                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1441-17T3

WEST PLEASANT-CPGT, INC.,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

U.S. HOME CORPORATION,
d/b/a LENNAR HOMES,

     Defendant-Appellant/
     Cross-Respondent.
_____________________________

                    Argued December 19, 2018 – Decided May 2, 2019

                    Before Judges Fuentes, Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Docket No. L-2417-11.

                    Bruce D. Greenberg argued the cause for appellant/
                    cross-respondent (Lite DePalma Greenberg, LLC,
                    attorneys; Bruce D. Greenberg, on the brief).

                    Deborah A. Plaia argued the cause for respondent/
                    cross-appellant.

PER CURIAM
      This appeal stems from a contract for the purchase, by defendant, U.S.

Home Corporation d/b/a/ Lennar Homes (Home), of two contiguous land tracts,

one owned by plaintiff, West Pleasant-CPGT, Inc. (West Pleasant) and the other

by Four G's Land, LLC (Four G's). Pursuant to the contract terms, Home

advanced $1,510,000 and West Pleasant delivered a note for $1,500,000 and a

mortgage on its property to secure the note;1 Four G's did not tender a mortgage

on its property.

      After Home voided the contract, alleging contract contingencies had not

been met, ensuing contract disputes were resolved by an arbitration panel which

concluded West Pleasant and Four G's were jointly and severally liable to Home

for the full amount Home had advanced, including the escrowed advance, plus

post-award interest.   The arbitration award was confirmed and reduced to

judgment against both West Pleasant and Four G's, jointly and severally; we

affirmed.2




1
  An initial advance of $10,000 was held in escrow and was not included in the
note and mortgage provisions of the contract.
2
  U.S. Home Corp. v. West Pleasant - CPGT, Inc., No. A-3985-07 (App. Div.
Mar. 6, 2009). Our unpublished decision sets forth more fully the underlying
facts of this case which we need not repeat here.
                                                                        A-1441-17T3
                                       2
        Defendant filed a foreclosure complaint against West Pleasant. Twenty-

one months later, West Pleasant filed a bankruptcy petition and obtained a stay

of the foreclosure proceedings. Four G's filed for bankruptcy two months

thereafter. After the Bankruptcy Court proceedings, which will hereafter be

discussed in more detail, Home and West Pleasant entered into a consent order

that, in part, dismissed West Pleasant's bankruptcy case. The Bankruptcy Court,

in a separate proceeding, granted relief from the automatic stay Four G's

previously obtained.

         Home obtained a $1,697,180.90 judgment, plus fees and costs, against

West Pleasant in the foreclosure action. Pursuant to a writ of execution, West

Pleasant's land was sold at a sheriff's sale on January 25, 2011; Home purchased

the tract for $100. Home had already executed upon its judgment against Four

G's and purchased the Four G's tract at a sheriff's sale for $100 on December 7,

2010.

        West Pleasant and Four G's filed an action in the Law Division in July

2011 seeking a credit from Home for the fair market value of their tracts in

excess of Home's judgment as of the date of the sheriff's sales. In subsequent

pleadings, West Pleasant added abuse of process claims against Home. Four G's

assigned its rights to West Pleasant during the pendency of the litigation.


                                                                          A-1441-17T3
                                        3
      Home appeals from a final judgment entered by the trial court on

October19, 2017 vacating the judgment confirming the arbitration award and

entering judgment against Home in favor of West Pleasant, individually and as

assignee of Four G's, for a fair market value credit for the West Pleasant tract

plus interest, contending the claim for credit was barred or otherwise precluded.

West Pleasant cross-appeals from those portions of the October 19 judgment:

denying it a credit for the difference between the value of the Four G 's tract and

the amount of Home's judgment and the value of wetlands mitigation credits

which were realized by Home after it acquired the property; valuing the West

Pleasant tract by reducing the number of lots; and dismissing with prejudice its

abuse of process claim.

      We affirm the trial court's dismissal of West Pleasant's abuse of process

claim and the fair market value credit award for the Four G's property but reverse

the court's fair market value credit award for the West Pleasant property.

                                         I

      Home argues West Pleasant's fair market value claim was precluded as a

matter of law because West Pleasant did not move to set aside the sheriff's sale

pursuant to Rule 4:65-5, or seek a fair market value claim in a deficiency action;

Home claims these are the only procedures by which West Pleasant could have


                                                                           A-1441-17T3
                                        4
pursued a claim. The trial court found "no provision in the Rule barring" a

"debtor from pursuing an equitable remedy through the adoption of a fair market

value credit." We review the trial court's interpretation of the law de novo.

