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Transworld Aggregate, LLC, Duraport Newfoundland Limited, and the v. Western Logging Limited


September 26, 2011


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-708-07.

Per curiam.


Argued November 4, 2010

Before Judges R. B. Coleman, Lihotz and J. N. Harris.

Plaintiffs Transworld Aggregate, LLC (Transworld), Duraport Newfoundland Limited (Duraport) and the Alessi Organization, Inc. (Alessi) (collectively plaintiffs or Duraport*fn1 appeal from a February 24, 2010 order granting the motion of defendants Western Logging Limited (Western Logging), Dennis Dolomount,*fn2

Marine Contracting Limited, Marine Contractors, Inc., Glynn Pike and Daryl Bennett (collectively defendants or Western Logging) to enforce the settlement entered between the parties and to terminate the parties' Terminal Agreement dated March 4, 2009. Plaintiffs also appeal from the denial of their cross-motion to declare the Settlement Agreement void and relist the matter for trial. Plaintiffs contend the Settlement Agreement never went into effect because an express contingency - plaintiffs' receipt of and satisfaction with a timely Tenant Estoppel Certificate -was never met. Contrary to plaintiffs' contentions, the motion court held in a written opinion that plaintiffs "were in total control of the 'contingency,'" and "[d]ue to plaintiffs' own actions and/or inactions, plaintiffs cannot complain that the Estoppel Certificate was not timely or satisfactory." We agree and, accordingly, affirm the order enforcing the Settlement Agreement and terminating the Terminal Agreement.

This matter arises out of a complaint filed by plaintiffs in January 2003. After more than seven years of litigation, and the case having been called for trial, the parties entered into a Settlement Agreement, the terms of which were orally placed on the record on March 4, 2009. Subsequently, the settlement was memorialized in a written agreement deemed entered into as of March 4, 2009 (the Settlement Agreement). In accordance with the Settlement Agreement, the complaint and counterclaim of the underlying action were to be dismissed, as were the claims and counterclaims asserted by the parties against each other in actions pending in the Supreme Court of Newfoundland and Labrador, Canada. The agreement provided:

The Settlement Agreement provided, among other things, that the parties would enter into a separate Terminal Agreement to address certain ownership and shipping rights relating to a facility known as Turf Point in Newfoundland, Canada.

2. Simultaneous with the execution of this Agreement, Western Logging and Duraport agree to enter into a Terminal Agreement concerning the ownership and certain rights to certain real property, including all real property owned and leased by Western Logging in Newfoundland, Canada, including a "haul road," water lots, property owned in fee simple, and the facility, improvements and fixtures thereon, and the equipment used in connection with the facility commonly known as ("Turf Point") as further described in the form agreement attached hereto as Exhibit A ("Terminal Agreement"). The parties agree that a short form contract describing that the parties have entered into a contract (the Terminal Agreement) pursuant to which Duraport shall purchase the property, and that the terms of the contract shall run with the land will be drafted, signed by Western Logging and Duraport and recorded by Duraport at its own expense, and Western Logging specifically agrees to execute same within a reasonable period of time.

Paragraph 1 of the Settlement Agreement specifies that the settlement is subject to a contingency. That paragraph more fully describes the contingency as follows:

The contingency is receipt from AUR Resources, Inc. and its assignee Teck Cominco Limited [Teck] an executed tenant estoppel letter or some other reasonably acceptable document confirming that [Teck] does not consider the purchase and assignment of the Turf Point Property . . . by Western Logging to Duraport to be a transaction that is subject to [Teck's] right of first refusal. This contingency shall be satisfied within a reasonable period of time in light of the parties' efforts and conduct.

