                        NOT FOR PUBLICATION WITHOUT THE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-0409-16T3

JOAN FRANCES LUCIANO
IRREVOCABLE TRUST, and
MICHAEL J. LUCIANO,

        Plaintiffs-Appellants/
        Cross-Respondents,

v.

WASTE MANAGEMENT, INC.,
and WASTE MANAGEMENT OF
NEW JERSEY, INC.,

        Defendants/Third-Party
        Plaintiffs-Respondents/
        Cross-Appellants,

v.

HUGH B. MCCLUSKEY,

     Third-Party Defendant-
     Respondent.
________________________________

              Argued May 10, 2018 – Decided August 15, 2018

              Before Judges Simonelli, Rothstadt and Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Morris County, Docket No. L-
              1695-15.
              Jorge R. de Armas argued the cause for
              appellants/cross-respondents          (Waters,
              McPherson, McNeill, PC, attorneys; Jorge R.
              de Armas and Daniel E. Horgan, on the briefs).

              Peter   R.   Yarem  argued   the   cause   for
              respondents/cross-appellants    (Scarinci    &
              Hollenbeck, LLC, attorneys; Peter R. Yarem,
              of counsel and on the briefs; Laura M. Miller,
              on the briefs).

              Hugh B. McCluskey,       respondent,         argued    the
              cause pro se.

PER CURIAM

      Plaintiffs, the Joan Frances Luciano Irrevocable Trust and

Michael J. Luciano (collectively, the Lucianos), and defendants

Waste Management, Inc. and Waste Management of New Jersey, Inc.

(collectively, Waste Management), appeal from the Law Division's

April 22, 2016 order dismissing their claims against each other.

The Lucianos also appeal from a July 25, 2016 order denying their

motion for leave to file an amended complaint.

      In   their       complaint,    the       Lucianos    alleged    that     Waste

Management wrongfully terminated payment of royalties that they

and third-party defendant, Hugh B. McCluskey, were owed under an

agreement relating to solid waste transfer stations they developed

and   later     sold    to   Waste   Management's         predecessors.        Waste

Management denied it was obligated to pay any royalties after it

sold the transfer stations and further, that they were entitled



                                           2                                 A-0409-16T3
to recover from the Lucianos and McCluskey any amounts they paid

in error after their sale.

     Judge Stuart A. Minkowitz dismissed the Lucianos' complaint

after   he   concluded    that   their   entitlement   to    royalties     was

conditioned upon Waste Management continuing to operate and earn

income from the transfer stations, which it continued to do until

2013.     He dismissed Waste Management's counterclaim because it

operated the transfer stations through 2013, and in any event did

not timely assert its rights.            The judge denied the Lucianos'

motion to amend because the proposed amendment would still not

give rise to a cause of action against Waste Management.

     On   appeal,   the   Lucianos   primarily   argue      that   they   were

entitled to the continued payment of royalties regardless of Waste

Management's lack of involvement as the owner or operator of the

transfer stations.       Waste Management contends that after it sold

the transfer stations, its obligation to pay royalties ceased.               We

disagree with both parties.

     For the reasons that follow, we affirm Judge Minkowitz's

decisions substantially for the reasons expressed in his April 22,

2016 and July 25, 2016 written statements of reasons addressing

the parties' claims.

     The facts derived from the motion record leading to the

dismissal of the parties' claims are generally not in dispute.

                                     3                                A-0409-16T3
They are summarized as follows.       The parties' disagreement focused

upon a provision in a 1990 contract between the Lucianos, McCluskey

and Waste Management's predecessors that required they cooperate

to ensure the continued existence of solid waste transfer stations

in Morris County.       The agreement also provided that the Lucianos

and McCluskey would be paid a royalty based upon the amount of

waste handled by the transfer stations.           The royalties were paid

to the Lucianos and McCluskey until 2013, when Waste Management

lost the public bid contract to operate the transfer stations.

     The 1990 agreement arose from the Lucianos' and McCluskey's

activities     almost    thirty    years   ago.    At   that     time,   they

incorporated    Morris    County   Transfer   Stations,   Inc.    (MCTS)    to

develop two solid waste transfer stations in Morris County.                The

transfer stations were an interim solution to Morris County's

solid waste issues, which were to be ultimately resolved by the

construction of a resource recovery facility – i.e. an incinerator

– by December 1990.

