                                                                       NOT PRECEDENTIAL


                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT

                                        ____________

                                         No. 09-2885
                                        ____________


                          WESTMONT DEVELOPMENT GROUP,

                                                           Appellant
                                               v.

           TOWNSHIP OF HADDON, MAYOR RANDALL W. TEAGUE
       COMMISSIONER JOHN C. FOLEY, COMMISSIONER PAUL DOUGHERTY
            AND CAMDEN COUNTY IMPROVEMENT AUTHORITY,

                          __________________________________

                         On Appeal from United States District Court
                                for the District of New Jersey
                                    (D.C. No. 07-cv-05846)
                          District Judge: Honorable Joseph E. Irenas
                          __________________________________

                         Submitted Under Third Circuit LAR 34.1(a)
                                     February 5, 2010

         Before: McKEE, HARDIMAN, Circuit Judges, and DAVIS,* District Judge

                                    (Filed: April 13 , 2010)




________________________

* The Honorable Legrome D. Davis, District Judge for the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
                                   _____________________

                                  OPINION OF THE COURT
                                   _____________________
DAVIS, District Judge

       Plaintiff Westmont Development Group, LLC appeals the order of the District Court

entering summary judgment in favor of Defendants Township of Haddon, Mayor Randall W.

Teague, Commissioner John C. Foley, and Commissioner Paul Dougherty pursuant to Federal

Rule of Civil Procedure 56. The District Court’s order also entered judgment on Plaintiff’s

pleadings in favor of Defendant Camden County Improvement Authority pursuant to Federal

Rule of Civil Procedure 12(c). We will affirm the District Court’s decision in full.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       This litigation arises from a failed contract. Westmont Development Group, LLC

(“WDG”), a Pennsylvania limited liability company whose principal is Joanna Pang, and the

Township of Haddon, a municipality in Camden County, New Jersey, entered into a

Redevelopment Agreement on May 26, 2004 (“Agreement”), for the development of a live

entertainment venue and other commercial uses at the Westmont Theater, located at 49 Haddon

Avenue in Haddon, New Jersey. WDG did not comply with the Agreement and on December

13, 2007, the Township terminated the Agreement.

       The Township of Haddon is governed by a Board of Commissioners, one of whom is

designated as the Mayor. The Township also has a Planning Board, which is an independent

governmental body from the Township. The Camden County Improvement Authority (“CCIA”)

is an entity created by the Camden County Board of Freeholders, which is authorized to assist

municipalities with financing public projects.


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       The Westmont Theater redevelopment project began when the Township and the CCIA

entered into a November 1, 1998 Lease-Purchase Agreement for the Westmont Theater property.

Under that agreement, the Township transferred title to the Westmont Theater property to the

CCIA and in return, the CCIA provided financing to the Township for improvements to the

property. The CCIA funded the redevelopment project by issuing $700,000 in bonds. The CCIA

leased the property back to the Township, giving the Township physical possession and control

of the premises. Since 1998, the CCIA has held title to the Westmont Theater property.

       In the May 26, 2004 Agreement between the Township and WDG, the parties agreed that

any alteration, amendment, or modification was invalid unless memorialized in writing. They

also agreed that failure of either party to insist upon strict performance of any term or obligation

under the Agreement was not to be construed as a waiver or relinquishment of any terms or rights

under the Agreement.

       The Agreement, along with its attached Agreement of Sale, set the contractual parameters

for an eventual conveyance of title to the Westmont Theater to WDG. That contemplated

conveyance was contingent on consummation of the transaction in the Agreement. Also, WDG

was required to obtain preliminary and final site plan approval from the Township before

conveyance of title. Termination of the Agreement for any reason would nullify the Agreement

of Sale.

