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Kalogeras v. 239 Broad Avenue

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 27, 2010

NICHOLAS KALOGERAS, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT, AND MYINHO HAHN AND GOLDEN EAGLE MANAGEMENT, L.L.C., PLAINTIFFS-INTERVENORS/ CROSS-APPELLANTS,
v.
239 BROAD AVENUE, L.L.C., 12 BRINKERHOFF, L.L.C., GOLDEN EAGLE DINER, INC., AND GOLDEN G, INC., DEFENDANTS-APPELLANTS/ CROSS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-318-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 16, 2008

Decided January 20, 2009

Remanded by Supreme Court June 16, 2010

Resubmitted August 2, 2010

Before Judges Yannotti and LeWinn.

The Supreme Court reversed our judgment in this case and remanded the matter to us for consideration of the arguments advanced in the appeal and cross-appeal that had not been addressed in our previous opinion. Kalogeras v. 239 Broad Avenue, L.L.C., 202 N.J. 349 (2010). For the reasons that follow, we affirm the judgment of the Chancery Division.

I.

The following facts are pertinent to our decision. Plaintiff Nicholas Kalogeras and his brother Konstantinos (Gus) Kalogeras were business partners. In 1976, they purchased the Golden Eagle Diner in Palisades Park, New Jersey. Golden Eagle Diner, Inc. (Golden Eagle) owned the diner and its liquor license. Plaintiff and Gus acquired certain property on Brinkerhoff Avenue, which was used as a parking lot for the diner. They thereafter transferred ownership of the real property to defendants 239 Broad Avenue, L.L.C. (239 Broad) and 12 Brinkerhoff, L.L.C. (Brinkerhoff).

By 2002, the relationship between plaintiff and his brother had deteriorated. It appears that, at the time, plaintiff wanted to sell the diner but Gus refused. Consequently, they decided that Gus would purchase plaintiff's interest in the diner and the real property. Through their attorneys, plaintiff and Gus negotiated the terms of the buyout.

In the negotiations, Anthony G. Rathe (Rathe) represented Gus and Socrates Lambrinides (Lambrinides) represented plaintiff. Rathe and Lambrinides negotiated the terms of two agreements, one for the sale of plaintiff's stock in 239 Broad and Brinkerhoff, and the other for the sale of plaintiff's stock in Golden Eagle.

On October 18, 2002, Lambrinides wrote to Rathe and summarized the terms that they had agreed upon. In his letter, Lambrinides stated that the buyout price was $4,000,000, and $1,000,000 was required to pay off creditors and the outstanding mortgages, leaving a balance of $3,000,000. According to Lambrinides, plaintiff would receive half of that amount, with $550,000 being paid in cash at closing and the balance paid in the form of a purchase money mortgage note in the amount of $950,000. The note was payable in monthly installments over a ten-year period, with interest at eight percent per annum.

In his letter, Lambrinides set forth, among other things, the following additional terms:

If [Gus] sells 239 Broad Avenue, L.L.C., 12 Brinkerhoff L.L.C., and/or Golden Eagle, Inc., in excess of $4,000,000.00 within two (2) years of the closing of this transaction, [plaintiff] will be entitled to receive one half of any amount realized from the sale in excess of $4,000,000.00.

So long as [Gus] is obligated on the Note, [plaintiff] shall have a right of first refusal to purchase the above named entities.

Rathe signed the letter on behalf of Gus. Rathe's signature appears beneath the statement that he agreed to the terms set forth in the letter.

On October 24, 2002, Gus and plaintiff signed the buyout agreements; however, the agreements did not include all of the terms in Lambrinides' October 18, 2002 letter, including the right of first refusal (RFR). Furthermore, both agreements stated in pertinent part that:

[t]he within document contains the entire agreement between the parties hereto and supersedes any and all prior agreements or understandings between the parties relating to the subject matter hereof. No oral understandings, statements, promises or inducements contrary to the terms of this Agreement exist. No representations, warranties, covenants or conditions, expressed or implied, other than as set forth herein or made a part hereof, have been made by the parties hereto.

In addition, the agreements did not contain any language stating whether the parties' respective rights could be assigned to a third party.