     The Lucianos and McCluskey were the sole shareholders of MCTS

until October 28, 1987, when they sold all of their shares to

Chambers of New Jersey, Inc. (Chambers).           Under the October 28,

1987 stock purchase agreement, MCTS paid the Lucianos and McCluskey

"royalties of [one dollar] per ton for each ton of municipal solid

waste accepted and processed by [MCTS]" at the transfer stations.

                                      4                              A-0409-16T3
A separate agreement dated November 10, 1987 that addressed the

royalty payments, similarly based the royalty upon "solid waste

accepted and processed by [MCTS] at the Solid Waste Transfer

Station . . . which are constructed, developed and operated by

[MCTS] . . . ."   (Emphasis added).        In accordance with the terms

of the 1987 agreements, those payments stopped in 1990, but resumed

after November 20, 1990, when the Lucianos and McCluskey entered

into the agreement with MCTS that is the subject of this dispute.

     Dating back to November 23, 1987, MCTS was involved in

litigation with the Morris County Municipal Utility Authority

(MCMUA) and Morris County before the Board of Public Utilities

(BPU) and the New Jersey Office of Administrative Law over "the

method of rate regulation" for solid waste disposal at the transfer

stations.   The   dispute   ended   in     an   October   1989   settlement

agreement1 in which the parties agreed to specific rates to be

charged per ton of solid waste handled at the transfer stations

for the years 1990 through 1994.        The agreement also provided that

"[u]pon the [c]ommercial [o]peration date of the County's resource

recovery facility on or after January 1, 1993, the operation of

MCTS' transfer stations shall terminate . . . ."          If the facility

was not operational by January 1, 1993, the agreed upon rate for


1
   The terms of the agreement were reflected in the Morris County
Solid Waste Management Plan Amendment dated October 1989.

                                    5                               A-0409-16T3
1994 would take effect, and if the facility was still not operating

by December 31, 1994, the agreement stated that "MCTS' rates for

1995 shall be established by petition to the BPU . . . ."

     The settlement prompted the Lucianos, McCluskey and MCTS to

enter into the November 20, 1990 agreement in which they agreed

to not compete and to "cooperate in developing one or more plans,

proposals and/or agreements . . . in order to extend the useful

life of one or both transfer stations" beyond the end of 1992.

The agreement called for the continued payment of royalties to the

Lucianos and McCluskey, who agreed to waive any claims they had

against MCTS regarding any other payments that may have been owed

to them under the original October 28, 1987 agreement.

     The 1990 agreement's requirement for the payment of royalties

was subject to two conditions.   Specifically, section three of the

agreement stated:

          In the event that (i) the projected operating
          life of one or both transfer stations, as part
          of an integrated program for handling and
          disposing of Morris County's Waste, is
          extended beyond [five] years, and (ii) a rate
          per ton for waste handled at the transfer
          station is established and agreed to by MCTS
          by agreement, stipulation or settlement, the
          parties agree that:

               . . . .

          (c) for each year after the fourth year that
          the transfer station or stations remain in
          existence handling Morris County's waste,

                                 6                          A-0409-16T3
           [Lucianos and McCluskey] will be paid an
           aggregate continuation royalty for solid waste
           processed at such transfer station(s) of [one
           dollar] per ton . . . .

           [(Emphasis added).]

      Another portion of the agreement acknowledged that extending

the transfer stations' useful lives beyond the original five years

could result in a reduction in "the amount which must be charged

by MCTS per ton for solid waste to recover its costs and earn a

reasonable profit . . . resulting in substantial savings to the

residents of Morris County."       (Emphasis added).

      The parties ultimately succeeded in extending the useful

lives of the transfer stations.      On February 27, 1991, MCTS, MCMUA

and Morris County amended their October 1989 settlement agreement

to   reflect   their   new   arrangement2   that   in   exchange   for   the

extension of the lives of the transfer stations beyond December

31, 1992, MCTS would reduce the 1993 and 1994 rates that were

previously set in the 1989 settlement agreement in the event that

the County's resource recovery facility was not operational on or

after January 1, 1993.       The amendment also provided:

                In the event that the County provides for
           the continued operation of MCTS' transfer
           stations after January 1, 1995 . . ., MCTS'
           rates, on or after January 1, 1995 and for so

2
   The terms of their new arrangement were detailed in the Morris
County Solid Waste Management Plan Amendment dated March 1991.


