SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-5698-17T2

 A-5710-17T2

MFC RESOURCES, INC., MFC

COMMODITIES GMBH, MFC 

COMMODITIES U.S.A., L.P., INC.,

and MFC COMMODITIES U.S.A., 

G.P., INC. 

Plaintiffs-Appellants,

and 

POSSEHL MEXICO, S.A. D.E. C.V.,

Plaintiff,

v.

ESTATE OF JUERGEN HOMANN,1

Defendant-Respondent,

and

YAN CHEN, JEFF TIANG, JOHN 

HOYING, CJAM CORPORATION, INC.,

THYSSENKRUPP METALLURGICAL 

PRODUCTS GMBH,

1

 Because defendant Juergen Homann passed away during the pendency of this 

appeal, the Estate of Juergen Homann was substituted in his place as a party 

defendant pursuant to our June 27, 2019 order.

NOT FOR PUBLICATION WITHOUT THE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-5698-17T2

and THYSSENKRUPP MATERIALS 

NA, INC.,

Defendants.

______________________________

MFC RESOURCES, INC., MFC

COMMODITIES GMBH, MFC 

COMMODITIES U.S.A., L.P., INC.,

and MFC COMMODITIES U.S.A., 

G.P., INC.,

Plaintiffs,

and

POSSEHL MEXICO, S.A. D.E. C.V.,

Plaintiff-Appellant,

v.

ESTATE OF JUERGEN HOMANN,

Defendant-Respondent,

and

YAN CHEN, JEFF TIANG, JOHN 

HOYING, CJAM CORPORATION, INC.,

THYSSENKRUPP METALLURGICAL 

PRODUCTS GMBH, and 

THYSSENKRUPP MATERIALS NA, 

INC.,

Defendants. 

__________________________________
3

A-5698-17T2

Argued telephonically April 22, 2020 –

Decided May 21, 2020

Before Judges Fuentes, Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-9612-13.

Charles Michael (Steptoe & Johnson LLP) of the New 

York bar, admitted pro hac vice, argued the cause for 

appellants in A-5698-17 (Cole Schotz, PC, and Charles 

Michael, attorneys; Christopher P. Massaro, Michael 

Charles Klauder, and Charles Michael, of counsel and 

on the briefs). 

Aaron Van Nostrand argued the cause for appellant in 

A-5710-17 (Greenberg Traurig LLP, attorneys; Aaron 

Van Nostrand, on the briefs). 

Jeremy B. Stein argued the cause for respondent in A5698-17 and A-5710-17 (Hartmann Doherty Rosa 

Berman & Bulbulia, LLC, attorneys; Mark Allan

Berman, Jeremy B. Stein, and Janel R. Alania, on the 

briefs).

PER CURIAM

These appeals, argued back-to-back, return to us after a remand to the trial 

court for an evidentiary hearing on the enforceability of an oral settlement 

agreement. MFC Resources, Inc. v. Homann, No. A-3866-14 (App. Div. July 

11, 2017) (MFC I). Plaintiffs MFC Resources, Inc., MFC Commodities GMBH, 

MFC Commodities U.S.A., L.P., Inc., MFC Commodities, U.S.A., G.P., Inc. 

(collectively, MFC), and Possehl Mexico, S.A. D.E. C.V. (Possehl) argued there 
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was no enforceable oral settlement with Homann. We affirm the June 29, 2018 

order and judgment, finding an enforceable oral settlement agreement between 

the parties and awarding defendant the sum of $7,100,000 for the reasons set 

forth in Judge James J. DeLuca's May 25, 2018 comprehensive written decision.2 

We also affirm the August 6, 2018 amended order and judgment awarding 

defendant the additional sum of $546,053.93, representing pre-judgment 

interest.

The facts and procedural history are detailed in our opinion in MFC I. 

Based on our remand instructions, Judge DeLuca conducted an evidentiary 

hearing on two consecutive days. He heard testimony from seven witnesses and 

reviewed documentary evidence to determine whether the parties entered into 

an enforceable oral settlement agreement. 

The testimony of the witnesses proffered by plaintiffs varied significantly 

from the testimony of defendant's witnesses. Judge DeLuca made detailed 

credibility determinations as to each witness and reviewed the written evidence 

offered by the parties in conjunction with the testimony. Based on the credible 

2

 Judge DeLuca entered an amended written decision on July 6, 2018, 

reaffirming his finding of an enforceable oral settlement agreement. 
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A-5698-17T2

testimony and written evidence, Judge DeLuca concluded a term sheet prepared 

by Kevin Colosimo, Homann's personal attorney, 

set forth specific . . . essential terms of the agreement 

between MFC and Homann. MFC representatives 

reviewed those items on receipt of the Colosimo Term 

Sheet and did not dispute those terms. . . . MFC 

representatives . . . advised third parties that MFC had 

reached a deal. While the parties may have intended to 

further "flesh out" the mechanics of the deal, the failure

to agree on such mechanics [did] not preclude 

enforcement of the matter.

