MIGUEL A. HECTOR VS. SUPER CAR WASH LIMITED LIABILITY COMPANY (C-000155-16, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 10, 2019
• Docket: A-3131-17T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3131-17T1

MIGUEL A. HECTOR,

Plaintiff-Respondent,

v.

SUPER CAR WASH LIMITED LIABILITY COMPANY and ALI MUSA,

Defendants-Appellants. _____________________________

Submitted March 13, 2019 – Decided June 10, 2019

Before Judges Nugent, Reisner and Mawla.

On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C- 000155-16.

Karam Nahas, LLC, attorneys for appellants (Karam Nahas, of counsel and on the briefs).

Waters Mc Pherson Mc Neill, PC, attorneys for respondent (Eric D. Mc Cullough, of counsel and on the brief).

PER CURIAM Defendants Super Car Wash Limited Liability Company and its managing

member, Ali Musa, (collectively, Musa) appeal from a February 27, 2018 final

order entered after a bench trial. The order granted plaintiff Miguel A. Hector's

claim for specific performance of a real estate contract and rider. After

reviewing the record in light of the applicable legal standards, we affirm

substantially for the reasons stated by Presiding General Equity Judge Barry P.

Sarkisian in his written opinion issued with the order. We add the following

comments.

Hector and Musa, both of whom were represented by counsel, contracted

for the sale of a commercial lot and a car wash business located on the lot. The

sale was subject to an environmental inspection. Hector could terminate the

contract if an inspection revealed contamination. Hector's environmental expert

found contamination in the soil and recommended further investigation. Hector

and Musa, again represented by counsel, negotiated a rider to the real estate

contract. The rider recited that the buyer's environmental consultants had

"determined that there is contamination of the property from hazardous material.

The seller has agreed to remediate all such contamination prior to closing . . . at

the expense of the seller." After agreeing to take certain specific actions relating

to the cleanup of contamination, the seller agreed to perform the "cleanup of any

A-3131-17T1 2 additional contamination that may be discovered during the course of this

remediation."

Musa began to remediate the soil contamination, but when further

inspections by his own environmental expert revealed pollution of the ground

water, Musa refused to pay to clean it up. After a bench trial during which

Hector, his environmental consultant, and Musa testified, the judge concluded

that the rider was unambiguous and required Musa to clean up the ground water

pollution. We review de novo the judge's interpretation of a contract. In re Cty.

of Atlantic, 230 N.J. 237, 255 (2017).

On this appeal, Musa contends that the trial judge unfairly prevented him

from presenting evidence that the rider was void because there was no

consideration and no meeting of the minds. He also argues that those were

meritorious arguments that should have carried the day. The record does not

support any of those contentions. Musa also argues that his obligation under the

rider should be limited to $200,000. We decline to consider that argument

because, as his brief concedes, it was not presented to the trial court. See Nieder

v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973).

Contrary to Musa's argument, the judge permitted defense counsel to

question both Hector and Musa about the issue of consideration. According to

A-3131-17T1 3 Musa, Hector did not offer to pay him or "give [him] any sort of benefit in

exchange" for his agreement to the rider. However, Hector testified that he was

going to cancel the contract, as he had a right to do under its terms, unless Musa

agreed to the rider. An agreement to refrain from exercising a legal right is a

form of consideration. See Oscar v. Simeonidis, 352 N.J. Super. 476, 486-87

(App. Div. 2002). Hector's agreement to continue with the contract, despite the

discovery of environmental contamination, was consideration for Musa's

agreement to the rider. Musa's arguments are without sufficient merit to warrant

further discussion. R. 2:11-3(e)(1)(E).

The judge also allowed defense counsel to elicit testimony concerning the

claim that there was no meeting of the minds concerning Musa's obligations

under the rider. On cross-examination, Musa conceded that, after he signed the

rider, his own environmental consultant found contamination to the ground

water. He also conceded that in the rider he agreed to clean up "any additional

contamination that may be discovered during the course of this remediation."

However, he insisted that he believed he was only required to clean up "whatever

I have to report," apparently meaning the soil contamination found by the

original consultant report. The rider does not contain that limitation. Musa's

belief, not expressed in the written terms of the rider, cannot change its

A-3131-17T1 4 unambiguous terms.1 See Dontzin v. Myer, 301 N.J. Super. 501, 507 (App. Div.

1997). His arguments on this point warrant no further discussion. R. 2:11-

3(e)(1)(E).

Affirmed.

1 Plaintiff's expert testified that his company's March 6, 2014 summary report concerning the soil showed contamination at a level that could also affect ground water. Musa admitted he had a copy of that report before agreeing to the rider in June 2014.

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