Serico v. Rothberg, 234 N.J. 168, 175 (2018); see also Manalapan Realty , L.P.

v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's

interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference.").

        Rule 4:65-5 requires a sheriff to "deliver a good and sufficient

conveyance" pursuant to a sheriff's sale of real estate "unless a motion for the

hearing of an objection to the sale is served" prior to the delivery of the

conveyance.     We agree with the trial court that the Rule pertains only to

objections to the sale of the property, not the value of the property vis-à-vis the

amount of the judgment sought to be satisfied – which ratio is determinable,

especially in cases where nominal consideration is paid – only after the sheriff's

sale.

        We also reject Home's argument that a fair market value credit can be

claimed only at a deficiency hearing. After satisfying the "foreclosure first

requirement" before pursuing an action on a bond or note for any deficiency, a

mortgagee whose debt, including interest and costs, is not satisfied by the sale


                                                                           A-1441-17T3
                                         5
in foreclosure proceedings, may institute a deficiency action within three months

of the date of the sale. 3 N.J.S.A. 2A:50-2. The debtor may dispute the amount

of the deficiency sued for by the mortgagee in an answer to the deficiency

complaint, whereupon both parties may submit "evidence as to the fair market

value of the mortgaged premises at the time of the sale thereof in the foreclosure

action." N.J.S.A. 2A:50-3. The court is required to "determine the amount of

[the] deficiency, by deducting from the debt secured the amount determined as

the fair market value of the premises." Ibid.

      Those provisions, however, do not apply to business or commercial

transactions. N.J.S.A. 2A:50-2.3; Brunswick Bank & Tr. v. Affiliated Bldg.

Corp, 440 N.J. Super. 118, 126 (App. Div. 2015). Fair market value credits,

although expressly recognized by N.J.S.A. 2A:50-3, are not limited in

application only to a judgment creditor's pursuit of a deficiency judgment .

Brunswick Bank & Tr. v. Heln Management LLC (Brunswick II), 453 N.J.

Super. 324, 330 n.4 (App. Div. 2018). We applied equitable principles, despite

the N.J.S.A. 2A:50-2.3 commercial/business exemption,

            to impose a fair market value credit to prevent a
            windfall or where circumstances require equitable

3
  The statute also provides, "if confirmation is or was required," the action must
be commenced within three months "from the date of the confirmation of the
sale of the mortgaged" property. N.J.S.A. 2A:50-2.
                                                                          A-1441-17T3
                                        6
            relief in the interests of justice. . . . An equity court has
            the inherent power to prevent a potential double
            recovery or windfall to a judgment creditor.

            [Citibank, N.A. v. Errico, 251 N.J. Super. 236, 247
            (App. Div. 1991).]

      A commercial or business mortgagee, not bound by the "foreclosure first

requirement," N.J.S.A. 2A:50-2.3, can choose to collect on the note without first

filing a foreclosure; it can choose to pursue a deficiency or not. Under Home's

argument, if a deficiency action is not filed a debtor has no right to make a fair

market value claim. As Home claims in its merits brief, "Absent a deficiency

action, there is no such 'double recovery' by or 'windfall' to a foreclosing

mortgagee, and thus no basis for a fair market value credit." We disagree. It is

evident Home, by executing on both tracts, realized more than a double recovery

when, in satisfaction of its debt of approximately $1.7 million, it received land

valued at over $4 million. Equity cannot aid a creditor – standing to recover far

in excess of what it is owed – which seeks to protect a windfall by refraining

from instituting a deficiency action.

      In MMU of New York, Inc. v. Grieser, 415 N.J. Super. 37, 45 (App. Div.

2010), we concluded "even in the absence of express statutory authorization, a

court has inherent equitable authority to allow a fair market value credit in order

to prevent a double recovery by a creditor against a debtor." In Grieser, 415

                                                                            A-1441-17T3
                                         7
N.J. Super. at 45, we recognized our prior holding in Morsemere Federal Savings

& Loan Association v. Nicolaou, 206 N.J. Super. 637, 640-41 (App. Div. 1986)

– from which the terms quoted by Home, "double recovery" and "windfall," were

taken – that a judgment creditor, who also successfully bid on the foreclosed

property at sheriff's sale, could not intervene in the foreclosure action to claim

surplus funds from the sale. We did, however, allow the judgment creditor to

apply to the trial court for a share of the surplus funds. Morsemere, 206 N.J.