Plaintiff and Gus closed on the transaction in November 2002. After the closing, Gus was the sole owner of 239 Broad, Brinkerhoff and Golden Eagle. However, at some time thereafter, Gus's son Stellios Kalogeras (Stellios) acquired a twenty or twenty-five percent interest in 239 Broad and Brinkerhoff. Moreover, in December 2002, Gus formed Golden G, Inc. (Golden G), and Golden Eagle transferred ownership of the diner business to that entity while retaining ownership of the liquor license.

In July 2005, Byung Kim offered to purchase the diner, the liquor license and real property. Gus asked Rathe to review the offer. Rathe informed Gus that plaintiff had a RFR under the buyout agreements, and the agreement with Byung Kim would have to acknowledge the RFR. Rathe told Gus not to worry about the RFR. Rathe testified that he suspected plaintiff would not exercise the RFR, based on a conversation with Lambrinides, who asked him whether the closing would take place before December 2005. Lambrinides said that plaintiff had purchased another business and wanted the money to "make a payment."

According to Gus, Rathe had not previously informed him that he had agreed to the RFR as part of the buyout agreements. Gus also said that Rathe had not informed him that the RFR would expire if the purchase money mortgage note issued to plaintiff was fully paid. At the time Gus was negotiating the sale of the diner, monies remained due and owed on the note.

Rathe drafted an agreement that provided for the sale of the diner, liquor license and real property to Byung Kim (the Sales Agreement). Rathe included the following clause in the Sales Agreement:

It . . . has been disclosed to Buyer that a predecessor co-owner of the within property which was sold to Seller herein contains a provision for the Right of First Refusal which must [be] submitted to said predecessor for review. It is understood that the within contract is subject to said option, and if so exercised by predecessor, this contract shall be canceled, and all deposits shall be returned to Buyer.

On July 7, 2005, Rathe sent the draft to Byung Kim's attorney and, in an accompanying letter, Rathe stated that he did not think the RFR would present a problem because plaintiff had purchased a new business. Gus signed the Sales Agreement on July 28, 2005.

Rathe discussed the Sales Agreement with Lambrinides. Lambrinides said that he wanted to see the entire contract, and Rathe sent the document to him with the following hand-written statement on the cover sheet: "[t]he enclosed copy of [the] original is forwarded to you with full understanding, that same shall be restricted for your review as well as your client, without further publication." Lambrinides testified, however, that he never agreed that he would not disclose the agreement to anyone other than plaintiff.

Lambrinides provided a copy of the agreement to Sukjin Henry Cho (Cho), Myinho Hahn's (Hahn) attorney. Lambrinides and Cho began negotiating the terms of an assignment of plaintiff's RFR to Hahn and Golden Eagle Management, L.L.C. (GEM). The attorneys prepared an agreement which stated that the consideration for the assignment was $1.00. However, an amendment to that agreement indicated that the consideration was actually $100,000.

On August 26, 2005, plaintiff signed a document which stated that he was exercising the RFR. On that same date, plaintiff, Hahn and GEM executed the assignment of the RFR. Lambrinides informed Rathe that plaintiff had exercised his RFR and forwarded Hahn's check for $580,000. Gus thereupon decided to cancel the Sales Agreement, ostensibly on the ground that the business has been undervalued and he was no longer interested in selling the diner.

On September 2, 2005, plaintiff filed a complaint in the Chancery Division, naming 239 Broad, Brinkerhoff and Golden Eagle as defendants. In his complaint, plaintiff sought, among other relief, specific performance of the RFR and the Sales Agreement. Thereafter, the court granted a motion by Hahn and GEM to intervene in the case. Hahn and GEM also sought specific performance of the RFR and the Sales Agreement. On March 9, 2007, after a bench trial, the court rendered a lengthy decision on the record. The court determined that plaintiff, Hahn and GEM were entitled to specific performance of the RFR and Sales Agreement.

The court entered a judgment dated March 9, 2007, which granted specific performance in favor of plaintiff, Hahn and GEM; required defendants to transfer all rights, title and interest in 239 Broad, Brinkerhoff, Golden Eagle and Golden G to Hahn for $6,500,000; ordered Hahn to pay plaintiff $100,000 at the closing; required Hahn to pay a broker's fee to the Estate of Charlie Kim; ordered Hahn to pay Lambrinides $25,000 towards his legal fees; and directed Gus and Stellios not to interfere with and to cooperate in the transfer of the liquor license. The court also ordered that the closing take place on or before December 10, 2007. Defendants appealed. Plaintiff and Hahn/GEM filed cross-appeals. The trial court stayed its judgment pending appeal.

