NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2025-23
HARBOR FRONT DEVELOPMENT, LLC,
Plaintiff-Respondent,
v.
CLEAR SKIES TITLE AGENCY,
Defendant-Respondent,
and
RYAN M. MULHOLLAND and KEVIN J. MULHOLLAND,
Defendants/Third-Party Plaintiffs-Appellants,
EYAL SHAY,
Third-Party Defendant- Respondent,
HARBORFRONT VILLAS HOMEOWNERS' ASSOCIATION,
Third-Party Defendant. ______________________________
Argued January 28, 2026 – Decided July 13, 2026
Before Judges Gummer, Paganelli, and Jacobs.
On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. C-000006-23.
Keith N. Biebelberg argued the cause for appellants (Biebelberg & Martin, attorneys; Keith N. Biebelberg and Avrin Slatkin, on the briefs).
Gregory J. Skiff argued the cause for respondents Harbor Front Development, LLC and Eyal Shay (A.Y. Strauss LLC, attorneys; Gregory J. Skiff, on the brief).
PER CURIAM
In this townhome-purchase dispute, defendants Ryan M. Mulholland and
Kevin J. Mulholland appeal from orders denying their summary-judgment
motion, granting the summary-judgment cross-motion of plaintiff Harbor Front
Development, LLC (Harbor Front), and denying their reconsideration motion. 1
1 Defendant Ryan M. Mulholland is the son of Nanci Mulholland and defendant Kevin J. Mulholland. Because of their common last name, we use their first names to reference them. Because defendant Clear Skies Title Agency (Clear Skies) did not participate in this appeal, we refer to Ryan and Kevin collectively as "defendants." A-2025-23 2 In those orders, the trial court declared the closing was null and void and
rescinded the recorded deed, and it held plaintiff had validly terminated the
parties' purchase agreement and awarded plaintiff liquidated damages. We
affirm the provisions in the orders declaring the closing null and void and
rescinding the deed. Because of the existence of genuine issues of material fact,
we reverse the provisions in the orders declaring valid the termination of the
purchase agreement and awarding liquidated damages. We affirm in part and
reverse in part the reconsideration order and remand for proceedings consistent
with this opinion.
I.
Harbor Front is a real-estate developer and was the seller of the townhouse
at issue in this litigation. Ryan and Nanci signed, as buyers, a May 1, 2021
agreement to purchase a to-be-built townhouse from Harbor Front for $550,000.
Eyal Shay signed the agreement on behalf of Harbor Front. The estimated
closing date was July 15, 2021.
Paragraph two of the purchase agreement, which was entitled "CLOSING
OF TITLE," provided in part:
Seller will provide Buyer with at least ten (10) days written notice of the closing date. When so scheduled, the date and time of closing shall be "OF THE ESSENCE." This means that failure by Buyer to close
A-2025-23 3 at the time specified shall be considered a breach and default of this Agreement. If Buyer is unable to or refuses to close on the date and time specified by Seller, at Seller's option, Seller may exercise its rights set forth in Paragraph 16 of this Agreement or have Buyer reimburse Seller at or before closing for Seller's total reasonable carrying and administrative costs for postponing the closing to another time, date or place specified by Seller. Buyer agrees that Seller may cancel any Time of the Essence closing without penalty. Seller reserves the right, at its sole option, to conduct closing (i.e., transfer of title) by mail or electronically. Buyer will pay the balance of the Purchase Price due at closing of title by wire transfer.