                                    7                               A-0409-16T3
            long as such transfer stations continue to be
            owned by MCTS . . . shall be established by
            the BPU.

     On December 31, 1993, MCTS sold the transfer stations to the

MCMUA, but continued to operate them under a public contract.3     In

advance of the sale, an attorney for the Lucianos and McCluskey

wrote on October 21, 1993 to MCTS's attorney asserting their

continued right to the royalty payments despite the sale.     After

the sale, payments due to the Lucianos and McCluskey did in fact

continue.

     After a series of mergers and acquisitions, Waste Management

acquired MCTS.   Waste Management continued to operate the transfer

stations and make royalty payments to the Lucianos and McCluskey

until January 27, 2013, at which point it lost the bid to continue

to operate the transfer stations.

     On July 8, 2015, the Lucianos filed their complaint alleging

that Waste Management breached the 1990 agreement by stopping the

royalty payments.   According to the complaint, Waste Management's

"obligation to pay the . . . [r]oyalty [arose] . . . from the

operation of the [t]ransfer [s]tations" being continued regardless

of who was "the operator of the . . . [s]tations . . . ."




3
   These terms were detailed in the Morris County Solid Waste
Management Plan Amendment dated November 1993.

                                  8                         A-0409-16T3
     In response, Waste Management filed a counterclaim and third-

party complaint seeking a return of the royalty payments it made

to the Lucianos and McCluskey since 1993.   In its pleadings, Waste

Management argued that the doctrine of unjust enrichment required

the return of the royalty payments it had mistakenly made because

the condition precedent to its royalty payments - that the "rate

per ton for waste handled at the transfer station [be] established

and agreed to by MCTS by agreement, stipulation or settlement" –

could not be satisfied after MCTS sold the transfer stations to

MCMUA.   Waste Management also sought a declaratory judgment to

"determine the rights, obligations, and liabilities that exist[ed]

among the parties" under the 1990 contract.

     In lieu of filing an answer to the counterclaim, the Lucianos

filed a motion to dismiss Waste Management's counterclaim under

Rule 4:6-2(e), and Waste Management filed a cross-motion for the

same relief, seeking to dismiss the Lucianos' complaint.           In

support of their motion, the Lucianos argued that (1) Waste

Management could not rely on its voluntary decision to sell the

transfer stations to excuse its obligation to pay the royalties

and that the obligation to pay royalties continued as long as

Morris County waste is handled by the transfer stations; and (2)

Waste Management's claim was barred by the voluntary payment



                                9                           A-0409-16T3
doctrine4 and by the applicable statute of limitations. In support

of its cross-motion, Waste Management argued that its obligation

to pay the royalties ceased after it sold the transfer stations

to MCMUA.

     On April 22, 2016, Judge Minkowitz granted both motions

finding that the parties' 1990 agreement required royalty payments

to be made as long as Waste Management operated the transfer

stations and participated through an agreement with the MCMUA to

set rates, which Waste Management could no longer do as of 2013

because it lost the public contract.            With respect to Waste

Management's counterclaim, the judge found that unjust enrichment

was not a valid claim because a contract existed between the

parties and, in any event, if it did, it was barred by the statute

of limitations.      He also found that the voluntary payment rule

barred Waste Management's claim to recover amounts it paid since

it sold the transfer stations.

     In     his   written   statement   of   reasons,   Judge   Minkowitz

explained that the parties' agreement


4
  See Cont'l Trailways, Inc. v. Dir., Div. of Motor Vehicles, 102
N.J. 526, 548 (1986) (stating "where a party, without mistake of
fact, fraud, duress, or extortion, voluntarily pays money on a
demand that is not enforceable against him, he may not recover it"
(citations omitted)); see generally Miller v. Eisele, 111 N.J.L.
268 (Ct. Err. & App. 1933) (discussing the voluntary payment rule).



