SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0640-22 

NVL, INC., A DELAWARE 

CORPORATION and

HOOMAN NISSANI, 

an individual, 

Plaintiffs-Appellants, 

v. 

VOLVO CAR USA LLC, A 

DELAWARE LIMITED 

LIABILITY COMPANY, 

Defendant-Respondent. 

_______________________ 

Argued December 5, 2023 – Decided February 15, 2024 

Before Judges Whipple, Mayer and Paganelli. 

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-4341-18. 

Christopher J. Sullivan argued the cause for appellants 

(Nutter McClennen and Fish LLP, attorneys; 

Christopher J. Sullivan, on the briefs). 

Patrick Thomas Hagerty argued the cause for 

respondent (Hardin, Kundla, McKeon and Poletto, 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0640-22

attorneys; Patrick Thomas Hagerty, on the brief; Paul 

Daly, on the brief). 

PER CURIAM 

 Plaintiffs NVL, Inc. and Hooman Nissani (Nissani) appeal from an 

October 17, 2022 order granting summary judgment to defendant Volvo Car 

U.S. LLC (Volvo), and dismissing their complaint with prejudice. We affirm. 

I.

 We recite the facts from the record. For nearly twenty years, Nissani 

operated several car dealerships in Long Beach and Los Angeles California. 

Among his dealerships were Chrysler, Dodge, RAM, Hyundai, Nissan, Toyota, 

Acura, Scion, General Motors, Chevrolet and Jeep. Additionally, Nissani 

received many awards for dealership design and successful dealership 

management. In addition to owning and operating several successful car 

dealerships, Nissani was a real estate developer and owned a number of real 

estate projects in the Los Angeles area. Volvo is a world-renowned automotive 

manufacturer, in operation for over fifty years. 

 On November 5, 2014, Nissani and Volvo executed an eight-page Letter 

of Intent (2014 LOI) to construct a new Volvo dealership in Long Beach, 

California. In pertinent part the 2014 LOI provided: 
3 A-0640-22

You have requested that Volvo . . . enter into a Volvo 

Retailer Agreement . . . that is exclusive to Volvo

dealership operations. 

 . . . . 

[Volvo]'s offer to enter into a Volvo Retailer 

Agreement is subject to the satisfaction, in [Volvo]'s 

sole and reasonable discretion, or waiver of the terms 

and conditions set forth in this LOI, including, without 

limitation, the timely performance to [Volvo]'s 

satisfaction of your obligations set forth below: 

 . . . . 

5. Facility Commitment, Construction. On or before 

May 1, 2015, you must complete construction of the 

New Facility at the Long Beach site, and secure from 

the appropriate municipal authority a certificate of 

occupancy. By this date, you must also occupy the New 

Facility and open the Dealership for business 

operations. Construction of the New Facility shall be 

in strict accordance with all of the architectural details, 

colors, furniture, finishes, fixtures, materials, signage 

and key design elements of the Design Program, as will 

be specified in . . . [d]rawings . . . that will be prepared 

by a [Volvo] representative at your expense. 

 . . . . 

19. Termination of LOI. If, in the judgment of [Volvo], 

exercised in its sole and reasonable discretion (a) you 

fail to satisfy . . . in a timely and lawful manner any of 

[your] obligations set forth in this LOI; (b) you . . . fail 

to meet [Volvo]'s due diligence criteria; (c) any of the 

conditions set forth in this LOI are not timely satisfied 

(or waived); or (d) you . . . fail to satisfy any and all 

other terms and conditions required by [Volvo] in its 
4 A-0640-22

reasonable discretion, [Volvo] shall have the right to 

terminate this LOI, upon delivery of written notice to 

such effect to you. In such event, [Volvo] shall be 

under no obligation to enter into a Retailer Agreement 

with [you], and neither [Volvo] nor any [Volvo] Entity 

. . . shall be liable to you . . . for any damages suffered 

by reason of reliance on this LOI. 

 . . . . 

21. Miscellaneous. 

. . . . 

d. Covenant not to Sue. You hereby 

voluntarily assume the entire risk of the 

undertakings contemplated herein. You, 

by your execution and delivery of this LOI, 

and intending to be legally bound hereby, 

further agree and covenant not to sue any 

[Volvo e]ntity with respect to any or all 

damages you may suffer by reason of 

taking any action in reliance upon this LOI, 

in the event [Volvo] terminates this LOI, 

and, in so doing, fails or refuses to approve 

[your] . . . appointment as a [Volvo] 

Retailer. 

 . . . . 

g. Due Diligence, Construction. You 

represent and warrant to [Volvo] that you 

have executed this LOI voluntarily and of 

you own free will. You further represent 

that, prior to the execution of this LOI, you 

have had adequate time and information to 

permit you to consult with your 

accountants, attorneys, financial advisors 
5 A-0640-22

or other consultants of your choice. The 

parties agree that the words used in this 

LOI shall be deemed to be words chosen by 

[Volvo] and you to express mutual intent. 

No rule of strict construction against either 

[Volvo] or you shall apply to any term or 

provision of this LOI. 

Over the next two years, there was little progress in Nissani's construction 

of the new Volvo dealership. Therefore, in the Spring of 2016 the parties began 

discussing a new LOI (2016 LOI). On August 24, 2016, Volvo provided Nissani 

with the initial version of the 2016 LOI. In the initial version of that LOI, the 

"dollar amounts and construction timelines . . . were negotiable." 

On September 1, 2016, Nissani sent Volvo an email stating he provided 

the 2016 LOI to his attorney for review. Volvo understood Nissani was 

reviewing the 2016 LOI with his counsel and the review "took a lot of time." 