As contemplated by the Settlement Agreement, the parties entered into the Terminal Agreement, which was also dated March 4, 2009. The Terminal Agreement included a confidentiality provision, but consistent with Paragraph 1 of the Settlement Agreement, Paragraph 11 of the Terminal Agreement states, in pertinent part, that disclosure to Teck was permitted for the purpose of obtaining a tenant estoppel and confirmation that Teck's right of first refusal was not implicated or triggered. More specifically, the confidentiality clause provides:

11. Confidentiality. During the term of this Agreement, neither Western Logging nor Duraport shall cause or allow the terms of this Agreement to be disclosed to anyone other than each other, and their respective attorneys and accountants, and banks/lenders or those individuals or entities that may finance Duraport's operations or its acquisition of the Turf Point facility. Duraport may disclose the terms of this Agreement to its bank, lender or other person/entity providing Duraport financing. The parties further agree that this Agreement and its terms shall be disclosed to AUR Resources, Inc[.] and its assignee Teck Cominco, Limited for the purpose of obtaining a tenant estoppel and confirmation satisfactory to Duraport that AUR Resources, Inc. and Teck Cominco, Limited do not consider any of the transactions contemplated by this Agreement to implicate or trigger any right of first refusal contained in their Port Facilities Agreement with Western Logging. This shall be a condition of this Terminal Agreement and the Settlement Agreement. In addition, an update of the tenant estoppel and confirmation at the time of the closing of the purchase of Turf Point facility contemplated herein.

The Terminal Agreement declares that its term is for a period of ten years commencing on May 1, 2009. Paragraph 7 of the Terminal Agreement specifies that the shipping season (from Turf Point) is from April 1 through December 1, and Paragraph 9 of the Terminal Agreement provides in relevant part:

During the term of this agreement, Duraport shall ship a minimum of three (3) Handy Max Vessels loading approximately 30,000-35,000 metric tons (each ship) per year. If Duraport fails to ship the minimum required herein in any year, all of Duraport's rights under this agreement shall be waived and this agreement shall terminate.

Paragraph 10 of the Terminal Agreement forbids Western Logging and all companies with which it is directly or indirectly associated from competing with Duraport or its operations for the term of the Terminal Agreement. Further, a non-compete clause included in the agreement provides that Western Logging may not directly or indirectly sell, mine, distribute, ship, cause to be shipped, or otherwise transport construction aggregate material including sand, stone and cement to any person or entity located in Massachusetts, Rhode Island, Connecticut, New York, New Jersey and Pennsylvania, designated as the "Restricted Zone."

Prior to the execution of the Settlement Agreement, counsel for Western Logging forwarded to plaintiffs' counsel, a March 4, 2009 e-mail from Peter Rozee, Senior Vice President of Commercial Affairs for Teck. In that e-mail, Rozee indicated, based upon the settlement as described to him by plaintiff's counsel, that Teck acknowledged the transaction would not trigger first refusal if the terms of the settlement provide that as a condition of Duraport's proposed purchase of Western Logging's interest in the port facility, Duraport agreed to assume and honor all obligations of Western Logging and respect all rights of Teck/AUR under all agreements in place between Teck/AUR and Western Logging in connection with the port and the improvement made thereto.

The Settlement Agreement was executed as of March 4, 2009. On March 23, 2009, plaintiffs' counsel advised Western Logging that he expected to send out a Tenant Estoppel Certificate for Teck sometime that week. Having not received the Tenant Estoppel Certificate in that timeframe, Western Logging inquired in two letters dated April 6 and June 18, 2009 as to the status of the document. Four-and-one-half months after the Settlement Agreement was executed, and three-and-one-half months into the 2009 shipping season, plaintiffs forwarded, on July 16, 2009, a copy of a preliminary draft of the Tenant Estoppel Certificate for Teck's review. On September 11, 2009, Teck sent an e-mail to plaintiffs' counsel providing its initial comments on the draft and advising that an amendment to the Port Facilities Agreement had been entered.