Super. at 643-44. Moreover, we held the judgment debtor was entitled to claim

a fair market value credit of the property purchased by the judgment creditor.

Id. at 645. Although we recognized the fair market valuation provisions of

N.J.S.A. 2A:50-3 did not expressly apply to judgment creditors, "by analogy to

and in accord with the spirit of N.J.S.A. 2A:50-3," we applied the statutory

procedures allowing a debtor to establish entitlement to a fair market value

credit and saw

            no reason why a court of equity should not condition its
            award of relief to an applying creditor to prevent a
            possible double recovery or windfall, where the
            judgment creditor has purchased the property. A court
            of equity has the inherent power to prevent a potential
            double recovery or windfall to the judgment creditor
            who not only may profit on the purchase of the property
            at the foreclosure sale (if purchased for less than fair
            market value), but who also seeks to obtain satisfaction
            of his judgment.

                                                                          A-1441-17T3
                                        8
            [Id. at 644-45.]

      In Grieser, the plaintiff executed on a defendant's property to satisfy a

default judgment owed after the defendant failed to pay rent on a commercial

lease. 415 N.J. Super. at 41. At sheriff's sale, which took place after the

defendant's failed attempt to stay the sale and vacate the default judgment, the

plaintiff purchased the property for $100. Ibid. Over five and-one-half years

later, the defendant filed a motion challenging the validity of the judgment. Id.

at 42. We recognized, in connection with an appeal from the trial court's

determination of that proceeding,

            [a] court of equity has the inherent power to prevent a
            potential double recovery or windfall to the judgment
            creditor who not only may profit on the purchase of the
            property at the foreclosure sale (if purchased for less
            than fair market value), but who also seeks to obtain
            satisfaction of his judgment.

            [Id. at 46.]

      Home contends that the holding in Grieser is limited to judgment creditor

cases and is inapposite in foreclosure actions. We do not discern any rational

basis to render the equitable principles that prevent windfalls to a collecting

creditor inapplicable to foreclosures. See, e.g., 79-83 Thirteenth Ave. Ltd. v.

De Marco, 44 N.J. 525 (1965); Errico, 251 N.J. Super. 236; Resolution Tr. Corp.



                                                                         A-1441-17T3
                                       9
v. Berman, 271 N.J. Super. 56, 63-64 (Law Div. 1993). As we held in Brunswick

II:

            It cannot be over-emphasized that the very nature of a
            foreclosure action suggests the potential for a
            forfeiture, and that—because "equity abhors a
            forfeiture," a court of equity may in appropriate
            circumstances, through application of fair market value
            credits, or by other recognized means, spare a party
            from an unwarranted forfeiture. Foreclosure, as we
            have observed, is a discretionary remedy. Because the
            pursuit of that remedy summons the court's equity
            jurisdiction, the court may, through the imposition of
            flexible remedies, adjust the parties' rights, with regard
            to the facts, to achieve a fair and just result.

                  ....

            Ascertaining the fair market values of property
            acquired by [the creditor] is one way in which a court
            of equity may determine whether it has been
            overcompensated.

            [453 N.J. Super. at 330-31 (citations omitted).]

      Relief through equitable principles is especially applicable in this case

where Home was both a foreclosing mortgagee on the West Pleasant tract and a

judgment creditor of Four G's. As evidenced by Home's separate pursuit of

satisfaction from West Pleasant and Four G's, one debtor could not seek a fair

market value credit in the other's foreclosure action. Thus, the dual-recovery

mode chosen by Home was the more efficient judicial proceeding to determine


                                                                         A-1441-17T3
                                       10
a fair market value credit for both debtors. West Pleasant was not precluded

from pursuing a fair market value credit by filing a separate suit untethered to a

deficiency action. That the action was commenced in the Law Division instead

of the Chancery Division is of no moment; "each court has the ability to fashion

equitable remedies." Errico, 251 N.J. Super. at 247.

                                        II

      Home also contends that West Pleasant waived, released and discharged

all claims, including an action for a fair market value credit, when it signed a

consent order in the Bankruptcy Court proceedings. West Pleasant counters that

the terms of the order applied only to Home's motions that were then pending in

the Bankruptcy Court and the general terms of the waiver and release terms of

the consent order did not include its right to seek a fair market value credit.