Paragraph sixteen of the purchase agreement, entitled "DEFAULT OF
BUYER; LIQUIDATED DAMAGES," provided:
If Buyer fails to make payments, violates any of the conditions or covenants or fails, for any reason, to complete the purchase in accordance with this Agreement, or if Buyer shall be declared bankrupt or insolvent or shall make an assignment for the benefit of any creditors, or shall be placed under the control or under the custody of any court, or otherwise breaches this Agreement, Buyer will be in default. If Buyer is in default, this Agreement at the option of Seller, may be terminated, and all deposits made by Buyer in an amount equal to ten percent (10%) of the total purchase price, plus the contract price of any payments for options and extras, shall be retained by Seller as liquidated damages. Liquidated damages are a fixed amount to be paid to Seller which the parties agree will be a reasonable estimate of the damages in the event of Buyer's default, since Seller's actual damages would be difficult to establish. If the deposit monies are less than that liquidated sum and Buyer fails to pay the additional
A-2025-23 4 sums after demand, then Seller may institute legal proceedings to recover the remaining amount due. If Seller elects to retain money as liquidated damages, this Agreement shall be of no further effect in which event Seller agrees to return to Buyer all excess money above the described sum previously paid by Buyer, if any. No delay or forbearance by Seller in exercising any right or remedy hereunder shall be deemed to be a waiver thereof[.]
Harbor Front delayed the estimated closing date multiple times. A
November 28, 2022 addendum to the purchase agreement removed Nanci from
the contract and added Kevin as an additional buyer. An undated addendum set
$558,000 as the purchase price, indicated Harbor Front would provide
defendants with an "$8,000 credit for closing costs and prepaid expense[s,]" and
stated the closing would "take place in or before December 20, 2022." The
addendum provided that "[i]n all other respects the [c]ontract shall remain in
effect as is."
The trial court found "a question of fact exists as to the date upon which
[p]laintiff provided [defendants] with written notice of the December 20, 2022
[c]losing." Defendants' counsel certified he and Harbor Front's counsel, "[a]fter
all the[] delays by [Harbor Front]," had scheduled the closing for December 20,
2022, but did not say when they agreed to the December 20 closing date.
A-2025-23 5 According to defendants' counsel, Shay signed the addendum on behalf of
Harbor Front on December 19, 2022.
Clear Skies acted as the closing escrow agent for both parties. In a
November 28, 2022 "Escrow Closing Letter," Harbor Front's counsel provided
Clear Skies with Harbor Front's closing documents to be held in escrow. He
instructed that Clear Skies could not release the documents from escrow until
certain conditions were met, including receipt of "written confirmation by
email" from Harbor Front or its legal representative authorizing Clear Skies "to
close the transaction and release [Harbor Front's c]losing [d]ocuments from
escrow." Shay forwarded those documents in a November 30, 2022 email to a
Clear Skies representative, copying defendants' counsel and a representative of
defendants' lender, Paramount Residential Mortgage Group, Inc. (PRMG), on
the email.
On the December 20, 2022 closing date, Ryan appeared at Clear Skies's
office. Emails between the parties that day indicate they continued to negotiate
certain aspects of the transaction. For example, in emails exchanged at 1:39
p.m. and 2:28 p.m., the parties confirmed defendants had accepted Harbor
Front's offer to waive the first two years of "common charges." At some point
that day, PRMG submitted a proposed "[b]uydown [a]greement" for Harbor
A-2025-23 6 Front's execution. A Clear Skies representative sent that proposed agreement,
as well as a "Final seller CD" and an American Land Title Association (ALTA)
settlement statement to Harbor Front's counsel for execution in an email sent at
2:31 p.m. In a 5:15 p.m. email to "all," the Clear Skies representative stated,
"the closing has been wrapped up. As of right now, I am waiting for the
following to be completed from the seller's end," listing the wiring of the deposit
funds, a "[s]igned [s]eller CD and A[LTA]," and a "[s]igned [b]uydown
[a]greement by [s]eller."
In an email sent on December 21 at 10:56 a.m., defendants' counsel asked
Shay about "the status of the signed closing documents." Shay responded two
minutes later with an instruction to "[p]lease send it via DocuSign." In an 11:31
a.m. email, Shay stated "[p]lease send only A[LTA] and [CD] as seller will not
sign the buy down agreement." In an 11:42 a.m. email, Harbor Front's counsel
asked the Clear Skies representative to send the documents to Shay or to him.
At 4:19 p.m., the Clear Skies representative sent an email to Harbor Front's
counsel, stating "[h]ere you go." At 7:57 p.m., a PRMG representative sent an
email "on behalf of [PRMG's] borrower" to Harbor Front's representatives,
complaining about Harbor Front's failure to execute an addendum regarding an
A-2025-23 7 "$8,000 seller concession" and the buydown agreement and stating the closing
"will go on hold" until all documents were signed.