After plaintiffs learned of the amendment, an active exchange of communications took place. Plaintiffs questioned Western Logging about changing the Port Facilities Agreement without notifying plaintiffs or obtaining plaintiffs' approval. Western Logging responded by letter dated September 25, 2009, inviting plaintiffs to send any questions regarding the amendment and explaining that the amendment provides for an increase in the current stock piling rate. Plaintiffs sent a letter on that same date, requesting that Western Logging explain "how the .50 per ton increase was arrived at, and what is envisioned with respect to the additional services the port owner is expected to provide, pursuant to said amendment." Western Logging replied somewhat dismissively on October 1 that "[n]othing in the Settlement Agreement prohibits Western Logging from amending the Port Facilities Agreement as long as it does not have a negative impact upon your client's rights under the Settlement Agreement" and that Western Logging had "arrived at the .50 per ton increase based upon its operations and business." Plaintiffs responded that they "welcome the opportunity to make more money per ton, if that is all that the agreement contemplated. However, the agreement does not simply contemplate a higher per ton rate. The higher per ton rate comes with a cost - having to make manpower available on nights, weekends, holidays, etc." Plaintiffs added that they wanted to close on the transaction but, they must be comfortable with what they are buying. Plaintiffs then observed, "it appears that Teck and Western Logging are not on the same page as far as what is contemplated by the port owner under this amendment." Finally, Western Logging replied that "[t]he agreement does not change the terms or manner in which Western Logging performs its services. Western Logging has committed no bad faith whatsoever."

Eventually, on November 24, 2009, plaintiffs' counsel received an executed Tenant Estoppel Certificate from Teck via e-mail. Shortly thereafter, by letter dated December 3, 2009, Western Logging "declare[d] the Terminal Agreement terminated under the . . . provisions contained therein" for plaintiffs' "fail[ure] to ship the minimum requirement for the 2009 shipping season." Plaintiffs' counsel replied:

My client has been willing and able to perform under the Terminal Agreement since it was signed. However, the contingency required for the Settlement Agreement (and therefore the Terminal Agreement) to become effective has never been satisfied, and until such contingency is satisfied, my client is not obligated to make any shipments from the facility. Thus, my client disagrees with and rejects Western Logging's attempt to "terminate" the Terminal Agreement.

Although the 2009 shipping season had concluded, Duraport had not shipped any vessels to be loaded by Western Logging at Turf Point. Western Logging, therefore, moved to enforce its asserted right to declare the Terminal Agreement terminated, with neither party having any other further obligations to the other. Plaintiffs cross-moved to declare the Settlement Agreement void and never in effect and to relist the case to the active trial list, contending that the Terminal Agreement was contingent on plaintiffs' timely receipt of an executed Tenant Estoppel Certificate and their finding it satisfactory. Plaintiffs contend that the shipping requirements of the Terminal Agreement did not come into effect until the execution of the Tenant Estoppel certification, and since the certification was not executed until November 24 and the shipping season ended December 1, it was untimely and unacceptable.

By order and letter opinion dated February 24, 2010, the trial judge granted Western Logging's motion to enforce the Terminal Agreement and denied plaintiffs' motion to void the Settlement Agreement. The court found that the contingency did not control the shipping requirements since the first paragraph of the Terminal Agreement stipulates that the term of that agreement "shall be for a period of ten (10) years commencing on the 1st Day of May, 2009." As to plaintiffs' argument that the certificate was not executed timely, the judge explained:

[I]t is clear that the plaintiffs, not Western Logging, were in total control of the "contingency," i.e., obtaining the Estoppel Certificate. Due to plaintiffs' own actions and/or inactions, plaintiffs claim they did not obtain the Estoppel Certificate that plaintiffs, themselves, prepared and negotiated with Teck, at the exclusion of Western Logging, until over either (8) months after the settlement. Plaintiffs cannot now complain that the Estoppel was not timely or satisfactory.

The motion court also concluded that:

Although the settlement agreement was contingent on obtaining the tenant estoppel certification from Teck, the effective date of the terminal agreement was May 1, 2009. Therefore, the non-compete clause restricting Western Logging from competing with [Duraport] in the Northeast and the requirement that [Duraport] place three (3) shipping orders within the shipping season went into effect on May 1, 2009. The placement of shipping orders with Western Logging was not dependent on the tenant estoppel certification, even though the certificate was eventually obtained.

Ultimately, [Duraport] failed to place the minimum shipping orders as required by the terminal agreement, the tenant estoppel certification was executed within a reasonable time and was satisfactory pursuant to the terminal agreement therefore. [Duraport] has failed to meet the requirements of the terminal agreement, and therefore all of its rights under the agreement are waived and the terminal agreement is terminated.

