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Pemberton CC, LLC v. D.R. Horton, Inc.

Superior Court of New Jersey, Appellate Division

August 19, 2013

PEMBERTON CC, LLC, a New Jersey Limited Liability Company, Plaintiff-Appellant/ Cross-Respondent,
D.R. HORTON, INC., - NEW JERSEY, a Delaware Corporation, Defendant-Respondent/ Cross-Appellant.


Argued February 6, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-24-08.

Robert L. Selvers argued the cause for appellant/cross-respondent (Wilentz, Goldman & Spitzer, attorneys; Mr. Selvers, of counsel and on the brief).

Christopher E. Torkelson argued the cause for respondent/cross-appellant (Sterns & Weinroth, attorneys; Frank J. Petrino, of counsel; Mr. Torkelson and Jennifer L. Cordes, on the brief).

Before Judges Grall, Simonelli and Koblitz.


This appeal and cross-appeal are from a judgment entered following a bench trial and cross-motions for reconsideration on a contract dispute between plaintiff Pemberton CC, LLC (Pemberton), a New Jersey limited liability company established to acquire property in Pemberton Township for development, and defendant D.R. Horton, Inc. (Horton), a publicly traded corporation involved in mass residential construction. We affirm the determinations on liability substantially for the reasons set forth in the judge's thorough and thoughtful written opinions of August 23, 2010, and January 28, 2011, but we remand for reconsideration of damages in conformity with this opinion.

The parties' dispute arose under their 2002 contract and three amendments respectively made in 2004, 2005 and 2006. The contract and amendments were intended to result in the acquisition and development of more than 600 acres in Pemberton Township to establish several hundred age-restricted housing units. The acreage is situated in the Pine Barrens area of Burlington County. The parties focused on two tracts of land and such adjacent parcels as the project might require.

The goal was not one easily achieved due to the number of property owners who had to agree to sell the properties and the number of governmental entities that had to approve the project. The initial contract allocated responsibilities the venture entailed — matters ranging from funding and financing, to surveys, testing and legal work needed to acquire the land and obtain government approvals for a project of this magnitude in an environmentally sensitive area. As the parties encountered delay and difficulties, they re-allocated those responsibilities through the written amendments and their course of conduct. Through the amendments, Horton assumed much of Pemberton's responsibility to fund the project — and planned to recoup the funds upon completion.

When cooperation broke down, Pemberton filed a lawsuit alleging Horton breached, and Horton filed a cross-claim charging Pemberton with breach. Pemberton sought specific performance or damages including lost profits, and Horton sought damages. At the conclusion of the bench trial, the judge determined that Horton breached the agreement and waived its right to enforce the contractual provision Pemberton breached. Determining that the nature of the project and the parties' agreement precluded an order requiring Horton to specifically perform until completion of the project, the judge awarded Pemberton liquidated damages and equitable relief in the form of partial performance to "untie the Gordian knot that the parties" had tied. The provisions of the contract and the amendments as well as the pertinent events are discussed in detail in the judge's written opinions, and there is no need to repeat them here.


After considering the extensive record and the arguments presented in support of the parties' competing claims of error, we conclude that the judge's determinations on liability are "based on findings of fact which are adequately supported by evidence." R. 2:11-3(e)(1)(A). Horton's claims to the contrary are best characterized as a disagreement with the judge's factual findings, and our intervention is unwarranted because those findings are neither manifestly unsupported by nor inconsistent with the evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). In short, Horton's arguments on liability have insufficient merit to warrant any discussion beyond that ...

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