Tequesta Ecd, LLC v. Steven Enders

• Court: New Jersey Superior Court Appellate Division
• Decided: March 26, 2025
• Docket: A-0389-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0389-23

TEQUESTA ECD, LLC and HOLTEC INTERNATIONAL,

Plaintiffs-Appellants,

v.

STEVEN ENDERS, d/b/a ENDERS CONSTRUCTION, INC., and ENDERS CONSTRUCTION, INC.,

Defendants-Respondents. _____________________________

Submitted December 18, 2024 – Decided March 26, 2025

Before Judges Mayer and Puglisi.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0336-22.

Weisberg Law, attorneys for appellants (Matthew B. Weisberg, on the briefs).

Briggs Law Office, LLC, attorneys for respondents (Norman W. Briggs, on the brief).

PER CURIAM Plaintiffs Tequesta ECD, LLC (Tequesta ECD) and Holtec International

(Holtec) (collectively, plaintiffs) appeal from the September 8, 2023 Law

Division order granting summary judgment to defendants Steven Enders

(Enders) and Enders Construction, Inc. (Enders Construction) (collectively ,

defendants) and dismissing plaintiffs' complaint with prejudice. We affirm.

I.

In 2017, Holtec's chief executive officer and president, Dr. Krishna Singh,

approached Enders with a business arrangement to form a division of Holtec,

later named Tequesta ECD, which would acquire Enders Construction, purchase

property, and build luxury homes. Although ultimately the acquisition of Enders

Construction did not occur, Enders accepted a position to work for Holtec as

president of Tequesta ECD.1

In addition to Enders's $100,000 annual salary, the parties had an

incentive agreement pursuant to an Administrative Memorandum (AM-031).

The superseding AM-031, which governed here, provided "Enders will receive

[forty percent] of the net profit from the sale on a project. If a budget overrun

were to occur, then such an overrun will be charged equally to [Tequesta] and

1 Tequesta Properties, Inc. (TPI) was the sole member of Tequesta ECD. A-0389-23 2 . . . Enders, reducing both parties' net profit. . . . Enders'[s] portion of the net

profit will be distributed to him at the end of each calendar year."

On February 26, 2021, Chris Bieberbach, a Holtec employee, emailed

Enders a financial memorandum detailing financial losses associated with

Tequesta ECD and proposing a garnishment of Enders's wages. Two weeks

later, Martin Babos, the general manager of TPI, sent Enders another

administrative memorandum detailing the "Unwinding of Tequesta ECD."

Enders denied any responsibility for the losses incurred by Tequesta ECD and

averred the parties never entered into a loss-sharing agreement. On March 17,

2021, Holtec terminated Enders's employment.

On February 8, 2022, TPI filed a complaint against defendants seeking

damages for breach of contract, quasi-contract, unjust enrichment and

promissory estoppel.

After the close of discovery, defendants moved for summary judgment

seeking dismissal of TPI's complaint. Defendants alleged TPI reported no

losses, defendants did not have an agreement with TPI, and TPI failed to identify

any contractual provisions or promises defendants breached. TPI did not oppose

the motion.

A-0389-23 3 On May 11, 2023, the trial judge heard argument and granted defendants'

motion, dismissing TPI's complaint with prejudice. The judge found:

The record is clear. Plaintiff has failed to identify any contractual provisions or promises made by [Enders], which obligates [Enders] to pay [forty] percent of the losses. The initial grievance said [forty] percent of net profits. There's nothing about the losses. There's a purported revision, September 11, which says that the budget runs were to occur. Such charges will apply equally to the . . . plaintiff and this defendant, Enders, reducing both parties' run. And movant indicates there is no evidence presented of any losses as a result of budget overruns. There's no evidence of any loss sharing agreement, and this has not been contested. Therefore, the motion will be granted.

On May 12, 2023, the judge entered a conforming order reflecting his

decision.

TPI timely moved for reconsideration to have the court to consider its

belated opposition to summary judgment and cross-moved to file an amended

complaint, which the court heard on July 21, 2023. At the outset, the judge said

he "was going to grant the motion for reconsideration, just for the purposes of

determining the merits of this motion."

In granting summary judgment to defendants, the judge stated:

I understand your arguments about, you know, if there's questions and the standards of summary judgment. I'm very careful about when to grant summary judgment, when not to, when to take this away from a jury, but I

A-0389-23 4 find that it's uncontroverted that this is very specific language. And just again, for clarity purposes, I'll read it again.

. . . Enders will receive [forty] percent of net profits from the sale on a project. If a budget overrun were to occur, such overrun will be charged equally. The portion of the net profits will be distributed at the end of the year.