On appeal, plaintiffs Transworld, Duraport, and Alessi submit the following arguments:*fn3


A. The trial court failed to enforce the contingency clause in the Settlement Agreement.

B. The trial court failed to recognize that the Tenant Estoppel Certificate was not satisfactory to appellants.

C. The trial court failed to recognize that the Tenant Estoppel Certificate was not received within a reasonable time.

D. Defendant acted in bad faith.


A. There was no evidence in the motion record to support the trial court's ruling that defendant detrimentally relied upon the execution of the Settlement Agreement.

B. Defendant could not have reasonably relied upon the existence of the contingent Settlement Agreement.

We reject these arguments.

New Jersey public policy strongly favors the enforcement of settlement agreements. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). "An agreement to settle a lawsuit is a contract, which like all contracts, may be freely entered into and which a court, absent a demonstration of 'fraud or other compelling circumstances,' should honor and enforce as it does other contracts." Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div. 1983) (quoting Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974)). "The interpretation and construction of a contract is a matter of law for the court subject to de novo review." Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998). Although legal conclusions rendered by the trial court are subject to a de novo review, "we will defer to the trial court's factual findings so long as they are supported by sufficient, credible evidence in the record . . . ." 30 River Court v. Capograsso, 383 N.J. Super. 470, 476 (App Div. 2006).

Plaintiffs contend that the trial court erred by failing to enforce the contingency provision of the Settlement Agreement. They submit in their reply brief that "the plain language of the Settlement Agreement required a Tenant Estoppel Certificate from Teck satisfactory to plaintiffs to be provided within a reasonable time in order for the express contingency in the Settlement Agreement to be satisfied." Plaintiffs therefore maintain that the Settlement Agreement "was subject to and only became effective upon satisfaction of the Contingency." They contend the trial court's interpretation rendered the contingency itself meaningless. In effect, they contend the matter was not settled until they received a timely and satisfactory Tenant Estoppel Certificate and since the Tenant Estoppel Certificate they received was neither timely nor satisfactory to them (because of the "secret amendment" to the Port Facilities Agreement), "the settlement never went into effect."

The trial court properly rejected such an interpretation, finding instead that the contingency was satisfied in a reasonable time and, to the extent the execution of the Tenant Estoppel Certificate was not timely, the delay was due in large part to plaintiffs' own actions or inactions. As plaintiffs themselves acknowledge, they had no reason to suspect that obtaining a satisfactory estoppel from Teck would be difficult, particularly in light of the March 6, 2009 e-mail provided by defendant indicating Teck's consent. The trial court also appropriately concluded that plaintiffs cannot reasonably be heard to complain about either timeliness or reasonableness of the Tenant Estoppel Certificate where they, and not defendants, prepared and directly negotiated with Teck regarding the document. We recognize that plaintiffs contend that the delayed presentation of the Tenant Estoppel Certificate was in part due to their reasonable consultation with Canadian lenders, mortgage brokers and real estate consultants. However, such consultations over a period of months afford no basis to negate or to forestall the recognition of the Settlement Agreement.

Plaintiffs suggest that "[i]t can be inferred from defendant's conduct that the [s]ecret [a]mendment was designed to and would impact plaintiffs' rights under the Settlement Agreement[.]" However, there is no evidence that the amendment was designed to unfairly undermine plaintiffs' prospects under the various agreements between the parties or that it would inevitably have such an effect. Notably, even after plaintiffs learned of the "secret amendment," they continued to revise the Tenant Estoppel Certificate, which was eventually executed by Teck in late November 2009.

We must examine the totality of the circumstances to fairly interpret a contract in accordance with the parties' intention. Schenck v. HJI Assocs., 295 N.J. Super. 445, 450-51 (App. Div. 1996). "Courts cannot make contracts for parties. They can only enforce the contracts which the parties themselves have made." Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960) (quoting Sellers v. Cont'l Life Ins. Co., 30 F.2d 42, 45 (4th Cir. 1929)). Contractual terms must be given their plain and ordinary meaning. M.J. Paquet, Inc. v. N.J. Dep't of Transp., 171 N.J. 378, 396 (2002). No settlement agreement exists, however, unless the parties agree on "the essential terms of the agreement." Mosley v. Femina Fashions Inc., 356 N.J. Super. 118, 126 (App. Div. 2002), cert. denied, 176 N.J. 279 (2003). Here, the parties did agree on the essential terms. The provision that the Tenant Estoppel Certificate be satisfactory to plaintiffs does not alter that fact.