       The Agreement provided WDG with a sixty day due diligence period, commencing on

May 26, 2004, during which period WDG could conduct any inspections or investigations it

desired to determine whether it wished to go forward with the Agreement. If a condition was

found that was unsatisfactory to WDG in its sole discretion, it was permitted to terminate the


                                                  3
Agreement. If WDG did not terminate the Agreement during the due diligence period, WDG

was required to prepare and submit to the Township a proposed “Redevelopment Project Plan,”

as defined in the Agreement, by September 23, 2004. The Township Commissioners were

required to review WDG’s Project Plan within thirty days of receipt. The Commissioners were

required to either approve the Project Plan, in which case WDG would proceed with the project,

or advise WDG why the plan was inadequate and meet with WDG to resolve any differences.

       WDG did not exercise its right to terminate the Agreement during the due diligence

period that took place May 26, 2004, through July 25, 2004. Therefore, WDG was contractually

required to prepare and submit to the Township a proposed Project Plan by September 23, 2004.

WDG did not submit a Project Plan by that deadline or at any time thereafter.

       WDG’s failure to timely submit a Project Plan constituted a default under the Agreement.

The Township explained the Plan’s inadequacies, but did not place WDG in default. Instead, as

the District Court correctly found, “a practice began that would persist throughout the term of the

contract — time frames articulated therein were not adhered to, and the Township liberally

granted WDG extensions of contractual deadlines. . . . Those extensions were not memorialized

in writing.” Slip op. at 9-10, June 15, 2009 (Irenas, J.).

       Under the Agreement, WDG was required to first obtain the Township’s approval of

WDG’s Project Plan and then obtain the Planning Board’s preliminary site plan approval.

Instead, in March 2005, WDG began the process of obtaining the Planning Board’s approval of

WDG’s conceptual site plans for the Westmont Theater, without having first submitted a

proposed Project Plan to the Township. Over the following months, WDG and its engineers,

Bach Associates, P.C., submitted voluminous documents to the Planning Board, including a site


                                                  4
plan, a traffic impact study, and drainage calculations. There is no evidence WDG delivered any

of these submissions to the Township for consideration by the Commissioners.

       Pang appeared before the Planning Board on a number occasions, seeking approval for

WDG’s site plan. During Pang’s appearance before the Board on July 7, 2005, the Board

expressed concern with WDG’s application primarily because it failed to adequately address

parking for the Westmont Theater. WDG never submitted a revised application for site plan

approval and never submitted a Project Plan to the Township for review and approval. There is

no evidence the Planning Board ever reached a decision on the merits of WDG’s site plan.

       From the inception of the Agreement, both WDG and the Township were aware that

WDG anticipated a volume of theater patrons that far exceeded the capacity of the theater

property’s existing parking lot. Both WDG and the Township were aware that finding a solution

to WDG’s parking needs posed a challenge. Pang acknowledged she knew parking was going to

be an issue before she signed the Agreement. She also knew parking was the responsibility of

WDG, not the Township, under the Agreement.

       Pang and her counsel explored a number of possible, but unsuccessful solutions to

WDG’s parking needs. They focused their efforts on acquiring a neighboring vacant lot, known

as the Russell Cast Stone property, to provide parking for the Westmont Theater. The Walters

Group, through a related entity, Rose Hill Associates, LLC (“Rose Hill”), owned the Russell

property. Rose Hill declined to sell or lease the property to WDG.

       WDG anticipated that the Township would take the Russell property by eminent domain

for public use, including WDG’s use. The Township had completed a parking study, which

indicated that the Russell property was the most logical source of additional parking for the


                                                 5
Township’s downtown district. Township officials considered acquisition of the Russell

property in late 2006 to early 2007. During this period, WDG was told that the Township would

obtain the Russell property either by purchase or the exercise of eminent domain. Nonetheless,

the Township never moved forward to acquire the Russell property.

       While WDG struggled to find adequate parking in 2006, Township representatives

suggested amending the Agreement to permit WDG to accomplish the redevelopment in phases.

