                        NOT FOR PUBLICATION WITHOUT THE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-1158-16T3

ORDER OF ST. BENEDICT OF
NEW JERSEY,

        Plaintiff-Appellant,

v.

GREGORY G. GIANFORCARO,
ESQ.,

        Defendant-Respondent.

____________________________

              Argued April 19, 2018 – Decided July 27, 2018

              Before Judges Simonelli and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Morris County, Docket No.
              L-2323-12.

              Christopher W. Kinum argued the cause for
              appellant (Critchley, Kinum & Denoia, LLC,
              attorneys; Michael Critchley, Christopher W.
              Kinum and Christopher L. Fox, on the briefs).

              Christopher J. Carey argued the cause for
              respondent   (McElroy   Deutsch  Mulvaney   &
              Carpenter,   LLP,   and   David  L.   Norris,
              attorneys; Christopher J. Carey, of counsel
              and on the brief; Theodore T. Reilly and
              Venanzio E. Cortese, on the brief).
PER CURIAM

      This    matter    involves       defendant    Gregory   G.     Gianforcaro's

alleged    breach      of    a    confidentiality    clause    in    a    settlement

agreement between W.P.W., a former student at Delbarton School,

and his parents (collectively W.W.),1 and plaintiff Order of St.

Benedict of New Jersey (OSBNJ), regarding sexual misconduct claims

against a priest.           OSBNJ filed a complaint against Gianforcaro,

alleging      breach        of     contract,    tortious     interference         with

contractual relations, breach of duty of good faith and fair

dealing,      tortious           interference   with      prospective       economic

advantage, and civil conspiracy.

      OSBNJ appeals from the September 27, 2013 Law Division order,

which denied its motion to amend the complaint to assert a legal

malpractice claim against Gianforcaro.                 OSBNJ also appeals from

the   March   6,    2015     order,     which   granted    summary       judgment    to

Gianforcaro on the breach of contract and breach of duty of good

faith and fair dealing.2             We affirm the September 27, 2013 order,


1
  We use initials to identify the parties involved in this matter
pursuant to Rule 1:38-3.
2
    In an October 11, 2016 consent order, OSBNJ consented to
dismissing the remaining claims with prejudice. The September 27,
2013 and March 6, 2015 orders are appealable because the consent
order reserved OSBNJ's right to appeal. See Whitfield v. Bonanno


                                           2                                  A-1158-16T3
reverse     the   March   6,   2015     order,   and   remand     for   further

proceedings.

                                        I.

      We derive the following facts from the evidence submitted by

the parties in support of, and in opposition to, the summary

judgment motion, viewed in the light most favorable to OSBNJ.

Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 135 (2017).

      In 1988, W.W. and their then-attorney, Thomas Roth, and OSBNJ

and   its   then-attorney,     Edward    F.   Broderick,   Jr.,    executed     a

settlement agreement and release,3 which contained the following

confidentiality clause:

            [W.W.]   and   their    attorney   will   keep
            confidential and not make public, or knowingly
            or negligently reveal to anyone, including,
            without limitation, any current, former or
            future student of Delbarton School or member
            . . . of their family, any information
            regarding [W.W.'s] claims against . . .
            [OSBNJ], or disclose any claim that is in any
            way related to this [s]ettlement [a]greement
            and [g]eneral [r]elease, or the terms or
            existence of this [s]ettlement [a]greement and
            [g]eneral   [r]elease,    including,   without
            limitation, the amount, or amounts, they are
            receiving under it.        [OSBNJ] will keep
            confidential and not make public or knowingly
            or   negligently   reveal    to  anyone,   any

Real Estate Group, 419 N.J. Super. 547, 550-51 and n.3 (App. Div.
2011); Janicky v. Point Bay Fuel, Inc., 410 N.J. Super. 203, 207
(App. Div. 2009).
3
   Other individuals who also executed the settlement agreement
are not involved in this matter.

                                        3                               A-1158-16T3
          information regarding . . . [W.W.'s] claims
          against [OSBNJ] and will mutually maintain
          confidentiality about the terms and conditions
          of this [s]ettlement [a]greement except to the
          extent applicable to the terms of this
          [s]ettlement [a]greement.

