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Mill Race Village, Ltd. v. Main & Glen Associates


January 22, 2009


On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Sussex County, C-25-05.

Per curiam.


Argued October 16, 2008

Before Judges Stern, Payne and Waugh.

Defendant, Main & Glen Associates, L.L.C., the contract purchaser of property in Sparta Township that it intended to develop into 54 townhouse residences, appeals from orders (1) granting summary judgment and attorneys' fees to plaintiff Mill Race Village, Ltd., the contract seller, and dismissing Main & Glen's counterclaims; (2) denying reconsideration; and (3) entering judgment in Mill Race Village's favor for attorneys' fees in the amount of $135,976.55. On appeal, Main & Glen presents the following issues for our consideration:



A. The Summary Judgment Standard on Appeal.

B. Genuine Issues of Material Fact Exist On Whether The Agreement Of Sale Contained An Enforceable and Unambiguous Time Of The Essence Provision.

C. Even If Time Were Of The Essence, Genuine Issues Of Material Fact Exist On Whether Mill Race By Its Conduct Waived Its Right To Enforce Such A Provision And/Or Violated The Covenant Of Good Faith And Fair Dealing.

1. Waiver

2. Breach Of the Implied Covenant Of Good Faith And Fair Dealing.

D. The Motion Judge Misapplied The Law And Misconstrued The Agreement In Ruling That Main & Glen Had To Obtain All Development Approvals By The Closing Date.

E. Even If The Agreement Had Obligated Main & Glen To Obtain Such Approvals By That Date, There Is Substantial Evidence It Had Done So And, In Any Event, The Agreement Permitted Main & Glen To Waive Any Contingencies.



A. The Parties Neither Briefed Nor Argued The Merits Of The Counterclaim And The Court Did Not Address It, Aside From A Brief Reference In Its Statement Of Reasons On Reconsideration.

B. Genuine Issues of Material Fact Exist On All Counts Of Main & Glen's Complaint, Precluding Summary Judgment, And Discovery Is Still Ongoing.



Following our review of the record in this matter in light of existing precedent, we reverse.


Because the initial order appealed from in this matter granted summary judgment to plaintiff Mill Race Village, we are required, as was the chancery judge, to view the facts in a light most favorable to the party opposing summary judgment, Main & Glen. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); Prudential Property Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Those facts follow.

Plaintiff Mill Race Village is a limited partnership*fn1 that owns 13.64 acres of land in the Township of Sparta, Sussex County. The partnership is comprised of Class A partners, consisting of the prior owners of the property, and Class B partners, who possess development expertise. Bernard Langan, a Class B shareholder, owns a thirty-eight percent interest in the entity. Langan is also President of River Drive Development Corp., the managing member of Mill Race Village. Langan's son, Joseph Langan, is the President of River Drive Construction Co., which manages Mill Race Village. Pursuant to the sale contract later entered by the parties, Joseph Langan was to receive $100,000 upon sale of the Sparta property as compensation for his management activities since 1987. Additionally, Joseph Langan is the managing member of defendant Main & Glen, a limited liability company, which includes as other principals Ray Torella, John DeGasperis, John Kish, and for a short time, Don Rasmussen.

It appears to be undisputed that, in the summer of 2003, Kish and Rasmussen met with Joseph Langan to discuss the possibility of developing the Sparta property, and that at the time, Joseph was representing Mill Race Village in the discussions. Thereafter, on October 16, 2003, Main & Glen was formed. In September or October 2003, an oral agreement for the sale of the property by Mill Race Village to Main & Glen was reached, for a purchase price of $1.62 million. No appraisal of the property was obtained at the time, and it appears that the sale price was suggested by Joseph Langan to his father, Bernard. Communications by Main & Glen's owners with Bernard Langan and Mill Race Village occurred principally through Joseph Langan.