                                   10                             A-0409-16T3
          clearly establishes two separate conditions
          that must exist before performance under the
          contract is due. . . .     [T]he phrase, "[i]n
          the      event      that,"      applies      to
          both . . . conditions . . . .      Accordingly,
          in the event that, (i), the operating life of
          the transfer station(s) is extended beyond
          five years, and, (ii), the rate per ton of
          waste handled at the transfer stations is
          established and agreed to by MCTS by
          agreement, stipulation or settlement, a
          royalty of [one dollar] per ton will be paid
          to the Lucianos.     There is no dispute that
          condition (i) has continuously been satisfied,
          as the [t]ransfer [s]tations are still used
          to this day to handle Morris County waste. As
          to condition (ii), MCTS or its successor,
          [Waste Management], established and agreed to
          the rate per ton for waste until January 2013,
          when    they    controlled    the    [t]ransfer
          [s]tations, thereby meeting the condition and
          resulting    in   royalty   payments   to   the
          [Lucianos]. . . .        However, once [Waste
          Management] lost its contract with the County
          of Morris in January 2013, they no longer
          established and agreed to the rate per ton of
          waste handled at the [t]ransfer [s]tations.
          Therefore, this condition was no longer met.

          [(Emphasis added).]

     In response to the Lucianos' argument that the precondition

should not be excused because it was Waste Management's voluntary

decision to sell the stations that made it impossible for the

precondition to be satisfied, the judge found that the "non-

occurrence of a condition is not a breach unless a party is under

a duty to maintain the condition[ and h]ere, the contract contains

no duty to maintain these conditions."   He stated:


                                11                          A-0409-16T3
            This is not a case where parties are subject
            to liability where a condition precedent may
            be excused where its performance is prevented
            or hindered by a breach of the obligor's duty
            of good faith and fair dealing. . . . Indeed,
            [the Lucianos have] not alleged that [Waste
            Management]   has   purposely   prevented   or
            hindered   performance,   by,   for   example,
            purposely submitting a nonconforming bid in
            order to lose the public contract. Instead,
            the condition was no longer met because [Waste
            Management] could no longer establish and
            agree to rates with their customers. A non-
            occurrence of a condition is not a breach
            unless a party is under a duty to maintain the
            condition. . . . Here, the contract contains
            no duty to maintain these conditions.

      With respect to Waste Management's counterclaim, the judge

found that unjust enrichment is "a quasi-contractual claim subject

to the six-year statute of limitations."             He determined that if

unjust enrichment applied that "[b]ecause the [a]greement was

entered into in 1990, regardless of continuing royalty payments,

the   counterclaims    are    barred    by    the     six-year    statute       of

limitations . . . ."         However,   the     judge    noted    that     Waste

Management's claim was barred by the fact that there was a contract

between the parties and "unjust enrichment [applied] only when

there was no express contract. . . ."         Moreover, he observed that

"the voluntary payment rule applie[d] as the [c]ourt [found] there

[was] an absence of fraud, duress, extortion or mistake of fact."

      On June 3, 2016, the Lucianos moved to file a second amended

complaint    with   new   exhibits,     which       included,    among     other

                                   12                                    A-0409-16T3
documents, the 1991 amendment to the settlement agreement between

MCTS, MCMUA and Morris County, which they alleged proved that the

precondition was not intended to be an ongoing one because once

the amended settlement agreement came to fruition "the rate per

ton for waste handled at the [t]ransfer [s]tations for 1988 through

1994" was established and "the projected operating life of both

[t]ransfer [s]tations [was extended] beyond five years, as sought

by   the   parties   . . . ."      As    a    result,   they   claimed    "the

[p]recondition was finally, fully and forever satisfied."

      On July 25, 2016, Judge Minkowitz denied the motion without

oral argument, explaining in a written statement of reasons that

the Lucianos "have not provided sufficient proofs to overcome

[his] already detailed analysis of the agreement in [his] April

22, 2016 [s]tatement of [r]easons."           According to the judge, "the

1991 amendment state[d] that the rates [were] set for '1992, 1993,

and 1994,' and [did] not provide for rates thereafter." Therefore,

he   concluded   that   "nothing    in       any   agreement   or   amendment

indicate[d] that the rate[s] [were] set ad infinitum."