However, Nissani testified he "was not sure or did[ not] believe he shared the 

LOI with his attorney" because Volvo wanted to "keep[] everything completely 

confidential and not to shar[e] it with anybody," including his attorney. Despite 

not being "confident that [he] understood all the terms and conditions of the" 

2016 LOI, Nissani signed the agreement. 

On October 25, 2016, the parties executed the thirteen-page 2016 LOI. In 

relevant part, the 2016 LOI provided: 
6 A-0640-22

This LOI replaces the [2014 LOI] . . . . No terms from 

the [2014 LOI] are relevant to the terms and conditions 

set forth in this LOI. 

 . . . . 

2.1 The appointment of [you] as an authorized Volvo 

retailer is conditioned on, and subject to, you 

completing and satisfying (as determined by us, in our 

sole discretion) the Conditions and deadlines set out on 

Schedules 1, 2 and 3, otherwise complying with and 

fulfilling your obligations under this LOI. 

 . . . . 

2.8 . . . 

 . . . . 

. . . . You agree that the approved Volvo facility

shall be completed and ready for operation by August 

15, 2017. 

 . . . . 

[Volvo] Support & Payment Schedule: We will provide 

Facility Support Funds in the amount of $2,000,000. 

These support funds are solely to assist in making 

approved facility investments at the approved location. 

These funds will be provided to you in three (3) lump 

sum installments . . . . 

 . . . . 

2.13 You agree to be ready to commence Volvo 

operations by August 15, 2017. 

 . . . . 
7 A-0640-22

7. Other rights of termination 

 . . . . 

7.2 We may also terminate this LOI by giving you 

written notice if, in our judgment, exercised in our sole 

and reasonable discretion: 

. . . . 

(b) any of the Conditions are not fulfilled by the

deadlines set out on Schedules 1 or 2; or

(c) you breach any of the other terms of the LOI or 

otherwise fail to perform your obligations under this 

LOI. 

7.3 If this LOI is terminated for any reason as provided 

herein, we will not be obligated to enter a Retailer 

Agreement. Without limiting the foregoing you 

acknowledge and agree that . . . we . . . will [not] be 

liable to you or any other party for any damages, losses, 

costs or expenses suffered or incurred by you or any 

other party arising out of, relating to or in connection 

with this LOI (whether because of reliance on this LOI 

or otherwise) under any circumstances. 

Included within the 2016 LOI were Schedules 1, 2, and 3. Schedules 1 

and 2 provided details regarding tasks Nissani was to complete, along with dates 

for completion. Schedule 3 provided: 

4. Covenant not to sue 

4.1 You voluntarily assume the entire risk of the 

undertakings contemplated in this LOI. 
8 A-0640-22

4.2 By signing the LOI you are entering into binding 

legal obligations. You will not sue any [Volvo] Entity 

for any damages you may suffer because of taking any 

action in reliance upon this LOI, if we terminate this 

LOI or we fail or refuse to approve [your] appointment 

as a Volvo retailer. 

 . . . . 

6. Due diligence 

6.1 You have entered into this LOI voluntarily. You 

agree that you have had adequate time and information 

to allow you to consult with your accountants, 

attorneys, financial advisors or other consultants of 

your choice. 

 . . . . 

9. Other 

9.1 This LOI may only be amended in writing and if 

signed by you and [Volvo's] Regional Vice President

and Vice President of Network Development or another 

authorized officer of Volvo . . . . 

. . . . 

9.7 Time is of the essence for all matters in this LOI. 

In late 2016 and throughout 2017, Volvo discussed the acquisition of a 

Las Vegas based Volvo dealership with another entity. 

Nissani failed to meet the first deadline of March 15, 2017 under the 2016 

LOI. On July 31, 2017, Nissani emailed Volvo stating, "we are now ready to 
9 A-0640-22

set up the time line for completion of our dealership." He proposed to submit 

plans to the city for approval on July 1, 2017; start construction December 2017; 

and have a "grand opening on May 31, 2018." On August 7, 2017, a Volvo 

representative responded to the email, requesting follow up information, 

including updates and status reports on the city's review process and a banking 

letter showing the "potential floor plan is in process with a bank." 

The same Volvo representative thought it was "possible" but "unlikely" 

that anything was sent to Nissani, in writing, extending the 2016 LOI to 

December 1, 2017. However, the Volvo representative recalled telling a thirdparty vendor that December 2017 was a more realistic date for Nissani's 

commencement of construction. 

On September 1, 2017, Volvo wrote a letter to Nissani stating: 

Please be advised that Volvo . . . is terminating the . . . 

[2016 LOI]. [Volvo] is terminating the [2016] LOI 

pursuant to [s]ection 7.2 b of the [2016] LOI. 

Unfortunately, you have continuously failed to meet the 

[c]onditions of the [2016] LOI by the deadlines set forth 

in Schedules 1 and 2 in the [2016] LOI often with an 

unacceptable explanation to [Volvo]. Accordingly, the 

[2016] LOI is terminated as set forth above effective 

immediately. 

On the same day, Volvo sought approval to "invest up to [two-million dollars] 

to acquire [the] Las Vegas" dealership. The Volvo representative testified the 
10 A-0640-22

decisions to terminate the 2016 LOI and to move forward with the Las Vegas 

transaction were unrelated. While Volvo considered the Las Vegas project 

"important" and would have figured out financing of that project, Volvo's 

representative acknowledged termination of the 2016 LOI "could have helped 

from a budget standpoint." However, the Volvo representative testified that 

Volvo could have funded Nissani out of its 2018 budget. 