. . . .

Homann has proven by a preponderance of the 

credible evidence that MFC and Homann entered into a 

settlement. While MFC may have had second thoughts 

about its settlement with Homann or even the wisdom 

of such a settlement, the court will not permit such 

second thoughts or change of heart to thwart/undo such 

settlement.

The judge instructed Homann's counsel to submit an order to the court. 

Plaintiffs objected to defendant's form of order. On June 27, 2018, Judge 

DeLuca held a hearing to settle the form of order and enter judgment. The judge 

attempted to resolve the parties' disputes and allowed counsel until June 29 to

agree upon the form of the order. If the parties were unable to settle the form of 

the order, the judge stated he would enter the order prepared by defense counsel. 
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The parties were unable to reach an agreement on the form of the order,

and Judge DeLuca adopted defendant's proposed order and judgment. The June 

29, 2018 order entered judgment in favor of Homann and against "MFC 

Industrial[] Ltd. n/k/a MFC Bancorp, Ltd. and/or 0778539BC, Ltd., MFC 

Resources, Inc., MFC Commodities GMBH, MFC Commodities U.S.A., L.P., 

Inc., MFC Commodities U.S.A. G.P., Inc., and Possehl Mexico, S.A. DE C.V., 

jointly and severally, in the amount of seven million one hundred thousand 

dollars[.]" In an August 6, 2018 amended order and judgment, Judge DeLuca 

awarded defendant prejudgment interest accruing as of the date of the oral 

settlement agreement. 

On appeal, plaintiffs challenge the judge's determination that the parties 

had an enforceable oral settlement agreement. Specifically, plaintiffs argue the 

following: the underlying sale contracts required any change to be in writing 

and provided that New York law, which does not recognize oral settlement 

agreements, controlled all issues; under New Jersey choice of law rules, the 

judge should have applied New York law in deciding whether the parties had an 

enforceable agreement; the statute of frauds under both New Jersey and New 

York law required the settlement to be in writing because the alleged agreement 
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included a guarantee of payment by MFC Industrial Ltd. (MFC Industrial),3the 

parent company of MFC; and the facts did not support a finding that the parties 

agreed to all material terms. Plaintiffs also contend the judge should have 

declared the settlement unenforceable based on spoliation of evidence and 

ethical violations. In addition, they challenge the final judgment, claiming MFC 

Industrial and Possehl were improperly named as parties responsible to satisfy 

the judgment. 

Several of plaintiffs' arguments in these appeals were raised and rejected 

in MFC I. In the prior appeal, plaintiffs argued: (1) the underlying sales 

contracts required any changes to be in writing; (2) New York law does not 

recognize oral settlements; (3) even under New Jersey law there was no 

enforceable oral settlement agreement; and (4) any alleged agreement was the 

product of an ethical violation by Homann's attorney. Alternative to these 

dispositive legal arguments, plaintiffs claimed an evidentiary hearing was 

required to determine whether the parties reached an enforceable oral settlement 

agreement. 

In deciding MFC I, we held

3

 On February 16, 2016, MFC Industrial Ltd. changed its name to MFC Bancorp 

Ltd. On July 14, 2017, MFC Bancorp Ltd. changed its name to 0778539 B.C. 

Ltd. 
8

A-5698-17T2

MFC contends, in part, that the judge erred in finding 

the parties reached an enforceable settlement 

agreement. MFC argues the evidence was insufficient 

to establish that the parties intended to be bound or had 

agreed to the essential terms of the alleged settlement. 

MFC posits that the court should have held an 

evidentiary hearing to resolve the factual disputes 

surrounding the alleged settlement. We agree. 

[MFC I, slip op. at 5.]

In remanding the matter for an evidentiary hearing to determine whether 

there was an enforceable agreement, plaintiffs' dispositive arguments that the 

oral settlement was unenforceable as a matter of law were rejected as lacking 

merit. Had plaintiffs prevailed on their purely legal arguments in MFC I, it 

would have been pointless to remand the matter for an evidentiary hearing.

