RICHARD CAPPARELLI VS. MATT LOPATIN (C-000153-17, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )


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  •                NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-1948-17T4
    RICHARD CAPPARELLI,
    Plaintiff-Appellant,              APPROVED FOR PUBLICATION
    June 25, 2019
    v.
    APPELLATE DIVISION
    MATT LOPATIN,
    Defendant-Respondent.
    __________________________
    Submitted February 25, 2019 – Decided June 25, 2019
    Before Judges Messano, Gooden Brown and Rose.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Middlesex County, Docket No. C-
    000153-17.
    Paul V. Fernicola & Associates, LLC, attorneys for
    appellant (Paul V. Fernicola, on the briefs).
    Saiber LLC, attorneys for respondent (Andrew S.
    Kessler and John M. Losinger, on the brief).
    The opinion of the court was delivered by
    GOODEN BROWN, J.A.D.
    Plaintiff and defendant are former business partners.       When their
    business relationship deteriorated amidst dueling accusations of misconduct,
    they engaged in extensive litigation in Florida and New Jersey related to
    winding down their companies, Direct Wholesale, Inc. 1 and Unlimited Pins,
    LLC2 (the companies). 3 On May 2, 2013, they entered into a global settlement
    agreement (May 2013 agreement) that settled the pending lawsuits and
    established a mediation/arbitration mechanism to resolve any disputes
    encountered    during    the   parties'   wind-down4        efforts.   Under    the
    mediation/arbitration mechanism, disputes would first be submitted for
    informal mediation to Michael Marotte, Esq., who had served as the
    companies' corporate counsel for about ten years. If Marotte was unable to
    resolve the dispute, then the dispute would be submitted for binding arbitration
    to a panel of three arbitrators (the three-person panel).
    The three-person panel consisted of one arbitrator chosen by each party
    and Marotte, who served as the neutral arbitrator. In this role, Marotte could
    1
    Plaintiff and defendant were the only two shareholders in Direct Wholesale,
    Inc.
    2
    Plaintiff and defendant were the co-managing members of Unlimited Pins,
    LLC.
    3
    Plaintiff and defendant had business interests in other companies not directly
    involved in this appeal.
    4
    The May 2013 agreement described "[t]he [w]ind-[d]owns" to "include
    payment of all outstanding bills and debts to vendors and creditors prior to
    distribution[s] to [the parties]."
    A-1948-17T4
    2
    withdraw at any time and was subject to dismissal by either party in the party's
    sole discretion. In that event, a replacement neutral third arbitrato r would be
    selected by the two remaining arbitrators. The parties executed an arbitration
    agreement on August 8, 2013, and a superseding agreement on March 16, 2015
    (collectively, arbitration agreement), to ratify and effectuate the May 2013
    agreement.   The arbitration agreement, among other things, specified that the
    arbitration procedure was governed by the New Jersey Uniform Arbitration
    Act (the Act), N.J.S.A. 2A:23B-1 to -32.       The arbitration agreement also
    waived the provision of the Act prohibiting an individual with a "known,
    existing, and substantial relationship with a party" from serving as a neutral
    arbitrator, N.J.S.A. 2A:23B-11(b), and permitted each arbitrator to bill for
    services at an hourly rate of $600.
    Over time, the mediation/arbitration mechanism proved expensive and
    posed numerous scheduling difficulties for the three-person panel. As a result,
    on May 28, 2015, the parties entered into another settlement agreement (May
    2015 agreement), naming Marotte as the sole decision maker responsible for
    resolving disputes between the parties related to the collection of outstanding
    debts owed to the companies. Thereafter, on July 23, 2017, plaintiff dismissed
    Marotte as the neutral arbitrator on the three-person panel as permitted under
    the May 2013 agreement. The following month, Marotte's partner informed
    A-1948-17T4
    3
    the parties that Marotte could no longer serve as the decision maker under the
    May 2015 agreement.