The phased plan presented no solutions for WDG’s parking needs, however. As explained by

Pang, the first phase would redevelop the property surrounding the theater, and the second phase

would redevelop the Westmont Theater itself. Pang believed that there was adequate parking

available on the Westmont Theater property to meet the needs of the first phase. WDG hoped

that a solution to the parking needs of the Theater itself would be found before the second phase

commenced. Pang believed the Russell property could be that solution.

       A written amendment to the Agreement was prepared, circulated, commented upon, and

revised in late 2006 or early 2007. WDG then understood that the Township’s signature on the

written amendment was forthcoming. Pang knew redevelopment of the Westmont Theater was a

public project and understood no one elected official could bind the Township without getting

formal approvals from the Township Commissioners. The Township, however, put the

contemplated amendment on hold because new Commissioners were to be elected in the next

municipal election cycle in May 2007. Pang admitted no written amendment to the Agreement

was ever entered into and the proposed amendment was never executed.

       On May 13, 2007, the Township elected a new municipal government. Mayor Randall

W. Teague and Commissioners John C. Foley and Paul Dougherty were elected. When they took


                                                6
office, the Agreement was the only enforceable contract between the Township and WDG.

       In early 2007, Mayor Teague and Commissioner Dougherty met over lunch with

representatives of the Walters Group to obtain background information on the Russell property,

including the history of litigation between the Township and Rose Hill concerning the property.

Mayor Teague wanted to find out what Rose Hill intended to do with the property. He learned

Rose Hill wanted to develop the property for residential use.

       At a meeting in July 2007, the new Township administration met with WDG. The

meeting was attended by Joanna Pang and her father, Stephan Pang, who had invested in WDG,

Mayor Teague, and former Mayor William J. Park, Jr. As described by Pang, the meeting

focused on “updating [Mayor Teague] on where the project stood and how the project was not

being . . . phased.” (Pang Dep., 146:12-15, July 7, 2008.) After the meeting, Pang called Mayor

Teague numerous times to follow-up, but he never responded. At that point, WDG was waiting

to move forward with phased redevelopment, pending approval by the Township.

       By letter of November 12, 2007, the Township notified WDG it was in default, stating

that the Township was “frustrated with the lack of progress” and that “the deadlines set forth in

the May 26, 2004 Redevelopment Agreement have all expired without an approved

redevelopment concept being put into motion.” (Letter, App. 1869a-1870a.) This letter placed

WDG on formal notice it was in default of the Agreement “on the basis that [WDG] has failed to

submit a Redevelopment Project Plan as defined in the Agreement.” Id. Under the Agreement,

WDG had thirty days to cure the default or the Township could terminate the Agreement. By

letter dated December 6, 2007, WDG’s counsel responded to the Township’s notice of default,

resubmitting WDG’s earlier proposal to phase the redevelopment project. By letter dated


                                                 7
December 10, 2007, the Township responded, indicating that the phasing plan replicated WDG’s

prior submission, but failed to meet the Agreement’s definition of a Project Plan. By letter dated

December 13, 2007, the Township terminated the Agreement “for failure to . . . cure the default

identified in the Township’s letter of November 12, 2007.” (Letter, App. 1891a.)

       WDG sued, alleging breach of contract, breach of the duty of good faith and fair dealing,

and negligent misrepresentation by the Township of Haddon, and its newly elected Mayor

Teague and Commissioners Foley and Dougherty (the “Township Defendants”). WDG also

sued CCIA as a “named party in interest as they are the record owner of the subject Westmont

Theater,” but WDG pled “[t]here are no affirmative claims against [CCIA].” (Am. Compl. ¶ 7,

App. 88.)

       The Township Defendants moved for summary judgment on all claims pled by WDG.

