On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Sussex County, C-25-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
THE MOTION JUDGE ERRED IN GRANTING SUMMARY JUDGMENT ON THE FIRST COUNT OF MILL RACE VILLAGE'S COMPLAINT AND DECLARING THE AGREEMENT NULL AND VOID.
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.
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.
THE MOTION JUDGE ERRED IN DISMISSING ALL COUNTS OF MAIN & GLEN'S COUNTERCLAIM.
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.
AS GENUINE ISSUES OF MATERIAL FACT EXIST ON BOTH MILL RACE VILLAGE'S CLAIMS AND MAIN & GLEN'S COUNTERCLAIMS, THE COURT BELOW ERRED IN GRANTING ATTORNEY FEES TO MILL RACE VILLAGE.
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, 30 ...