In their appeal, defendants raised the following arguments for our consideration: 1) the trial court erred by enforcing the Sales Agreement because the agreement to transfer the liquor license was not expressly conditioned upon approval pursuant to the Alcoholic Beverage Control Act, N.J.S.A. 33:1-1 to -97; 2) the court erred by finding that Gus ratified the RFR; 3) plaintiff and Hahn are not entitled to equitable relief pursuant to the doctrine of unclean hands; 4) plaintiff and Hahn are equitably estopped from enforcing the RFR; 5) the assignment of the RFR is not enforceable because it arose as a result of Lambrinides's breach of a confidentiality agreement; 6) the court erred by applying the equitable rule regarding the imposition of a loss between two innocent parties; 7) specific performance should not have been granted to plaintiff and Hahn because: a) the RFR does not apply to the Sales Agreement, b) the RFR cannot be assigned, c) the RFR is not enforceable because of the merger clause in the buyout agreements, and d) enforcement of the RFR would be harsh and oppressive to Gus; 8) the court did not have personal jurisdiction over Golden G, Gus or Stellios; and 9) if the judgment is affirmed, the closing should be nine months from the date of the decision.

In his cross-appeal, plaintiff argued that: 1) the Sales Agreement had a purchase price of $5,800,000, not $6,500,000, and the order for specific performance should have been at that price; and 2) the assignment of the RFR to Hahn should have been declared void for lack of consideration and mutual consent. In their cross-appeal, Hahn and GEM argued that the purchase price was $5,800,000 and Gus should be estopped from arguing otherwise.

We filed an opinion reversing the trial court's judgment, finding that the court erred by ordering specific performance of the Sales Agreement because the agreement to transfer the diner's liquor license had not been expressly conditioned upon approval of the transfer pursuant to ABC Act. Kalogeras v. 239 Broad Avenue, L.L.C., No. A-4170-06 (App. Div. January 20, 2009) (slip op. at 15-16). The Supreme Court reversed our judgment on that issue and, as stated previously, remanded the matter to us for consideration of the other issues raised in the appeal and the cross-appeals.

II.

Defendants argue that the trial court erred in finding that Gus was bound by the RFR. In our view, this contention is without merit.

In its decision from the bench, the trial court found that Gus had not authorized Rathe to agree to grant plaintiff a RFR in the buyout agreements. The court further found that, although Gus was not initially bound by the RFR, he subsequently ratified Rathe's agreement to that term when he signed the Sales Agreement, which incorporated the RFR.

A trial court's findings of fact are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citing N.J. Tpk. Auth. v. Sisselman, 106 N.J. Super. 358 (App. Div.), certif. denied, 54 N.J. 565 (1969)). We may not set aside a trial court's findings of fact and conclusions of law unless "'we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Ibid. (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).

We are convinced that there is sufficient evidence in the record to support the trial court's finding that Gus ratified the RFR in the buyout agreements. In reaching that conclusion, the trial court correctly applied the principles set forth in Thermo Contracting Corp. v. Bank of New Jersey, 69 N.J. 252, 361 (1976), where the Court stated that:

[r]atification is the affirmance by a person of a prior act which did not bind him but which was done, or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him. . . . Ratification requires intent to ratify plus full knowledge of all the material facts. Ratification may be express or implied, and intent may be inferred from the failure to repudiate an unauthorized act, from inaction, or from conduct on the part of the principal which is inconsistent with any other position than intent to adopt the act. [(citations omitted).]

Defendants contend that Gus did not validly ratify the RFR. According to defendants, Gus did not have knowledge of a material fact, specifically, that Lambrinides had "lull[ed]" Rathe into believing that plaintiff would not exercise the right. Rathe testified that he suspected plaintiff would not exercise the RFR because Lambrinides asked when the closing would occur. According to Rathe, Lambrinides said that plaintiff had purchased another business and wanted the money to make a payment.

