Unpublished Opinions for the Week of December 12, 2016

11-2-1949 U.S. Bank Nat’l Ass’n v. Podes, N.J. Super. App. Div. (per curiam) (16 pp.) Appellant served as the indentured trustee, overseeing the distribution of interest and principal payments to bondholders whom funded the rehabilitation of a housing project in Jacksonville, Florida. Subsequently, appellant entered into a purchase agreement with Plaintiff whereby plaintiff purchased its corporate and institutional trust business. The agreement established a process allowing plaintiff to assume appellant’s liabilities and assets with appellant remaining the trustee of certain trusts until plaintiff could properly succeed it. The servicing agreement also required appellant to indemnify, hold harmless, and defend plaintiff from any claim alleged to arise out events before the agreement with plaintiff doing the same to appellant for claims after the agreement was executed. Plaintiff filed the underlying complaint against defendants seeking recoupment of the bond payments made in error; defendants counterclaims for breach of fiduciary duties. All parties eventually settled their claims with the only remaining dispute being plaintiff’s claim against appellant for attorney’s fees and costs to which the trial court granted plaintiff. The court affirmed holding the parties’ contract unambiguously apportioned liability according to when it arose. The trial court properly granted plaintiff’s request for indemnification and fees as the claim it arose before the contract execution and was subject to the terms of the parties’ purchase agreement.

11-2-1960 Lee v. Park, N.J. Super. App. Div. (per curiam) (3 pp.) This appeal involved the parties’ contract dispute over defendants Eun Kyung Park’s and Byung Chun Song’s attempt to purchase a restaurant and liquor license from plaintiff Dong Ho Lee. After considering defendants’ earlier appeal from a jury’s award of $247,987.32 to plaintiff, the Appellate Division vacated the judgment entered in plaintiff’s favor, determining the parties’ contract was unlawful and the jury’s damage award was unsupported by the evidence. The earlier panel also remanded the matter and directed the trial court to order the return of $60,000 to plaintiff that the trial court released to plaintiff upon the entry of judgment from funds deposited into court as part of an earlier attempt to settle the matter. On remand, the trial court ordered the return of those funds to defendants, rejecting defendants’ arguments they were entitled to more than the amount ordered. On appeal from the trial court’s order, defendants again claimed they are entitled to an order requiring plaintiff “to disgorge the full benefit of ill-gotten gains from illegal agreements [so that defendants] should be made whole.” According to defendants, they are entitled to a judgment against plaintiff in the amount of $259,000 plus statutory interest, representing all monies paid by defendants to plaintiff. The appellate panel affirmed, finding the trial court followed the court’s directive in only awarding the $60,000 to defendants, and rejected defendants’ claims for anything more.