      Waste Management's and McCluskey's respective claims against

each other were subsequently dismissed without prejudice through

a consent order entered on September 9, 2016.             The Lucianos' and

Waste Management's cross-appeals followed.



                                    13                                A-0409-16T3
     We    review    de   novo   a   motion   judge's   order   dismissing    a

complaint under Rule 4:6-2(e), applying the same standard as the

motion judge.       See Stop & Shop Supermarket Co. v. Cty. of Bergen,

450 N.J. Super. 286, 290 (App. Div. 2017).          That standard requires

us to examine the challenged pleadings to determine "whether a

cause of action is 'suggested' by the facts."            Teamsters Local 97

v. State, 434 N.J. Super. 393, 412 (App. Div. 2014) (quoting

Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746

(1989)).    We search the pleading "in depth and with liberality to

determine whether a cause of action can be gleaned even from an

obscure statement."        Seidenberg v. Summit Bank, 348 N.J. Super.

243, 250 (App. Div. 2002) (citing Printing Mart-Morristown, 116

N.J. at 746).       "[I]t is the existence of the fundament of a cause

of action . . . that is pivotal[.]"           Teamsters Local 97, 434 N.J.

Super. at 412-13 (second alteration in original) (quoting Banco

Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005)).

     "A pleading should be dismissed if it states no basis for

relief and discovery would not provide one." Rezem Family Assocs.,

LP v. Borough of Millstone, 423 N.J. Super. 103, 113 (App. Div.

2011) (citing Camden Cty. Energy Recovery Assocs., LP v. N.J.

Dep't of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999),

aff'd, 170 N.J. 246 (2001)).           Ordinarily, dismissal for failure

to state a claim is without prejudice, and the court has discretion

                                       14                             A-0409-16T3
to permit a party to amend the pleading to allege additional facts

in an effort to state a claim.          See Hoffman v. Hampshire Labs,

Inc., 405 N.J. Super. 105, 116 (App. Div. 2009).

       On appeal, the Lucianos argue that Judge Minkowitz erred in

granting Waste Management's motion because he misinterpreted the

1990 agreement, ignored circumstances surrounding its entry, and

impermissibly rewrote the agreement.       Moreover, they contend that

their pleadings stated "sufficient facts to withstand the motion

for dismissal . . . as to . . . the claimed condition precedent"

that "was not an ongoing precondition."       In addition, they assert

that even if the judge was correct as to the meaning of the

disputed provision, he improperly and prematurely foreclosed the

Lucianos from presenting any defenses that would still entitle

them to the continued royalty payments, such as the fact that

Waste Management's voluntary actions prevented the satisfaction

of the condition to the payment of the royalties.

       The gist of the Lucianos' argument is that under section

three of the 1990 agreement, their right to royalties continued

so long as the transfer stations "remain[ed] in existence handling

Morris County's waste" regardless of who owned or operated them.

They    argue   that   Judge   Minkowitz   "improperly   construed   the

[c]ontract against [them]. . . . because . . . the [p]recondition

can be said to be susceptible to more than one interpretation [and

                                   15                           A-0409-16T3
a]s such, the [judge] was required to presume that the Lucianos[']

interpretation    (that   the   [p]recondition    was    satisfied    by   the

settlement of MCTS' dispute with the MCMUA . . .) was the correct

one . . . ."     They explain that the word "event" used in section

three of the agreement actually refers to "the resolution of the

uncertainty related to [the] dispute [between MCTS, MCMUA, and

Morris County before the BPU over] the extension of the useful

life of the [t]ransfer [s]tations beyond 1992 and the rates that

MCTS would charge upon such extension."

     Waste   Management    contends     that   Judge    Minkowitz    properly

dismissed the Lucianos' claims.       However, in its cross-appeal, it

argues that he should not have dismissed its counterclaim because

its "obligation to pay royalties expired in 1994" and its claim

to recover the amounts it was not required to pay was not barred

by the statute of limitations.

     The determination of the parties' appeals thus turns on the

meaning of the disputed contract provision.             The interpretation

of a contract is a question of law that we review de novo.              In re

Cty. of Atl., 230 N.J. 237, 255 (2017).