It is well-established in New Jersey law that satisfaction contracts are a recognized form of an enforceable contract. Silvestri v. Optus Software, Inc., 175 N.J. 113, 121 (2003) (citing 13 Williston on Contracts § 38.21 (Lord ed. 2000)). The Supreme Court observed that:

Such "satisfaction" contracts are generally divided into two categories for purposes of review: (1) contracts that involve matters of personal taste, sensibility, judgment, or convenience; and (2) contracts that contain a requirement of satisfaction as to mechanical fitness, utility, or marketability. [Ibid.]

Plaintiffs urge that we look to whether the wording in Paragraph 11 of the Terminal Agreement implies a personal satisfaction contract, and they suggest that the language of the contingency is not limited to the sublimation or waiver of Teck's right of first refusal. Rather, plaintiffs contend, the Tenant Estoppel Certificate and the commitment by Teck expressed therein, taken as a whole, must have been satisfactory to plaintiffs. Plaintiffs assert that the proper reading mandates plaintiffs' approval of the Tenant Estoppel Certificate before the Terminal Agreement is to go into effect. Otherwise, plaintiffs argue, the term "satisfactory" is unnecessary in the sentence.

The trial court rejected that contention and stated that:

[Plaintiffs] would have the Court read this provision as ". . . for the purpose of obtaining a tenant estoppel and confirmation satisfactory to Duraport," and end the sentence there. However, in reality, the sentence does not end there, but actually reads ". . . for the purposes of obtaining a tenant estoppel and confirmation satisfactory to Duraport that AUR Resources, Inc. and Teck Cominco, Limited do not consider any of the transactions contemplated by this Agreement to implicate or trigger any right of first refusal."

[T]he only thing that has to be satisfactory is that Teck Cominco, Limited does not consider the transaction to trigger any right of first refusal.

After reviewing the record and agreements as a whole, we are satisfied that an objective test for satisfaction applies, and that there must be a reasonable basis for plaintiffs' dissatisfaction with the Tenant Estoppel Certificate. Silvestri, supra, 175 N.J. at 124-25. As we have already stated, the parties agreed to the "essential terms" in the contract. The parties did not intend that plaintiffs' satisfaction with the Tenant Estoppel Certificate be subjective and without purpose, but rather such satisfaction is tethered to the purposes of the Settlement Agreement, to ensure that Teck would not frustrate plaintiffs' option to purchase Turf Point by invoking its right of first refusal to purchase the property.

With regard to the Terminal Agreement, the relevant language states in the first paragraph that "[t]he term of this Terminal Agreement shall be for a period of ten (10) years commencing on the 1st Day of May, 2009." We agree with the trial court that that provision triggered the obligations of the parties set forth in the Terminal Agreement subject to the execution of the Tenant Estoppel Certificate and plaintiffs' legitimate dissatisfaction therewith. As the trial judge noted, "[t]he parties were free to agree that the shipping requirements did not begin until after the [T]enant [E]stoppel [C]ertificate was executed, but they did not. They picked the date of May 1st, and the Court will not alter this agreement." We see no reason to disturb that determination.*fn4

There is no dispute that the delay in drafting and negotiating the Tenant Estoppel Certificate is attributable to plaintiffs, who did not send their initial draft to Teck until July 16, 2009, four months after it was promised. Under such circumstances, we agree with the trial court's conclusion that "plaintiffs are estopped from asserting that they did not timely obtain a satisfactory [Tenant] Estoppel Certificate."

It is well established as a principle of fundamental justice that if a promisor prevents or hinders the occurrence or fulfillment of a condition in a contract, and the condition would have occurred or would have been fulfilled except for such hindrance or prevention on the part of the promisor, then the performance of the condition is excused and the liability of the promisor is fixed regardless of failure to fulfill the condition. [Coastal Oil Co. v. E. Tankers Seaways Corp., 29 N.J. Super. 565 (1954).]