Although Rathe may have suspected that plaintiff would not exercise his RFR, he was not "lull[ed]" into believing that. Indeed, Lambrinides never told Rathe that plaintiff would not exercise the RFR. Moreover, when he acknowledged in the Sales Agreement that plaintiff had a RFR under the buyout agreements, Gus knew or should have known that plaintiff could exercise the right, regardless of what Lambrinides may have told Rathe.

Defendants also contend that Gus did not validly ratify the RFR because he had not been informed that plaintiff could only exercise the right if monies remained due on the purchase money mortgage note issued to plaintiff in the buyout. However, this information was not material to Gus's acknowledgement of the RFR in the Sales Agreement. The evidence did not establish that Gus would not have agreed to incorporate the RFR in the Sales Agreement if he had known the RFR could be extinguished if he paid off the note.

We therefore conclude that there is sufficient credible evidence in the record to support the trial court's finding that Gus validly ratified Rathe's agreement to grant plaintiff a RFR.

III.

Defendants next argue that the trial court should have applied the doctrine of unclean hands and refused to grant equitable relief to plaintiff and Hahn.

It is well established that a party who seeks equitable relief "'must come into court with clean hands and . . . must keep them clean after his entry and throughout the proceedings.'" Borough of Princeton v. Mercer Cty., 169 N.J. 135, 158 (2001) (quoting A. Hollender & Son, Inc. v. Imperial Fur Blending Corp., 2 N.J. 235, 246 (1949)). The doctrine "'gives expression to the equitable principle that a court should not grant relief to one who is a wrongdoer with respect to the subject matter in suit.'" Ibid. (quoting Faustin v. Lewis, 85 N.J. 507, 511 (1981)).

The unclean hands doctrine allows a court to withhold equitable relief if the party seeking such relief has engaged in bad faith, fraud or unconscionable acts in the transaction at issue in the case. Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 156 (App. Div. 2002). Application of the doctrine of unclean hands is committed to the sound discretion of the court. Borough of Princeton, supra, 169 N.J. at 158.

Defendants argue that the trial court should have applied the unclean hands doctrine to plaintiff because: plaintiff provided testimony found by the court to be not worthy of belief; Lambrinides "lull[ed]" Rathe into believing that plaintiff would not exercise the RFR; Lambrinides provided a copy of the Sales Agreement to Hahn's attorney in contravention of an alleged confidentiality agreement; plaintiff endeavored to misrepresent the amount Hahn would pay for assignment of the RFR; and plaintiff endeavored to secure a windfall at Gus's expense by attempting to exercise the RFR for $5,800,000 rather than the agreed-upon sales price of $6,500,000.

Defendants additionally argue that the court should have applied the unclean hands doctrine to Hahn because Hahn knowingly participated in a scheme to deceive Gus concerning the amount he paid for the assignment of the RFR; suggested that plaintiff be named a managing partner of GEM to avoid any claim that the RFR was not assignable; attempted to acquire the diner for less than Byung Kim had agreed to pay; and gave false testimony at a deposition.

We are not persuaded by these contentions. We emphasize that the unclean hands doctrine "'does not repel all sinners from courts of equity, nor does it apply to every unconscientious act or inequitable conduct on the part of complainants.'" Untermann v. Untermann, 19 N.J. 507, 517 (1955) (quoting Neubeck v. Neubeck, 94 N.J. Eq. 167, 170 (E. & A. 1922)). Application of the doctrine must relate to an "'evil practice or wrong conduct in the particular matter or transaction in respect to which judicial protection or redress is sought.'" Ibid. (quoting Neubeck, supra, 94 N.J. Eq. at 170).

We are satisfied that the trial court properly found that the doctrine of unclean hands did not preclude the grant of equitable relief to plaintiff and Hahn. Although some of plaintiff's and Hahn's actions were questionable to an extent, their actions were not evil. Moreover, plaintiff's and Hahn's actions were not so unconscientious or inequitable as to preclude the award of equitable relief.

IV.

Defendants additionally contend that the trial court erred by failing to bar plaintiff and Hahn from enforcing the RFR on the basis of equitable estoppel. In W.V. Pangborne & Co. v. N.J. Dep't of Transp., 116 N.J. 543, 553 (1989), the Court defined equitable estoppel as the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse. . . .

[(citations omitted) (alterations in original).]