      The agreed upon terms of the consent order, like a general release, are

reviewable under "the general rules that apply to contract interpretation."

Domanske v. Rapid-Am. Corp., 330 N.J. Super. 241, 246 (App. Div. 2000). "In

determining the meaning or validity of a contract, our review is de novo."

GMAC Mortg., LLC v. Willoughby, 230 N.J. 172, 183 (2017).

      The consent order was reached just prior to a scheduled June 4, 2010

hearing at which the Bankruptcy Court was to determine the fair market value


                                                                           A-1441-17T3
                                       11
of the tracts.4 In that "[t]he scope of a release is determined by the intention of

the parties as expressed in the terms of the particular instrument, considered in

the light of all the facts and circumstances," Bilotti v. Accurate Forming Corp.,

39 N.J. 184, 203-04 (1963), we review the order's terms under that lens.5

      The order provided that West Pleasant agreed to dismiss its bankruptcy

case. Other provisions paved the way for Home to execute on the West Pleasant

tract: any bankruptcy case West Pleasant filed within two-hundred-and-seventy

days would not automatically stay Home's "exercise of any rights or remedies

against the West Pleasant [p]roperty"; West Pleasant waived its "rights to object

to or seek an adjournment of any sheriff's sale or other sale of the West Pleasant

[p]roperty";6 nothing in the order could be deemed a waiver or release by Home

of its arbitration award, judgment or "any writs of execution issued in connection


4
  Although the order was filed June 8, 2010, the parties inserted June 3 as the
date they "stipulated and agreed" to the terms.
5
    The order provides that the parties agreed to submit "to the exclusive
jurisdiction of the Bankruptcy Court regarding any action to enforce or
interpret" the order. The Bankruptcy Court denied Home's motion to reopen the
bankruptcy case for that court to determine the order's terms. There is thus no
legal impediment to preclude us from making this determination as part of this
appeal.
6
   John Campbell, vice president of West Pleasant, also agreed to this provision;
it appears he did so in his individual capacity.


                                                                           A-1441-17T3
                                       12
therewith, or any rights or remedies in connection with or in furtherance thereof

as to obtaining title to, or in connection with the sale of, the West Pleasant

[p]roperty." Home waived and released any claim it had for fees and costs in

connection with West Pleasant's bankruptcy filing and Home's motion to remand

its state court action against West Pleasant.

      Both West Pleasant and John Campbell agreed

            [e]ffective upon the 271st day after this [c]onsent
            [o]rder becomes final and non-appealable, and except
            as set forth herein, [to] forever waive, release and
            discharge [Home], its agents, representatives, present
            or former officers, attorneys, directors, assigns and
            successors-in-interest from any and all claims, claims
            for relief, demands, costs, damages, liabilities, and
            obligations, in law or in equity, known or unknown,
            anticipated or unanticipated, or hereafter becoming
            known, or by reason of any matter, cause or thing, each
            arising under or related to the [m]otions.

Home agreed to a similar waiver-release-discharge provision as to West Pleasant

and Campbell.

      We state the obvious: the waiver-release-discharge terms of the order are

broad and general. They do not reference a waiver or release of the right to

pursue a fair market value credit. "A general release, not restricted by its terms

to particular claims or demands, ordinarily covers all claims and demands due




                                                                          A-1441-17T3
                                       13
at the time of its execution and within the contemplation of the parties." Bilotti,

39 N.J. at 204.

      We first start with the order's language to ascertain if West Pleasant

intentionally relinquished a known right. See W. Jersey Title & Guar. Co. v.

Indus. Tr. Co., 27 N.J. 144, 152-53 (1958). The only qualification to the waiver-

release-discharge provisions is that they relate to the motions filed by Home in

February. The consent order reflected an "agreement with respect to" motions

filed by Home on February 5, 2010, to dismiss West Pleasant's bankruptcy

action because the motion was not filed in good faith and another motion filed

on February 19, 2010, for relief from the automatic stay as to the West Pleasant

tract because West Pleasant had no equity in the tract and the tract was not

necessary to effect West Pleasant's reorganization. West Pleasant opposed the

February 5 motion arguing its petition was not filed in bad faith. In its brief

filed in opposition to the February 19 motion, West Pleasant argued Home "has

liens on property that [is] worth at least $4,541,000 and as much as $5,883,000,

to secure its claim of approximately $1,510,000." An appraisal obtained by

West Pleasant of its tract calculated the "as is" value at $3,735,000 and an "as

approved" value – assuming building and construction approvals – at

$4,185,000. Home's appraisal, submitted in support of its February 5 motion,


                                                                           A-1441-17T3
                                       14
calculated the combined value of the West Pleasant and the Four G's tract at

$2,720,000.    About two months later, Home submitted two new appraisals

valuing the West Pleasant tract at $412,500 and the Four G's tract at $806,000.