In an email sent at 10:19 a.m. on December 22, the Clear Skies
representative asked Harbor Front's counsel if Harbor Front had signed the
buydown agreement. Shay responded to that email at 10:34 a.m., stating Harbor
Front was "NOT SIGNING ANY OTHER DOCUMENT BESIDES WHAT
WAS PROVIDED SO FAR. TOE-will be sent tomorrow." We understand
Shay's TOE reference meant "time of the essence." In a 2:52 p.m. email to Shay
and Harbor Front's counsel, the PRMG representative stated he had called Shay
multiple times but had not received a return call and suggested Shay "seem[ed]
to have his own motives for not wanting this transaction to consummate." He
advised that PRMG would "continue to hold the funding of this transaction" and
would ask defendants' counsel to "send out a TOE as of today for [Harbor
Front]'s failure to perform on [its] end on items already agreed to and signed off
on from the purchase addendum."
In an email sent on December 22 at 4:37 p.m. with copies to Harbor Front's
counsel, the PRMG representative informed the Clear Skies representative that
PRMG and Clear Skies would "be working . . . to make any necessary changes
for tomorrow noon closing. We are just removing the seller paid buy down fro m
A-2025-23 8 [the] loan and it will be sent . . . to finalize." At the same time, Harbor Front's
counsel sent an email to the Clear Skies representative directing her not to
deliver the deposit money or "take any steps to effectuate a closing of the sale."
At 5:58 p.m., the PRMG representative sent the Clear Skies representative an
email stating, "this transaction is considered closed as of December 20, 2022[,]
as we do not need any documentation from the sellers. The closing package they
signed stands." In an email sent to the Clear Skies representative at 6:33 p.m.,
the PRMG representative stated, "[t]here are a handful of revised docs that will
need to be resigned, but nothing on our end the seller needs to sign. We removed
the buydown." The PRMG representative copied Harbor Front's counsel on both
of those emails. In an email sent at 9:46 p.m. to Shay and Harbor Front's
counsel, the Clear Skies representative confirmed "no funds will be disbursed"
and stated it was her "understanding we are working to reclose this transaction
tomorrow with the seller credit added to the cd and not buydown. Am I missing
something?" The record does not contain a response to that email.
In a December 22, 2022 letter Harbor Front's counsel sent by email to
Ryan, his counsel, and PRMG, Harbor Front terminated the purchase agreement,
citing defendants' purported failure to "meet [their] obligation to close on a
timely basis," the demand Harbor Front execute the buydown agreement, the
A-2025-23 9 communications from PRMG, and defendants' allowing PRMG to "hijack" the
transaction. The record is not clear when on December 22 Harbor Front sent
that email or whether it was sent before the evening emails sent by PRMG.
Additional emails were exchanged on the morning of December 23. Harbor
Front's counsel sent the Clear Skies representative an email reminding her she
was "not authorized to proceed" and stating "[s]eller has communicated with
[b]uyer, who is fully aware of [s]eller's position" and that he "did not want [his]
silence to be mistaken for a change in [s]eller's position." It is not clear when
Harbor Front's counsel sent that email; he did not copy PRMG, defendants, or
their counsel on it.
Clear Skies completed the closing on December 23, 2022, in Ryan's
presence. Clear Skies disbursed the payment funds to Harbor Front. On January
13, 2023, Clear Skies submitted the deed conveying title to defendants to be
recorded, and it was recorded.
On or about January 13, 2023, Harbor Front filed a verified complaint
against Ryan, Kevin, and Clear Skies, seeking a judgment declaring Clear
Skies's delivery of Harbor Front's closing documents illegal and of no force or
effect, the purported closing "null and void," and Harbor Front validly
terminated the purchase agreement and was entitled to an award of the
A-2025-23 10 contractual liquidated damages. Harbor Front pleaded two causes of action: one
for declaratory judgment and one for breach of fiduciary duty as to Clear Skies.