In support of this contention, defendants again assert that Lambrinides "lulled" Rathe into believing that plaintiff would not exercise the RFR. Defendants also assert that Lambrinides wrongfully provided a copy of the Sales Agreement to Hahn's attorney in violation of a confidentiality agreement. Defendants contend that, but for that disclosure, Hahn would not have agreed to purchase the diner and plaintiff would not have exercised the RFR.

However, as we stated previously, by acknowledging plaintiff's RFR in the Sales Agreement, Gus knew or should have known that the right could be exercised, regardless of what Lambrinides said to Rathe concerning the Sales Agreement. Furthermore, there is no evidence that Lambrinides ever told Rathe that plaintiff would not exercise the RFR. Moreover, Lambrinides testified that he never agreed to keep the Sales Agreement confidential, despite Rathe's claim to the contrary.

We are therefore satisfied that the record supports the trial court's determination that, under the circumstances, plaintiff and Hahn were not equitably estopped from enforcing the RFR.

V.

Defendants contend that the trial court erred by enforcing the assignment of the RFR because the assignment allegedly was a result of a breach by Lambrinides of the agreement to keep the Sale Agreement confidential. However, as we stated previously, Lambrinides and Rathe differed as to whether Lambrinides agreed that he would not disclose the Sales Agreement to anyone other than his client. We are satisfied that in light of the disputed evidence on that point, Lambrinides' disclosure of the Sales Agreement to Hahn's attorney did not preclude enforcement of the assignment.

VI.

Defendants raise several arguments in support of their contention that the trial court erred by granting specific performance of the RFR and the Sales Agreement. We find no merit in these contentions.

Specific performance of a contract may be granted upon a showing that there is a valid and enforceable agreement, the terms of the contract can be reasonably determined and compelling performance of the agreement would not be harsh or oppressive to either party. Marioni v. 94 Broadway, Inc., 374 N.J. Super. 588, 598-99 (App. Div.), certif. denied, 183 N.J. 591 (2005). In addition, the court must determine whether this equitable remedy is appropriate under the circumstances in light of the conduct of the parties. Id. at 599-600.

Defendants contend that the RFR does not apply to the Sales Agreement because the agreement was a sale of the diner's assets, whereas the RFR gave plaintiff the right to purchase stock in 239 Broad Avenue, Brinkerhoff and Golden Eagle. We are convinced, however, that the record fully supports the court's decision applying the RFR to the Sales Agreement. In our view, the court's decision was consistent with the intent of the parties.

The intention of the parties to a contract is to be gleaned from the language of the agreement as a whole. Washington Constr. Co., Inc. v. Spinella, 13 N.J. Super. 139 (App. Div. 1951). When the language does not clearly reflect the intention of the parties, the court must consider all of the surrounding circumstances. Great Atl. Pac. Tea Co., Inc. v. Checchio, 335 N.J. Super. 495, 501 (App. Div. 2000). The circumstances to be examined include the situation of the parties, the terms of the agreement and its purpose. Marchak v. Claridge Commons, 134 N.J. 275, 282 (1993).

Here, the trial court found that Gus's intention was to sell "everything related to the Golden Eagle Diner." The intent of the RFR was to afford plaintiff a right to purchase the diner in the event of a sale. The fact that the Sales Agreement was structured as a sale of assets rather than a sale of stock is not dispositive. We are convinced that the trial court properly determined that the RFR applied to the Sales Agreement.

Defendants additionally argue that the RFR is a personal right that plaintiff could not assign to Hahn and GEM. However, the record shows that plaintiff exercised the RFR, as shown by the document dated August 26, 2005, which he signed and tendered to Rathe. Thus, even if plaintiff could not legally assign the RFR to Hahn and GEM, he validly exercised the RFR on his own behalf contemporaneously with his assignment of the right to Hahn and GEM.

Defendants further contend that the trial court's grant of specific performance was erroneous because enforcement of the RFR would be harsh and oppressive to Gus. Again, we disagree. As we stated previously, after plaintiff exercised the RFR, Gus cancelled the Sales Agreement, claiming that the diner had been undervalued and he was no longer interested in selling. Gus asserted that he wanted to keep the diner "in the family."

The trial court found, however, that when he agreed to sell the diner to Byung Kim, Gus's goal was to obtain the best price. The court also found that Gus's assertion that he wanted to keep the diner in the family was "totally incredible[.]"