The remand instructions in MFC I established the law of the case, 

concluding an evidentiary hearing was necessary to resolve factual disputes and 

determine whether the parties agreed to an enforceable oral settlement. See

Henebema v. Raddi, 452 N.J. Super. 438, 450-51 (App. Div. 2017). The law of 

the case doctrine provides that once an issue is litigated and decided in a suit, 

relitigation should be avoided absent new evidence, a recent change in the 

controlling law, or a clearly erroneous prior decision. Sisler v. Gannett Co., 

Inc., 222 N.J. Super. 153, 159 (App. Div. 1987). "The law-of-the-case doctrine 

'most commonly applies to the binding nature of appellate decisions upon a trial 
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court if the matter is remanded for further proceedings, or upon a different 

appellate panel which may be asked to reconsider the same issue in a subsequent 

appeal.'" Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 494 (App. Div. 

1999) (quoting Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 179 (App. 

Div. 1993)). "Where the rule is applied to a prior appellate decision in the same 

case, the doctrine is more stringent." Sisler, 222 N.J. Super. at 160. 

An appellate remand is not an opportunity to reassert the same legal

arguments raised in the first appeal absent a change in the law or newly 

discovered facts. Plaintiffs failed to argue any recently decided case law or 

newly discovered facts justifying our review of identical arguments considered 

and rejected in MFC I and therefore we decline to address plaintiffs' repeat 

arguments in this appeal. However, we note plaintiffs asserted new arguments 

that could not have been raised in MFC I because those arguments were not ripe 

until Judge DeLuca rendered his findings of facts and conclusion of law after 

the remand hearing. Thus, we limit our review in these appeals to plaintiffs' 

challenges to Judge DeLuca's determinations.

We first consider plaintiffs' argument that the judge should have applied 

New York law to determine whether the oral settlement agreement was 

enforceable. Plaintiffs claimed that the underlying sales contracts with Homann 
10 A-5698-17T2

provided New York law would govern. Judge DeLuca rejected this argument

and applied New Jersey law because he found the oral settlement agreement was 

separate from and independent of the underlying sales contracts. We are 

satisfied that the choice of law provision in the underlying sales contract,

applying New York law, was irrelevant to the separate oral settlement agreement

and therefore the judge's application of New Jersey law was proper. 

In addition, New Jersey had the most significant relations under New 

Jersey's choice of law principles. Gilbert Spruance Co. v. Pennsylvania Mfrs.' 

Ass'n Ins. Co., 134 N.J. 96, 102 (1993) (focusing choice of law decisions "on 

the state that has the most significant connections with the parties and the 

transaction"). Here, plaintiffs filed suit in New Jersey, Homann resided in New 

Jersey, at least one corporate plaintiff had its principal place of business in New 

Jersey, and the oral settlement agreement resolved a New Jersey civil litigation. 

Therefore, New Jersey law had the more significant relationship regarding the 

parties' oral settlement agreement and New Jersey law applied. 

We next review plaintiffs' argument that the statute of frauds required a 

written agreement as a result of Judge DeLuca's inclusion of MFC Industrial as 
11 A-5698-17T2

an entity agreeing to guarantee plaintiffs' debts.4 Plaintiffs contend that if MFC 

Industrial, which was not a party to the litigation, agreed to guarantee payment 

of the settlement sum on behalf of plaintiffs, the statute of frauds required the 

agreement to be in writing to be enforceable. 

We disagree. MFC Industrial did not guarantee a debt requiring a writing 

under the statute of frauds. N.J.S.A. 25:1-15 compels "[a] promise to be liable 

for the obligation of another . . . to be enforceable, shall be in a writing[.]" Here, 

the term sheet provided "MFC Industrial[] Ltd. et al. (parent for and on behalf 

of relevant subsidiaries)" agreed to be bound by the terms of the settlement 

agreement. MFC Industrial did not agree to guaranty a payment obligation of 

another. Rather, on its own behalf and on behalf of all plaintiffs, MFC Industrial 

agreed to be bound by the terms of the settlement in return for dismissal of the 

litigation. Moreover, there was no promise to pay a financial obligation to 

Homann at the time of the oral settlement because litigation was still pending

with each party claiming the other owed money. Therefore, the statute of frauds 

was inapplicable. 

4

 Plaintiffs were unable to raise this issue in MFC I because MFC Industrial was 

not named in the order and judgment that gave rise to that appeal. 
12 A-5698-17T2

We also reject plaintiffs' contention that Judge DeLuca's findings of fact 

and conclusions of law were unsupported by the evidence in the record. Our 

scope of review of a judgment following a bench trial is limited. Final 

determinations of a trial court "premised on the testimony of witnesses and 

written evidence at a bench trial" are deferentially reviewed. D'Agostino v. 