There's nothing to say that he's on the hook for any losses that aren't part of the profits. It's clear and unambiguous. There is the specific language—the parol evidence you indicated, I don’t think is very— first of all, I don't know if you even can consider it like that this is a provision agreed upon the parties, but there isn't really a question anywhere raised by this that he would be responsible for these overruns. I can't find it's there.

I find the language to be clear and unambiguous. And as such, I will grant defendant[s]' motion, deny the plaintiff's motion.

On July 25, 2023, the court filed an order reflecting this ruling and

granting plaintiffs' cross-motion to file an amended complaint substituting

Tequesta ECD and Holtec as plaintiffs. No substantive changes were made in

the amended complaint.

On August 10, 2023, defendants again moved for summary judgment as

to the amended complaint, which plaintiffs opposed.

A-0389-23 5 On September 8, 2023, the trial judge heard argument and granted

defendants' motion for the same reasons he previously articulated, again finding

the language of the contract was clear and unambiguous and defendants were

not responsible for losses alleged by plaintiffs.

On appeal, plaintiffs argue the trial court erred in granting defendants'

motion for summary judgment by: (1) finding that the contract unambiguously

stated Enders was not responsible for losses; (2) not allowing parol evidence of

the interpretations of the agreement; and (3) in the alternative, defendants were

unjustly enriched because plaintiffs relied on a promise to their detriment.

II.

We review de novo a trial court's ruling on a motion for summary

judgment, applying the same standard used by the trial court. Samolyk v.

Berthe, 251 N.J. 73, 78 (2022) (citing Woytas v. Greenwood Tree Experts, Inc.,

237 N.J. 501, 511 (2019)). We must decide whether "there is [a] genuine issue

as to any material fact" when the evidence is "viewed in the light most favorable

to the non-moving party[.]" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,

405-06 (2014) (first quoting R. 4:46-2(c); and then quoting Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "To decide whether a genuine

issue of material fact exists, the trial court must 'draw[ ] all legitimate inferences

A-0389-23 6 from the facts in favor of the non-moving party.'" Friedman v. Martinez, 242

N.J. 449, 472 (2020) (alteration in original) (quoting Globe Motor Co. v.

Igdalev, 225 N.J. 469, 480 (2016)).

"The court's function is not 'to weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue for trial.'" Rios

v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540). "If

there is no genuine issue of material fact, the court must then 'decide whether

the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)).

On de novo review, "[a] trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019) (alteration

in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

A motion for summary judgment must be granted "if the pleadings,

depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact

A-0389-23 7 challenged and that the moving party is entitled to a judgment or order as a

matter of law." R. 4:46-2(c).

"To prevail on a breach of contract claim, a party must prove a valid

contract between the parties, the opposing party's failure to perform a defined

obligation under the contract, and the breach caused the claimant to sustain[]

damages." EnviroFinance Grp., LLC v. Env't Barrier Co., 440 N.J. Super. 325,

345 (App. Div. 2015). "[T]he burden of establishing a breach of contract rests

with the party who asserts the breach." Nolan v. Control Data Corp., 243 N.J.

Super. 420, 438 (App. Div. 1990).

"In order for a contract to form . . . there must be a 'meeting of the minds,'

as evidenced by each side's express agreement to every term of the contract."

State v. Ernst & Young, L.L.P., 386 N.J. Super 600, 612 (App. Div. 2006)

(quoting Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 538 (1953)).

"An expression of assent that modifies the substance of the tender, while it may

be operative as a counter-offer, is yet not an acceptance and does not

consummate a contract. In the very nature of the contract, acceptance must be

absolute." Ibid. (quoting Johnson & Johnson, 11 N.J. at 538).

If contractual terms are clear, "[courts] must enforce the contract as

written." Graziano v. Grant, 326 N.J. Super. 328, 342 (App. Div. 1999).

A-0389-23 8 Further, the contract is to be interpreted "'in accord with justice and common

sense.'" Homann v. Torchinsky, 296 N.J. Super. 326, 334 (App. Div. 1997)

(quoting Krosnowski v. Krosnowski, 22 N.J. 376, 387 (1956)).

If, however, the terms of a contract are ambiguous, courts "consider the

parties' practical construction of the contract as evidence of their intention and

as controlling weight in determining a contract's interpretation." Barila v. Bd.

of Educ. of Cliffside Park, 241 N.J. 595, 616 (2020) (quoting In re County of

Atlantic, 230 N.J. 237, 255 (2017)). Additionally, "[t]he judicial task is simply

interpretative; it is not to rewrite a contract for the parties better than or different

from the one they wrote for themselves." Kieffer v. Best Buy, 205 N.J. 213, 223

(2011).