West Pleasant's appraiser submitted a supplemental report contesting Home's

most recent appraisals and West Pleasant argued Home's appraisals were "so

skewed in favor of [Home] that they cannot be reasonably relied upon."

      It is evident West Pleasant perceived that either its tract or the Four G's

tract could, arguably, satisfy Home's judgment. The valuation of the tracts was

in issue with regard to Home's motion for relief from the Bankruptcy Court's

stay. West Pleasant argued in its opposition brief to Home's February 19 motion,

"the appraisals were specifically intended to assist [Home] in both its [m]otion

to [d]ismiss and [the] Four G's [l]ift [s]tay [m]otion, and the West Pleasant [l]ift

[s]tay [m]otion, in order to proceed with its prepetition sheriff's sale." And,

contrary to West Pleasant's argument that "[i]t does not even appear that [it] was

aware of any entitlement or claim to a credit for the fair market value," pointing

out that Grieser was not decided until after the entry of the order, our State's

jurisprudence has long-recognized a right – even an equitable right – to a fair

market value credit. See, e.g., 79-83 Thirteenth Ave. Ltd., 44 N.J. 525; Errico,

251 N.J. Super. 236; Berman, 271 N.J. Super. at 63-64.


                                                                            A-1441-17T3
                                        15
      In light of the intent of the parties – as evidenced by the terms of the order

clearing Home's path to execute on the West Pleasant tract without obstacle –

we determine West Pleasant, with full knowledge that its tract may be worth

more than Home's judgment, waived its right to pursue a fair market value credit,

a claim for relief "in law or in equity, known or unknown, anticipated or

unanticipated, or hereafter becoming known, or by reason of any matter, cause

or thing" which arose under and related to Home's motions.

      Since "the words of the contract alone will not always control," Conway

v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 270 (2006), we look to the parties'

behavior in carrying out its terms to ascertain the parties' intent to a contract,

Savarese v. Corcoran, 311 N.J. Super. 240, 248 (Ch. Div. 1997), aff'd, 311 N.J.

Super. 182 (App. Div. 1998). Evidence of "the interpretation placed on the

disputed provision by the parties' conduct" can be used to determine the parties'

intent. Conway, 187 N.J. at 269.

      During his deposition on June 12, 2012, Campbell testified that West

Pleasant's reorganization does "not make financial sense" to him because the

Department of Environmental Protection (DEP), by virtue of a regulatory taking,

had "already taken half our land." The "only concern" he had prior to the

scheduled June 4, 2010 hearing was "having the attorneys spend a lot more time


                                                                            A-1441-17T3
                                       16
and everybody spend a lot more money for something that [he] knew [could not]

work." Campbell acknowledged that Home was seeking legal fees for, what he

termed, West Pleasant's "nefarious ways of filing [for] bankruptcy."

      Those two factors – the DEP's action and Home's claim for counsel fees –

caused Campbell to conclude there was "no purpose" in paying attorneys and

appraisers in connection with the motion hearing. He understood Home's goal

was to proceed with the sheriff's sale against the West Pleasant tract without

delay. He knew Home "want[ed] to be paid now"; "want[ed their] money right

now." Campbell said, "Well, that wasn't a problem." He "didn't intend to create

any[ ]more delays." By approving the consent order, he "was agreeing not to do

anything at all that would slow [Home] up in having a sheriff's sale within the

next . . . 270 days."

      When asked at a June 13, 2012 deposition why West Pleasant did not bid

on its property at the sheriff's sale, Campbell said, "We [were] not entitled to

object to it. But again, we signed a consent agreement and I believe the consent

agreement would . . . include that as well." He understood the terms of the order

to be so broad as to prevent West Pleasant from seeking to amend the foreclosure

judgment after Home purchased the Four G's tract for $100 because "we had a

consent order from back in June of the previous year. And even though it doesn't


                                                                         A-1441-17T3
                                      17
incorporate the Four G's, I think the spirit of it is, is that West Pleasant is not

going to do anything that's going to interfere with [Home] exercising its rights."