Maldonado, 216 N.J. 168, 182 (2013). We also defer to a trial judge's credibility 

determinations. In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). 

Here, the evidentiary hearing turned on witness credibility, and the judge 

found defendant's witnesses to be more credible than plaintiffs' witnesses. We 

are not free to disregard Judge DeLuca's factual findings so long as those 

findings are supported by the record. See Willingboro Mall, Ltd. v. 240/242 

Franklin Ave., L.L.C., 421 N.J. Super. 445, 455 (App. Div. 2011), aff'd, 215 

N.J. 242 (2013). We are satisfied the judge's factual determinations are fully 

supported by the credible evidence in the record. 

Plaintiffs also assert that the judge failed to address their spoliation of 

evidence claim related to the loss of the meeting notes from which Homann's 

attorney prepared the term sheet. Spoliation is the intentional destruction or 

hiding of evidence. See Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001). 
13 A-5698-17T2

There is no evidence in the record that Homann's attorney destroyed the 

notes to conceal facts from plaintiffs. Homann's attorney testified he diligently 

searched for the notes unsuccessfully and speculated they were probably lost 

when he relocated his office. Plaintiffs failed to present any evidence to 

contradict or impugn this testimony. In this light, Judge DeLuca correctly 

concluded plaintiffs' spoliation allegation lacked merit. 

We next address plaintiffs' argument that the judge erred in signing 

defendant's form of order and final judgment. According to plaintiffs, the 

executed order and judgment improperly included Possehl and MFC Industrial 

as liable parties. Possehl argued it was not a party to the purported oral 

settlement agreement. MFC Industrial argued it cannot be liable because it was 

not a party to the litigation. 

Generally, a judgment cannot bind a non-party. See N. Haledon Fire Co. 

No. 1 v. Borough of N. Haledon, 425 N.J. Super. 615, 628 (App. Div. 2012). 

However, under circumstances where a non-party's interest has been represented 

by a party in a litigation, the non-party may be bound by the judgment. Id. at 

628-29 (citing Morris Cty. Fair Hous. Council v. Boonton Twp., 197 N.J. Super. 

359, 364-65 (Law Div. 1984), aff'd o.b., 209 N.J. Super. 108 (App. Div. 1986)). 

"[I]f it appears that a particular party, although not before the court in person, is 
14 A-5698-17T2

so far represented by others that his interest received actual and efficient 

protection, the decree will be held to be binding upon him." Morris Cty. Fair 

Hous. Council, 197 N.J. Super. at 365 (quoting Rynsburger v. Dairymen's 

Fertilizer Co-op., Inc., 72 Cal. Rptr. 102, 107 (Ct. App. 1968)). 

During an in-chambers discussion with counsel prior to addressing the 

proposed form of order and judgment, Judge DeLuca discussed his views on 

reconciling the form of order. While we do not have the benefit of the judge's 

in-chambers comments regarding the form of order and judgment, Judge DeLuca 

explained in his May 25, 2018 written decision that plaintiffs' representatives, 

the Chief Executive Officer (CEO) and Chief Financial Officer (CFO) of MFC 

Industrial, met with Homann and his attorney to discuss resolution of the 

underlying litigation. The judge accepted as credible Homann's testimony that 

plaintiffs' CEO, Gerardo Cortina, and its CFO, Samuel Morrow, represented that 

they had authority to settle the litigation. The term sheet also reinforced the 

judge's finding because it was an agreement between Homann and "MFC 

Industrial[] Ltd. et al. (parent for and on behalf of relevant subsidiaries)." 

Even though MFC Industrial was not named as a party in the litigation, it 

chose to negotiate with Homann and to enter into a settlement on its own behalf. 
15 A-5698-17T2

MFC Industrial was bound by the oral settlement agreement because it was 

represented in this matter and benefitted from the dismissal of the litigation. 

We are also satisfied that Possehl was properly included in the order and 

judgment. The litigation was filed on behalf of Possehl as a named plaintiff. In 

its complaint, Possehl sought money from Homann and, in the counterclaim, 

Homann sought money from Possehl. The oral settlement agreement benefitted 

Possehl by ending the litigation in its entirety, including the counterclaim. In 

addition, Possehl was a "relevant" subsidiary at the time of the oral settlement 

and included as such in the term sheet. 

Having reviewed the record, we are satisfied judgment was properly 

entered against MFC Industrial and Possehl. 

Affirmed.