    When the parties were unable to agree on a replacement for Marotte, in
    September 2017, plaintiff filed an order to show cause and verified complaint
    against defendant, seeking to compel the appointment of a replacement for
    Marotte to adjudicate the collection disputes pursuant to the May 2015
    agreement.     Defendant filed a contesting answer and asserted various
    affirmative defenses, including invoking "the doctrines of frustration of
    purpose and impossibility" in order to void the May 2015 agreement.
    Defendant's pleading also included a counterclaim for declaratory judgment,
    requiring the two remaining arbitrators on the three-person panel to select a
    replacement for Marotte in accordance with the May 2013 agreement , or, in
    the alternative, requiring the court to select a replacement to resolve the
    remaining wind-down disputes.
    After granting plaintiff's motion to proceed as a summary proceeding
    pursuant to N.J.S.A. 2A:23B-7 and Rule 4:67-1(a),5 the trial judge conducted a
    plenary hearing "on the sole issue of the parties' state of mind and intention
    when they entered into the May 2015 [a]greement and selected . . . Marotte to
    5
    Defendant cross-moved to proceed summarily on his counterclaim only.
    A-1948-17T4
    4
    resolve the outstanding collection disputes[.]" During the hearing, the judge
    heard testimony from the parties, but refused to hear testimony from Marotte.
    On December 8, 2017, the judge entered an order, declaring the May 2015
    agreement "null and void[,]" relegating the parties to the arbitration agreement
    to resolve the remaining disputes, and dismissing the complaint and
    counterclaim without prejudice.
    Plaintiff now appeals from the December 8, 2017 order, raising the
    following points for our consideration:6
    POINT I - THE TRIAL [JUDGE] ERRED IN
    PREVENTING MICHAEL MAROTTE, ESQ. FROM
    TESTIFYING DURING THE HEARING AS TO HIS
    KNOWLEDGE OF THE PARTIES' INTENT IN
    ENTERING THE [MAY] 2015 AGREEMENT[.]
    POINT II - THE TRIAL JUDGE ERRED IN
    VOIDING THE ENTIRE [MAY] 2015 . . .
    AGREEMENT BASED UPON THE LANGUAGE OF
    THE AGREEMENT ITSELF[.]
    POINT III - THE TRIAL JUDGE ERRED IN
    VOIDING       THE     ENTIRE [MAY] 2015
    ARBITRATION AGREEMENT BASED UPON THE
    NEW JERSEY [UNIFORM] ARBITRATION ACT,
    N.J.S.A. 2A:23B-1 [TO -32.]
    POINT IV - THE DOCUMENTARY EVIDENCE
    DEMONSTRATES DEFENDANT . . . CAUSED
    MULTIPLE DELAYS IN WINDING DOWN THE
    CORPORATIONS AND IS THUS GUILTY OF
    6
    We have renumbered the point headings for clarity.
    A-1948-17T4
    5
    COMING TO THE COURT WITH UNCLEAN
    HANDS[.]
    POINT V - THE TRIAL [JUDGE] SHOULD HAVE
    DENIED [DEFENDANT'S] REQUESTED RELIEF
    AS THERE WAS NO CONTROVERSY YET
    BETWEEN THE PARTIES AS TO THE MAY []
    2013 SETTLEMENT AGREEMENT[.]
    Having considered the arguments and applicable law, we affirm.
    The focus of the plenary hearing was the May 2015 agreement, which
    was entitled "settlement agreement" and established a mechanism by which the
    parties would select a "dispute," defined as "the net total of all debts and
    obligations collectively owed by a single debtor" to the companies, for which
    plaintiff or defendant "[would] be primarily responsible as the 'Responsible
    Collector.'" The "'Responsible Collector' . . . [would] devote all reasonably
    necessary time and efforts towards collection of the amounts owed for the
    matters for which he [was] responsible." Under the May 2015 agreement,
    "[a]ll offers of settlement of any such dispute for less than immediate payment
    of the full amount owed" had to be approved by both parties. If the parties
    could not agree, "then the dispute [would] be submitted to [Marotte] for final
    binding decision."