 Nissani initially brought suit in the United States District Court for the 

Central District of California. That court found the "forum selection clause [in 

the 2016 LOI] impose[d] a sovereignty limitation, thus requiring adjudication 

of this action by a New Jersey state court." NVL, Inc. v. Volvo Car USA, LLC, 

No. CV 18-1956, 2018 WL 6137178 at 14 (C.D. Cal. Apr. 26, 2018). 

 On June 12, 2018, Nissani filed this action. In lieu of filing an answer, 

Volvo filed a motion to dismiss for failure to state a claim upon which relief can 

be granted. The trial court denied Volvo's motion to dismiss. After discovery, 

Volvo filed for summary judgment. 

II.

 In a written opinion, the motion judge granted Volvo summary judgment. 

He determined Nissani could not maintain a cause of action for damages because 

the "not to sue" provision of the 2016 LOI was enforceable. The judge found 
11 A-0640-22

the clause was neither procedurally nor substantively unconscionable. He 

determined Volvo was "a major automobile manufacturer." However, he also 

found that Nissani: was a "sophisticated businessman [with] significant 

experience negotiating with automobile manufacturers"; "negotiated directly 

with [Volvo's] executives"; and "had an attorney review the 2016 LOI before it 

was executed." Therefore, the judge found the "not to sue" clause was not 

procedurally unconscionable. 

 In addition, the judge determined that the "not to sue" clause was not 

substantively unconscionable. The judge found: the clause "d[id] not contain 

substantive terms that are so one-sided so as to shock the [c]ourt's conscience[; 

l]iability waivers are commonly included in contracts between sophisticated 

parties"; Nissani "[wa]s not susceptible to an unfair transaction"; the parties 

"engaged in negotiation and mutually assented to all terms included in the" 2016 

LOI; Nissani agreed to the same terms in the 2014 LOI and the 2016 LOI; and 

the clause was "conspicuously located" and labeled in the 2016 LOI. 

 Moreover, the judge determined that the New Jersey Consumer Fraud Act 

(CFA), N.J.S.A. 56:8-1 to -227, did not apply to the parties' transaction, because 

it did not involve "merchandise . . . offered to the public at large" or "a consumer 
12 A-0640-22

transaction." Instead, the "relationship indicate[d] that [Nissani] was regarded 

as a . . . business partner and proprietor." 

 Also, the judge found that Nissani could not maintain a cause of action for 

unjust enrichment. The judge determined there was "no . . . evidence of unjust 

enrichment in the record." He found Volvo "derived no unjust benefit" from 

Nissani's "costs and expenses for the prospective dealership which did not come 

to fruition . . . ." Moreover, Volvo's subsequent "reallocation of $2[,000,000] 

initially earmarked for [Nissani]'s project c[ould ]not be considered unjust 

enrichment . . . ."

Further, the judge determined Nissani could not recover "lost profits" 

because the proffered expert opinion was based on "conjecture." The judge 

found the "performance data [used was from] several of [Nissani]'s dealerships 

during a period ending in 2014," and "the proposed dealership would have 

operated from approximately 2018 onwards, under very different economic 

conditions which would have led to a vastly different dealership performance." 

Also, the judge found the expert's "[r]eport state[d] an exorbitant year-over-year 

growth rate of 29.6%, a number which [wa]s far from [Volvo's] sales figures in 

its experience . . . ." 

III.
13 A-0640-22

 On appeal, Nissani contends: (A) "the covenant not to sue in the 2016 

LOI is unenforceable as a matter of law" or "the issue of enforceability raises 

material facts for trial"; (B) there were genuine issues of material fact regarding: 

(i) Volvo's "reliance [on] the 2014 LOI . . . for the termination"; (ii) the 2016 

LOI was extended; and (iii) the 2016 LOI was terminated "in bad faith and with 

wrongful intent"; (C) the "proposed dealership constitutes 'merchandise' under 

the [CFA]"; (D) the judge "erred in dismissing [Nissani's claim] for unjust 

enrichment"; and (E) the judge "erred in [his] ruling about lost profits." 

We review a ruling on a motion for summary judgment de novo, applying 

the same standard governing the trial court. Templo Fuente De Vida Corp. v. 

Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). Thus, we consider, as the 

motion judge did, "whether the competent evidential materials presented, when 

viewed in the light most favorable to the non-moving party, are sufficient to 

permit a rational factfinder to resolve the alleged disputed issue in favor of the 

non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). 

If there is no genuine issue of material fact, we must then "decide whether the 

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

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

omitted). We review issues of law de novo and accord no deference to the trial 
14 A-0640-22

judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). "The 

factual findings of a trial court are reviewed with substantial deference on 

appeal, and are not overturned if they are supported by 'adequate, substantial 

and credible evidence.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 

(2014) (quoting Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 293 

(2001)). 

This standard compels the grant of summary judgment: 

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 challenged and that the moving party is 

entitled to a judgment or order as a matter of law. An 

issue of 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. 

[R. 4:46-2(c).] 

"Under that standard, once the moving party presents sufficient evidence 

in support of the motion, the opposing party must 'demonstrate by competent 

evidential material that a genuine issue of fact exists[.]'" Globe Motor Co. v. 