On November 9, 2023, defendants moved for summary judgment "and for
their dismissal from this case as purported necessary parties." Harbor Front
cross-moved for summary judgment and subsequently moved for summary
judgment as to Clear Skies. During oral argument, Clear Skies's counsel advised
the court Clear Skies admitted it should not have proceeded with the closing and
did not challenge Harbor Front's requested relief of recission.
On January 5, 2024, the trial court entered orders accompanied by a
statement of reasons denying defendants' motion and granting Harbor Front's
cross-motion and its motion as to Clear Skies. In the orders, the court declared
Harbor Front had validly terminated the purchase agreement pursuant to
paragraphs two and sixteen of the purchase agreement and was entitled to ten
percent of the total purchase price as liquidated damages, the December 23, 2022
closing was null and void, and the recording of the deed was rescinded. It
ordered Harbor Front to return to defendants $521,489.85, representing the
closing funds it had received less the $55,000 liquidated-damages award.2
2 Defendants apparently had filed counterclaims against Harbor Front and third- party claims against Shay and Harborfront Villas Homeowners' Association
A-2025-23 11 In the statement of reasons, the court found it undisputed that Clear Skies
had proceeded with the closing and delivered Harbor Front's closing documents
out of escrow without authority to do so. Accordingly, the court granted Harbor
Front's motion as to Clear Skies and as to Harbor Front's claim the closing was
null and void and ordered the rescission of the recorded deed.
In deciding Harbor Front's cross-motion for summary judgment on its
claim seeking a declaration its termination of the purchase agreement was valid,
the court found questions of fact existed as to when Harbor Front provided
written notice of the December 20 closing date to defendants and whether it had
provided them with ten days' notice of the closing and the closing, thus, was "of
the essence" pursuant to paragraph two of the purchase agreement. The court,
however, determined "no question [existed] that all parties to the transaction
knew of and agreed to the December 20, 2022 [c]losing date." The court
interpreted paragraph two as giving Harbor Front the right to exercise its rights
(HVHA). The parties did not include copies of those claims in the appellate record. According to defendants, they settled their claims with HVHA. In one of the January 5, 2024 orders, the court granted Harbor Front's cross-motion for summary judgment as to defendants' counterclaims and Shay's cross-motion as to its claim against him and dismissed those claims with prejudice. Defendants did not brief issues regarding those dismissals on appeal and, thus, waived them. See Morris v. T.D. Bank, 454 N.J. Super. 203, 206 n.2 (App. Div. 2018) ("An issue not briefed is deemed waived on appeal."). A-2025-23 12 under paragraph sixteen of the purchase agreement, including its rights to
termination of the agreement and liquidated damages, if defendants failed to
close on the closing date set by Harbor Front. The court, consequently, granted
that aspect of the cross-motion, declaring the termination valid and awarding
liquidated damages.
In a February 21, 2024 order, the court denied defendants' subsequent
reconsideration motion. In an accompanying statement of reasons, the court
found the undated addendum contained a "mutual agreement" to the December
20 closing date that "obviated the need for the ten days' notice" required in
paragraph two of the purchase agreement. The court also found, for the first
time, Harbor Front "was justified [in] treating [defendant]s' failure to fund the
purchase price on December 20, 2022 as [an] anticipatory breach . . . [and
p]laintiff was clearly entitled to treat the contract as terminated."
On appeal, defendants argue the court erred in granting summary
judgment on Harbor Front's termination and liquidated-damages claims when it
found genuine issues of material facts existed, in finding an anticipatory breach
in its reconsideration decision when a genuine issue of material fact existed as
to whether December 20, 2022 was time of the essence, and in rescinding the
transaction and awarding liquidated damages based on the conduct of PRMG.
A-2025-23 13 II.
We review summary-judgment orders "de novo, applying the same
standard that governed the trial court's determination." Padilla v. Young Il An,
257 N.J. 540, 547 (2024). Summary judgment is proper if, viewing the evidence
in a light most favorable to the non-moving party, the record demonstrates "no
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." Friedman v. Martinez, 242
N.J. 449, 471-72 (2020) (quoting R. 4:46-2(c)).