After the close of discovery, CCIA moved to dismiss WDG’s pleading under Federal Rule of

Civil Procedure 12(c). At oral argument on both motions on June 9, 2009, when questioned by

the District Court whether CCIA was “really in this case,” WDG’s counsel confirmed that WDG

asserted no affirmative claims against CCIA and stated, “the only thing they have is they hold the

record title to the property.” (Doc. 75, Mot. Hr’g Tr. 3:14-4:04, June 9, 2009.) By its Order of

June 15, 2009, the District Court granted both motions filed by Defendants, which disposed of

WDG’s claims in their entirety, and further ordered that the temporary restraints placed earlier on

conveyance of the Westmont Theater property be dissolved.

                        II. STANDARD AND SCOPE OF REVIEW

       WDG appeals the District Court’s June 15, 2009 Order, raising two issues that challenge

the District Court’s entry of summary judgment on WDG’s claims against the Township


                                                 8
Defendants for: (1) breach of contract and (2) breach of the duty of good faith and fair dealing.1

The District Court had jurisdiction pursuant to 28 U.S.C. § 1332 and we have jurisdiction

pursuant to 28 U.S.C. § 1291.

       We review de novo a district court’s decision granting a motion for summary judgment

pursuant to Rule 56, applying the same standard as that used by the District Court. Am. Eagle

Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 580-81 (3d Cir. 2009). A motion for summary

judgment will not be defeated by “the mere existence” of some disputed facts, but will be denied

when there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986). In determining whether the dispute is genuine, the court’s function is not to

weigh the evidence or determine the truth of the matter, but only to determine whether the

evidence of record is such that a reasonable jury could return a verdict for the nonmoving party.

Id. at 248-49.

                                      III. DISCUSSION

                                    A. Breach of Contract

       In granting summary judgment, the District Court found that no reasonable jury relying

on the evidence could conclude that the Township Defendants breached the Agreement as



1
   We decline to reach the District Court’s dismissal of WDG’s case against CCIA, or any issues
or claims other than those set forth in WDG’s statement of issues, because WDG has not
preserved them on appeal. Federal Rule of Appellate Procedure 28(a)(3), (5), and (9) and Third
Circuit Local Appellate Rule 28.1(a) required WDG to set forth “‘all issues presented for appeal,
together with supporting arguments and citations.’” Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d
Cir. 1993) (quoting Simmons v. City of Philadelphia, 947 F.2d 1042, 1065 (3d Cir. 1991)).
WDG did not set forth any other issues or claims in its statement of issues or in the remainder of
its brief on appeal, and therefore, we need not consider any other issues. See Inst. for Scientific
Info., Inc. v. Gordon & Breach, Sci. Publ’ers, Inc., 931 F.2d 1002, 1011 (3d Cir. 1991) (holding
plaintiff abandoned its breach of contract claim on appeal).

                                                 9
advanced by WDG. In the District Court, WDG contended the Township Defendants breached

Sections 6(g), “Purchase of the Westmont Theater Project,” 7(b), “Eminent Domain,” and 7(c),

“Cooperation,” of the Agreement. The District Court treated WDG’s express allegation that

Section 6(g) was breached as incorporating an allegation that Section 2 was breached because

both Sections 2 and 6(g) of the Agreement pertained to conveyance of the Westmont Theater

property to WDG. WDG advanced no other breach of contract claims. The District Court found

no reasonable jury could conclude that WDG complied with preconditions to the operation of

Sections 2, 6(g), 7(b) and 7(c) of the Agreement, and therefore Defendants’ obligations to

perform under those provisions never arose.

       On appeal, WDG argues the District Court erred in concluding WDG was in default of

the Agreement for failure to submit a Project Plan, and the Township Defendants did not breach

the Agreement. WDG contends that the District Court ignored and disregarded evidence in so

ruling. WDG is mistaken. The record WDG presents on appeal was fully reviewed and

considered by the District Judge, who correctly concluded that evidence raised no genuine issues

of disputed material fact. The District Court did not impermissibly weigh evidence and make

credibility determinations as charged by WDG. Rather, the District Court properly disregarded

the irrelevant deposition testimony and evidence on which WDG largely bases its appeal. Also

without merit and lacking any support in the record are allegations of “subterfuge and

conspiracy” among the Township Defendants, which purportedly precluded WDG from

concluding the Agreement and proving its breach of contract claims.