     "[I]n interpreting an agreement, we 'must try to ascertain

the intention of the parties as revealed by the language used, the

situation of the parties, the attendant circumstances, and the

objects the parties were striving to attain.'"           Barr v. Barr, 418

                                   16                                 A-0409-16T3
N.J. Super. 18, 32 (App. Div. 2011) (quoting Celanese Ltd. v.

Essex Cty. Imp. Auth., 404 N.J. Super. 514, 528 (App. Div. 2009)).

However, "when the terms of a contract are clear and unambiguous,

there is no room for construction and the court must enforce those

terms as written."     Watson v. City of E. Orange, 175 N.J. 442, 447

(2003) (citations omitted); see also Twp. of White v. Castle Ridge

Dev. Corp., 419 N.J. Super. 68, 74-75 (App. Div. 2011).       The court

may not, however, make "a better contract for the parties than

they themselves have seen fit to enter into, or to alter it for

the benefit of one party and to the detriment of the other."

Karl's Sales & Serv., Inc. v. Gimbel Bros., 249 N.J. Super. 487,

493 (App. Div. 1991) (citing James v. Fed. Ins. Co., 5 N.J. 21,

24 (1950)).

     When     faced   with   differing   proposed   interpretations    of

contractual terms, we must determine whether the language of the

agreement is indeed clear and unambiguous.           Schor v. FMS Fin.

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

            An ambiguity in a contract exists if the terms
            of the contract are susceptible to at least
            two reasonable alternative interpretations[.]
            To determine the meaning of the terms of an
            agreement by the objective manifestations of
            the parties' intent, the terms of the contract
            must be given their "plain and ordinary
            meaning."




                                   17                           A-0409-16T3
            [Ibid. (alteration in original) (quoting
            Nester v. O'Donnell, 301 N.J. Super. 198, 210
            (App. Div. 1997)).]

    "In construing [the] contract[, we] must not focus on an

isolated phrase but should read the contract as a whole . . . ."

Wheatly v. Sook Suh, 217 N.J. Super. 233, 239 (App. Div. 1987)

(citing Joseph Hilton & Assocs., Inc. v. Evans, 201 N.J. Super.

156, 171 (App. Div. 1985)); see also Hardy ex rel. Dowdell v.

Abdul-Matin, 198 N.J. 95, 103 (2009) ("A basic principle of

contract interpretation is to read the document as a whole in a

fair and common sense manner."          (citing DiProspero v. Penn, 183

N.J. 477, 496-97 (2005))).        "A 'court should not torture the

language of [a contract] to create ambiguity.'"         Nester, 301 N.J.

Super. at 210 (alteration in original) (quoting Stiefel v. Bayly,

Martin & Fay, Inc., 242 N.J. Super. 643, 651 (1990)).

    Here, the Lucianos argue that an ambiguity exists because

contrary to Waste Management's contention, the word "event" used

in the 1990 agreement's royalty provision was not an ongoing

condition, but instead referred to the settlement of the dispute

between MCTS, MCMUA and Morris County.          Moreover, they contend

section   three   established   their    perpetual   right   to   royalties

regardless of the owner or operator of the transfer stations.              We

disagree.



                                  18                                A-0409-16T3
      We conclude from our de novo review that Judge Minkowitz

correctly determined that the Lucianos' and McCluskey's right to

royalties terminated when Waste Management lost its contract to

operate and receive income from the operation of the transfer

stations.     We therefore affirm substantially for the reasons

expressed by Judge Minkowitz in his comprehensive April 22, 2016

and July 25, 2016 decisions.    We add only the following comments.

