SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2537-14T1

WILLIAM LEWIS, ROBERT LEWIS

and LEWIS ENTERPRISES,

Plaintiffs-Respondents,

v.

ROBERT HULL, 

Defendant-Appellant,

and

POINT PLEASANT LANDCO, LLC,

SINGULARITY HOLDINGS, LLC, and 

SURF LAUNDROMAT, LLC, 

Defendants.

______________________________________________________

Submitted February 7, 2017 – Decided

Before Judges Fisher, Ostrer and Leone.

On appeal from the Superior Court of New 

Jersey, Law Division, Ocean County, Docket No. 

L-3759-11 and Monmouth County, Docket No. L220-16.

Law Offices of William M. Luers, LLC,

attorneys for appellant (William M. Luers, on 

the brief).

NOT FOR PUBLICATION WITHOUT THE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.

March 2, 2017
2 A-2537-14T1

Koster, Brady & Nagler, LLP, attorneys for 

respondents (Danielle M. Hughes, on the 

briefs).

PER CURIAM

This is the second of two suits between Robert Lewis, William 

Lewis and their business, Lewis Enterprises (collectively 

"Lewis"), on one hand, and Robert Hull and his business, Point 

Pleasant Landco, LLC (collectively "Hull"), on the other. This 

second suit was based on a settlement agreement reached in the 

first, by which Hull agreed to remediate contaminated property

previously owned by Lewis and later by Hull, and to hold Lewis 

harmless for any further claims on or remediation of the property,

in exchange for Lewis's payment of $290,000. When Hull later 

refused to remediate, Lewis undertook the task and commenced this 

suit, alleging, among other things, Hull's breach of the settlement 

agreement. Summary judgment was entered on Lewis's claim that Hull 

breached the settlement agreement and, in later proceedings, the 

judge summarily awarded Lewis $290,000 and attorneys' fees, as 

authorized by the settlement agreement. In appealing, Hull argues 

summary judgment was improvidently granted, claiming a question 

of fact regarding whether Lewis fraudulently induced the 

settlement agreement by failing to disclose in discovery he had 

insurance coverage for Hull's claims in the first suit. We affirm 

because, even assuming Lewis was deceptive during discovery, Hull 
3 A-2537-14T1

chose not to perform the settlement agreement and therefore had 

no right to retain the settlement funds paid by Lewis.

To put the issues in perspective, we start at the beginning. 

In 1947, Claude and Ida Asa purchased property on Richmond Avenue 

in Point Pleasant, where they operated a laundry service and dry 

cleaning business until selling the property to Lewis in 1969. 

Lewis continued operating a laundry service on part of the property 

and leased out the remaining portion,1 until 1978 when Lewis 

operated a dry cleaning business as well as a suede and leather 

cleaning business on the premises; after a few years, the dry 

cleaning operation was discontinued, but Lewis continued to 

operate a suede and leather cleaning business until selling the 

property to Hull in 1993.

Hull operated a dry cleaning business on the premises. When 

Hull attempted to sell the property in 2002, the buyer's inspection 

revealed the presence of PCE contamination.

2 In response to notices 

and demands about the contamination, Lewis asserted it did not use 

 

1 Lewis also leased a portion of the property to New Jersey Natural 

Gas, which operated a customer service and appliance showroom 

there between 1969 and 1971.

2 The parties use the acronyms PCE and TCE interchangeably while 

apparently referring to the same chemical formula, C2Cl4, which is 

known as both Perchloroethylene (PCE) and Tetrachloroethylene 

(TCE). Our resolution of the issues on appeal does not require 

that we delve further into the nature of the contamination or the 

world of chemistry.
4 A-2537-14T1

or store PCE on the premises but instead used Valclene, a nonpollutant comprised of fluorinated-chlorinated hydrocarbons. Hull 

claimed he did not use TCE during his ownership of the property.

Consequently, Hull sued Lewis and others in Ocean County in 

2004. On June 2, 2008, Hull and Lewis entered into a settlement 

agreement. Despite insistence that any contamination was caused 

by predecessors, Lewis agreed to pay Hull $290,000 for Hull's 

past, present and future remediation expenses and costs, and Hull 

agreed to complete the property's remediation, to hold Lewis 

harmless, and to indemnify Lewis for any past, present or future 

claims and costs of any kind related to the environmental 

contamination of the property. The agreement also contained the 

parties' stipulation that "[a]ny party which obtains judicial 

relief as a result of a material breach of the terms and conditions 

of [the settlement agreement] by any other party shall be entitled 

to recover its reasonable attorneys' fees and costs from the 

breaching party." The suit was dismissed with prejudice as required 

by the settlement agreement.

