Preliminary statement

This appeal addresses the plaintiff’s claim in which the defendant breached the contract that they

formed. The trial court granted the defendant motion for judgment notwithstanding the verdict

(“JNOV”). However, the trial court failed to acquire the appropriate information to make the

correct decision. The plaintiff was not able to fully demonstrate that there was an enforceable

contract between him and the defendant. With a more thorough insight, one can confirm that a

bilateral contract was formed and breached. Therefore, the plaintiff asks this court to reverse the

trial court’s decision and to remand the case back to the trial court to receive proper damages.

Procedural history

At trial, the plaintiff’s damages expert, Tommy Hannigan, testified about the damages suffered

by NoKe as a result of the defendant’s breach of contract. Based on the contract, NoKe should

have received in distributions approximately $5 million based on a 30% interest in RW III. On

the contrary, Hanna(defendant) testified neither the Lobby Deal nor the Cell Phone Deal ever

existed. At the conclusion of the trial, NoKe’s breach of contract cause of action against Hanna

was submitted to the jury. The claim was set forth as follows: At trial, the jury returned a verdict

in favor of NoKe on its claim for breach of contract against Hanna, awarding $2,750,000 in

damages. After the conclusion of the trial, Hanna filed a motion for judgment notwithstanding

the verdict, JNOV. On November 20, 2019, the trial court granted Hanna’s motion for JNOV and

entered a judgment in favor of Hanna on NoKe’s claim for breach of contract, concluding that

NoKe had failed to prove a valid breach of contract cause of action against Hanna. NoKe now

appeals to the Superior Court of New Jersey, Appellate Division.

 Argument

I. The defendant argues that the Cell Phone Deal was nothing more than “a promise to

negotiate additional deals in the future.

The trial court erred in granting Hanna’s JNOV because the Plaintiff had proven with

substantial evidence that there was a contractual agreement between Hanna and Pelisson that

NoKe would receive 30% ownership interests in their future projects together with COLM in the

Northeast. On March 15 2016, the plaintiff sent the defendant an email stating that the interest

share was not the agreement they had reached. The plaintiff issued a new offer which was

quickly declined by the defendant. A contract arises from offer and acceptance, and must be

sufficiently definite “that the performance to be rendered by each party can be ascertained with

reasonable certainty”. Thereafter, the defendant called the plaintiff to issue a new offer. The

plaintiff states on the phone that if the defendant were to come to the Northeast, he would be

liable for a 30% interest in any future COLM projects. The defendant replied,” when we come to

the Northeast , you’ll get your 30% share”. To this, the plaintiff accepted.

In June of 2016, Pelisson(plaintiff), Hanna(defendant), and Mitchell met at Jangl’s office

to discuss the formation of Red Widge III LLC to capitalize on possible additional opportunities

with COLM in the Northeast. After this meeting, both parties behaved as if NoKe,plaintiff, had

ownership interest in RW III. RW III was then formed to run the repair/recycling facility in the

Allentown facility. Operations began in early 2017, in which would fulfill the defendant's

previous offer. However, there are more factors that make a bilateral contract enforceable.

First, a meeting of the minds needs to be established. The initial offer was clear and

understandable. The plaintiff did not have any hidden or secret intentions. Both parties had the
capability to conform with the contract as they have conducted similar transactions before

without formal documentation. Additionally, an offer and acceptance must take place. An offer

occurs when one party communicates to another a willingness to enter into a contract and does so

under circumstances to justify the other party’s understanding that if the offer is accepted, an

agreement would result. The offer must be definite and certain in all its essential terms. An

acceptance occurs when a party shows intent to agree to an offer. The acceptance may be made

by words or conduct. Defendant gave a direct offer which was comprehended and verbally

accepted by the plaintiff. Next element is consideration. Generally, consideration is the value

given in return for a promise or a performance. The plaintiff was promised a 30% share while the

defendant was able to take over RWR (Red Widge Recycling, L.L.C.). Each party was given or

promised something of value. Last but not least, there must be certainty. To satisfy the certainty

requirement, the parties must be able to determine what it is that the contract requires them to do

or not to do and to determine later whether those obligations have been satisfied. The rules of the

expressed contract are simple. If the defendant wished to continue the Northeast business he had

to give the plaintiff a 30% share on future COLM projects. As soon as the defendant decided to

run the repair/recycling facility in the Allentown facility with RW III, the obligation was

satisfied. With all being said, the Cell Phone Deal qualifies to be an enforceable Bilateral

contract.

“Thus, if parties agree on essential terms and manifest an intention to be bound by those terms,

they have created an enforceable contract.” West Caldwell, supra 26 N.J at 24-25, 138 A.2d 402.

The defendant, arguing that the cell phone deal was nothing more than a promise to negotiate

additional deals in the future, can not make the contract unvalid. By simply looking at the
elements of the discussion one can conclude that they are sufficiently definite and that an express

contract was established.

II. The defendant next argues that there was no evidence of legally sufficient consideration

for the Cell Phone Deal.

There is enough evidence in which the plaintiff established consideration. Apart from the

Cell Phone deal, the two parties also conducted a Lobby deal. RW II was created to manage the

Allentown plant under the contract with COLM. Based on their prior discussions about

partnering, plaintiff believed that NoKe would have a 50% ownership interest in RW II.

However, the organizational documents instructed by the defendant demonstrated a 30% interest

for NoKe. Plaintiff asked whether the interest allocation would be the same for “every COLM

venture going forward other than the things [they were] doing already”. The defendant confirmed

and they shook hands. Being that this deal occurred prior to the Cell Phone deal shows how the

defendant failed to comply with the obligations. Plaintiff gave up his initial interest in exchange

to receive 30% on future COLM projects. Defendant kept the majority of the shares but

promised to give the plaintiff his fixed interest amount on future businesses.

“Valuable consideration may take the form of either a detriment incurred by the promisee or a

benefit received by the promisor.” Novack v. Cities Serv. Oil Co. 149 N.J. Super. 542.

A clear benefit was showcased by the promisor. Due to this, the plaintiff earned his 30% interest

in RWR and RW III. The lobby deal did not limit their venture with COLM to a particular

geographic region or to manufacturing only. This is why the defendants' arguments are false as
he states that NoKe had neither the existing ownership interest nor the right to an ownership

interest in RWR to forego. Plaintiff earned all the right because of the Lobby Deal. There is

sufficient evidence to conclude that a breach of contract took place. The trial court failed to

address the doctrine of mutuality of obligation. This doctrine reads;

“Appears… to be merely one aspect of the rule that mutual promises constitute considerations

for each other”; where there is “no other consideration for a contract, mutual promises must be

binding on both parties,” but “where there is any other consideration for the contract, mutuality

of obligation is not essential.” Meurer Steel Barrel Co. v. Martin, 1 F.2d 687 (3 Cir. 1924).

Both parties are bound to perform their obligations and neither party is given the absolute

right to cancel the contract. The defendant failed to perform his obligations on both deals. Due to

this, the plaintiff missed out on a lot of money which should be compensated in damages. It

would be against public policy to not compensate the plaintiff for the loss of the bargain.

Conclusion

The trial court erred in the decision to grant Hanna’s motion for JNOV. Since the “Mutuality of

obligation” doctrine was not raised in the trial court, the standard review for this court is a plain

error. The appellate court should reverse the case to favor NoKe.