SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3736-16T2

RIVERMOUNT DEVELOPMENT 

LLC,

Plaintiff-Appellant,

v.

RICHARD B. LIVINGSTON, ESQ.,

and LAW OFFICES OF RICHARD

B. LIVINGSTON,

Defendants,

and

BRIAN D. SCHOTTENHEIMER and 

GEMMI A. SCHOTTENHEIMER,

Defendants-Respondents.

_______________________________

Argued October 4, 2018 – Decided August 14, 2019

Before Judges O'Connor and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Morris County, Docket No. L-1215-14.

NOT FOR PUBLICATION WITHOUT THE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.
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Gary D. Grant argued the cause for appellant (Grant 

Law Group, LLC, attorneys; Gary D. Grant and Janet 

S. Del Gaizo, on the brief).

Eric B. Levin argued the cause for respondents 

(Lindabury, McCormick, Estabrook and Cooper, PC, 

attorneys; Eric B. Levine and Sergio D. Simões, of 

counsel and on the brief).

PER CURIAM

This dispute arises from a contract to purchase real estate. Plaintiff 

Rivermount Development, LLC (Rivermount) appeals from three orders of the

Law Division granting summary judgment to defendants Brian D. 

Schottenheimer and Gemmi A. Schottenheimer and the February 15, 2017 order 

denying plaintiff's motion for reconsideration. We affirm.

I.

The following facts were derived from the record and viewed "in the light 

most favorable to the non-moving party." Globe Motor Co. v. Igdalev, 225 N.J. 

469, 479 (2016) (citing R. 4:46-2(c)). The Schottenheimers decided to move to 

New Jersey because Brian's1employer relocated to the State. In February 2008, 

they executed a contract for the purchase of a single-family home being 

constructed by Rivermount, a sophisticated real estate developer, in Morris 

 

1

 Because defendants share a last name, we use their first names for clarity. 
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County. The contract contained an unequivocal clause making the 

Schottenheimers' purchase of the home contingent on the sale of their residence 

in New York. As consideration for the home sale contingency clause, the 

Schottenheimers agreed to pay for all modifications and upgrades Rivermount 

made to the home at their request and to forfeit those payments in the event they 

terminated the contract.

The contract also specified a closing date of June 1, 2008. The 

Schottenheimers negotiated that date based on Brian's need to be in New Jersey 

at that time for his job. In addition, the couple wanted sufficient time to settle 

into their new home before the start of the new academic year.

The record contains undisputed evidence that the Schottenheimers listed 

their New York home for sale. They hired a real estate broker to market the 

property. The broker arranged for several open houses. Having not sold the 

home, the Schottenheimers reduced the listing price twice. As of May 19, 2008, 

the New York property had not sold. As a result, the Schottenheimers exercised 

their right to terminate the contract under the home sale contingency clause and 

demanded a return of their deposit. They acknowledged they forfeited $16,000 

they paid for customizations Rivermount made to the home at their request.
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Although the Schottenheimers exercised the home sale contingency clause 

twelve days before the scheduled closing date, the record demonstrates that 

Rivermount would not have been ready to close title on June 1, 2008. 

Rivermount had not yet completed construction of the home, secured a 

certificate of occupancy, or obtained a home warranty. After receiving the 

Schottenheimers' letter terminating the contract, Rivermount's counsel stated in 

writing to the Schottenheimers' counsel that Rivermount did not expect the 

house to be complete until mid-July, and inquired into whether they would be 

interested in extending the closing date in order to have more time to sell the

New York home. The Schottenheimers declined that offer. In addition, on or 

about June 1, 2008, two real estate investors to whom Rivermount owed 

substantial sums of money filed a lis pendens on the property.

On May 23, 2008, the Schottenheimers visited another property listed for 

sale in Morris County. On July 17, 2008, they purchased that home, paying 

more for that property then they had agreed to pay for the Rivermount house. 

The purchase contract did not contain a home sale contingency clause. Brian's 

employer provided significant financial assistance in purchasing the home. This 

allowed the Schottenheimers to continue to pay the mortgage on their New York 

property until it was sold nearly a year later.
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On June 16, 2009, Rivermount sold the property for less than the purchase 

price in the Schottenheimer contract. On May 13, 2014, almost six years after 

the Schottenheimers exercised their rights under the home sale contingency 

clause, Rivermount filed a complaint against them and its prior counsel in the 

Law Division. Rivermount alleged that its prior counsel was instructed to 

remove the home sale contingency clause from the contract but failed to do so. 

In addition, Rivermount alleged the Schottenheimers waived the home sale 

contingency clause in conversations with Rivermount's counsel, real estate 

brokers, and principals of Rivermount after execution of the contract, and that 

Brian made misrepresentations to a principal of Rivermount when he stated that 

he was unconcerned about the sale of the New York property and that his 

employer would provide any financial assistance needed to facilitate the 

Schottenheimers' move to New Jersey. Rivermount alleged professional 

malpractice claims against its former counsel, and alleged that the 

Schottenheimers violated the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 

to -210, and breached the sales contract. Rivermount also sought relief from the 

Schottenheimers under quantum meruit.