      The wording of the royalty clause is not ambiguous as it

clearly expressed that a condition to the Lucianos' and McCluskey's

receipt of royalties was Waste Management's ability to receive

income for operating the transfer stations and participate in

setting its rates through an agreement with the county.5         Contrary

to   the   Lucianos'   contentions,    the   1990   agreement   expressly

identified that one of its purposes was to "enable MCTS to reach

a settlement or compromise of a rate or rates for such services

provided by MCTS."     There is no ambiguity in the language used by

the parties that clearly expressed their understanding that in


5
   Our conclusion is consistent with the clear language of all of
the agreements. For example, the 1987 stock purchase agreement
specifically based royalties on "each ton of municipal solid waste
accepted and processed by [MCTS,]" clearly inferring that their
payment was conditioned upon MCTS operating the transfer stations
and earning income from its endeavors. So too the ensuing royalty
agreement dated November 10, 1987 that based the royalty upon
"solid   waste   accepted   and   processed   by  [MCTS]  at   the
. . . [t]ransfer    [s]tation   or   [s]tations . . .  which   are
constructed, developed and operated by [MCTS] . . . ."

                                  19                              A-0409-16T3
order for the Lucianos and McCluskey to receive royalties, MCTS

must operate the transfer stations and participate in the rates

being charged through an agreement.        Because the language of the

contract is clear, we "must enforce those terms as written."

Watson, 175 N.J. at 447 (citations omitted); see also Moscowitz

v. Middlesex Borough Bldg. & Loan Ass'n, 18 N.J. Super. 182, 186

(1952) ("The parties are normally bound by the language employed

regardless of some different intent or divergent understanding

entertained by either party."     (citation omitted)).

    Section three of the 1990 agreement unambiguously created a

condition precedent that had to be satisfied in order for the

Lucianos and McCluskey to be entitled to royalty payments.           In a

condition precedent based on performance,

            [t]he parties may make contractual liability
            dependent upon the performance of a condition
            precedent . . . . Generally, no liability can
            arise on a promise subject to a condition
            precedent until the condition is met. . . . A
            condition in a promise limits the undertaking
            of the promisor to perform, either by
            confining the undertaking to the case where
            the condition happens, or to the case where
            it does not happen.

            [Duff v. Trenton Beverage Co., 4 N.J. 595,
            604-05 (1950) (citations omitted).]

    Although     "condition   precedents    are   'disfavored   by    the

courts.' . . . because the 'failure to comply with a condition

precedent    works   a   forfeiture[,]'"   condition   precedents     are

                                  20                            A-0409-16T3
enforceable when expressed clearly and unambiguously.                Liberty

Mut. Ins. Co. v. President Container, Inc., 297 N.J. Super. 24,

34 (App. Div. 1997) (citations omitted).

     Here, the first condition that the stations continue to exist

was obviously satisfied.        The second condition, however, could not

be satisfied after Waste Management lost the bid to operate the

transfer stations,6 and as a result it could no longer participate

in setting the "rate per ton for waste handled at the transfer

station . . . ."

     The Lucianos' arguments that the word "event" used in section

three of the 1990 agreement referred to the settlement of the

dispute between MCTS, MCMUA and Morris County and that their right

to royalties was perpetual as long as the transfer stations existed

are without merit.       Nowhere in the parties' 1990 agreement is

there any reference to any dispute between MCTS, MCMUA and Morris

County.     The   fact   that   a   later   amendment   to   the   settlement

agreement between MCTS, MCMUA and Morris County fixed rates for

certain years did not give rise to a perpetual right to royalty

payments.




6
   Contrary to Waste Management's contentions, the sale of the
transfer stations to the MCMUA, did not terminate its obligation
to pay because it continued to participate in setting rates through
entering into an agreement with the MCMUA.

                                     21                               A-0409-16T3
      Moreover, if the parties had intended to create a perpetual

contract      covering     the   lifetime     of   the   transfer   stations,

regardless of their owner or operator, as the Lucianos claim,

there needed to be a "clear manifestation" that the parties

intended such a perpetual right.            In re Estate of Miller, 90 N.J.

210, 218 (1982).         That is because generally, New Jersey law does

not   favor    perpetual     contracts.        Ibid.     "Absent    an    almost

overwhelming showing that the parties to a contract intended such

a one-sided, unreasonable construction, courts will not construe

a contract as providing some perpetual right or option which one

side can exercise against the other at any time in the future."

Home Props. of N.Y., LP v. Ocino, Inc., 341 N.J. Super. 604, 613

(App. Div. 2001) (citing In re Estate of Miller, 90 N.J. at 218).