    Further, pursuant to the May 2015 agreement, for debts exceeding
    $5000, "the Responsible Collector . . . [would] receive as a commission . . .
    15% of the net amount received," less fees, costs, and offsetting payments, and
    A-1948-17T4
    6
    Marotte would decide "through a final binding decision" any commission -
    related disputes. Debts less than $5000 would "be submitted to a collection
    agency for collection." However, if the parties were unable to agree on a
    collection agency, "then [Marotte] shall make a final binding decision." If
    either party "believe[d] the other [was] not providing a proper level of
    supervision or assistance to counsel and/or a collection agency retained in a
    collection effort for which the other [was] responsible and eligible for a
    commission," was "spending more in legal fees and costs than [was] warranted
    by the amount at issue," or "[was] otherwise not performing his collection
    responsibilities with respect to a collection effort," then the dispute could be
    submitted to Marotte who would "make a final binding determination[.]"
    The May 2015 agreement also specified that if Marotte determined there
    was a failure to "cooperate in good faith" by "either action or inaction," then
    Marotte would "provide the non-cooperating [party]" with time "to take
    whatever corrective action(s)" Marotte deemed necessary.
    [A]fter the end of the cure period[,] [Marotte would]
    make a binding final determination as to whether the
    non-cooperating [party] took all of those corrective
    actions to [Marotte's] satisfaction . . . . If [Marotte]
    determine[d] that [the party] failed to timely take all
    of those corrective actions to [Marotte's] satisfaction
    . . . [,] then the non-cooperating [party would]
    forfeit[] his right under the [May 2015] [a]greement to
    any equal distribution of funds collected as part of the
    subject collection[s] "dispute", and all of those
    A-1948-17T4
    7
    collected funds from that dispute shall instead be paid
    directly to the other [party] in addition to any
    commission that other [party] may have earned under
    the [May 2015] [a]greement with respect to that
    collection effort.
    Additionally, the May 2015 agreement imposed strict time limitations to
    complete the actions delineated therein and provided that "[w]ith respect to
    each time limitation in the [a]greement, time [was] of the essence."         The
    agreement also provided that its interpretation and enforcement was "governed
    under the substantive and procedural laws of the State of New Jersey."
    Further, "[a]ny disputes concerning th[e] [a]greement, the subject matter of
    th[e] [a]greement[,] or the interpretation of th[e] [a]greement shall be
    submitted to [Marotte] for a final and binding decision." Finally, each party
    acknowledged executing the May 2015 agreement "of his own free will and
    accord," "after receiving full advice from counsel of [his] own selection," 7 and
    "understand[ing] the terms and conditions of th[e] agreement."
    At the hearing, plaintiff testified about the circumstances under which
    the May 2015 agreement was entered, explaining that the parties had appeared
    on May 28, 2015, for a scheduled arbitration hearing before the three -person
    panel as prescribed in the May 2013 agreement. According to plaintiff, one of
    the issues he intended to present for arbitration was the need to "start
    7
    Each party was represented by independent counsel.
    A-1948-17T4
    8
    collecting money owed to [the companies,]" amounting to "several million
    dollars." Although the three-person panel had addressed collection issues in
    the past, instead of proceeding with the scheduled arbitration hearing, the
    parties spent "the entire day" negotiating and drafting the May 2015 agreement
    to specifically address the collection disputes.
    According to plaintiff, the only reason they entered into the May 2015
    agreement was "[t]o find a less expensive way to handle all the collection
    issue[s] and to do it in an easier or faster fashion than going through the three -
    [person] arbitration panel." 8    In responding to specific questions regarding
    whether the May 2015 agreement was a settlement agreement or an arbitration
    agreement,    plaintiff   was    vague   and   equivocal.     Although    plaintiff
    acknowledged that there were three prior drafts before the parties agreed on
    the final version, he had no recollection of the word "arbitrator" appearin g in
    the prior drafts, and was "not sure" whether the final version of the six -page
    agreement they ultimately agreed upon identified Marotte as an "arbitrator."