A few months after the settlement, the New Jersey Department 

of Environmental Protection (NJDEP) issued to Hull a notice of 

deficiency regarding the property. Hull did not respond, and, on 

May 19, 2010, the NJDEP issued a notice of deficiency not only to 

Hull but also Lewis. On June 1, 2010, Hull responded to the NJDEP 
5 A-2537-14T1

by advising he had no intention of remediating the property.3 Lewis 

unsuccessfully sought to informally extricate himself from the 

thrust of the NJDEP's directive and began remediating the property.

In 2011, Lewis also filed this suit in Ocean County against 

Hull, seeking damages based on, among other theories, Hull's breach 

of the settlement agreement. Cross-motions for summary judgment 

were filed in 2014, and the trial judge concluded as a matter of 

law and undisputed fact that Hull breached the settlement 

agreement. On the scheduled trial date soon thereafter, the judge 

heard Lewis's oral application for final relief and agreed there 

were no triable issues; the judge found Lewis was entitled to 

$290,000 in damages, as well as attorneys' fees pursuant to the 

terms of the settlement agreement. Lewis also voluntarily 

dismissed his alleged causes of action against Hull. After Lewis's 

counsel fees were quantified in the amount of $45,570.01, judgment 

was entered on October 20, 2014, in favor of Lewis and against 

Hull, in the amount of $335,570.

The trial judge denied Hull's subsequent motion for 

reconsideration, and Hull filed a timely appeal, arguing in a 

single point that his summary judgment motion should not have been 

denied and that he should have been permitted to present a defense 

 

3 Hull transferred the property to an unrelated entity in 2010.
6 A-2537-14T1

of fraud based on what he claims was Lewis's misrepresentations 

during discovery about insurance coverage.

While the appeal was pending, Hull moved in this court for

supplementation of the record to include discovery obtained during 

the course of a legal malpractice action commenced by Hull against 

attorneys who represented him in the first suit; specifically, 

Hull sought to provide this court with information that suggested 

Lewis failed to disclose it possessed insurance coverage for the 

claims asserted by Hull in the first suit. He claimed that this 

factual assertion was relevant because he believed when he settled 

the first suit that Lewis was a "collection risk[]" if they had 

gone to trial in the first case and he obtained a large judgment. 

Hull claimed that, for this reason, he agreed to the $290,000 

settlement even though that amount only constituted approximately 

nineteen percent of the fees and environmental engineering costs 

incurred. We denied without prejudice the motion to supplement the 

record on appeal and, instead, granted a limited remand so Hull 

could move in the trial court for relief from the judgment in 

light of the information in question. After a delay caused by a 

transfer of the matter from Ocean to Monmouth County, Hull filed 

his Rule 4:50 motion. By way of a comprehensive and thoughtful 

oral decision, Judge Jamie S. Perri denied relief.
7 A-2537-14T1

We thereafter allowed Hull to file an amended notice of appeal 

as the means of seeking review of the denial of his Rule 4:50 

motion, and the parties filed additional briefs. Hull argues in 

this portion of his appeal that:

I. THE JUDGMENT SHOULD BE VACATED BECAUSE 

[LEWIS HAS] SUFFERED NO DAMAGES THAT CAN BE 

RECOVERED AT CONTRACT.

A. The Court Should Deny [Lewis] the 

Windfall Judgment Sought that 

Breaks with the National Consensus 

on the Collateral Source Rule.

1. The National Consensus 

Disallows the Recovery 

[Lewis] Seek[s] under the 

Collateral Source Rule.

2. The Policies underlying Contract Law Militate Against the Recovery 

that [Lewis] Seek[s].

3. There are no Special 

Circumstances in this 

Case to Justify Application of the Collateral 

Source Rule.

B. Under New Jersey Law, [Lewis] 

Should Not Obtain the Windfall 

Judgment [Sought].

II. THE COURT SHOULD REMAND THE MATTER TO THE 

TRIAL COURT TO DETERMINE IF [LEWIS IS] IN 

MATERIAL BREACH OF THE SETTLEMENT AGREEMENT.
8 A-2537-14T1

We consider, first, the issues raised in the parties' initial 

briefs, and then the issues arising from the Rule 4:50 

determination required by our limited remand.

I

The standard applied when reviewing an order granting summary 

judgment is the same Brill4 standard that governed the trial judge. 

Townsend v. Pierre, 221 N.J. 36, 59 (2015). We examine only those 

materials submitted in support of and opposition to the motion,

and interpret the factual assertions in the light most favorable 

to the opponent. Brill, supra, 142 N.J. at 540.