      We turn to the Lucianos' contention that Judge Minkowitz

should have allowed them to file the amended pleading alleging

primarily that the 1991 amendment to the settlement agreement

between MCTS, MCMUA and Morris County established that the 1990

agreement's precondition to the royalty payments was not intended

to be ongoing.     We find their argument to be without merit.

      We review a trial court's determination on a motion to amend

a pleading for a "clear abuse of discretion."                 Franklin Med.

Assocs. v. Newark Pub. Schs., 362 N.J. Super. 494, 506 (App. Div.

2003) (quoting Salitan v. Magnus, 28 N.J. 20, 26 (1958)). Applying

                                      22                                 A-0409-16T3
this   deferential     standard,    we     conclude   that   Judge      Minkowitz

properly exercised his discretion and denied the Lucianos' motion

because, as Judge Minkowitz found, the proposed amendment would

still not have "state[d] a claim upon which relief [could] be

granted . . . ."       R. 4:6-2(e).

       As Judge Minkowitz observed in his written statement of

reasons, the 1991 amendment to the settlement agreement "only set

rates agreed to by [MCTS] through 1994 . . . and do not provide

for rates thereafter." He concluded "that nothing in any agreement

or amendment indicates that the rate was set ad infinitum.                 To the

contrary,    [p]laintiffs'       proposed     amended   [c]omplaint,         based

primarily   on   the    1991   [settlement     amendment]    and     [the]    1993

[amendment to the Morris County Solid Waste Management Plan],

evidence the intent that the rates were to be set until 1994."

       While we acknowledge that motions for leave to amend should

be   liberally   granted,      "without    consideration     of   the   ultimate

merits of the amendment," they need not be granted where, as here,

granting the motion would be a "futile" and "useless endeavor."

Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (citation

omitted); see also Prime Accounting Dep't v. Twp. of Carney's

Point, 212 N.J. 493, 511 (2013).           We have no cause to disturb the

judge's decision to deny the motion to amend.



                                      23                                  A-0409-16T3
     We   next    address        Waste   Management's     arguments      that    its

counterclaim should not have been dismissed.                 According to Waste

Management,      although    the     court    correctly   found    its    "unjust

enrichment claim [was] quasi-contractual and subject to a six-year

[s]tatute of [l]imitations[,]" the statute of limitations "would

not bar [its] claim to recover royalty payments mistakenly paid

during the six-year period from October 30, 2009, to October 30,

2015, when Waste Management's [c]ounterclaim was filed."                        As a

result, Waste Management contends it was error for the court to

dismiss its "[c]ounterclaim in its entirety."                 Waste Management

also contends that the application of the "volunteer rule" to its

claim was erroneous.        It argues the rule is inapplicable because

it made the payments based on a mistake of fact.

     We conclude that Waste Management's arguments are without

merit.    First,     as     we    and    Judge   Minkowitz    concluded,     Waste

Management was obligated to pay royalties as long as it operated

the transfer stations and received payment for its services. Thus,

the payments made by Waste Management through 2013 were not

recoverable and there was no evidence that it made any payments

after 2013.

     Second, regardless of Waste Management's argument that its

obligation to pay royalties terminated with the sale of the

transfer stations, they are not entitled to recovery because they

                                         24                                A-0409-16T3
are unable to prove a mistake of fact as a defense to the voluntary

payment rule.    See Villanueva v. Amica Mut. Ins. Co., 374 N.J.

Super. 283, 287 (App. Div. 2005) ("[O]ne who has paid money under

a mistake of fact but for which payment would not have been made

may have restitution from the payee notwithstanding that the

mistake was unilateral and a consequence of the payor's negligence,

providing, however, that such restitution will not prejudice the

defendant."   (quoting Great Am. Ins. Co. v. Yellen, 58 N.J. Super.

240, 244 (App. Div. 1959))).    The proofs here however are to the

contrary as the Lucianos and McCluskey placed Waste Management on

notice through their attorney's October 21, 1993 letter that the

sale of the transfer stations did not relieve Waste Management of

its obligations.   With that notice, Waste Management continued to

make payments for twenty years, until it ceased operating the

transfer stations. Under these circumstances, there was no mistake

of fact.

     In light of our determination, we need not address any of the

parties' remaining arguments.

     Affirmed.




                                25                          A-0409-16T3