          [(Emphasis added).]

The confidentiality clause contained the following liquidated

damages provision:

          [OSBNJ] shall have the unequivocal right to
          cease further payments, and to recover the
          full amount paid to . . . [W.W.] under this
          [s]ettlement    [a]greement   and    [g]eneral
          [r]elease, if they or their agents or attorney
          knowingly    or   negligently   breach    this
          confidentiality provision.

          [(Emphasis added).]

The settlement agreement also provided that:

               Mr. Roth and his partners will keep
          confidential and will not knowingly or
          negligently make public or reveal to anyone,
          including, without limitation, any current,
          former or future student of Delbarton School
          or member of their family, any information
          regarding . . . [W.W.'s] claims against . . .
          [OSBNJ], or any claim that is in any way
          related to their [s]ettlement [a]greement and
          [g]eneral [r]elease or the terms of this
          [s]ettlement   [a]greement    and   [g]eneral
          [r]elease, including, without limitation, the
          amount . . . [W.W.] are receiving under it.

    The settlement agreement contained the settlement amount.           It

further   provided   that   "[t]he       [s]ettlement   [a]greement   and

[g]eneral [r]elease contains the entire agreement between . . .


                                     4                           A-1158-16T3
[W.W.] and . . . [OSBNJ] with regard to the matters set forth

herein and shall be binding upon and enure to the benefit of the

executors,    administrators,       personal   representatives,     heirs,

successors, and assigns of each. (Emphasis added). The settlement

agreement required that "[a]ll applications for relief under the

terms of this [s]ettlement [a]greement and [g]eneral [r]elease

shall be on twenty days . . . notice to the other party, and in

writing[.]"

     Gianforcaro began representing W.W. in 2012.              He filed a

complaint     in   the   Superior     Court,   seeking   to     void    the

confidentiality clause.      He had read the settlement agreement

prior to filing the complaint, and knew of the settlement amount

and the confidentiality clause and liquidated damages provision.

He held a press conference outside the Morris County Courthouse

the day he filed the complaint, and publicly revealed that the

settlement amount "was approximately seven figures."          This lawsuit

followed.

                                    II.

     OSBNJ filed a motion to amend the complaint to assert a legal

malpractice claim against Gianforcaro.         The motion judge denied

the motion, finding as follows:

            [OSBNJ] sued for breach of contract and now
            wishes to amend the complaint to add [a] legal


                                      5                            A-1158-16T3
           malpractice    [claim]        against       .      .       .
           [Gianforcaro].

           I think that our understanding of when you can
           sue for malpractice where you don't have an
           attorney-client relationship differs.       In
           order to [sue for malpractice where there is
           no attorney/client relationship] you have to
           show an independent duty which existed. . . .
           see Fitzgerald [v. Linnus,] 336 [N.J.] Super.
           458, 468 [(App. Div. 2001)].     It's not the
           kind of duty and the cases decided are not
           like this.

                They involve a lawyer doing something
           with the . . . third-party . . . on which the
           third-party relies.    Here, we just have an
           express contract where the attorney agrees
           that he's going to keep it confidential. That
           . . . failure to do so may very well be breach
           of contract, but it's not legal malpractice
           as I understand it.

     On   appeal,   OSBNJ   argues   the   judge   erred         in   failing    to

recognize that an attorney's duty to a non-client is not restricted

to situations involving the attorney's doing something with the

non-client on which the non-client relies.             OSBNJ cites to the

balancing test set forth in Albright v. Burns, 206 N.J. Super.

625, 632-33 (App. Div. 1986) for determining an attorney's duty

to a non-client:

           1.   "the extent to which the transaction was
           intended to affect the plaintiff;"

           2.   "the foreseeability        of   harm       to"    the
           plaintiff;

           3.   "the degree of certainty               that       the
           plaintiff suffered injury;"

                                     6                                    A-1158-16T3
            4.   "the closeness of the connection between
            the defendant's conduct and the injury
            suffered;" and

            5.   "the   moral  blame attached to the
            defendant's conduct, and the policy of
            preventing future harm."