      "A contracting party is bound by the apparent intention he or she

outwardly manifests to the other party. It is immaterial that he or she has a

different, secret intention from that outwardly manifested." Brawer v. Brawer,

329 N.J. Super. 273, 283 (App. Div. 2000) (quoting Hagrish v. Olson, 254 N.J.

Super. 133, 138 (App. Div. 1992)).

      The terms of the order, the circumstances surrounding its entry, and the

intent of West Pleasant, expressed through Campbell, clearly indicate that it was

West Pleasant's aim to cut its losses and walk away from its property – the value

of which Campbell felt was decimated by the DEP action – without risking

further costs and fees. It agreed to the dismissal of its bankruptcy action and to

refrain from impeding Home's collection on its judgment by executing against

the West Pleasant tract. By agreeing to the broad release-waiver-discharge

provisions, we are convinced it also intended to forgo any future claim for fair

market value credit.

      Our ruling renders it unnecessary to consider Home's claim that the entire

controversy doctrine barred West Pleasant from pursuing a fair market value

credit. Four G's, however, was not a party to the consent order between West


                                                                           A-1441-17T3
                                       18
Pleasant and Home; it proceeded with a valuation hearing before the Bankruptcy

Court.

                                          III

         Home's arguments that the doctrines of res judicata and collateral estoppel

barred West Pleasant from relitigating the value of the Four G's tract because

the Bankruptcy Court had valued it after an evidentiary hearing are without

merit.

         "The application of [the] res judicata doctrine requires substantially

similar or identical causes of action and issues, parties, and relief sought," as

well as a "final judgment by a court . . . of competent jurisdiction." Culver v.

Ins. Co. of N. Am., 115 N.J. 451, 460 (1989) (first citing Eatough v. Bd. of Med.

Exam'rs, 191 N.J. Super. 166, 173 (App. Div. 1983); and then quoting Charlie

Brown of Chatham, Inc. v. Bd. of Adjustment, 202 N.J. Super. 312, 327 (App.

Div. 1985)). Similarly, collateral estoppel requires: (1) a showing that the

averred precluded issue is identical to the issue decided in the prior proceeding;

(2) the issue was litigated in the prior proceeding; (3) the issue was the subject

of a final judgment on the merits; (4) "the determination of the issue was

essential to the prior judgment"; and (5) "the party against whom the doctrine is




                                                                            A-1441-17T3
                                         19
asserted was a party to or in privity with a party to the earlier proceeding ." In

re Estate of Dawson, 136 N.J. 1, 20 (1994).

      The issue before the Bankruptcy Court was whether Four G's had equity

in its property; the Bankruptcy Court did not "determine the amount of the

deficiency, by deducting from the debt secured the amount determined as the

fair market value of the premises" on the date of the sheriff's sale. N.J.S.A.

2A:50-3.   Although N.J.S.A. 2A:50-3 is not applicable to this commercial

transaction, N.J.S.A. 2A:50-2.3, obvious logic dictates that the calculation of

the property's value in order to determine a credit is at the time the property is

sold at sheriff's sale. The Bankruptcy Court valued the Four G's tract prior to

the sheriff's sale; the trial court correctly held "Four G's is entitled to have a

determination at the time of the sheriff's sale, which was months later." The

issues before the Bankruptcy Court and the trial court were not identical . The

preclusion doctrines advanced by Home did not bar the trial court's

determination of a fair market value credit regarding the Four G's property.

                                       IV

      Home argues that West Pleasant should have been judicially estopped

from asserting one valuation plan of the highest and best use of the Four G's

tract in one hearing and a different plan at the hearing regarding the West


                                                                          A-1441-17T3
                                       20
Pleasant tract. In the first hearing, West Pleasant's expert testified that the

highest and best use of the Four G's property was in tandem with the West

Pleasant property which resulted in a subdivision consisting of twenty-two lots

on the Four G's property, and eleven lots on the West Pleasant property. The

trial court based the value of the Four G's tract on this plan as the highest and

best use of the property. During the hearing to determine the value of the West

Pleasant tract, West Pleasant presented expert testimony showing that the

highest and best use of that property was not as a joint development with the

Four G's property, but as a single parcel of property subdivided into twenty-one

lots. The trial court found the highest and best value of the West Pleasant tract

was based on its development of fifteen subdivided lots. Home claims the trial

court erred because West Pleasant should have been judicially estopped from

claiming the West Pleasant tract could be subdivided into more than eleven lots,

in accordance with the plan West Pleasant proposed during the Four G's hearing.