Upon entering into the oral contract, Main & Glen proceeded to complete a development application for the property and, on March 31, 2004, to file it with the Sparta Planning Board. Because no written contract had been signed between the two entities, the application was filed in the name of Mill Race Village, as were all subsequent applications. On June 16, 2004, the Sparta Planning Board granted final subdivision and site plan approval for the development of the property. Once the approvals were granted, Bernard Langan sought an increase in the property purchase price to two million dollars, and he refused to execute a written contract unless that price was specified. Main & Glen agreed. Again, no appraisal of the property occurred. However, Main & Glen principal DeGasperis was of the opinion that both the initial and the revised prices were inflated. Kish thought $1.62 million was "a high value" for the property.

The contract, dated August 5, 2004, was signed on behalf of Mill Race Village on September 2, 2004 by Bernard Langan, and on behalf of Main & Glen on September 10, 2004 by Ray Torella. Although a dispute as to the contract's effective date exists, for purposes of summary judgment, the September 10 date was utilized.

The contract contained a number of provisions that are relevant to the present dispute. Article 3.1 set forth the purchase price of two million dollars. Article 3.2 required a non-refundable deposit of $50,000 by Main & Glen, to be applied to the purchase price at closing. Article 3.3 established a six-month contract period, but permitted a six-month extension upon payment of an additional, non-deductible, $100,000. Article 3.5 provided that Main & Glen's obligation to purchase the property was contingent upon it having obtained certain development approvals from federal, state, county, and municipal authorities, and from service providers that were listed in Article 1.1(d).

Article 5.4 required Main & Glen to prosecute an application for minor subdivision of a 0.294-acre plot, designated as Lot 17.01, containing a house and outbuildings, from the remainder of the property and to deed that lot to Mill Race Village. Article 5.7 required Main & Glen to obtain all necessary development approvals. However, Article 10.13 permitted Main & Glen to waive contract contingencies and proceed to closing.

Article 5.8 required Mill Race Village, upon request, to promptly execute any applications, consents, waivers and authorizations that Main & Glen required to obtain the development approvals specified in Article 1.1 and to "otherwise cooperate with Purchaser such that the Development Approvals can be obtained in an expeditious and efficient manner." Executed documents were to be provided within five business days of the time that they were requested, and the agreement provided that any delay in responding would result "in a tolling of all time periods described within the Agreement equal to the delay."

Article 7.1 specified that closing should occur no later than the six-month anniversary of the contract date "or agreed upon extensions." The article also specified that the closing would take place at the offices of Neil Kilstein, the attorney for Mill Race Village.

Article 9 provided that either party could terminate the agreement upon a material default by the other party, notice to that party, and its failure to cure within a subsequent twenty-day period or specified extension of that period. Article 9.3(a) provided as the remedy to the seller, upon default in the absence of cure, "the right to terminate the Agreement and receive the rights to all engineering, legal, architectural reports plans, applications, permits, approvals, etc."

Article 10.4, concerning attorneys' fees, stated:

In the event any action or proceeding is commenced to obtain a declaration of rights hereunder, to enforce any provision hereof, or to seek rescission of this Agreement for default contemplated herein, whether legal or equitable, the prevailing party in such action shall be entitled to recover its reasonable attorneys' fees in addition to all other relief to which it may be entitled therein.

Article 10.9, titled "Modification of Agreement," stated:

This Agreement may not be amended or modified, nor may any obligation hereunder be waived orally, and no such amendment, modification or waiver shall be effective for any purpose unless it is in writing and signed by the party against whom enforcement thereof is sought.

Although the majority of the contract was drafted by Joseph Langan on behalf of Main & Glen, Bernard Langan inserted a termination clause as Article 4, which provided:

Unless Purchaser shall have sooner exercised its Extension Right pursuant to the provision of 3.3, this Contract shall terminate upon the sixth (6th) month anniversary of the Contract Date. The Initial Deposit shall be retained by Seller and neither party shall have any further rights or obligations hereunder except for the Purchaser's obligations in 3.5 above. If Purchaser has exercised its Extension Right but title has not closed by the twelfth (12th) anniversary of the Contract Date, this contract shall terminate and neither party shall have any further rights or obligations hereunder except for Purchaser's obligations in 3.5 above.

The reference to Article 3.5 is unclear, since that article provides, as we previously stated, that the purchaser's obligation to purchase the property was contingent upon obtaining specified development approvals within the contract period.