    Plaintiff testified Marotte was selected as the decision maker in the May
    2015 agreement because he was "the neutral arbitrator" on the three-person
    8
    Specifically, plaintiff explained that while the three-person panel billed
    collectively at a rate of $1800 per hour, an individual arbitrator would only
    cost $600 per hour, and scheduling one arbitrator would be much easier than
    scheduling three arbitrators, the parties, and their respective counsel.
    A-1948-17T4
    9
    panel, and he had been "the corporate counsel for the compan[ies] for about
    ten years[.]" Plaintiff acknowledged that, unlike the arbitration agreement, a
    mechanism to replace Marotte if he was unable or unwilling to serve under the
    May 2015 agreement "was never discussed."          Likewise, "[t]here was no
    discussion" that "[Marotte] was the only person who was capable of deciding a
    dispute."
    Plaintiff denied that the entire May 2015 agreement was based on the
    fact that Marotte would act as the decision maker, and stated he would not
    have signed the May 2015 agreement if he believed that it could be voided if
    Marotte was unable to serve. Plaintiff did not believe that Marotte had any
    "[u]nique knowledge" of the companies' collection matters that would prevent
    any other individual from serving as his replacement. In fact, according to
    plaintiff, Marotte only "knew . . . a very small percentage" of "[t]he
    companies['] . . . hundreds of clients[,]" and there were other attorneys with
    whom plaintiff had a similar long-standing relationship.              Plaintiff's
    understanding was that any attorney or retired judge could serve as the
    decision maker "[i]f something happened to . . . Marotte[.]"
    Plaintiff explained his intention in entering into the agreement, stating
    that "[they] had already been trying for over two years, in some instances, four
    or five years[,] to collect money from debtors," but defendant had
    A-1948-17T4
    10
    "obstruct[ed]" the process. According to plaintiff, the "new agreement on how
    to handle the process of collecting money" allowed them to move forward in
    an expeditious and cost-effective manner. Although plaintiff acknowledged
    terminating Marotte from the three-person panel, he denied knowing why
    Marotte resigned as the decision maker under the May 2015 agreement, and
    claimed that Marotte's resignation had nothing to do with the termination.
    In contrast, defendant believed the May 2015 agreement was a
    settlement agreement, not an arbitration agreement. Initially, defendant was
    not agreeable to all the terms in the final version of the May 2015 agreement.
    However, he relented because Marotte was going to be the decision maker and
    that "was the most significant issue" to him. He wanted Marotte to be the sole
    decision maker because "[Marotte] had been general [c]ounsel for [their]
    companies for a number of years." Additionally, Marotte "had assisted [them]
    in numerous activities[,]" and "had been on many, many, many phone calls
    involving both [parties] . . . individually."
    Based on that relationship, defendant believed Marotte had specialized
    knowledge about the parties and the companies that no other attorney
    possessed. Because defendant "felt that it would be beneficial both to [him]
    and to the compan[ies] if [Marotte] was the decision maker," he "was willing
    to give up on some of the other items for [Marotte] specifically to be there and
    A-1948-17T4
    11
    to stay on board." Unlike plaintiff, defendant testified that "[he] would not
    have entered into th[e] agreement[] if . . . Marotte was not the decision maker."
    He believed that if Marotte was unable to serve as decision maker, the
    agreement "would be voided" and they would revert back to the May 2013
    agreement, which encompassed "any wind[-]down disputes" between the
    parties. According to defendant, he signed the May 2015 agreement because it
    specifically named Marotte as the decision maker, and, unlike the May 2013
    agreement, did not provide for any replacements.