      OSBNJ      claims     it    satisfied          the    first     factor     because

Gianforcaro      used     the     press     conference        and     breach   of     the

confidentiality       provision     to     carry      out   his     personal   vendetta

against Broderick and advance his publicity campaign in order to

obtain clients to sue OSBNJ and gain leverage in connection with

his four pending cases against OSBNJ. As to the remaining factors,

OSBNJ      argues       Gianforcaro's           purpose       in      breaching       the

confidentiality provision "was to negatively affect OSBNJ and

advance       [his]     personal         interests[;]"            "there   was       100%

foreseeability of harm to OSBNJ and 100% certainty that OSBNJ

would suffer injury" because Gianforcaro's purpose "was to harm

and     injure    OSBNJ;"       there     was    a    close       connection     between

Gianforcaro's conduct and the injury OSBNJ suffered; and "a duty

must be imposed on . . . [him] to prevent attacks from being

carried out by attorneys in the future."

      OSBNJ further argues that under Fitzgerald, 336 N.J. Super.

at 468, the interests of fairness and policy require finding that

Gianforcaro owed a duty to OSBNJ, which he breached because: (1)


                                            7                                    A-1158-16T3
the right of confidentiality belonged to OSBNJ; (2) he was W.W.'s

agent at the press conference; (3) once he became W.W.'s agent,

he became bound by the settlement agreement and confidentiality

provision;    (4)   the   settlement   agreement   precluded    him   from

discussing the settlement; and (5) he discussed the settlement at

the   press   conference,   specifically   mentioning   the    settlement

amount was seven figures.      We disagree with OSBNJ's arguments.

      "Rule 4:9-1 requires that motions for leave to amend be

granted liberally" and that "the granting of a motion to file an

amended complaint always rests in the court's sound discretion."

Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 456-

57 (1998).      "The exercise of discretion requires a two-step

process: whether the non-moving party will be prejudiced, and

whether granting the amendment would nonetheless be futile." Notte

v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006).            Courts are

thus "free to refuse leave to amend when the newly asserted claim

is not sustainable as a matter of law . . . [because] a subsequent

motion to dismiss must be granted."         Interchange State Bank v.

Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997) (quoting

Mustilli v. Mustilli, 287 N.J. Super. 605, 607, (Ch. Div. 1995)).

Applying these standards, we discern no abuse of discretion in the

denial of OSBNJ's motion to amend.



                                   8                              A-1158-16T3
     An attorney owes an independent duty of care to a non-client

when the attorney "intended or should have foreseen that the [non-

client] would rely on the [attorney's] work" or when the attorney

"know[s], or should know, that non-clients will rely on the

attorney['s] representations and the non-clients are not too

remote   from   the   attorney[]      to    be   entitled    to     protection."

Petrillo v. Bachenberg, 139 N.J. 472, 482-84 (1995) (citation

omitted).    To sustain a malpractice claim, a non-client must show

that reliance on the attorney's actions or representations was

reasonably foreseeable by the attorney, as it is the reasonably

foreseeable     reliance   by   the        non-client   on    the    attorney's

representation that imposes the duty of care.               Id. at 483-84.      As

our Supreme Court further clarified in Banco Popular N. Am. v.

Gandi, 184 N.J. 161, 180 (2005):

            If the attorney['s] actions are intended to
            induce a specific non-client['s] reasonable
            reliance on his or her representations, then
            there is a relationship between the attorney
            and the third party.    Contrariwise, if the
            attorney does absolutely nothing to induce
            reasonable reliance by a third party, there
            is no relationship to substitute for the
            privity requirement.

"Put differently, the invitation to rely and reliance are the

linchpins of attorney liability to third parties."                Id. at 181.

     There are no facts in this case showing that Gianforcaro did

anything in the performance of his duties as an attorney to induce

                                      9                                  A-1158-16T3
OSBNJ to rely on his actions or representations as an attorney.

Gianforcaro    did   not   represent      W.W.   in     connection    with   the

settlement agreement.       He had no involvement whatsoever in the

negotiation or preparation of the settlement agreement, and gave

no false or misleading information to OSBNJ about the settlement

agreement     or   confidentiality     clause     and    liquidated    damages

provision.    Further, OSBNJ and Gianforcaro are adversaries, making

them too remote from one another for OSBNJ to maintain a legal

malpractice    claim   against   him.       Thus,       Gianforcaro   owed     no

independent duty of care to OSBNJ as a non-client.