Igdalev, 225 N.J. 469, 479-80 (2016) (citing Robbins v. Jersey City, 23 N.J. 229, 

241 (1957) (alterations in the original)). "[C]onclusory and self-serving 
15 A-0640-22

assertions by one of the parties are insufficient to overcome the motion." Puder 

v. Buechel, 183 N.J. 428, 440-41 (2005) (citations omitted). More is required 

than a "mere denial." Mangual v. Berezinsky, 428 N.J. Super. 299, 313 (App. 

Div. 2012). 

A.

 Nissani contends the judge made two errors in his analysis of the covenant 

not to sue. First, he argues the judge applied the wrong law, relying on the 

outdated standard set forth in Tannock v. N.J. Bell Tel. Co., 212 N.J. Super. 506 

(Law Div. 1986), aff'd in part, rev'd in part, 223 N.J. Super. 1 (App. Div. 1988), 

rather than the later and controlling standard set forth in Rudbart v. N.J. Dist. 

Water Supply Comm., 127 N.J. 344 (1992) regarding contracts of adhesion. 

Second, he argues the judge "improperly resolved disputed material factual 

issues against Nissani," "in the face of clear evidence . . . that contradicted those 

findings." 

 The freedom to contract is a foundational pillar of New Jersey law. 

Marcinczyk v. State of N.J. Police Training Comm'n, 203 N.J. 586, 592 (2010). 

In the absence of fraud, duress, illegality or mistake, a contract is fully binding, 

and "the parties are 'conclusively presumed' to understand and assent to its legal 

effect." Id. at 593 (quoting Rudbart, 127 N.J. at 353). Absent these findings, a 
16 A-0640-22

court will not interfere with parties' freedom to enter into binding agreements. 

See Gross v. Lasko, 338 N.J. Super. 476, 485-86 (App. Div. 2001). 

 "In a commercial setting, '[t]he judiciary will not undertake the writing of 

a different or better contract between the parties.'" Chemical Bank of N.J. Nat. 

Ass'n v. Bailey, 296 N.J. Super. 515, 527 (App. Div. 1997) (quoting Swisscraft 

Novelty Co. v. Alad Realty Corp., 113 N.J. Super. 416, 421 (App. Div. 1971)). 

 A contract of adhesion is "presented on a take-it-or-leave-it basis, 

commonly in a standardized printed form, without opportunity for the adhering 

party to negotiate except perhaps on a few particulars." Moore v. Woman to 

Woman Obstetrics & Gynecology, LLC., 416 N.J. Super. 30, 38 (App. Div. 

2010) (quoting Rudbart, 127 N.J. at 353). Despite requiring one party to accept 

or reject the agreement, as is, a contract of adhesion is not per se unenforceable. 

Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010). "The determination 

that a contract is one of adhesion . . . 'is the beginning, not the end, of the inquiry' 

into whether a contract, or any specific term therein, should be deemed 

unenforceable based on policy considerations." Muhammed v. Cnty. Bank of 

Rehoboth Beach, Delaware, 189 N.J. 1, 15 (2006) (quoting Rudbart, 127 N.J. at 

354). 
17 A-0640-22

"[A] court may decline to enforce [an adhesion contract] if it is found to 

be unconscionable." Vitale v. Schering-Plough Corp., 231 N.J. 234, 246 (2017) 

(citation omitted). "A sharpened inquiry concerning unconscionability is 

necessary when a contract of adhesion is involved." Muhammed, 189 N.J. at 

15. 

"The seminal case of Rudbart . . . set out factors for courts to consider 

when determining whether a specific term in a contract of adhesion is 

unconscionable and unenforceable." Ibid. The "factors focus on procedural and 

substantive aspects of the contract 'to determine whether the contract is so 

oppressive, or inconsistent with the vindication of public policy, that it would 

be unconscionable to permit its enforcement.'" Rodriguez v. Raymours 

Furniture Co., Inc., 225 N.J. 343, 367 (2016) (citation omitted). The factors 

include: "[(1)] the subject matter of the contract, [(2)] the parties' relative 

bargaining positions, [(3)] the degree of economic compulsion motivating the 

'adhering' party, and [(4)] the public interests affected by the contract." Rudbart, 

127 N.J. at 356. 

The first three factors speak to procedural unconscionability, and the last 

factor speaks to substantive unconscionability. Rodriguez, 225 N.J. at 367. 

"When making the determination that a contract of adhesion is unconscionable 
18 A-0640-22

and unenforceable, we consider, using a sliding scale analysis, the way in which 

the contract was formed and, further, whether enforcement of the contract 

implicates matters of public interest." Stelluti, 203 N.J. at 301. 

Nissani argues the judge "applied the wrong law, relying on the outdated 

standard set forth in Tannock." Volvo counters that it "is inconsequential[] 

[because] an analysis under either [Tannock or Rudbart] would undoubt[edly] 

result in the same conclusion." Without commenting on the status of Tannock, 

we agree that the New Jersey Supreme Court has set a broader, "multi-factor 

analysis generally conform[ing] to the case-by-case approach widely used for 

evaluating claims of unconscionability." Muhammed, 189 N.J. at 16. 

Therefore, we conduct our de novo review under the Rudbart standard. 

 There is no dispute that the 2016 LOI was a contract of adhesion. Nissani 

contends "there can be no question that [the] contract at issue in this case was 

an adhesion contract with respect to the covenant not to sue." Volvo, while 

defining what constitutes a contract of adhesion, immediately embarks on an 

unconscionability analysis. 

 The question then is whether in the 2016 LOI covenant not to sue clause 

is unconscionable and unenforceable. See Muhammed, 189 N.J. at 15. The 

clause provides: 
19 A-0640-22

4. Covenant not to sue 

4.1 You voluntarily assume the entire risk of the 

undertakings contemplated in this LOI. 