Plaintiffs elected to prepare the certificate for Teck's review, and to deal directly with Teck. The trial court determined that plaintiffs did not comport with the duty of good faith and fair dealing for failing to comply earlier. Duraport's principal explained the four-month delay in drafting the certificate by stating in an effort "to make sure that the contemplated sale of the Property would be fluid," plaintiffs consulted with various Canadian lenders, mortgage brokers and real estate consultants regarding the appropriate form of Tenant Estoppel Certificate required in Canada. Further, the principal certified that they "had no reason to believe that obtaining the required [Tenant] [E]stoppel [C]ertificate from Teck would be an issue." Although we do not embrace any suggestion of bad faith on the part of plaintiffs, neither of these considerations that unquestionably resulted in the undue delays leads us to conclude that the trial court erred in its rulings.

"[I]n New Jersey the covenant of good faith and fair dealing is contained in all contracts and mandates that 'neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.'" Seidenberg v. Summit Bank, 348 N.J. Super. 243, 253 (App. Div. 2002) (quoting Sons of Thunder v. Borden, Inc., 148 N.J. 396, 420 (1997)). Our Supreme Court has recognized that "[g]ood faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving 'bad faith' because they violate community standards of decency, fairness or reasonableness." Wilson v. Amerada Hess Corp., 168 N.J. 236, 244 (2001) (quoting Restatement (Second) of Contracts § 205 comment a (1981)).

Here, plaintiffs volunteered to draft the Tenant Estoppel Certificate and initially represented that it would be ready during the week of March 23, 2009. However, plaintiffs did not submit the document to Western Logging until July 16, 2009, after numerous requests. Another two months passed before Teck sent its initial comments on the certificate proposed by plaintiffs. At that point, in September 2009, plaintiffs also learned of an amendment to the Port Facilities Agreement, which they questioned. After the exchange of related correspondence, the certificate was eventually executed by Teck on November 24, 2009. However, shortly thereafter, by letter dated December 3, 2009, Western Logging declared the Terminal Agreement terminated for "fail[ure] to ship the minimum requirement for the 2009 shipping season."

We are aware of nothing that precluded plaintiffs from arranging the minimum shipments required under the agreements during the stipulated shipping season. As noted by the trial court, the parties had agreed to settle their long-standing lawsuit, and they could have incorporated into the Settlement Agreement that plaintiffs' shipping requirements under the Terminal Agreement, would not begin until after the Tenant Estoppel Certificate was executed. They did not incorporate such a provision. Yet, plaintiffs failed - without interference from defendants - to satisfy its shipping obligations under the Terminal Agreement.

Under the terms of the Terminal Agreement, Western Logging was prohibited from selling or shipping aggregate to the northeast coast of the United States, except through plaintiffs. It abided by that restriction. Consequently, during the entire shipping season, Western Logging complied with the settlement and its non-compete provision, without receiving the benefit of shipments contemplated by the terms of the parties' comprehensive settlement.

The trial judge appropriately found plaintiffs in control of the "contingency" - obtaining the Tenant Estoppel Certificate - and that they engaged in a course of conduct which indeed induced Western Logging to rely that the settlement was in place and that plaintiffs would obtain the satisfactory Estoppel Certificate within a reasonable time. Justifiably and reasonably relying on plaintiffs' actions, Western Logging complied with the [agreements] . . . and has now been harmed by foregoing services it could have provided to others during the 2009 shipping season.

Those findings by the trial court are not subject to genuine dispute and are well supported by the record.

In addition, the record supports the trial court's conclusion that plaintiffs' "action/inaction" was the reason for the delay in receiving the Tenant Estoppel Certification. Even if plaintiffs are correct that there is no evidence that Western Logging had the opportunity to ship to other entities, the uncontroverted facts establish that Western Logging's justified reliance on at least three shipments for the 2009 season was a "natural or probable" outcome of plaintiffs' failure to fulfill the minimum shipments obligation they assumed under the Terminal Agreement.


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