Following the execution of the sale agreement, Main & Glen proceeded with obtaining necessary approvals and financing, invoking the six-month extension provision on March 10, 2005 to permit the process to be completed. Main & Glen alleges that it incurred approximately $700,000 in expenses as a result.

According to Bernard Langan, in May 2005, a Class A partner in Mill Race Village, Dick Boggio, called him to question whether two million dollars was the fair market value of the property and to determine the origin of the sale price. When told that the amount had been proposed by Kish and Joseph Langan, Boggio recognized that a conflict of interest might exist. Thereafter, Bernard Langan allegedly asked his son if the price were fair, and upon being told that it was not, Bernard eventually demanded that an appraiser be retained to determine the value of the property.

In an e-mail dated July 28, 2005, Joseph Langan informed the remaining shareholders in Main & Glen that one of his father's partners had "questioned the transaction altogether and requested an appraisal which is now being done." On August 11, 2005, Joseph Langan sent the shareholders of Main & Glen another e-mail. In it, he referred to a telephone call by a Main & Glen attorney, Joseph Torre, to Bernard Langan. The e-mail stated: "Joe called regarding the deal and Bernie asked me to hold off until appraisal is done." At some time during this period, in a meeting between Torella, Bernard Langan and Joseph Langan, Bernard expressed his opinion that he had been "gypped" in the deal, and that his partners were upset with him as a result.

In August 2005, Main & Glen hired attorney John Goldsmith to assist it with closing on the property purchase. In order for a closing to occur, the minor subdivision of the property, referred to in the agreement of sale, was required in order to exclude Lot 17.01 from the purchase. Main & Glen claims that, on September 2, 2005, it submitted the deed for the minor subdivision to Mill Race Village, and that Bernard Langan refused to execute it.*fn2 As a consequence, Main & Glen claims that it was required to submit the unsigned deed to the Sparta Planning Board, which had various technical objections to its terms. Subdivision, thus, had not occurred by September 10, 2005, and indeed Board approval was delayed until November of that year. Bernard Langan has taken the position that the deed was not forwarded to him until approximately November 10, 2005.*fn3

On September 9, 2005, First Hope Bank confirmed its loan commitment to Main & Glen in connection with the sale of the property. Additionally, on that day, attorney Goldsmith sent a letter to Bernard Langan's brother, Kevin Langan, who was also a partner in Mill Race Village, and to its designated closing attorney, Kilstein, stating that Main & Glen stood ready to close and requesting that Mill Race Village contact Goldstein to set a closing date. In a response dated September 12, 2005, Kilstein stated that he was no longer involved in the transaction and that Mill Race Village would be represented by "other counsel." No closing date was set and substitute counsel was not identified.

As of September 10, 2005, Bernard Langan had not received the appraisal of the property, which was completed soon thereafter and forwarded by Joseph Langan to Main & Glen on September 16, 2005. The appraisal, dated September 14, 2005, valued the property as of August 15, 2004 at a sum that is not disclosed in the record and as of August 15, 2005 at $2.97 million.

On September 26, 2005, Joseph Langan informed the members of Main & Glen that Bernie just stopped in, back from vacation.

He brought up the subject of the amount and again we started talking about the value, their appraisal, etc. We went back and forth on several issues, including the soft costs spent and them being inside the land value (some disagreement here). I suggested we set up a meeting with him and his partner, Dick Boggio to go over the project so they understand what has gone into this and I suggested Wednesday. If Wednesday does not work for all of us I should let him know this morning because he is going to reach out to Dick.

He asked if we would be ready to close this week and I told him I thought we are.

On September 28, 2005 Bernard Langan e-mailed his son to inform him that Boggio was going on vacation for a week and that Bernard would be on vacation the following week. Bernard Langan then suggested various purchase prices, including one for $2.4 million at closing and one for $2.1 at closing "next week," with an additional $600,000 paid as each unit sold. That Main & Glen regarded the contract to be continuing is supported by Kish's e-mail forwarding Bernard Langan's message of September 28, in which Kish stated:


Attached please find another e-mail from Bernie sent on the 28 of September '05 that shows a continued extension of the contract in order to get additional money.