4.2 By signing this LOI you are entering into binding 

legal obligations. You will not sue any [Volvo] Entity 

for any damages you may suffer because of taking any 

action in reliance upon this LOI, if we terminate this 

LOI or we fail or refuse to approve [your] appointment 

as a Volvo retailer. 

 Applying the first three factors, we are not convinced the "[c]ovenant not 

to sue" is procedurally unconscionable. The 2016 LOI, much like its 

predecessor, the 2014 LOI, involved a commercial agreement between two 

experienced parties. There is no factual dispute that Volvo was "a major 

automobile manufacturer." Nor is there any dispute that Nissani had nearly 

twenty years of experience operating car dealerships and "won many awards for 

dealership design and success of dealership operations." On this record, there 

is no evidence "Volvo had grossly disproportionate bargaining power." 

Moreover, Nissani argues "[a]t the time Volvo presented the 2016 LOI 

. . . he had already invested significant time and hundreds of thousands of dollars 

. . . . Thus, [he] faced significant economic compulsion to enter into the 2016 

LOI . . . ." However, this argument ignores that the 2014 LOI, under which 
20 A-0640-22

Nissani "invested [the] significant time and hundreds of thousands of dollars," 

contained a "[c]ovenant not to sue" clause similar to the 2016 LOI. 

In addition, Nissani argues the motion judge's finding that he "had an 

attorney review the 2016 LOI before it was executed" was improper because 

"the lack of involvement of Nissani counsel" was a "disputed material issue[] of 

fact." Our review of the record reveals: (1) the 2016 LOI stated Nissani "entered 

into th[e] LOI voluntarily" and he "agree[d] that [he] . . . had adequate time and 

information to allow [him] to consult with [his] . . . attorneys . . . or other 

consultants of [his] choice"; (2) Nissani emailed Volvo stating "the letter of 

intent was with [his] lawyer," although he testified that he "was not sure or did[ 

not] believe he" shared the LOI with his attorney; and (3) Volvo understood that 

Nissani "sat on [the 2016 LOI] . . . and he was reviewing [it] with his counsel," 

and "took a lot of time to look at [it] with his counsel." 

Here, Volvo demonstrated Nissani had counsel for the 2016 LOI, which 

was supported by Nissani's own email and his acknowledgment that he had 

adequate time to consult with attorneys. Even giving Nissani every inference, 

his equivocal testimony that he "was not sure or did[ not] believe he" shared the 

LOI with his attorney is a "mere denial" and insufficient to create a material fact 

in dispute. 
21 A-0640-22

Moreover, we recognize the importance of attorneys in commercial 

business transactions such as this one. "[T]he opportunity to consult counsel 

allows: '[a]ttorneys (to) offer advice on a limitless range of matters.'" Bassford 

v. Trico Mortgage Co., 273 N.J. Super. 379, 382 (Law. Div. 1993) (quoting 

Trenta v. Gay, 191 N.J. Super. 617, 621 (Ch. Div. 1983)). "Clients rely on them 

not only for legal advice but also for emotional support, financial guidance and 

common sense." Ibid. However, 

[i]t is the general rule that where a party affixes his 

signature to a written instrument . . . a conclusive 

presumption arises that he read, understood and 

assented to its terms and he will not be heard to 

complain that he did not comprehend the effect of his 

act in signing. 

[Peter W. Kero, Inc. v. Terminal Const. Corp., 6 N.J. 

361, 368 (1951).] 

Therefore, despite his alleged uncertainty regarding his use of counsel, 

Nissani signed the 2016 LOI, raising a "conclusive presumption . . . that he . . . 

understood and assented to its terms . . . ." Ibid. 

Furthermore, under the fourth factor, we find no public interest that would 

preclude sophisticated and experienced commercial parties from agreeing to 

limit the risk of loss in their contract. "It is fundamental that parties to a contract 

may allocate risk of loss by agreeing to limit their liability . . . ." Bailey, 296 
22 A-0640-22

N.J. Super. 526-27. Clauses in private contracts that limit liability are generally 

sustained. Mayfair Fabrics v. Henley, 48 N.J. 483, 487 (1967). "Exculpatory 

clauses are more commonly upheld in the commercial context." Bailey, 296 

N.J. Super. at 527; see also Hy-Grade Oil Co. v. N.J. Bank, 138 N.J. Super. 112, 

116 (App. Div. 1975) ("[S]uch clauses [a]re enforced, chiefly in the commercial 

setting . . . ."). 

Therefore, while the 2016 LOI was a contract of adhesion, it was not 

unconscionable and, therefore, we are convinced it was enforceable. Because 

we review orders on appeal, rather than a trial judge's legal reasons, we affirm 

the order granting summary judgment but for reasons other than those expressed 

by the trial judge. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 

(1968), abrogated on other grounds by Com. Realty Res. Corp. v. First Atl. 

Props. Co., 122 N.J. 546, 565 (1991); Hayes v. Delamotte, 231 N.J. 373, 387 

(2018). 

B.

 Nissani argues the motion judge erred because there were "issues of 

material [fact] relating to the validity of the termination itself [that] preclude 

summary judgment." Nissani avers: (1) the motion judge "recognized that '[i]t 
23 A-0640-22

[wa]s undisputed that the 2016 LOI superseded and replace[d] entirely the 2014 

LOI,' [but then] erroneously ignored (and effectively endorsed) Volvo's 

overwhelming reliance on the 2014 LOI in terminating the [2016] LOI"; (2) 

"[a]ll of the [t]ime [d]eadlines in Schedule 1 and 2 to the 2016 LOI were 

[e]xtended by the [a]ctions and [c]onduct of the [p]arties"; and (3) "Volvo 

[t]erminated the 2016 LOI [i]n [b]ad [f]aith and [w]ith [w]rongful [i]ntent." We 

disagree. 

i.