       The District Court did not err in concluding there were no genuinely disputed issues of

material fact as to whether the Township Defendants breached any provision of the Agreement.


                                               10
Where the terms of a contract are clear and unambiguous, courts enforce those terms as written.

Levison v. Weintraub, 521 A.3d 909, 910 (N.J. Super. Ct. App. Div.), certif. denied, 527 A.2d

470 (N.J. 1987) (citing Kampf v. Franklin Life Ins. Co., 161 A.2d 717, 720 (N.J. 1960) (ruling

that “it is the function of a court to enforce [a contract] as written and not to make a better

contract for either of the parties.”). The undisputed facts show WDG never complied with the

Agreement’s requirement to submit a “Redevelopment Project Plan,” as defined in the

Agreement, for the Township’s review and approval within four months of the effective date of

the Agreement, by September 23, 2004. The Township and WDG never concluded an

enforceable amendment to the Agreement, which could not be more clear: “No alteration,

amendment or modification hereof shall be valid unless executed by an instrument in writing by

the Parties hereto.” (Agreement § 16(b), “Amendment; Waiver,” App. 1296a.) It is undisputed

no written amendment was ever executed.

       On appeal, WDG claims the Township Defendants breached the Agreement by not

conveying the Westmont Theater property to WDG. The Township was under no obligation to

convey the property to WDG. Section 2 of the Agreement provided that “the Westmont Theater

Property shall be sold to [WDG] under the terms of the Agreement of Sale . . . .” (App. 1274a.)

Under Section 6(g) of the Agreement, and Sections 6(b) and (c) of the Agreement of Sale, the

Township’s obligation to convey the property was contingent on the consummation of the

transaction in the Agreement and WDG’s receipt of all permits and approvals from the

Township. Because WDG never submitted a Redevelopment Project Plan, WDG never obtained

any permits or approvals from the Township, and the Township’s obligation to convey the

Westmont Theater property never arose. As a result, the Township Defendants did not breach


                                                  11
Sections 2 and 6(g) of the Agreement.

       WDG also claims the Township breached the Agreement by not taking the Russell

property by eminent domain for WDG’s use. The Township had no obligation to acquire the

Russell property for WDG, either by eminent domain or purchase. Section 7(b) of the

Agreement provided that the “Township shall acquire any privately-owned lots identified in the

Redevelopment Project Plan for which [WDG] has not entered into agreement of sale as of the

expiration of the Negotiation Period, as set forth in Section 6.c., above . . . .” (App. 1283a.) The

“Negotiation Period” would have begun once the Township approved WDG’s Project Plan.

WDG, however, never submitted a Project Plan and the Negotiation Period never commenced or

expired. Moreover, Section 7(b) obligated the Township to acquire only those “privately-owned

lots identified in the Redevelopment Project Plan.” (Id.) The Russell property was not identified

in the Agreement as a property for inclusion in the Project Plan. For these reasons, the Township

had no contractual obligation to acquire the Russell property by eminent domain and did not

breach Section 7(b).

       Finally, WDG contends the Township Defendants breached Section 7(c) of the

Agreement, entitled “Cooperation,” which expressly required the parties to act in accordance

with the covenant of good faith and fair dealing. The District Court did not err in concluding the

Township Defendants did not breach Section 7(c) of the Agreement for the same reasons they did

not breach the implied covenant of good faith and fair dealing, as discussed below.

