MING ZHANG VS. SONDRA MINUSKIN (L-3223-14, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 12, 2019
• Docket: A-2702-17T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2702-17T2

MING ZHANG,

Plaintiff-Appellant,

v.

SONDRA MINUSKIN,

Defendant-Respondent. __________________________

Submitted November 20, 2019 - Decided December 12, 2019

Before Judges Koblitz and Mawla.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3223-14.

B. David Jarashow, attorney for appellant.

Law Office of Michael A. D'Aquanni, LLC, attorneys for respondent (Michael A. D'Aquanni, on the brief).

PER CURIAM

Plaintiff Ming Zhang appeals from a December 20, 2017 order granting

defendant Sondra Minuskin summary judgment dismissal of a complaint sounding in breach of contract on a loan agreement and seeking replevin of an

iPad and earrings plaintiff gave defendant. Plaintiff's appeal only addresses the

decision on the loan, which we affirm.

The parties met through an online dating website and began dating in June

2013. During the relationship, plaintiff paid for numerous items for defendant,

including a pair of diamond earrings and an iPad he purchased in July 2013.

In July 2013, plaintiff also wrote a check for $65,000 to help defendant

pay off her student loans. In return, he contemporaneously prepared a

handwritten promissory note, which defendant signed, stating: "I [defendant] am

[borrowing] $65,000.00 from [plaintiff]. This is an unsecured loan used for

paying Sallie Mae student loans. The amount will be paid back by [July 21,

2033]."

In October 2013, the parties began residing together until defendant

moved out in August 2014. Shortly thereafter, plaintiff sent text messages to

defendant's sister, mother, and son, demanding defendant return the $65,000.

Plaintiff also contacted defendant at work with similar demands. As a result,

defendant obtained a temporary restraining order. A day later, she sent an email

to plaintiff stating: "Although you gave the money to me as a gift, the situation

between us has changed and I will pay you back the money."

A-2702-17T2 2 Defendant's domestic violence complaint was dismissed following a trial.

In addressing defendant's need for a final restraining order, the Family Part

judge discussed the fact that the parties had a financial relationship. However,

the judge determined a restraining order was unnecessary because the parties

"need not have any interaction with one another any longer." Notably, the judge

also stated she was not adjudicating the validity of the alleged contract to repay

the $65,000. She stated: "this forum is not to be used to give either party an

advantage in a civil lawsuit involving a claim that someone may or may not owe

$65,000."

In 2017, plaintiff filed a Law Division complaint, in response to which

defendant moved for its dismissal by summary judgment. She contended the

iPad, earrings, and $65,000 were gifts. In the alternative, she contended if the

$65,000 were a loan, plaintiff's claim for breach was not ripe because the loan

was not payable until 2033.

The motion judge concluded the $65,000 was not a gift, but instead a loan

because plaintiff provided a promissory note. However, the judge found there

was no breach of the promissory note because it

was never modified in a way that would require an immediate payment of the $65,000. . . .

A-2702-17T2 3 Further, no terms were set forth that would alter the payment schedule. . . . [Defendant's] email only states that she intended to pay back the $65,000. . . . [I]t does not say that she will pay it back immediately or in any particular style. This coupled with the fact that the . . . promissory note require[d] payment [by] July 21st, 2033[,] convinces the [c]ourt that this matter is not ripe.

A lender cannot claim damages arising out of a breach of contract when the contract has not yet been breached.

The motion judge further held

because there is no evidence of modification and the performance date is July 21st, 2033, the matter is not ripe. ....

Just to be clear, though, this does not leave . . . plaintiff without any remedy. When the time comes for the $65,000 to be paid and it's not paid, obviously, . . . plaintiff could then bring a claim for breach of contract.

We review an order granting summary judgment de novo. See Graziano

v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999). We apply the same

standard as the trial court, consider all the evidence submitted in the "light most

favorable to the non-moving party," and determine if the moving party is entitled

to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995). The court may not weigh the evidence and determine

A-2702-17T2 4 the truth of the matter. Ibid. The court's role is to determine whether there is a

genuine issue for trial. Ibid.

On appeal, plaintiff argues summary judgment was improper because

defendant's acknowledgement of the obligation to pay the debt in an email, a

statement she made to police, and the Family Part judge's findings proved the

repayment due date under the promissory note was modified. He asserts

defendant's attempt to obtain a restraining order against him proves she "was

trying to use the judicial system to get a leg up on [him] in his efforts to recover

the $65,000." He argues a jury should consider these factual allegations.

A contract arises from an offer and acceptance that must be sufficiently

definite so the performance by each party can be ascertained with reasonable

certainty. Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992). The parties

must also manifest an intention to be bound by the essential terms of the

agreement. Ibid. Whether an offer capable of acceptance has been made

depends upon "what meaning the words should have conveyed to a reasonable

person cognizant of the relationship between the parties and all of the antecedent

and surrounding facts and circumstances." Esslinger's, Inc. v. Alachnowicz, 68

N.J. Super. 339, 344 (App. Div. 1961). A modification to an existing contract

"can be proved by an explicit agreement to modify, or . . . by the actions and

A-2702-17T2 5 conduct of the parties, so long as the intention to modify is mutual and clear."

Cty. of Morris v. Fauver, 153 N.J. 80, 99-100 (1998).

Here, the record contains no credible evidence of a contract whereby

defendant agreed to pay the $65,000 immediately, or modification of the

existing contract to accelerate the payment due merely because defendant stated

she would pay plaintiff. No indicia of a mutual agreement to modify the original

due date for the $65,000 sum, let alone an indication of precisely what the new

due date was, exists in the record.

Similarly, we reject plaintiff's argument that the facts and findings from

the domestic violence matter were dispositive of the summary judgment motion.

As the motion judge noted, the Family Part judge expressly stated the domestic

violence proceedings were not determinative of the parties' rights in this contract

dispute. As a result, the domestic violence matter was not res judicata, because

there was no final determination of the merits of the contract dispute. See

Velasquez v. Franz, 123 N.J. 498, 505 (1991). Nor was it the law of the case

because the contract dispute was not litigated before the Family Part judge only

to be re-litigated in the Law Division. In re Estate of Stockdale, 196 N.J. 275,

311 (2008).

A-2702-17T2 6 For these reasons, summary judgment in defendant's favor was properly

granted. Plaintiff's remaining arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-2702-17T2 7