 In reviewing the motion judge's written decision, nothing in the judge's 

factual findings or legal conclusions indicated that Nissani's actions under the 

2014 LOI supported Volvo's termination of the 2016 LOI. 

 Instead, the motion judge found: (1) the 2016 LOI "provided for a tight 

schedule . . . [because Nissani had] failed to meet ['several construction 

deadlines'] under the 2014 LOI"; (2) "[t]he various construction deadlines 

included in the 2016 LOI were extended multiple times in an attempt to allow 

[Nissani] to comply"; and (3) Volvo "elected to terminate the 2016 LOI by letter 

dated September 1, 2017, citing a pattern of failed deadlines." The September 

1, 2017 letter confines the termination to Nissani's "continuous[] fail[ing] to 
24 A-0640-22

meet the [c]onditions of the [2016] LOI by the deadlines set forth in Schedules 

1 and 2 in the [2016] LOI often with an unacceptable explanation to [Volvo]." 

ii.

Nissani argues the "evidence in the record . . . show[s] that (i) only 

cosmetic changes . . . remained to be done as of [the date of termination], and 

(ii) Nissani had submitted the plans to the City of Long Beach for preliminary 

approval, which he could not have done if major revisions remained to be done." 

Therefore, Nissani claims "[w]hether time deadlines were extended and the 

status of the plans are material issues of fact." We find these arguments 

unavailing. 

The motion judge found "[t]he various construction deadlines included in 

the 2016 LOI were extended multiple times in an attempt to allow [Nissani] to 

comply." Nonetheless, "[u]ltimately, [Volvo] elected to terminate the 2016 LOI 

by letter dated September 1, 2017, citing a pattern of failed deadlines." 

 The 2016 LOI provided "[a]ny term or provision of [the 2016 LOI] may 

be waived in writing . . . [but n]o failure to exercise and no delay in exercising, 

any right, power or privilege w[ould] operate as a waiver thereof . . . ." While 

Volvo continued to work with Nissani, despite missed deadlines, there is no 

evidence in the record that Volvo agreed to extend deadlines or waived its right 
25 A-0640-22

to terminate the 2016 LOI for the reasons provided therein. In the September 1, 

2017 letter, Volvo terminated the 2016 LOI pursuant to section 7.2(b) which 

allowed for termination if "any of the [c]onditions are not fulfilled by the 

deadlines set out on Schedules 1 or 2." 

There is no disputed material fact that there were conditions unfulfilled. 

By way of example, in Nissani's July 31, 2017 email, he stated a plan to start 

construction in December 2017, when the 2016 LOI required the first "critical 

construction milestone" to have already been "achieved by March 15, 2017," 

and he planned to have a "grand opening by May 31, 2018" when the 2016 LOI 

required he be "ready to commence Volvo operations by August 15, 2017." 

iii.

 Nissani argues there are "questions of material fact . . . as to whether 

Volvo terminated the 2016 LOI in bad faith and with wrongful intent." He avers 

"Volvo's conduct in terminating the 2016 LOI is almost a textbook example of 

a violation of the implied covenant of good faith and fair dealing . . . contained 

in every contract and raises an issue of fact," citing Sons of Thunder, Inc. v. 

Borden, Inc., 148 N.J. 396, 420-21 (1997). 

 "[E]very contract in New Jersey contains an implied covenant of good 

faith and fair dealing." Sons of Thunder, 148 N.J. at 420-21. The covenant 
26 A-0640-22

provides that "neither party shall do anything which will have the effect of 

destroying or injuring the right of the other party to receive the fruits of the 

contract." Ibid. (citations omitted). 

"Although the implied covenant of good faith and fair dealing cannot 

override an express term in a contract, a party's performance under a contract 

may breach that implied covenant even though that performance does not violate 

a pertinent express term." Wilson v. Amerada Hess Corp., 168 N.J. 236, 244 

(2001). Therefore, "in New Jersey 'a party to a contract may breach the implied 

covenant of good faith and fair dealing in performing its obligations even when 

it exercises an express and unconditional right to terminate.'" Id. at 244; 

(quoting Sons of Thunder, 148 N.J. at 419; and citing Bak-A-Lum Corp. v. 

Alcoa Bldg. Prods., Inc., 69 N.J. 123, 129-30 (1976) for its "finding that 

defendant's conduct in terminating contract constituted bad faith although 

conduct did not violate express terms of written agreement"). 

 To establish a breach of the implied covenant of good faith and fair 

dealing, a party must demonstrate a "bad motive or intention, discretionary 

decisions that happen to result in economic disadvantage to the other party are 

of no legal significance." Amerada Hess, 168 N.J. at 251. "Bad motive or 

intention is essential . . . ." Ibid. 
27 A-0640-22

 Here, the motion judge determined that Volvo extended, multiple times, 

the "various construction deadlines included in the 2016 LOI . . . in an attempt 

to allow [Nissani] to comply." Moreover, Volvo's reallocation of 

"approximately $2[,000,000] from [Nissani]'s project to the [Las Vegas] project 

. . . [was] simply [Volvo] adjusting its revenue based upon a change in 

circumstances . . . [that it wa]s well within its rights to allocate . . . how it [saw] 

fit . . . ." Ultimately, the judge determined, because of Nissani's "pattern of 

failed deadlines," Volvo elected to terminate the 2016 LOI. While Nissani avers 

the motion judge failed to address this argument, the judge's factual findings 

dispel any notion of a bad motive or intention on behalf of Volvo and lead 

inexplicably to the conclusion that there was no breach of the implied covenant 

of good faith and fair dealing. 