On February 20, 2015, the trial court entered an order dismissing the 

allegations against the Schottenheimers and granting Rivermount leave to file 
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an amended complaint. On March 3, 2015, Rivermount filed an amended 

complaint reiterating the factual allegations in the original complaint. The

amended complaint restated its allegations of professional malpractice against 

its prior counsel. In addition, Rivermount alleged the Schottenheimers breached 

the implied covenant of good faith and fair dealing in the sales contract, 

committed common law fraud, and are subject to equitable estoppel. 

Rivermount alleged Brian falsely stated he was invoking the home sale 

contingency clause because he could not afford to pay two mortgages, but was 

planning to purchase another house without first selling his New York property.

On November 3, 2016, the court entered an order granting summary 

judgment to the Schottenheimers on all claims in the amended complaint. The 

court issued an oral opinion relying on the unequivocal language of the home 

sale contingency clause. As the court explained, 

I don't think it's up to the buyers to provide any reason 

why they couldn't take title.

. . . .

And I agree, there's nothing to show that the defendants 

Schottenheimer were able to sell the [New York] 

property . . . . And there's no proof to show that their 

inability to sell it was in any way due to any type of bad 

faith on their part.
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I think the long and short of it is that there was ample 

reason for the buyers to terminate and they, for that 

reason, exercised their right to terminate.

. . . .

Anything they may have said after they did exercise 

that right really has no bearing on the case whatsoever.

I think neither does it have any bearing on whether they 

did a few days later buy a different house, no matter 

what the price.

But certainly any representations or statements made 

after termination didn't amount to any type of fraud or 

common law fraud which could have, which any way 

affected their rights which had already . . . previously 

been negotiated, and previously been exercised.

Nor can I see any bad faith in what simply was their 

exercise of a contractual right that they had. So that 

there would not be any violation of any good faith and 

fair dealing.

And I certainly, because of this, can't see any reason for 

equitable estoppel so that I will grant the motion in 

favor of the Schottenheimers.

On November 17, 2016, the court entered an amended order granting summary 

judgment in favor of the Schottenheimers and noting that all claims against them 

were dismissed with prejudice.

On February 15, 2017, the court entered an order denying Rivermount's 

motion for reconsideration. The court rejected the argument that it misapplied 
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the holding in Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420 (1997), 

when deciding the summary judgment motion. The court explained:

In [my] reading [of the] Sons of Thunder case it did 

point out that where a contractual right to terminate is 

expressed and unambiguous then the motive of the 

terminating party is irrelevant. And, certainly, the 

home sale clause in this particular contract, which was 

actually an added on rider, was, I think as clear and as 

unambiguous as you can be. It gave the 

Schottenheimers a right to terminate if they did fail to 

sell the [New York] property. And when it was 

terminated they hadn't been able to sell it, plain and 

simply [sic].

So that any of their other motives really are irrelevant. 

I certainly don't find that my [grant] of the summary 

judgment was at all palpably unreasonable or incorrect. 

So I will deny the motion. 

Rivermount thereafter stipulated to the dismissal of its claims against its prior 

attorney. This appeal followed.2

 

2

 The Schottenheimers argue that Rivermount's appeal should be limited to the 

February 15, 2017 order because that is the only order listed in its notice of 

appeal. Normally, we do not consider judgments or orders not identified in the 

notice of appeal. See R. 2:5-1(e)(3)(i) (stating that a notice of appeal "shall 

designate the judgment, decision, action or rule, or part thereof appealed from"); 

Fusco v. Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div. 2002) (stating 

that appellate review pertains only to judgments or orders specified in the notice 

of appeal). However, Rivermount's accompanying case information statement 

and an attachment thereto identifies the February 20, 2015, November 3, 2016 

and November 17, 2016 orders as being appealed. We will, therefore, consider 

its appeal from those orders. There is no merit to the Schottenheimers' argument 
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II.

We review the trial court's decision granting summary judgment de novo, 

using "the same standard that governs trial courts in reviewing summary 

judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 

162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant 

summary judgment when "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." "Thus, the movant must 

show that there does not exist a 'genuine issue' as to a material fact and not 

simply one 'of an insubstantial nature'; a non-movant will be unsuccessful 

'merely by pointing to any fact in dispute.'" Prudential, 307 N.J. Super. at 167 

(quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 529-30 (1995)). Our 

review is "based on our consideration of the evidence in the light most favorable 

to the parties opposing summary judgment." Brill, 142 N.J. at 523-24.