     Albright and Fitzgerald, on which OSBNJ relies, do not change

this result. Our decision in Albright turned on the attorney's

duty to act in the best interests of a non-client because the

attorney knew his client had power of attorney for the non-client,

which the client used to sell the non-client's stock in order to

make a loan of the proceeds to himself.            206 N.J. Super. at 630.

We did not apply the five-factor balancing test to find the

attorney had a duty to the non-client.           Rather, we found there was

an attorney-client relationship between the attorney and non-

client despite the lack of a formal contract because at the time

of the stock sale and loan, the attorney was aware of the conflict

of interest between his client and the non-client and potential



                                     10                                 A-1158-16T3
for harm to the non-client.        Id. at 632.   Such circumstances did

not exist here.

      In Fitzgerald, 336 N.J. Super. at 469-71, we found there was

an attorney-client relationship between the plaintiff and the

attorney; however, the attorney's duty of care was limited by the

scope of his representation of the plaintiff in her capacity as

executrix of her late husband's estate, not her estate planning.

We also found the attorney owed no independent duty of care to the

plaintiff's children, who were non-clients, to advise them of the

tax consequences of disclaiming insurance proceeds because of the

limited scope of his representation, and because the children were

not   beneficiaries    of   the   husband's   estate.   Id.   at   472-73.

Likewise,   here,     Gianforcaro's   representation    was   limited     to

litigating W.W.'s claims against OSBNJ, not to negotiating the

settlement agreement.       Gianforcaro is OSBNJ's adversary attorney

in this litigation, and thus, OSBNJ had no reason to rely on his

actions as an attorney.

      In the absence of Gianforcaro's independent duty of care to

OSBNJ, a non-client, the proposed legal malpractice claim was

unsustainable as a matter of law and would not have survived a

motion to dismiss.      Accordingly, the motion to amend was properly

denied.



                                    11                             A-1158-16T3
                                 III.

     Gianforcaro moved for summary judgment on the breach of

contract and breach of duty of good faith and fair dealing claims.

He argued, in part, that he was not bound by the confidentiality

clause.

     Roth submitted a certification in support of the motion and

Broderick    submitted   a   certification    in    opposition.        The

certifications differed significantly as to the parties' intent

regarding    the   confidentiality   clause   and   liquidated    damages

provision.    Roth certified:

                 At the time the [s]ettlement [a]greement
            was signed, I understood that my firm and I
            were     bound    by     the     [a]greement's
            confidentiality   provision.       I   further
            understood that by its terms, the [s]ettlement
            [a]greement barred me and my law firm from
            representing any other former or current
            Delbarton students who may have been abused
            by [the priest].

                 At no time during the negotiation of the
            [s]ettlement [a]greement did any party or
            attorney raise or discuss the issue of whether
            any   other   attorney   or    attorneys   who
            represented . . . [W.W.], other than me or my
            law firm, would be bound by the [s]ettlement
            [a]greement or the confidentiality contained
            therein.

                 At no time during the negotiation of the
            [s]ettlement [a]greement did any party or
            attorney raise or discuss a question about
            potential sources of recovery in the event of
            a breach of the confidentiality provision
            other than a return from . . . [W.W.] of the

                                 12                               A-1158-16T3
           actual   funds  paid   to      them   under     the
           [s]ettlement [a]greement.

                My   understanding  at   the  time   the
           [s]ettlement [a]greement was signed was that
           in the event of a confidentiality breach by
           . . . [W.W.], myself, or any member of my
           firm, OSBNJ would be entitled to seek return
           of the settlement funds from . . . [W.W.].

     To   the   contrary,   Broderick   certified   that   "during   [the

parties'] extensive negotiations, it was the clear intent of both

parties to create a strong confidentiality provision with respect

to the settlement."   To that end, the terms "attorney" and "agent"

were included in the liquidated damages clause "to cover all

potential sources of a breach" and "to make the provision as broad

and strong as possible and give OSBNJ a direct right to secure

reimbursement from [W.W.'s] attorney and/or agent in the event

that the attorney and/or agent breached the agreement." To support

this assertion, Broderick pointed to post-settlement dispute over

an alleged breach of the confidentiality clause, where Broderick

had confirmed to Roth, and Roth did not deny, that Roth was

potentially liable if he breached the confidentiality clause.