 Moreover, Nissani's reliance on Bak-A-Lum is misplaced because that 

case is factually distinguishable from this matter. In Bak-A-Lum, plaintiff was 

ALCOA's exclusive distributor of "aluminum siding and certain related 

products." Bak-A-Lum, 69 N.J. at 126. ALCOA had no issue with plaintiff's

production, or sales of its product. Id. at 126-27. In January or February 1969, 

ALCOA decided to expand the number of distributors for its product. Id. at 128. 

ALCOA did not communicate this decision to plaintiff, ibid., and, instead, 
28 A-0640-22

knowingly encouraged plaintiff to enter into a long-term lease. Id. at 127. 

ALCOA terminated its "exclusive" agreement with plaintiff in January 1970 by 

appointing additional distributors. Ibid. The trial judge: (1) found ALCOA 

failed to timely communicate its decision to terminate the "exclusive" agreement 

with plaintiff, id. at 128; (2) found ALCOA's actions "be[spoke] a certain 

hypocrisy as well as ruthlessness . . . ," ibid.; (3) "surmised" that the reason 

ALCOA had concealed its intentions was to preserve plaintiff's sales during the 

months before the new distributors were put into place, ibid.; and (4) ALCOA 

induced plaintiff, just before termination, to place a "very heavy order for that 

time of year," ibid. The New Jersey Supreme Court held: 

In such circumstances [ALCOA]'s selfish withholding

from plaintiff of its intention seriously to impair its 

distributorship although knowing plaintiff was 

embarking on an investment substantially predicated

upon its continuation constituted a breach of the 

implied covenant of dealing in good faith . . . . 

[Bak-A-Lum, 69 N.J. 130.]

 Here, unlike in Bak-A-Lum, the motion judge found: (1) Nissani's 

performance was not satisfactory; (2) Volvo extended deadlines, "multiple 

times" to allow Volvo to comply; and (3) Volvo reallocated revenue based on a 

change in circumstances. These findings belie any notion that Volvo: had a 

poor "attitude"; "a certain hypocrisy"; "ruthlessness"; or substantially induced 
29 A-0640-22

Nissani; or acted in a "selfish" manner, which were critical findings in Bak-ALum. 

 Moreover, Nissani argues this matter is similar to Bak-A-Lum because 

Volvo interacted with others regarding a dealership project in Las Vegas and 

Volvo's ultimate use of funds for that project that were earmarked for the Nissani 

project, revealed that Volvo was "deceitful." Further, he asserts Volvo's email, 

sent weeks before termination, "encouraged him to proceed" and was done "at 

the very same time [Volvo] was surreptitiously working to contrive an excuse 

to terminate the 2016 LOI." 

However, this argument misses the mark because Nissani failed to explain 

why Volvo's communications regarding the Las Vegas project were improper. 

Moreover, Nissani's argument ignores his own failure to meet deadlines, an 

express reason allowing termination under the 2016 LOI, and his July 31, 2017 

email that proposed to extend the deadlines beyond those provided in the 2016 

LOI. 

C. 

 Nissani contends the motion judge erred in finding the proposed 

dealership was "not covered under the CFA." We disagree. 
30 A-0640-22

 "The CFA makes [certain] acts unlawful, in connection with the sale or 

advertisement of merchandise . . . ." DepoLink, 430 N.J. Super. at 337. "The 

term 'merchandise' . . . include[s] any objects, wares, goods, commodities, 

services or anything offered, directly or indirectly to the public for sale." Ibid. 

(quoting N.J.S.A. 56:8-1(c)). 

 Nissani's failure to establish "any material fact in dispute" that the "Volvo 

Retailer Agreement" was "offered, directly or indirectly to the public for sale" 

is fatal to his claim. 

"We have previously indicated that 'the public,' as used in th[e] definition 

of 'merchandise,' [N.J.S.A. 56:8-1(c),] refers to 'the public at large.'" Princeton 

Healthcare Sys. v. Netsmart N.Y., Inc., 422 N.J. Super. 467, 473 (App. Div. 

2011). 

The opportunity for a "Volvo Retailer Agreement," which led to the 

execution of the 2014 LOI and 2016 LOI, was not an opportunity offered to the 

"public at large." Volvo approached Nissani because of his nearly twenty years 

of award-winning experience in dealership design and operating car dealerships. 

There was no public involvement. Instead, the LOIs involved a commercial 

agreement between two experienced commercial entities. 
31 A-0640-22

The cases cited by Nissani are unavailing because each case turns on the 

merchandise being offered to the public at large. See All The Way Towing, 

LLC v. Bucks Cnty. Int'l, Inc., 236 N.J. 431, 447 (2019) ("To promote 

consistency in the application of the requirement that a product be offered to the 

public when evaluating a private individual CFA action, we hold that the 

availability requirement can be met by showing that any member of the public 

could purchase the product or service, if willing and able, regardless of whether 

such a purchase is popular."); Kavky v. Hebalife Int. of Am., 359 N.J. Super. 