In now arguing that summary judgment, which was based on his 

breach of the settlement agreement, was erroneously granted, Hull 

asserts he was misled about whether Lewis was covered by insurance 

during the legal proceedings leading up to the settlement. Hull, 

however, offered nothing in support at that time; indeed, it is 

not even clear from the record on appeal that Hull made that 

argument when opposing summary judgment. Instead, although in his 

initial brief here he asserts that summary judgment should not 

have been granted because he was misled about insurance coverage, 

he refers only to a certification filed in support of a later 

motion for reconsideration. The motion judge could not have erred 

 

4 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
9 A-2537-14T1

in granting summary judgment by failing to consider factual 

allegations only asserted at a later date.5

In his reply brief, Hull asserted we should reverse the 

summary judgment because the judge did not provide a ruling that 

had sufficient specificity demanded by Rule 1:7-4(a). Because this 

argument was not raised in his initial brief, we need not now 

consider it. See State v. Smith, 55 N.J. 476, 488 (1970) 

(recognizing the impropriety of raising an argument for the first 

time in a reply brief). Moreover, despite the brevity of the 

judge's ruling, we find no merit in this contention. The judge 

found that Hull breached the settlement agreement because there 

was no dispute that Hull had not honored his part of the bargain. 

In fact, Hull clearly and indisputably refused to remediate the 

property despite the promise he made to Lewis when he received 

$290,000 from Lewis. The argument of counsel on the summary 

judgment motion's return date demonstrates this; at that time 

 

5 We would further note that Hull did not identify in his notice 

of appeal that he was seeking our review of the order denying 

reconsideration nor did he argue in his brief that the judge erred 

in denying reconsideration. Consequently, we do not review that

order. See Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 

(App. Div.) (orders not designated in the notice of appeal are not 

subject to review), aff’d o.b., 138 N.J. 41 (1994); see also Almog 

v. Israel Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155 

(App. Div. 1997) (only arguments appearing under "appropriate 

point headings" are considered), appeal dismissed, 152 N.J. 361, 

cert. denied, 525 U.S. 817, 119 S. Ct. 55, 142 L. Ed. 2d 42 (1998).
10 A-2537-14T1

Hull's attorney argued his client "certified and suggests that he 

was using passive remediation, which is a nice way of saying [he] 

will do nothing." In light of that unequivocal acknowledgement 

that Hull had not upheld and would not uphold his part of the 

bargain, we reject Hull's contention that summary judgment on the 

breach of contract theory was erroneous. That argument and any 

other arguments that might be discerned from Hull's pre-remand 

submissions are without sufficient merit to warrant further 

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

II

As noted earlier, Hull also appeals the denial of the Rule

4:50 motion, which we permitted to be filed and considered during 

the pendency of this appeal.

At the remand stage, Hull did a better job of providing 

evidence supportive of his claim that Lewis misled him prior to 

the settlement agreement about the existence of insurance 

coverage. But we find no abuse of the judge's discretion in denying 

relief. See Hodgson v. Applegate, 31 N.J. 29, 37 (1959)

(recognizing that such a motion is "addressed to the sound 

discretion of the trial court, guided by equitable principles"); 

see also F.B. v. A.L.G., 176 N.J. 201, 207 (2003); ATFH Real Prop., 

LLC v. Winberry Realty P'ship, 417 N.J. Super. 518, 528 (App. Div. 
11 A-2537-14T1

2010), certif. denied, 208 N.J. 337 (2011). Although Judge Perri 

assumed Lewis was not entirely open about insurance coverage in 

pre-settlement discovery, she denied the motion for a number of 

reasons. Now, in appealing the denial of the Rule 4:50 motion, 

Hull does not seem to reprise his fraud argument but instead 

asserts that the return to Lewis of the $290,000 in settlement 

proceeds constitutes a windfall or is otherwise barred by his 

argument for an expansive application of the collateral source 

rule. We find Hull's arguments to be without sufficient merit to 

warrant further discussion, R. 2:11-3(e)(1)(E), adding only the 

following brief comments.

As we have observed, Judge Perri appropriately assumed Lewis 

was not sufficiently forthcoming in discovery about insurance 

coverage in the first suit. On this point, Hull relied on Lewis's 

response to an interrogatory seeking insurance information; 

without waiving his general objections, Lewis asserted that he had 

"been unsuccessful in locating any insurance policies pre-1986 

with respect to the property or business operations conducted at 

the property and accordingly has not been able to assert any claims

for potential coverage against any insurance carriers." That 

answer was certified by Lewis on September 27, 2004, prior to the 

settlement. Nothing obtained from discovery in the legal 

malpractice action demonstrated that this was a false statement
12 A-2537-14T1

at the time it was made. To the contrary, the record created in 

the trial court following our remand suggests only that there was 

some litigation or communications, or both, between Lewis and 

insurance companies and that Lewis and certain insurers resolved 

their disputes about the existence of coverage by agreeing to fund 

the $290,000 settlement with Hull that shortly followed. But Lewis 

had an obligation to seasonably amend his discovery responses.