Broderick also certified:

                I reiterate under penalty of perjury that
           it was our clear intent to create a strong and
           broad liquidated damages clause. Consistent
           with this intention, the phrase "agents or
           attorney" was specifically included in the
           liquidated damages clause to bind [W.W.'s]
           agents and attorneys to the agreement and give

                                  13                             A-1158-16T3
OSBNJ the right to a direct recovery from any
[W.W.] agents and attorneys who divulged the
terms of the settlement.

     Having the right to a direct recovery
from several sources, including the agent or
attorney who actually committed the breach,
was consistent with the emphasis that the
parties placed on keeping the terms of the
settlement confidential and manifested the
clear intention of the parties to create a
strong and broad confidentiality provision.

     OSBNJ's right to a direct recovery from
[W.W.'s] attorneys and agents was discussed
by Mr. Roth and me during our prolonged
settlement negotiations and agreed to by Mr.
Roth. The inclusion of the phrase "agents or
attorney" was consistent with the overriding
purpose of the agreement, and was intended to
memorialize that OSBNJ had the right to seek
a direct recovery from any [W.W.] agent or
attorney who might divulge the terms of the
settlement and breach the confidentiality
provision.

     [T]he allegation contained in . . .
Roth's certification that "at no time did
OSBNJ or its attorneys discuss (or even
suggest) the possibility that I, my firm, or
anyone besides [W.W.] might be responsible for
contractual    damages    arising    from    a
confidentiality   breach"   is   categorically
false.

     Similarly, the allegations contained in
. . . Roth's certification are also patently
false as our inclusion of the terms "agent"
and "attorney" memorialized our discussions
and agreement allowing a direct recovery in
the amount of the settlement proceeds paid to
[W.W.] from Mr. Roth, his firm and any [W.W.]
"agent" or "attorney" who breached the
confidentiality provision.


                     14                          A-1158-16T3
                   The intent of the provision was to hold
              the individual who actually breached the
              confidentiality, whether it be [W.W.] . . .
              Mr. Roth, any member of Mr. Roth's firm or any
              [W.W.] agent or attorney personally and
              directly responsible for repayment of the
              settlement proceeds.

     The motion judge made no finding as to whether Gianforcaro

was bound by the confidentiality clause.               Rather, the judge found

there was no evidence the parties' intended for anyone other than

W.W. to be responsible for liquidated damages in the event of a

breach   of     the    confidentiality       clause.      The     judge   rejected

Broderick's certification, finding it was "written in conclusory

terms    or    [was]    written    in   terms   of     personal    opinion     that

[Broderick] had in his mind as to what the effect of the language

would be."

     On appeal, OSBNJ argues the judge failed to view the evidence

in a light most favorable to OSBNJ and improperly weighed the

evidence, decided material facts in dispute, and made credibility

determinations.4       We agree.




4
   We reject OSBNJ's additional argument that the law of the case
doctrine applies to the court's prior rulings on the breach of
contract claim. There was no ruling made on the merits of that
claim.   Lombardi v. Masso, 207 N.J. 517, 538-39 (2011).         In
addition, because we reverse the grant of summary judgment and
remand for further proceedings, we do not address OSBNJ's argument
that Gianforcaro is bound by the confidentiality clause and liable
for breach of contract and the duty of good faith and fair dealing.

                                        15                                 A-1158-16T3
     Our review of a ruling on summary judgment is de novo,

applying the same legal standard as the trial court.           Conley v.

Guerrero, 228 N.J. 339, 346 (2017).         Like the trial court, our

"function is not . . . to weigh the evidence and determine the

truth . . . but to determine whether there is a genuine issue for

trial."   Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995) (citation omitted).        To make this determination, we must

consider "whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law."        Liberty Surplus Ins.

Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting

Brill, 142 N.J. at 536).