"A dispute of material fact is 'genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on the motion, together
with all legitimate inferences therefrom favoring the non-moving party, would
require submission of the issue to the trier of fact.'" Gayles by Gayles v. Sky
Zone Trampoline Park, 468 N.J. Super. 17, 22 (App. Div. 2021) (quoting Grande
v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017)); see also R. 4:46-2(c). To
rule on summary judgment, a court must determine "whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it
is so one-sided that one party must prevail as a matter of law." DepoLink Ct.
Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.
A-2025-23 14 Div. 2013) (quoting Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189
N.J. 436, 445-46 (2007)) (internal quotation marks omitted).
We review a trial court's order on a reconsideration motion under an
abuse-of-discretion standard. Branch v. Cream-O-Land Dairy, 244 N.J. 567,
582 (2021).
We address first the court's declaration the closing was null and void and
consequent order of rescission of the recorded deed. That determination was
based on Clear Skies's lack of authority to close the transaction and to deliver
Harbor Front's closing documents out of escrow. No genuine issue of material
fact exists regarding that lack of authority. In the November 28, 2022 escrow
closing letter, Harbor Front's counsel expressly instructed Clear Skies it could
not release those documents until it received "written confirmation by email"
from Harbor Front or its legal representative authorizing Clear Skies "to close
the transaction and release [Harbor Front's c]losing [d]ocuments from escrow."
Despite not receiving that written confirmation or authorization, Clear Skies
closed the transaction and released Harbor Front's closing documents from
escrow. As Clear Skies conceded and as the court correctly held, that closing
and document release should not have occurred.
A-2025-23 15 "The judicial remedy of rescission is rooted in considerations of equity."
Rutgers Cas. Ins. Co. v. LaCroix, 194 N.J. 515, 527 (2008); see also Benjoray,
Inc. v. Acad. House Child Dev. Ctr., 437 N.J. Super. 481, 488 (App. Div. 2014)
(same). "Rescission remains a form of equitable relief in whatever setting its
need arises, and courts wielding that remedy retain the discretion and judgment
required to ensure that equity is done." Rutgers Cas. Ins., 194 N.J. at 528. "In
furtherance of that objective, a court may shape the rescission remedy in order
to serve substantial justice." Id. at 529. Rescission voids a transaction "ab initio,
meaning that it is considered 'null from the beginning' and treated as if it does
not exist for any purpose." First Am. Title Ins. Co. v. Lawson, 177 N.J. 125,
137 (2003) (quoting Black's Law Dictionary 1568 (7th ed. 1999)).
Considering Clear Skies's undisputed lack of authority to close the
transaction and release Harbor Front's documents from escrow, we discern no
abuse of discretion or misapplication of the law in the court's declaration the
closing was null and void or its rescission of the recorded deed. That the
purchase agreement provided for liquidated damages in the event of a breach
does not render inequitable or improper the rescission of a deed wrongly
recorded after an unauthorized release of documents that should not have
occurred. Accordingly, we affirm provisions of the orders granting Harbor
A-2025-23 16 Front summary judgment on its claim the closing should be declared null and
void and directing the rescission of the recorded deed.
We next address the court's conclusions regarding Harbor Front's claim it
had a contractual right to terminate the purchase agreement and to an award of
liquidated damages. In considering those conclusions, we analyze the language
of the purchase agreement under the familiar rules of contract interpretation. In
doing so, "[b]ecause contract interpretation is a question of law we review de
novo, we 'pay no special deference to the trial court's interpretation and look at
the contract with fresh eyes.'" Del. River Joint Toll Bridge Comm'n v. George
Harms Constr. Co., 258 N.J. 286, 303 (2024) (quoting Kieffer v. Best Buy, 205
N.J. 213, 223 (2011)).
"The plain language of the contract is the cornerstone of [a court's]
interpretive inquiry." Extech Bldg. Materials, Inc. v. E&N Constr. Inc., 262 N.J.