      Judicial estoppel most commonly applies when a party takes inconsistent

positions in different legal actions and succeeds in maintaining one of those

positions. Cummings v. Bahr, 295 N.J. Super. 374, 385-86 (App. Div. 1996).

"If a court has based a final decision, even in part, on a party's assertion, that

same party is thereafter precluded from asserting a contradictory position. " Id.


                                                                          A-1441-17T3
                                       21
at 387-88. Our Supreme Court explained the salutary policy considerations

underpinning the application of the doctrine:

             [W]here a party has prevailed on a litigated point,
             principles of judicial estoppel demand that such party
             be bound by its earlier representations. See McCurrie
             v. Town of Kearny, 174 N.J. 523, 533 (2002)
             (concluding that "judicial estoppel precludes a party
             from taking a position contrary to the position he has
             already successfully espoused in the same or prior
             litigation"[).]

             [Guido v. Duane Morris LLP, 202 N.J. 79, 94-95
             (2010).]

      The separate hearings to determine the fair market value credits due f rom

Home involved different parties, different tracts and different interests. West

Pleasant, as assignee of the rights of Four G's, offered proof as to the highest

and best use of the Four G's tract at the first hearing. In advancing its own

interests, it offered different proofs, from different experts, as to the highest and

best use of the West Pleasant tract.

      The "highest and best use" of a property is "that use which at the time of

the appraisal . . . is the most profitable likely use or produces the highest

property value." Ford Motor Co. v. Edison, 10 N.J. Tax 153, 161 (1988), aff'd,

12 N.J. Tax 244 (App. Div. 1990), aff'd, 127 N.J. 290 (1992). We do not

perceive that West Pleasant, by contending that the properties' highest and best


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                                        22
uses involved different plans for development, was "playing fast and loose with

the courts," see Cummings, 295 N.J. Super. at 387 (quoting Ryan Operations

G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d Cir. 1996)), so as

to invoke the "extraordinary remedy" of judicial estoppel, In re Declaratory

Judgment Actions filed by Various Municipalities, Cty. of Ocean, 446 N.J.

Super. 259, 292 (2016) (quoting Ali v. Rutgers, 166 N.J. 280, 288 (2000)), aff'd,

227 N.J. 508 (2017).

      We recognize that judicial estoppel may be invoked only in limited

circumstances because it is an extraordinary remedy. Ibid. This is not one such

circumstance.

                                            V

      Because West Pleasant agreed to the terms of the consent order and

thereby waived its right to pursue a fair market value credit for the West Pleasant

tract, we need not decide its cross-appeal claiming that the trial court erred in

granting Home's motion barring West Pleasant's expert testimony regarding its

entitlement to wetlands mitigation credits and in determining the value of the

West Pleasant tract based on the development of fifteen lots instead of twenty-

one lots.




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                                       23
                                        VI

      West Pleasant argues the trial court erred in dismissing its abuse of

process claim without a trial. Home counters that, after the valuation trial, "West

Pleasant agreed to a procedure under which the Law Division would decide [the

abuse of process claim] on the papers." The record is bereft of any pleadings,

briefs or transcripts of proceedings between the last day of trial, August 17,

2016, and a motion hearing on July 21, 2017, that would indicate how the abuse

of process claim came to be decided by the court on April 21, 2017. West

Pleasant does not offer what it would have presented during a trial on the abuse

of process claim that would have impacted the trial court's decision. Nor do we

see that West Pleasant objected to the trial court's handling of that claim prior

to this appeal. As such, we will not consider its procedural challenge. Zaman

v. Felton, 219 N.J. 199, 226-27 (2014) (citing Nieder v. Royal Indem. Ins. Co.,

62 N.J. 229, 234 (1973)).

      The trial court considered the issues related to that claim pleaded in West

Pleasant's second amended complaint: Home, after obtaining its judgment,

levied upon the Four G's property and then foreclosed on West Pleasant's

property without providing a credit for the Four G's property and breached its

duty to provide West Pleasant with a fair market value credit for West Pleasant's


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property upon which Home foreclosed. In deciding whether Home's "election

to proceed with two separate sheriff['s] sales to collect" its judgment was an

abuse of process, the trial court acknowledged the lure of ascribing knowledge

to Home that the Four G's property value was, as the court found after trial,

$2,398,000. The court also recognized: "The injustice which occurred in the

instant case revolved around the valuation of the property owned by Four G's.