On October 3, 2005, Bernard Langan e-mailed his son and Goldsmith, offering to close four days later at a purchase price of eighty percent of $2.97 million, which was $2.376 million. Draft closing documents were forwarded by Goldsmith to Bernard Langan on October 5, 2005 that retained the two million dollar purchase price and the $100,000 nonrefundable deposit. Goldsmith requested that Bernard or his attorney contact him "so we can schedule the closing and work out any open matters." No response was received.

In a letter from Goldsmith to Bernard Langan dated November 7, 2005, Goldsmith stated that because Bernard had refused to schedule a closing, Main & Glen was making time of the essence and scheduling the closing for 2:00 p.m. on November 21, 2005.

By letter dated November 11, 2005, Goldsmith was advised that Mill Race Village would be represented by attorney Frank Holahan, and that correspondence for Mill Race Village should be sent to him. No response was then given to the time of the essence letter. However, in a letter dated November 16, 2005, Holahan advised Goldsmith that Main & Glen had "failed to close title in accordance with the parties' August 5, 2004 agreement," that Main & Glen's rights had terminated, and that the time of the essence letter was ineffective. Additionally Mill Race Village claimed entitlement to all engineering, legal, architectural, permits and approvals pursuant to the sale agreement. On November 24, 2005, Goldsmith enclosed in a letter to Bernard Langan a copy of the deed for the subdivided land to be retained by Mill Race Village.

Suit seeking a declaration that the sale agreement was terminated as the result of Main & Glen's default and material breach was instituted by Mill Race Village on November 28, 2005. On December 5, 2005, Main & Glen also filed suit seeking specific performance of the sale agreement, damages for its breach, compensation for unjust enrichment occurring as the result of increased property value from development approvals obtained through Main & Glen's efforts, and damages based on promissory estoppel. The matters were consolidated on March 2, 2006, with Main & Glen's complaint redesignated as a counterclaim.

Following discovery, on February 1, 2007, Mill Race Village filed a motion for summary judgment. Main & Glen opposed the motion and cross-moved to compel Mill Race Village to consent to an application by Main & Glen to the Sparta Planning Board for an extension of the final site plan approval that it had granted in June 2004. The cross-motion was resolved by the parties prior to the May 24, 2007 hearing on Mill Race Village's summary judgment motion.

As stated by the motion judge, Main & Glen opposed summary judgment by arguing: there was a deliberate violation of the contract by Mill Race; that it acted in bad faith and was not, itself, willing to close on September 10th. It further argues that Mill Race, indeed, waived any right not to close at a later date by the various actions of Mr. Langan; that his actions and comments in August 200[5], as it related to the potential price, was a signal that he was not going to close, and unwilling to close; that it was a deliberate violation of the contract in order to try to renegotiate the price; and that Mill Race had acted in bad faith by not providing the name of a closing attorney, providing the documents that were requested or giv[ing] notice otherwise under the breach [provisions as] would have been required under Paragraph 9 and Paragraph 10.

After hearing argument in the matter, the motion judge rejected Main & Glen's position, finding Bernard Langan's conduct to be irrelevant, holding that September 10, 2005 constituted a contractual drop-dead date, and determining that Main & Glen could not close on that date because it had not received all the necessary development approvals and had not completed the subdivision of the property.*fn4 Thus, the judge found, the contract ceased by its terms.

The judge held with respect to the contract:

[A] contract is a contract, and both sides and both parties signed. It is offered and accepted and enforceable by its terms. And its terms w[ere] that this was a one year contract. It terminated itself. It was a self terminating contract. It is not one that was based upon a potential closing. It was one that had a self termination of the six month and the six month extension. After that date neither party had any further rights or obligations thereunder. . . . [I]f a contract, itself, provides a clear understanding that time is of the essence then it is well settled that prompt performance is essential. The date contained in a contract will be strictly enforced by a Court of Equity. And again, this talks of time of the essence. But the concept is even more appropriate for this court that these parties to this agreement signed a contract for one year. And it was to be strictly enforced and has its own self termination date.