There is no dispute the parties entered into a written contract that

provided:

Enders will receive [forty percent] of the net profit from the sale on a project. If a budget overrun were to occur, then such an overrun will be charged equally to T[equesta] and . . . Enders, reducing both parties' net profit. . . . Enders'[s] portion of the net profit will be distributed to him at the end of each calendar year. . . . Enders is entitled to share a portion of his profit with his other key associates at his sole discretion.

We agree with the trial court's determination the written language of the

agreement was clear and unambiguous. The contract provided for a reduction

A-0389-23 9 in Enders's net profits if there were a budget overrun. Nothing required Enders

to share in losses that fell below the profit. As such, the trial court correctly

granted defendants' motion for summary judgment.

Plaintiffs next argue the trial court erred by "purportedly inserting

meaning as a matter of law to the portion of the provision, 'reducing the parties'

net profit,' to suggest that [defendants] cannot be liable for losses" and asserts

this matter should have been left for a jury aided by parol evidence for

interpretation.

Under New Jersey law, "where the terms of a contract are clear and

unambiguous there is no room for interpretation or construction and the courts

must enforce those terms as written." Schor v. FMS Fin. Corp., 357 N.J. Super.

185, 191 (App. Div. 2002) (quoting Kampf v. Franklin Life Ins. Co., 33 N.J. 36,

43 (1960)). "When presented with an unambiguous contract, the court should

not look outside the 'four corners' of the contract to determine the parties' intent,

and parol evidence should not be used to alter the plain meaning of the contract."

Namerow v. PediatriCare Assocs., 461 N.J. Super. 133, 140 (Ch. Div. 2018).

"The court has no right 'to rewrite the contract merely because one might

conclude that it might well have been functionally desirable to draft it

differently.'" Karl's Sales & Serv., Inc. v. Gimbel Bros., 249 N.J. Super. 487,

A-0389-23 10 493 (App. Div. 1991) (quoting Levison v. Weintraub, 215 N.J. Super. 273, 276

(App. Div. 1987)). The parol evidence rule excludes evidence which "is offered

for the purpose of 'varying or contradicting' the terms of an 'integrated' contract."

Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953).

Here, we agree with the trial judge's determination that the language of

AM-031 was clear and unambiguous. Because the contract left no room for

interpretation or construction of the agreement, there was no need to consider

parol evidence.

In the alternative, plaintiffs argue defendants are nevertheless liable under

a theory of promissory estoppel. "The doctrine of promissory estoppel is well-

established in New Jersey." Pop's Cones, Inc. v. Resorts Int'l Hotel, Inc., 307

N.J. Super. 461, 468 (App. Div. 1998) (citing Malaker Corp. Stockholders

Protective Comm. v. First Jersey Nat'l Bank, 163 N.J. Super. 463, 479 (App.

Div. 1978)). "The essential justification for the doctrine of promissory estoppel

is the avoidance of substantial hardship or injustice were [a] promise not to be

enforced." Malaker Corp., 163 N.J. Super. at 484.

"Promissory estoppel is made up of four elements: (1) a clear and definite

promise; (2) made with the expectation that the promisee will rely on it; (3)

A-0389-23 11 reasonable reliance; and (4) definite and substantial detriment." Toll Bros. v.

Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 253 (2008).

Here, plaintiffs failed to show Enders made a "clear and definite promise"

to be personally responsible for all losses outside of the provisions contained in

AM-031. Singh, Babos and Bieberbach testified during their depositions that

Enders agreed to share in any losses, but could only point to AM-031 as evidence

of that promise. As the trial judge found, AM-031 did not reflect that

arrangement. Because plaintiffs could not demonstrate the first element, their

claim of promissory estoppel failed.

Plaintiffs' claim of unjust enrichment meets a similar fate. In order to

recover based on unjust enrichment a plaintiff must show a "defendant received

a benefit and that retention of that benefit without payment would be unjust."

VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994). Therefore,

plaintiffs must show that they "expected renumeration from defendant at the

time [they] performed or conferred a benefit on the defendant and that the failure

of renumeration enriched defendant beyond its contractual rights." Ibid.

Plaintiffs argue they paid Enders a salary with the expectation he would

share in any loss, and therefore he was unjustly enriched by not having to do so.

We disagree for the same reasons plaintiffs' other claims failed. Enders entered

A-0389-23 12 into an employment contract requiring him to reduce his profits by any budget

overrun, not to reimburse plaintiffs for any losses. Thus, plaintiffs could not

demonstrate Enders was enriched beyond his contractual rights.

Affirmed.

A-0389-23 13