The artificially low value of the Four G's property caused the hardship to West

Pleasant and the consequential foreclosure of the West Pleasant property."

      The trial court properly analyzed the issue "in the light of the purpose

behind [Home's] actions" in order to determine if Home performed further acts

after process had been issued "which represent the perversion or abuse of the

legitimate purposes of that process," Hoffman v. Asseenontv.Com, Inc., 404 N.J.

Super. 415, 431 (App. Div. 2009) (quoting Baglini v. Lauletta, 338 N.J. Super.

282, 294 (App. Div. 2001)).

      The trial court found that on the date the West Pleasant tract was sold at

sheriff's sale, "there existed a palpable level of uncertainty as to the appropriate

dollar value which would represent the fair market value of the Four G's

property" "highlighted" by the significant difference in the property valuations

by the trial court and the Bankruptcy Court. The trial court noted the Bankruptcy


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                                        25
Court's finding that the property value of both tracts was insufficient to

extinguish the indebtedness to Home; and that no one bid on the Four G's tract

at the sheriff's sale.   The trial court also considered that Home, in this

commercial setting, had the right to first choose to collect its judgment, under

law and the documents evidencing the debt, and seek repayment as a judgment

creditor of Four G's rather than foreclosing on the West Pleasant tract.

      In light of the uncertainty in the properties' values on the date of the West

Pleasant sheriff's sale, the trial court concluded "[t]he purpose for which [Home]

used the sheriff sale was to obtain recompense for the outstanding debt owed by

the plaintiffs." The court opined,

            the use of the sheriff['s] sale to foreclose on the West
            Pleasant property was for a legitimate purpose[:] to
            secure assets due and owing. The fact that [Home]
            miscalculated the amount of credit which should have
            been afforded to West Pleasant does not change the
            character of the process into an abuse of power.

      We affirm the dismissal of West Pleasant's abuse of process claim

substantially for the reasons expressed by the trial judge. We abide by our

familiar standard of review that mandates summary judgment be granted if the

court determines "there is no genuine issue as to any material fact challenged

and that the moving party is entitled to a judgment or order as a matter of law."

R. 4:46-2(c).    We consider "whether the competent evidential materials

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                                       26
presented, when viewed in the light most favorable to the non-moving party" in

consideration of the applicable evidentiary standard, "are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the n on-

moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

We, however, disagree with the judge's conclusion that "West Pleasant had the

opportunity to object to the [sheriff's] sale" of its property; the consent order

prohibited such action. But even absent that finding, the evidence calling into

question the true value of the properties supports the dismissal of West

Pleasant's claim. Home had the right to proceed against both parcels in order to

satisfy its judgment. It did not abuse any process.

                                        VII

      To the extent we have not addressed the parties' other claims, except as

set forth hereafter, we find insufficient merit to warrant discussion of them in

this opinion. R. 2:11-3(e)(1)(E).

                                       VIII

      Since we conclude the trial court erred in awarding West Pleasant the

value of its tract because of the waiver and release terms of the consent order,

we are constrained to reverse. As we have discussed, however, equity dictates

that Home should not enjoy a windfall as a result of its acquisition of both tracts.


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                                        27
      Consistent with Brunswick II, 453 N.J. Super. at 333-334,             Home's

acquisition of the West Pleasant tract, valued by the trial court at $1,9 85,020,

satisfied, in full or to a large extent, its judgment, calculated by the trial court

as of December 7, 2010, to be $1,736,808.37. By agreeing to the consent order,

West Pleasant forwent any right to a credit on that property. West Pleasant,

however, as assignee of Four G's, is entitled to a fair market value credit for the

Four G's property, valued by the trial court at $2,398,000, less any amount, if

any, required to satisfy the amount due Home in excess of the value of the West

Pleasant tract.

      We remand for the trial court to calculate the amount due Home on

January 25, 2011, the date it acquired the West Pleasant property. If that amount

exceeds the value of the West Pleasant property, that amount is to be deducted

from the $2,398,000 due West Pleasant. The trial court shall enter judgment for

that balance – or the entire $2,398,00 if the amount due Home does not exceed

$1,985,000 – plus interest from December 7, 2010 as calculated by the trial

court, against Home in favor of West Pleasant, as assignee of Four G's.

      Affirmed in part, reversed in part and remanded for proceedings consistent

with this opinion. We do not retain jurisdiction.




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