The judge additionally found that the contract provided for payment of attorneys' fees by Main & Glen. She then declared the judgment to be final, without addressing Main & Glen's counterclaims.

Main & Glen moved for reconsideration, arguing that the judge erred in determining that Bernard Langan's request to hold off pending receipt of the appraisal was irrelevant as the result of the contract's self-termination clause, that she erred in concluding that Main & Glen was obligated to obtain all approvals before September 10 and did not obtain them, and that she erred in dismissing Main & Glen's counterclaims, which were not discussed in Mill Race Village's briefing and were not necessarily mooted by entry of summary judgment in its favor. In support of its motion, Main & Glen additionally submitted documentation with respect to the status of approvals.

The judge denied Main & Glen's motion without further argument, finding that its submission of additional evidence was improper. Additionally, the judge stated that she had previously "essentially accepted that Bernard Langan told defendant to 'hold off' on calling the attorney to get the closing moving and waited for one month before communicating directly with defendant again." However, the judge continued, "even accepting that fact, the court has concluded that defendant did not and could not meet its contractual obligation to close on September 10, 2005" because it did not have the contractually-defined approvals and did not waive those conditions under the contract, and it lacked the subdivision deed. The judge concluded:

In summary, the court has fully and fairly considered defendant's defenses of bad faith, breach of contract, estoppel, and the like. The court has fully and fairly reviewed the status of the approval process. The court has held that the contract terminated. Defendant's claims for payment of approvals (unjust enrichment; quantum meruit) were also denied. The contract itself says:

Whereas, Purchaser agrees to undertake the obligation to make diligent efforts at securing all necessary land use approvals, at its sole cost and expense.

The court concludes that its decisions of May 24, 2007 were correct and are not changed.

A subsequent order fixed the amount of attorneys' fees awarded to Mill Race Village.


We are satisfied, following our review of the record, that the motion judge was mistaken when she literally interpreted the termination clause of the agreement of sale as the functional equivalent of a time-of-the-essence clause, and as a result, ruled that the contract ended by its terms on September 10, 2005, without regard to the conduct of the parties. As was stated in Salvatore v. Trace, Ordinarily, equity does not regard time as of the essence of an agreement. When a certain period of time is stipulated in the contract for its completion, or for execution of any of its terms, equity treats the provision as formal rather than essential. Delay, unless willful or unreasonably long or prejudicial to the other party, is not of itself a reason for denying the relief of specific performance. See 4 Pomeroy, Equity Jurisprudence (5th ed. 1941), § 1408 at 1054. [109 N.J. Super. 83, 91 (1969), aff'd, o.b. 55 N.J. 362 (1970).]

In the present case, Mill Race Village stipulated for purpose of the summary judgment motion that the agreement of sale specified a date for completion of September 10, 2005. Nonetheless, the precedent that we have cited suggests that the date should properly have been regarded as formal, not essential. Thus, consideration should have been given to the conduct of the parties, to the issue of whether the contractual deadline had been waived by Bernard Langan, and whether Main & Glen was or could have been ready to perform in a reasonable time after the September 10 date -- contested matters that could not have been determined as a matter of law on summary judgment.

Even if the motion judge were correct in determining that the termination clause was the equivalent to a time-of-the essence clause, we have held that waiver may occur. Ibid. As was stated in Salvatore:

Where time of performance is of the essence of the contract, a party who does any act inconsistent with the supposition that he continues to hold the other party to his part of the agreement will be taken to have waived it altogether. When a specific time is fixed for the performance of a contract and is of the essence of the contract and it is not performed by that time, but the parties proceed with the performance of it after that time, the right to suddenly insist upon a forfeiture for failure to perform within the specified time will be deemed to have been waived and the time for performance will be deemed to have been extended for a reasonable time. [Ibid. (quoting 6 Williston on Contracts § 856 (3d ed. 1962)).]