    Defendant acknowledged that since the May 2015 agreement was
    executed, he had not collected any monies as the Responsible Collector while
    plaintiff had.   Defendant also acknowledged that to date, plaintiff had not
    received any commissions for those matters. Further, defendant admitted that
    if the May 2015 agreement was voided and the parties relied on the May 2013
    agreement to resolve their disputes, the Responsible Collector would not be
    entitled to a commission because the May 2013 agreement made no such
    provision.
    Following the hearing, the judge issued an oral decision, declaring the
    May 2015 agreement null and void. As a result, plaintiff's request to appoint a
    replacement for Marotte as the decision maker under the May 2015 agreement
    was denied. In his decision, the judge found the following facts:
    A-1948-17T4
    12
    The parties here entered into two separate and distinct
    agreements. The first agreement, identified on its face
    as a settlement agreement term sheet, was entered into
    on May 2[], 2013. This agreement specifically called
    for binding arbitration and set forth procedures for the
    selection of arbitrators and provided for the procedure
    to replace the neutral arbitrator who, . . . in this case
    was Michael Marotte.
    This term sheet was formalized on March 16[],
    2015[,] in a document entitled arbitration agreement. [9]
    This agreement, drafted on . . . Marotte's firm's
    letterhead spelled out in detail the procedures to
    follow in arbitrating the seemingly intractable disputes
    between . . . plaintiff and . . . defendant.
    . . . [T]he arbitration law was specifically
    mentioned and made part of this agreement. [Seventy-
    three] days later on May 28[], 2015[,] a second
    agreement was entered into between the parties. This
    agreement was also drafted on Marotte's firm's
    letterhead and was entitled settlement agreement. The
    apparent objective of this agreement was to carve out
    from the March[] 2015 arbitration agreement certain
    issues and to have Marotte be the sole and ultimate
    decider.
    Conspicuously, nowhere in the [May 2015]
    agreement is the word arbitration mentioned . . . nor is
    there any specific agreement for arbitration. This
    agreement was to handle specifically collection
    matters that existed and were the source of conflict
    between the two principals.
    9
    The March 16, 2015 arbitration agreement referred to by the judge
    superseded the August 8, 2013 arbitration agreement that ratified and
    effectuated the May 2013 agreement.
    A-1948-17T4
    13
    [I]n August[] 2017[,] . . . plaintiff terminated
    Marotte as the neutral arbitrator under the [arbitration]
    agreement. Marotte thereafter withdrew from . . . the
    May[] 2015 agreement[, which] . . . . was silent on the
    procedure for replacing Marotte . . . .
    The judge posited that "[t]he issue before the [c]ourt [was] whether it
    should rework the [May 2015] agreement and provide . . . a substitute for
    Marotte or declare the agreement void under the legal principles of
    impossibility of performance . . . and/or frustration . . . of purpose." In making
    the determination, the judge evaluated the parties' intent in entering the May
    2015 agreement thusly:
    [Plaintiff] testified essentially there was no specific
    intention with respect to the selection of Marotte. He
    portrayed Marotte as one of a myriad of attorneys who
    had worked for the parties and brought no special
    expertise to the project. He indicated that the purpose
    of the May[] 2015 agreement was essentially to save
    fees . . . that would have been incurred if the
    arbitration process as set forth in the [arbitration]
    agreement was followed.
    He testified that it took a better part of a day to
    draft and negotiate the May accord and various drafts
    were prepared. Unlike the prior agreement between
    the parties, . . . no specific provisions were made to
    substitute Marotte in the event he was unable to
    discharge his duties under the May[] 2015 agreement.
    Despite [plaintiff's] attempt to minimize
    Marotte's prior business relationship between the
    parties, he did concede that Marotte had worked with
    the parties for ten years and fulfilled the role of
    corporate counsel.      He was familiar with the
    A-1948-17T4
    14
    companies, its principals, and the debts and accounts
    receivable, which were the focal point of the May[]
    2015 agreement. [Plaintiff's] efforts to downplay
    Marotte's unique knowledge about the parties and the
    relationship to the parties were not credib[le].