                    B. Breach of the Duty of Good Faith and Fair Dealing

       In granting summary judgment, the District Court found there was no basis from which a

reasonable jury could find that the Township Defendants breached the covenant of good faith and


                                                 12
fair dealing as advanced by WDG. All contracting parties in New Jersey are required to act in

good faith and deal fairly, whether the covenant is express or implied. Brunswick Hills Racquet

Club, Inc. v. Route 18 Shopping Ctr. Assocs., 864 A.2d 387, 395 (N.J. 2005); Sons of Thunder,

Inc. v. Borden, Inc., 690 A.2d 575, 587 (N.J. 1997) (noting longstanding rule that “[e]very

contract in New Jersey contains an implied covenant of good faith and fair dealing”). Before the

District Court, WDG challenged the conduct of Mayor Teague and various representatives of his

administration. The District Court did not err in concluding that even if WDG proved at trial that

those actions occurred, no reasonable jury could find that the motives and conduct of the

Township Defendants constituted a breach of the covenant of good faith and fair dealing.

       On appeal, WDG complains that the District Court focused on terms of the Agreement,

ignoring the Township Defendants’ purported bad faith and lack of fair dealing. WDG contends

that the Township acted in bad faith by notifying WDG it was in default and terminating the

Agreement. The Township’s exercise of its contractual rights to default WDG and terminate the

Agreement alone cannot constitute bad faith conduct. WDG cannot employ the implied covenant

of good faith and fair dealing to override the express terms of the Agreement. Wilson v.

Amerada Hess Corp., 773 A.2d 1121, 1126 (N.J. 2001). Rather, WDG must come forward with

some evidence that when the Township Defendants notified WDG it was in default and

terminated the Agreement, they acted with a bad faith motive to deprive WDG of anticipated

benefits of the contemplated theater redevelopment project. There is no such evidence.

       WDG complains it was not given an opportunity to work with Mayor Teague’s new

administration before the Township terminated the Agreement. WDG was in default of the

Agreement for more than two years before Mayor Teague’s administration took office. The prior


                                               13
administration chose to ignore that default. The Agreement, however, was clear and

unambiguous that either party’s lack of insistence on strict performance did not constitute a

waiver. See Kampf, 161 A.2d at 720 (noting “simple contract law” that “[w]hen the terms of [a]

contract are clear, it is the function of a court to enforce it as written and not to make a better

contract for either of the parties”). The Teague administration had no express or implied

contractual obligation to continue the political and social policies of the previous administration.

Moreover, the Teague administration had no express or implied contractual obligation to amend

the Agreement to suit WDG.

        Just as WDG argued before the District Court, WDG argues on appeal that the District

Court ignored testimony and other evidence showing that the Township Defendants improperly

favored the interests of the Walters Group and Rose Hill in their plans to develop the Russell

property for residential use. For example, WDG complains the District Court ignored a “secret

back-door meeting” among representatives of the Teague administration and the Walters Group

to discuss the Russell property over lunch at the Tavistock Country Club, without inviting Pang

or any other representative of WDG. (Appellant’s Br. at 33-34.) WDG argues Mayor Teague

was motivated to terminate the Agreement because his administration was promoting the Walters

Group. WDG presents some circumstantial evidence that the Teague administration favored the

interests of Rose Hill over the interests of WDG. Nonetheless, there is no evidence the Teague

administration had an improper motive for doing so. Mayor Teague was elected to serve the

interests of his constituents as he best determined those interests to be. Moreover, WDG was not

entitled to favorable consideration because it never had any enforceable rights to acquire or use

the Russell property.


                                                  14
       WDG also argues that the District Court ignored testimony and other evidence showing

that the Township Defendants compromised WDG’s expectations and rights to receive benefits

under the Agreement. There is no evidence the Township Defendants engaged in any conduct

that frustrated or denied WDG its contemplated benefits under the Agreement. Moreover, WDG

could have cured its default under the Agreement within thirty days of the Township’s November

12, 2007 notice of default. WDG failed to cure its own default.

                                     IV. CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s judgment in all respects.




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