On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4733-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Messano.
This matter is now before us for the third time. In Park Ctr. at Route 35, Inc. v. Zoning Bd. of Adjustment of the Twp. of Woodbridge, 365 N.J. Super. 284, 287-88 (App. Div. 2004) (Park Center I), plaintiff appealed from Judge James P. Hurley's decision affirming the denial of its amended minor site plan application by defendant (the Board). We affirmed, concluding that the Board acted reasonably in denying plaintiff's application--an attempt "to avoid its obligation to perform Phase II" of its development project--because the Board's "approval of the initial application was conditioned upon the later completion of Phase II." Id. at 289. Phase II of the development contemplated the destruction of an existing building, known as the "Park Sweet Shop," so as to provide six additional parking spaces for other commercial enterprises constructed in Phase I of the development. Id. at 287. We concluded that plaintiff "was obligated to either perform Phase II or return to the Board to show there was a sufficient change in circumstances warranting a departure from the Board's earlier requirement that Phase II be completed." Id. at 291.
Thereafter, various applications were made before Judge Hurley by the Board to force demolition of the Sweet Shop building and to order completion of Phase II. It suffices to say that plaintiff repeatedly attempted to delay its implementation of the trial court's orders, culminating in the judge entering an order to show cause sua sponte on May 6, 2005, returnable June 3, 2005. In the interim, plaintiff entered into a consent judgment on May 11, 2005 in which it agreed to commence remediation of the site and construct the additional parking spaces originally contemplated.
Intervenor, Dr. Norman Nepo, had been involved in the litigation prior to our decision in Park Center I. Nepo owned two parcels of land.*fn1 He entered into a contract to sell one parcel to plaintiff for inclusion in the development project, a strip mall with parking and site improvements. The contract called for a portion of the second parcel, upon which Nepo maintained a medical practice, to be conveyed subject to a cross-easement agreement (the Agreement), which we discuss in further detail below. Nepo alleged in his counterclaim that plaintiff had breached its contract with him by seeking to avoid construction of Phase II, thus denying him access to parking spaces he claimed were promised for his use pursuant to the Agreement. He filed a response to the order to show cause, seeking damages based upon plaintiff's alleged breach.
Nepo argued that pursuant to the Agreement, he was entitled to recover counsel fees as damages occasioned by plaintiff's breach. Judge Hurley, who had earlier sanctioned plaintiff $2500 for its dilatory tactics, converted that sanction into a counsel fee award payable to Nepo. Nepo, whose fee request at that time totaled more than $17,000, moved for summary judgment, and plaintiff cross-moved seeking the same relief. The parties stipulated that Nepo's sole claim for damages was his counsel fees, the six additional parking spaces, to which Nepo claimed access under the easement agreement, having already been constructed.
Judge Hurley denied Nepo's motion, granted plaintiff's, and dismissed the counterclaim, finding that Nepo's alleged damages were not recoverable. This led to Nepo's appeal, which we considered and decided in an unpublished opinion, Park Ctr. at Route 35, Inc. v. The Zoning Bd. of Adjustment of the Twp. of Woodbridge, No. A-1240-05 (App. Div. March 23, 2007) (Park Center II). We reversed the dismissal of Nepo's counterclaim, and remanded the matter for further proceedings. Specifically, we ordered Judge Hurley on remand to "determin[e] [whether] the actions of [plaintiff] by attempting to unilaterally amend the site plan and appealing the Board's denial constitut[ed] a breach of the [A]greement between [plaintiff] and Nepo." Id. at 9. We specifically noted that additional factfinding was necessary. Ibid.
Nepo now appeals from the non-jury trial on remand that resulted in Judge Hurley's conclusion that "[plaintiff's] actions did not constitute an actual or anticipatory breach of the Agreement." He raises the following issues for our consideration:
I. THE TRIAL COURT ERRED WHEN IT IGNORED THE SUBSTANTIAL EVIDENCE THAT [PLAINTIFF] BREACHED ITS AGREEMENT WITH DR. NEPO AND IS THEREFORE OBLIGATED TO PAY DR. NEPO'S DAMAGES PURSUANT TO SAID AGREEMENT.
II. THE TRIAL COURT'S FACTUAL FINDINGS ARE CONTRARY TO THE APPELLATE DIVISION DECISIONS IN PARK CENTER I AND PARK CENTER II.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Our review of the factual findings made by the judge in a non-jury trial is quite limited. Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007). "'[W]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). In general, the judge's factual "findings . . . should not be disturbed unless they are so wholly insupportable as to result in a denial of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (quotation omitted). However, "[a] trial court's interpretation ...