See also Marioni v. 94 Broadway, Inc., 374 N.J. Super. 588, 607 (App. Div.) ("When it has been demonstrated that a party has acted inconsistently with the attempt to make the time of performance of the essence, whether the conduct precedes or follows the closing date, a waiver will be found and the parties will be deemed to have extended the time for performance for a reasonable time."), certif. denied, 183 N.J. 591 (2005); Selective Builders, Inc. v. Hudson City Sav. Bank, 137 N.J. Super. 500, 505 (Ch. Div. 1975) (holding that "one may waive the delay in the performance of a contract whether time be of the essence or not. This waiver may be expressed or implied by written or oral agreement or by conduct indicating an intention to waive.").

In Salvatore, the sale contract at issue, similar to the contract in the present case, required mutual consent in writing for modification of the time of the essence clause. Nonetheless, we held that "[c]onduct may operate as a waiver" and that "a non-written modification in the form of a waiver is not violative of the Statute of Frauds." Ibid. (citing 2 Corbin, Contracts § 310 (1950)). See also 8 Corbin on Contracts § 40.13 (Rev. Ed. 1999) ("At common law, an express provision in a written contract that no rescission or variation is valid unless it too is in writing will not invalidate a subsequent oral agreement to the contrary."); Estate v. Connelly v. U.S., 398 F. Supp. 815, 827 (D.N.J. 1975) ("Every agreement, no matter how firmly drawn, may always be modified by another agreement. Even a formal agreement which expressly states that it cannot be modified except in writing, is subject to oral agreement since the requirement for a writing is itself subject to modification."), aff'd, 551 F.2d 545 (3d Cir. 1977); Lewis v. Travelers Ins. Co., 51 N.J. 244, 253 (1968); Headley v. Cavileer, 82 N.J.L. 635, 639 (E. & A. 1911).

A waiver is a "'voluntary and intentional relinquishment of a known right.'" Shotmeyer v. N.J. Realty Title Ins. Co., 195 N.J. 72, 89 (2008) (quoting Merchants Indem. Corp. of N.Y. v. Eggleston, 68 N.J. Super. 235, 253 (App. Div. 1961), aff'd, 37 N.J. 114 (1962)). "Questions of waiver, therefore, are usually questions of intent, which are factual determinations that should not be made on a motion for summary judgment." Shebar v. Sanyo Business Systems Corp., 111 N.J. 276, 291 (1988) (citing Columbia Sav. & Loan v. Easterlin, 191 N.J. Super. 327, 343 (Ch. Div. 1983), aff'd, sub nom, Columbia Sav. & Loan Assoc. v. Bogusz, 198 N.J. Super. 174 (App. Div. 1985)); see also, Mayo, Lynch & Assoc. v. Pollack, 351 N.J. Super. 486, 500 (App. Div. 2002); Garden State Bldgs. v. First Fid. Bank, 305 N.J. Super. 510, 527 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998). Because a substantial factual issue exists as to whether Bernard Langan waived the September 10, 2005 deadline by continuing to negotiate the sale price for the property, trial of the waiver issue is required.

Similarly, Main & Glen has produced evidence suggesting that Bernard Langan refused to close on the property because he believed he could obtain a higher price for it, thereby raising an issue as to Langan's motive. That issue, too, requires trial. G & W, Inc. v. Bor. of E. Rutherford, 280 N.J. Super. 507, 514 (App. Div. 1995) (holding summary judgment was not appropriate in an antitrust case where motive and intent were at issue). And an issue of bad faith likewise requires trial for its resolution. Duerlein v. N.J. Auto. Full Ins. Underwriting Ass'n, 261 N.J. Super. 634, 642 (App. Div. 1993) (finding that motion judge had erred in summarily concluding that insurance company had acted in bad faith). See also Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 224-31 (2005) (finding a breach of the covenant of good faith and fair dealing by property owner, which failed to notify tenant that payment was required upon renewal of lease until the lease had expired, thereby precluding renewal).

In summary, the record in this case discloses multiple issues of fact that bear directly on the question of whether the termination provision of the agreement of sale should be strictly enforced.*fn5 We thus reverse the order of summary judgment in favor of Mill Race Village, the dismissal of Main & Glen's counterclaims, and the judgment for attorneys' fees entered in this matter.

Reversed and remanded for trial.

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