YELLOW BOOK SALES AND DISTRIBUTION COMPANY, INC. (a Delaware Corporation), Plaintiff-Respondent,
FRANK & ROBERT ENTERPRISES, INC. d/b/a PARADISE CHEM DRY, and ROBERT ALLIANO, a/k/a ROBERT ALLIANO SR., and FRANK PARADISE, a/k/a FRANK PARADISE, III, JSA, Defendants-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-77-10.
Ronald P. Sierzega argued the cause for appellants (Puff & Cockerill, L.L.C., attorneys; Mr. Sierzega, on the brief).
James T. Hunt, Jr. argued the cause for respondent (Slater, Tenaglia, Fritz & Hunt, P.A., attorneys; Mr. Hunt and Emily Daher, on the brief).
Before Judges Harris and Guadagno.
Defendants Frank and Robert Enterprises, Inc. d/b/a Paradise Chem Dry (Chem Dry), Frank Paradise, and Robert Alliano appeal from the April 4, 2012 judgment of the Law Division in favor of plaintiff, Yellow Book Sales and Distribution Co., Inc. (Yellow Book). Defendants also appeal from the May 17, 2012 amended judgment awarding plaintiff prejudgment interest and counsel fees. The sole issue on appeal is whether individual defendants, Paradise and Alliano, are responsible for the debt of Chem Dry.
Paradise and Alliano are fifty-percent co-owners of Chem Dry, a Subchapter S corporation, which has been in business for eighteen years. Chem Dry is in the business of cleaning residential and commercial carpets and upholstery. Much of Chem Dry's business is generated through advertising and it has been a customer of Yellow Book since 1998. During that period, Chem Dry entered into eleven separate advertising contracts with Yellow Book, but ended its relationship in 2006 due to a decline in business and dissatisfaction with results.
A year later, a Yellow Book salesman convinced Paradise and Alliano to advertise again with Yellow Book by offering incentives such as "bigger ads, colored background, [and] . . . a cheaper price." According to Paradise, the salesman promised the advertising would "double or triple the amount of dollars that the book would cost." According to Paradise and Alliano, that promise never materialized and they grew dissatisfied with the service. Between September 6, 2005, and February 9, 2008, Paradise and Alliano signed eleven contracts for advertising with Yellow Book. The total amount of advertising purchased by defendants exceeded $131, 000. Defendants paid slightly more than $41, 000.
On January 11, 2010, plaintiff filed a complaint naming Chem Dry, Paradise, and Alliano as defendants. The case was tried before Judge David W. Morgan on March 21, 2012. Judge Morgan heard the testimony of Paradise, Alliano and Sean Ebling, a corporate representative for Yellow Book. On April 4, 2012, Judge Morgan read a lengthy decision into the record and awarded judgment in favor of plaintiff in the amount $89, 112.39 against Chem Dry, $41, 393.95 against Paradise, and $18, 465.40 against Alliano.
On appeal, defendants claim the judgment must be vacated against Paradise and Alliano, as they were not individually liable under the contracts. Defendants also claim Yellow Book is estopped from relying on a theory of suretyship, as it waived that claim before trial.
We reject these arguments and affirm both judgments substantially for the reasons expressed by Judge Morgan in his comprehensive oral decision. We add only the following brief comments.
If the terms of a contract are "clear and unambiguous, there is no room for construction and the court must enforce those terms as written, giving them 'their plain, ordinary meaning.'" Barr v. Barr, 418 N.J.Super. 18, 32 (App. Div. 2011) (citing Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 270 (2008)). See also E. Brunswick Sewerage Auth. v. E. Mill Assocs., 365 N.J.Super. 120, 125 (App. Div. 2004). Ultimately, courts do not, and will not "supply terms to contracts that are plain and unambiguous, nor do we make a better contract for either of the parties than the one which the ...