497, 499 (App. Div. 2003) (applying the CFA to "plaintiff's purchase of a 

franchise or distributorship offered by defendants in advertising addressed to the 

general public at large."); Marasico v. Campanella, 298 N.J. Super. 491, 499 

(App. Div. 1997) (applying the CFA provided "the disputed contract involves 

goods or services generally sold to the public at large . . . ."); Morgan v. Air 

Brook Limo., Inc., 211 N.J. Super. 84, 100 (Law Div. 1986) (applying the CFA 

when the "franchise [is] offered for sale to the general public . . . ."). 

Based on well-settled law, we affirm the dismissal of Nissani's CFA claim 

as the CFA is inapplicable to the parties' transaction. 

D. 
32 A-0640-22

 Nissani argues the motion judge "erred in rejecting Nissani's evidence of 

lost profits as lacking 'reasonable certainty.'" We disagree. 

In Schwartz v. Menas, the New Jersey Supreme Court "reject[ed] a per se 

ban on claims by new businesses for lost profits damages . . . ." 251 N.J. 556, 

561 (2022). "Claims for lost profits damages are governed by the standard of 

reasonable certainty." Ibid. "A trial court should undertake a fact-sensitive 

analysis of the evidence offered by a new business when it determines a motion 

to bar such a claim." Ibid. "'[L]ost profits may be recoverable if they can be 

established with a reasonable degree of certainty,' but '[a]nticipated profits that 

are remote, uncertain or speculative . . . are not recoverable.'" Ibid. (quoting 

Passaic Valley Sewerage Comm'rs v. St. Paul Fire & Marine Ins. Co., 206 N.J. 

596, 609-10 (2011) (quoting Perth Amboy Iron Works Inc. v. Am. Home 

Assurance Co., 226 N.J. Super. 200, 224 (App. Div. 1988))).

We review a trial court's evidentiary determination for abuse of discretion. 

Menas, 251 N.J. at 570 (citing Rodriguez v. Wal-Mart Stores, Inc., 237 N.J. 36, 

57 (2019)). 

 Here, we conclude the motion judge did not abuse his discretion in finding 

Nissani "failed to show lost profits with any reasonable degree of certainty." 

The judge determined that Nissani's expert's opinion was a "net opinion [and] 
33 A-0640-22

insufficient . . . ." In conducting a "fact-sensitive analysis" the judge found the 

expert's use of "performance data [from] several of [Nissani]'s dealerships 

 . . . [for] a period ending in 2014" resulted in "conjecture" because "the 

proposed dealership would have operated from approximately 2018 onwards, 

under very different economic conditions which would have led to a vastly 

different dealership performance." Moreover, the judge noted "[t]he use of 

performance numbers prior to 2014 came in spite of the fact that [Nissani] 

operated at least five dealerships through the year 2020 . . . ." Further, the judge 

found "the [r]eport state[d] an exorbitant year-over-year growth rate . . . [that 

wa]s far from [Volvo's] sales figures in its experience selling Volvo cars." 

Ultimately, the judge concluded "[t]he numbers used in the [r]eport [we]re 

vastly inflated and from an irrelevant time period. Simply put, the [c]ourt c[ould 

]not conclude that [Nissani] calculated [hi]s lost profits with reasonable 

certainty; [the] numbers [we]re pure conjecture which lack[ed] a sufficient basis 

in existing data." 

In the absence of evidence of lost profits, established with a reasonable 

degree of certainty, there can be no recovery. Id. at 561. 

E. 
34 A-0640-22

 Nissani contends the motion judge erred in dismissing his claim for unjust 

enrichment. We disagree. 

"To establish unjust enrichment, a plaintiff must show both that defendant 

received a benefit and that retention of that benefit without payment would be 

unjust." VGR Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994) (citations 

omitted). "The unjust enrichment doctrine requires that plaintiff show that it 

expected remuneration from the defendant at the time it performed or conferred 

a benefit on defendant and that the failure of remuneration enriched defendant 

. . . . " Ibid. 

Here, the parties had an express contract, the 2016 LOI. "Unjust 

enrichment is not an independent theory of liability but is the basis for a claim 

of quasi-contractual liability." Goldsmith v. Camden Cnty. Surrogate's Off., 408 

N.J. Super. 376, 382 (App. Div. 2009) (internal quotations omitted). "It has 

been said that '[q]uasi-contract liability [should] not be imposed . . . if an express 

contract exists concerning the identical subject matter.'" Shalita v. Twp. of 

Washington, 270 N.J. Super. 84, 90 (App. Div. 1994) (alterations in original) 

(quoting Suburban Transfer Serv. v. Beech Holdings, Inc., 716 F.2d 220, 226-

27 (3d Cir. 1983)); see also C.B. Snyder Realty Co. v. Nat'l Newark & Essex 

Banking Co. of Newark, 14 N.J. 146, 163 (1953) (quoting Moser v. Milner 
35 A-0640-22

Hotels, Inc., 6 N.J. 278, 280-81 (1951) ("An implied contract cannot exist when 

there is an existing express contract about the identical subject.")). Since the 

2016 LOI is an express contract, we are satisfied that Nissani has no legal basis 

to maintain a claim for unjust enrichment. 

Factually, the motion judge determined there was "no . . . evidence of 

unjust enrichment in the record." Nonetheless, we are satisfied Nissani cannot 

maintain a claim for unjust enrichment based on the express contract per the 

2016 LOI and affirm the motion judge's order but for different reasons. See 

Isko, 51 N.J. at 175. 

To the extent we have not addressed any of Nissani's remaining 

arguments, we conclude they lack sufficient merit to warrant discussion in a 

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

Affirmed.