After carefully reviewing Rivermount's arguments in light of the record 

and applicable legal principles, we affirm the November 3, 2016 and November 

 

that it is improper to appeal four orders in one appeal. To the contrary, an 

appellant may not file separate notices of appeal for each order for which review 

is sought. In re Unanue, 311 N.J. Super. 589, 598 (App. Div. 1998).
10 A-3736-16T2

17, 2016 orders granting summary judgment to the Schottenheimers, for the 

reasons stated by the trial court in its oral opinion. We add these comments. 

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

faith and fair dealing." Sons of Thunder, 148 N.J. at 420. "The party claiming 

a breach of the covenant of good faith and fair dealing 'must provide evidence 

sufficient to support a conclusion that the party alleged to have acted in bad faith 

has engaged in some conduct that denied the benefit of the bargain originally 

intended by the parties.'" Brunswick Hills Racquet Club, Inc. v. Route 18 

Shopping Ctr. Assocs., 182 N.J. 210, 225 (2005) (quoting 23 Willison on 

Contracts § 63:22, at 513-14 (footnotes omitted)). However, "the implied 

covenant of good faith and fair dealing cannot override an express termination 

clause[,]" Sons of Thunder, 148 N.J. at 419, and "where the contractual right to 

terminate is express and unambiguous, the motive of the terminating party is 

irrelevant." Id. at 423.

The record clearly establishes that Rivermount agreed to a contract with 

the Schottenheimers that contained an unequivocal house sale contingency 

clause. The clause does not predicate the Schottenheimers' right to terminate 

the contract on a financial inability to purchase the Rivermount house. It does 

not obligate the Schottenheimers to seek financial assistance from Brian's 
11 A-3736-16T2

employer to purchase the home. The Schottenheimers do not have a contractual 

obligation to refrain from purchasing a different home after termination of the 

contract. The Schottenheimers had a contractual right to terminate the contract 

if they were unable to sell their home after making a good faith effort to do so. 

Rivermount does not dispute the trial court's finding that the Schottenheimers 

made a good faith effort to sell their home before exercising their rights under 

clause.

It belies credulity for a sophisticated real estate developer to argue it 

believed the home sale contingency clause had no force because Brian allegedly 

stated either before or after execution of the contract that he was unconcerned 

about the sale of the New York home and could buy the Rivermount property 

with the assistance of his employer if necessary. A claim that the developer 

relied to its detriment on oral statements by Brian after execution of the contract 

that were impliedly contrary to the express terms of the home sales contingency 

clause is similarly incredible.

With respect to the February 15, 2017 order, Rule 4:49-2 provides:

Except as otherwise provided by R. 1:13-1 (clerical 

errors) a motion for rehearing or reconsideration 

seeking to alter or amend a judgment or order shall . . . 

state with specificity the basis on which it is made, 

including a statement of the matters or controlling 

decisions which counsel believes the court has 
12 A-3736-16T2

overlooked or as to which it has erred, and shall have 

annexed thereto a copy of the judgment or order sought 

to be reconsidered and a copy of the court’s 

corresponding written opinion, if any.

"A motion for reconsideration . . . is a matter left to the trial court's sound 

discretion." Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Guido v. Duane 

Morris, LLP, 202 N.J. 79, 87 (2010)); see also Cummings v. Bahr, 295 N.J. 

Super. 374, 389 (App. Div. 1996). A party may move for reconsideration of a 

court's decision pursuant to Rule 4:49-2, on the grounds that (1) the court based 

its decision on "a palpably incorrect or irrational basis," (2) the court either 

failed to consider or "appreciate the significance of probative, competent 

evidence," or (3) the moving party is presenting "new or additional information 

. . . which it could not have provided on the first application." Id. at 384 (quoting 

D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).

The moving party must "initially demonstrate that the [c]ourt acted in an 

arbitrary, capricious, or unreasonable manner, before the [c]ourt should engage 

in the actual reconsideration process." D'Atria, 242 N.J. Super. at 401. A 

motion for reconsideration is not an opportunity to "expand the record and 

reargue a motion. [It] is designed to seek review of an order based on the 

evidence before the court on the initial motion, . . . not to serve as a vehicle to 

introduce new evidence in order to cure an inadequacy in the motion record.'' 
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Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. 

Div. 2008).

Our review of the record and applicable legal principles leads us to affirm 

the February 15, 2017 order denying reconsideration for the reasons stated by 

the trial court in its oral opinion. To the extent we have not specifically 

addressed any of Rivermount's remaining contentions, we conclude they lack 

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

Affirmed.

 

3

 Rivermount's brief does not address the February 20, 2015 order, although that 

order is listed in the attachment to its case information statement. We consider 

its appeal from that order waived. "[A]n issue not briefed is deemed waived." 

Pressler and Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019); 

Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J. Super. 384, 393 (App. 

Div. 2012) (deeming a contention waived when the party failed to include any 

arguments supporting the contention in its brief).