Rule 4:17-7. And although there is little in the record to suggest 

that Hull was particularly interested in the status of Lewis's 

attempts to secure coverage prior to reaching a settlement for 

$290,000, we agree with Judge Perri that it was fair to assume,

for purposes of the Rule 4:50 motion, that Lewis was not 

"forthcoming" about his attempts to obtain insurance to cover 

Hull's claims against him. Accordingly, even though Hull presented 

little but his conclusory assertions about his state of mind when 

settling the first case, we will assume for present purposes that 

Lewis concealed relevant information about insurance coverage 

prior to the settlement of the first suit.6

 

6 Hull has also referred to the answers to interrogatories given 

by Lewis in this second suit. In response to Hull's interrogatory 

about insurance coverage, Lewis informed Hull that he (Lewis) was 

the "plaintiff[] in this matter and as such, there will be no 

judgment entered against [him] in relation to this lawsuit." Even 

if we were to assume in spite of the logic of Lewis's response, 

that it was misleading, we fail to see how this 2013 statement 
13 A-2537-14T1

Judge Perri, however, correctly recognized that this 

assumption was irrelevant. That is, Judge Perri determined that 

even if Hull had been misled when settling the first case, he 

presented no legal or equitable reason to support his efforts to 

retain the $290,000 settlement proceeds. Stated another way, the 

final order in the second suit called only for the return to Lewis 

of the $290,000 settlement proceeds and no other aspect of the 

agreement is relevant here.

7 And Hull's arguments in support of 

his Rule 4:50 motion both in the trial court and here, relate 

solely to the propriety of the return of the $290,000. Even if we 

assume the judge who granted summary judgment in Lewis's favor 

reached that conclusion for the wrong reasons, that determination 

may still stand if the right reasons call for the same result. See

Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968).

So, if we assume Hull was misled when he settled the first 

action, the question is whether that alleged fact permits Hull to 

retain the funds paid by Lewis in settlement. Clearly not, as 

Judge Perri correctly held. In similar circumstances, our Supreme 

Court has held that when a contract is procured through fraud, the 

 

could have misled Hull when he settled the first case with Lewis 

in 2008.

7 We are mindful that the final judgment also compelled Hull's 

payment of Lewis's counsel fees, but that aspect of the judgment 

was not appealed.
14 A-2537-14T1

injured party must make a choice: rescind or affirm. Merchants 

Indem. Corp. v. Eggelston, 37 N.J. 114, 130 (1962). When 

rescinding, the injured party "must return what he received."

Ibid. The injured party cannot choose both; only when choosing 

to affirm the contract, may the injured party retain the 

consideration and seek damages proximately caused by the deceit.

Ibid. It is undisputed, and Hull argues even now, that he chose 

to rescind by unequivocally refusing to remediate the property and 

by refusing to indemnify and hold Lewis harmless. Having so chosen, 

Hull cannot retain the settlement proceeds. Accordingly, whether 

the summary judgment entered in favor of Lewis was based on a 

different or even incorrect analysis based on what was later 

learned or assumed, the outcome must be the same. For these 

reasons, and for substantially the reasons set forth by Judge 

Perri in her thoughtful oral decision, we affirm.

We would further add that we find no merit in Hull's arguments 

in his supplement brief that Lewis will now receive an unjust 

windfall or that the collateral source rule obligates his (Hull's) 

retention of the $290,000. Clearly, the results of this litigation 

do not provide Lewis with a windfall, merely the return of money 

paid to Hull in exchange for a promise Hull never kept; the only 

windfall that would occur here would be if Hull were allowed to 

retain those funds.
15 A-2537-14T1

Hull's argument about the collateral source rule is equally 

misguided. Although New Jersey's collateral source rule is a 

creature of legislation, and applies only to actions for personal 

injury or death, N.J.S.A. 2A:15-97, the point of the rule – even 

if we were to assume it had application here – is to prevent an 

injured party from obtaining a double recovery. Perreira v. 

Rediger, 169 N.J. 399, 409 (2001). In asserting Lewis would obtain 

a windfall or double recovery, Hull assumes those funds belong to 

Lewis's insurer not Lewis. Whether true or not – and we agree with 

Judge Perri that it is not likely so8 – what becomes of the funds 

is a matter between Lewis and his insurer; in these circumstances, 

Hull has no standing to complain about the disposition of the 

funds.

We find no merit in any other argument that may be discerned 

from Hull's submissions.

Affirmed.

 

8 The record presented on remand revealed that the insurer settled 

Lewis's claims against it by agreeing to fund Lewis's settlement 

with Hull. If the Lewis-Hull dispute never settled, there is no 

reason to believe the insurer would be entitled to the funds it 

agreed to convey because those funds were the consideration for 

the insurer's settlement of the claims asserted by Lewis against 

it.