     Summary   judgment    must    be    granted   "if   the   pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that 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."            Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189,

199 (2016) (quoting R. 4:46-2(c)).          As our Supreme Court has

instructed:

           a determination whether there exists a
           "genuine   issue"   of  material   fact   that
           precludes summary judgment requires the motion
           judge to consider whether the competent
           evidential materials presented, when viewed in

                                    16                            A-1158-16T3
            the light most favorable to the non-moving
            party, are sufficient to permit a rational
            factfinder to resolve the alleged disputed
            issue in favor of the non-moving party.

            [Brill, 142 N.J. at 540 (1995)).]

Summary    judgment   should       be    denied      when   the   determination     of

material    disputed       facts        depends      primarily     on    credibility

evaluations.    Petersen v. Twp. of Raritan, 418 N.J. Super. 125,

132 (App. Div. 2011) (citation omitted).                It has been long-settled

that   credibility    is    always       for   the    factfinder    to   determine.

Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492

(1956).

       If there is no genuine issue of material fact, we must then

"decide whether the trial court correctly interpreted the law."

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430

N.J. Super. 325, 333 (App. Div. 2013) (citation omitted).                           We

review issues of law de novo and accord no deference to the trial

judge's legal conclusions.          Nicholas v. Mynster, 213 N.J. 463, 478

(2013).    Applying the above standards, we conclude that summary

judgment was improperly granted.

       Our review of a trial court's interpretation and construction

of a contract is de novo.          Manahawkin Convalescent v. O'Neill, 217

N.J. 99, 115 (2014).         "[We] give 'no special deference to the

trial court's interpretation and look at the contract with fresh


                                          17                                 A-1158-16T3
eyes.'"     Ibid. (quoting Kieffer v. Best Buy, 205 N.J. 213, 223

(2011)).

     The construction of a written contract is usually a legal

question    for   the   court,   suitable      for   disposition      on   summary

judgment, unless there is ambiguity or the need for parol evidence

to aid in interpretation.        Driscoll Constr. Co. v. State Dep't of

Transp., 371 N.J. Super. 304, 313-14 (App. Div. 2004) (citations

omitted); see also Kaur v. Assured Lending Corp., 405 N.J. Super.

468, 474 (App. Div. 2009) (the interpretation and construction of

a settlement agreement is a matter of law).               The court's aim is

to determine the intentions of the parties to the contract, as

revealed by the language used, the relations of the parties, the

attendant circumstances, and the objects the parties were trying

to attain.    Driscoll Constr. Co., 371 N.J. Super. at 313 (citation

omitted).      "[W]here    the   terms    of    a    contract   are   clear     and

unambiguous there is no room for interpretation or construction

and the courts must enforce those terms as written."               Schor v. FMS

Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002) (quoting

Karl's Sales and Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super.

487, 493 (App. Div. 1991)).

     Whether a contract is ambiguous is a legal question for the

court.     Nester v. O'Donnell, 310 N.J. Super. 198, 210 (App. Div.

1997). To ascertain the intention of the parties, and to determine

                                     18                                    A-1158-16T3
if an ambiguity exists, a court may, if necessary, consider

extrinsic evidence offered to support conflicting interpretations.

Conway v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 269-70 (2006).

Extrinsic evidence permissible to consider in the event of an

ambiguity includes "consideration of the particular contractual

provision, an overview of all the terms, the circumstances leading

up to the formation of the contract, custom, usage, and the

interpretation placed on the disputed provision by the parties'

conduct."     Id. at 269 (quoting Kearny PBA Local #21 v. Town of

Kearny, 81 N.J. 208, 221 (1979)).        If there is an ambiguity, then

the resolution of the ambiguity is for the jury.            Michaels v.

Brookchester, Inc., 26 N.J. 379, 388 (1958).

     We     conclude   that   the   liquidated   damages   provision    is

ambiguous with respect to whether OSBNJ could directly recover

damages from any of W.W.'s agents or attorneys who breach the

confidentiality clause.       Viewing the evidence in the light most

favorable to OSBNJ, which the motion judge failed to do, there is

a genuine issue of material fact as to what the parties intended

with respect to the liquidated damages clause.         There were also

credibility issues that must be decided by the factfinder.

     Affirmed in part, reversed in part, and remanded for further

proceedings.    We do not retain jurisdiction.



                                    19                           A-1158-16T3