271, 280 (2025) (alteration in original) (quoting Barila v. Bd. of Educ. of
Cliffside Park, 241 N.J. 595, 616 (2020)). "[U]nambiguous contracts will be
enforced as written unless they are illegal or otherwise violate public policy."
Ibid. (quoting Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 118 (2014)).
The "court's task was 'not to rewrite a contract for the parties better than or
A-2025-23 17 different from the one they wrote for themselves.'" Globe Motor Co. v. Igdalev,
225 N.J. 469, 483 (2016) (quoting Kieffer, 205 N.J. at 223).
Paragraph two of the purchase agreement states in relevant part:
Seller will provide Buyer with at least ten (10) days written notice of the closing date. When so scheduled, the date and time of closing shall be "OF THE ESSENCE." This means that failure by Buyer to close at the time specified shall be considered a breach and default of this Agreement. If Buyer is unable to or refuses to close on the date and time specified by Seller, at Seller's option, Seller may exercise its rights set forth in Paragraph 16 of this Agreement . . . .
The record does not reveal when Harbor Front gave defendants notice of the
December 20 closing date or when counsel reached agreement to schedule the
closing on December 20. Thus, the court correctly concluded a genuine issue of
material fact existed as to whether December 20 was time "of the essence" under
paragraph two. The conclusion is supported by the fact that Harbor Front's
representative Shay sent an email at 10:34 a.m. on December 22 stating a
time-of-the-essence letter would be sent the next day and in an email sent later
that day, PRMG's representative stated he would ask defense counsel to send a
time-of-the-essence letter.
Setting aside that genuine issue of material fact, the court granted Harbor
Front summary judgment because it concluded defendants had breached or
A-2025-23 18 anticipatorily breached the purchase agreement. Paragraph sixteen of the
purchase agreement gave Harbor Front the right to terminate the agreement and
to liquidated damages if defendants defaulted by "fail[ing] to make payments,
violat[ing] any of the conditions or covenants or fail[ing], for any reason, to
complete the purchase in accordance with this Agreement." The court found
defendants had defaulted under paragraph sixteen by failing to complete the
purchase of the townhouse on December 20 and, pursuant to paragraph two, had
breached or anticipatorily breached the purchase agreement by failing to close
on December 20.
However, viewing the evidence in a light most favorable to defendants as
we must in a summary-judgment motion, a reasonable factfinder could conclude
the parties continued to negotiate the terms of the agreement through December
20 and the days following and that even though PRMG had withdrawn the
buydown agreement and defendants were prepared to proceed with the closing,
Harbor Front declined to close. Thus, a genuine issue of material fact existed
regarding whether defendants had defaulted, which party had refused to close,
and whether Harbor Front was entitled under paragraph sixteen of the purchase
agreement, to terminate the agreement and to recover liquidated damages. A
court should grant summary judgment "[o]nly 'when the evidence is so one-sided
A-2025-23 19 that one party must prevail as a matter of law.'" Petro-Lubricant Testing Labs.,
Inc. v. Adelman, 233 N.J. 236, 257 (2018) (quoting Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995)) (internal quotation marks omitted).
Harbor Front did not meet that standard regarding its entitlement to terminate
the purchase agreement and to liquidated damages. The court erred in granting
summary judgment on that aspect of Harbor Front's cross-motion.
In sum, we affirm in part and reverse in part the January 5, 2024 orders
granting Harbor Front's motion and cross-motion for summary judgment and the
February 21, 2024 order denying defendants' reconsideration motion. We affirm
the portions of the January 5, 2024 orders declaring the December 23, 2022
closing null and void and rescinding the recorded deed and the denial of
reconsideration of those portions of the orders. We reverse the portions of the
January 5, 2024 orders that declared Harbor Front entitled to terminate the
purchase agreement and awarded liquidated damages, as well as the denial of
reconsideration of those portions of the orders in the February 21, 2024 order.
We remand for proceedings consistent with this opinion.
Affirmed in part; reversed in part; and remanded for proceedings
consistent with this opinion. We do not retain jurisdiction.
A-2025-23 20