance of all debts, liabilities and duties of [BFLF] to EDC in order to induce EDC to render and/or to continue to render financial accommodations to [BFLF,] including the loan" memorialized by the Note.

Specifically, defendants and the third guarantor

agree[d] to pay and guarantee[] all debts, liabilities, duties, representations, covenants and warranties of every kind and character now existing of [BFLF] to EDC whether direct or indirect, primary or secondary, joint or several, fixed or contingent, secured or unsecured and irrespective of the validity or enforceability of any instrument evidencing the foregoing.
The Guaranty also expressly stated:

There are no understandings, agreements, representations, warranties or covenants, express or implied, which are not specified herein, or in the other written instruments, documents, or agreements referred to in this Guaranty. All prior oral understandings, negotiations, or agreements are deemed to be superseded by the terms of this Guaranty and such other written instruments, documents or agreements referred to in this Guaranty.

Thereafter, BFLF defaulted on its obligations under the Note. As a result, EDC demanded that defendants and the third guarantor remit payment for all amounts due under the Note. Defendants failed to do so. On September 21, 2012, EDC filed a complaint seeking to require defendants to pay the obligations established by the Guaranty.

The third guarantor "submitted a partial payment under the note in response to EDC's demand" and, therefore, EDC did not name him as a defendant in this action.

EDC also named BFLF as a defendant. The record does not reflect whether BFLF filed an answer separate from that filed by defendants or if it opposed EDC's subsequent motion for summary judgment. Although the judge granted EDC's motion as to BFLF, that entity is not a party to this appeal.

In May 2013, EDC filed a motion for summary judgment. Two months later, defendants filed their response, alleging that there were material facts in dispute. Defendant Pires, who was BFLF's president, submitted a certification stating that the loan was to be used as part of a project "to redevelop certain properties within the City of Elizabeth." Pires alleged that several EDC board members spoke to him and Seabra "within the month or so prior to the Loan Documents being signed." Pires stated that the board members "assured [defendants] that the guaranties were mere 'housekeeping' and a formality in order to have the loan approved." In addition, Pires asserted that "[t]he subject of the loan being repaid through subsequent construction funding or being converted into a portion of EDC's equity investment was also discussed at subsequent" meetings. Based upon these oral representations, defendants contended that they should not be strictly bound by the requirements of the Guaranty and Note.

Defendants also argued that summary judgment was "premature as no discovery [had] taken place[.]" However, defendants did not propound any discovery requests after EDC filed its complaint.

Following oral argument, Judge Regina Caulfield rendered a detailed oral decision granting EDC's motion for summary judgment. The judge found that the terms of the Note and Guaranty were "clear and unambiguous" and plainly required defendants to pay the sums due under the Note once BFLF defaulted on its obligations. Therefore, the judge ruled that defendants' allegations about their oral agreements with EDC board members were barred by the parol evidence rule.

The judge also rejected defendants' argument that the matter was not ripe for summary judgment because they wanted to take discovery concerning "the understanding between the parties as to the repayment of the [N]ote[.]" The judge found that defendants had not made any discovery requests during the pendency of the litigation and failed to demonstrate any "likelihood that further discovery will create a genuine issue of material fact as to their obligations under the [N]ote and [Guaranty]." In addition, the judge noted that the "parol evidence rule would prohibit the consideration by the [c]ourt of such oral agreements, if there were any, in light of the fact that the [N]ote and [Guaranty] . . . are clear and unambiguous . . . ." This appeal followed.

On appeal, defendants again argue that summary judgment was inappropriate because there were "genuine issues of material fact," and "premature" because "no discovery took place[.]" We disagree.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

When determining whether there is a genuine issue of material fact, the court must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. While the trial court's legal conclusions are owed no deference, Nicholas, supra, 213 N.J. at 478, this court should affirm the judgment if it finds that the trial court's conclusions of law were correct. Henry v. New Jersey Dept. of Human Servs., 204 N.J. 320, 330 (2010).

We have considered defendants' contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that Judge Caulfield properly granted summary judgment to EDC, and affirm substantially for the reasons expressed in her August 9, 2013 oral opinion. However, we make the following brief comments.

"When resolving questions as to the interpretation of contracts of guarantee, we look to the rules governing construction of contracts generally." Center 48 Ltd. P'ship v. May Dept. Stores Co., 355 N.J. Super. 390, 405 (App. Div. 2002). In this case, the resolution of EDC's summary judgment motion depended on the trial judge's interpretation of the language of the Guaranty and Note - - a matter of law, suitable for decision on a motion for summary judgment. Spring Creek Holding Co., Inc. v. Shinnihon U.S.A. Co., Ltd., 399 N.J. Super. 158, 190 (App. Div.), certif. denied, 196 N.J. 85 (2008). If the terms of a contract are clear and unambiguous, "we must enforce the contract as written and not make a better contract for either party." Graziano v. Grant, 326 N.J. Super. 328, 342 (App. Div. 1999).

Defendants conceded that BFLF defaulted on its obligations under the Note and, upon such a default, the Guaranty clearly provides that defendants were required to pay EDC all amounts due and owing. Judge Caulfield properly rejected defendants' attempt to alter their obligation, or create a factual dispute, by submitting parol evidence concerning their discussions with EDC board members prior to the execution of the Note and Guaranty. Where, as here, the terms of a contract are clear and unambiguous, resort to such parol evidence is improper. Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 268 (2006). In addition, the Guaranty expressly provided that "[a]ll prior oral understandings, negotiations, or agreements are deemed to be superseded by the terms of [the] Guaranty[.]"

Defendants' argument that summary judgment was "premature" because discovery had not been completed also lacks merit. "A party challenging a motion for summary judgment on grounds that discovery is as yet incomplete must show that 'there is a likelihood that further discovery would supply . . . necessary information' to establish a missing element in the case." Mohamed v. Iglesia Evangelica Oasis De Salvacion, 424 N.J. Super. 489, 498 (App. Div. 2012) (quoting J. Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J. Super. 170, 204 (App. Div. 1996)). In the eleven months between the filing of EDC's complaint and oral argument on the motion for summary judgment, defendants did not propound any interrogatories or document requests and had not scheduled any depositions. Moreover, as Judge Caulfield found, defendants' request to gather additional information concerning the discussions they allegedly had with EDC board members could only result in additional, inadmissible parol evidence.

Finally, defendants argue that further discovery would "likely show that the guaranties [they made] were fraudulently induced." This argument was never presented to the trial court, notwithstanding that the opportunity to do so was available to defendants. Ordinarily, we will decline consideration of an issue not properly raised before the trial court, unless the jurisdiction of the court is implicated or the matter concerns an issue of great public importance. Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Neither situation exists here and, therefore, we decline to consider defendants' contention on this point.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.