We must defer to the trial court's factual findings on these issues, particularly since the court's findings were based on substantial credible evidence and its assessment of Gus's credibility. Rova Farms, supra, 65 N.J. at 484. We are therefore convinced that enforcement of the RFR is not harsh and oppressive to Gus.

VII.

Defendants additionally argue that the trial court erred in its application of the equitable principle pertaining to allocation of a loss between innocent parties. In Cambridge Acceptance Corp. v. American National Motor Inns, Inc., 96 N.J. Super. 183, 206 (Ch. Div. 1967), aff'd, 102 N.J. Super. 435 (App. Div.), certif. denied, 53 N.J. 81 (1968), the court explained that where a loss must be borne between two innocent parties, equity will impose the loss on the party whose act could have prevented the loss. The court further explained that this principle is meant to be applied in fraud cases. Ibid.

Here, the trial court did not find that any of the parties committed fraud. Thus, the trial court should not have applied this equitable maxim as a basis for its judgment. We are convinced, however, that the court's error was harmless because the court provided sufficient alternative grounds for its judgment.

We are further convinced that, even if this equitable principle was applicable in this case, there is sufficient credible evidence in the record to support the court's finding that, if a loss is to be borne by either Hahn or Gus, it should be borne by Gus. The record shows that Gus could have avoided this entire controversy by refusing to ratify the RFR.

VIII.

Next, defendants contend that the trial court did not have personal jurisdiction over Golden G, Gus and Stellios and therefore did not have authority to grant any relief as to them. We find no merit in this argument.

Here, the trial court amended plaintiff's complaint to add Golden G as a party defendant pursuant to Rule 4:9-2. The rule provides in pertinent part that a court may amend a pleading to conform to the evidence. Ibid. The court found that Golden G was Gus's alter ego. Furthermore, Gus had testified that Golden G owned and operated the diner. Therefore, the court did not abuse its discretion by adding Golden G as a defendant in order to provide complete relief.

Defendants also argue that, because Gus and Stellios were not parties in the case, the court erred by granting relief as to them. However, the court could have amended the pleadings pursuant to Rule 4:9-2 and added Gus and Stellios as defendants because they had ownership interests in the entities that owned the diner and its assets.

Moreover, even if the court erred by ordering Gus and Stellios not to interfere with and to cooperate in the transfer of the liquor license, the inclusion of such relief in the judgment was harmless. This is so because the court merely required Gus and Stellios to do what that they would otherwise be required to do to effectuate the sale of the diner and its assets.

IX.

In their cross-appeals, plaintiff, Hahn and GEM argue that the trial court erred by ordering specific performance of the Sales Agreement at a purchase price of $6,500,000. Plaintiff, Hahn and GEM contend that Gus and Byung Kim agreed to a purchase price of $5,800,000.

Here, the Sales Agreement stated that the purchase price was $5,800,000. However, the court found that Gus also was to receive a note in the amount of $700,000 "under the table." The court therefore found that the parties to the Sales Agreement intended that the sales price would be $6,500,000. We are satisfied that there is sufficient credible evidence in the record to support the court's finding.

Plaintiff additionally argues that the court should not have enforced the assignment of the RFR because of lack of consideration and mutual assent. Plaintiff asserts that, at best, he and Hahn were negotiating a "potential" assignment of his RFR. Plaintiff says that he and Hahn never exchanged a fully executed assignment, and Hahn did not pay any consideration for the assignment. Plaintiff also says that, although Hahn tendered a check in the amount of $580,000, to purchase the diner, the check was never deposited.

However, "if parties agree on essential terms and manifest an intention to be bound by those terms, they have created an enforceable contract." Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992). Here, the evidence established that plaintiff and Hahn agreed to the essential terms of the assignment. By tendering payment, Hahn manifested an intention to be bound by those terms, thereby establishing that the parties had, in fact, entered into an enforceable contract.

X.

Defendants additionally argue that, in the event we decide to affirm the trial court's judgment, we should set the closing date for nine months from the date of our decision. We are convinced, however, that the closing date should be established by the trial court after affording the parties an opportunity to be heard.

Affirmed and remanded to the trial court for further proceedings in conformity with this opinion. We do not retain jurisdiction.

20100827

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