    [Defendant's] testimony, not surprisingly,
    differ[ed] from [plaintiff's]. He pointed out that
    Marotte had been involved with the companies they
    owned and had been involved in the present dispute
    since 2013 when the initial term sheet of settlement
    was executed. Per [defendant], Marotte had spent
    numerous hours working with both principals. In his
    view[,] Marotte had specialized knowledge about the
    individuals, the companies, and the companies'
    business transaction[s]. It was Marotte, according to
    [defendant], who suggested the carve-out of the
    collection matters that was the subject of the May[]
    2015 agreement.
    The procedure set forth in [the May 2015]
    agreement departed significantly from the procedures
    previously negotiated by the parties in the course of
    their prior conduct.       Per [defendant], without
    Marotte[,] there would be no [May] 2015 agreement.
    The judge determined that "New Jersey case law require[d] the [c]ourt to
    give the May[] 2015 agreement its plain and ordinary meaning[,] thus
    respecting the parties' intent to designate Marotte as the sole decision maker
    and deliberately omitting a mechanism for replacing Marotte." Applying the
    applicable legal principles, the judge concluded that Marotte's withdrawal
    "from the [May] 2015 agreement, which followed his discharge from the
    [arbitration] agreement by [plaintiff]," "substantially negated and frustrated"
    A-1948-17T4
    15
    "the intent of the parties" because "his selection and participation in the May[]
    2015 agreement was the most significant factor that . . . produced that
    agreement."
    The judge elaborated:
    [Marotte] possessed unique knowledge and
    experience with the parties and their disputes. The
    May[] 2015 agreement was specifically carved out
    from the [arbitration] agreement, which was equipped
    to handle collection issues within the framework of
    the . . . agreement. A separate procedure was intended
    with respect to collection matters and Marotte's
    participation was a critical part of this agreement.
    The May[] 2015 agreement was completely void
    of any mention of arbitration or invocation of the
    arbitration law. Where a party's principal purpose is
    substantially frustrated without his fault[,] the party's
    remaining duties are discharged unless the language or
    circumstance indicate to the contrary. . . . There is a
    basic principle of contract law that the [c]ourt cannot
    rewrite the terms of the agreement. The [c]ourt's role
    is to discern the parties' intent.
    The [c]ourt is fully cognizant that this type of
    relief should not be lightly granted. . . . The [c]ourt is
    satisfied that the evidence after considering the
    testimony is clear and convincing that Marotte was an
    integral part of the [May 2015] agreement and his
    withdrawal frustrated the intent and purpose of the
    parties and, therefore, the May[] 2015 agreement
    should be declared null and void under the principles
    of frustration [of] purpose and impossibility of
    performance.
    This means that the parties are relegated to their
    [arbitration] agreement to resolve what appears to be
    A-1948-17T4
    16
    their intractable disputes. They are free to draw up a
    new agreement to deal with collections if they so
    desire.
    The judge entered a memorializing order and this appeal followed.
    Plaintiff argues that "based upon well-settled principles of contract
    interpretation law, the language of the [May] 2015 [a]greement demonstrates
    that the trial judge erred [in] voiding the [May] 2015 [a]greement in its
    entirety." According to plaintiff, in voiding the agreement, the judge ignored
    the agreement's provision that "expressly precluded any modification or
    amendment . . . except through the execution of a written instrument[,]" and
    disregarded the "severability clause" that allowed "the remaining portions" of
    the agreement to "remain in full force and effect" in the event "any part or
    portion . . . shall be held to be illegal, unenforceable[,] or contrary to . . .
    public policy."
    Additionally, plaintiff contends that "[b]y accepting [defendant's]
    testimony . . . that without . . . Marotte[] . . . , it was impossible to carry out
    the [May] 2015 [a]greement when no such language was contained in the
    [May] 2015 [a]greement, the trial court relied upon impermissible parol []
    evidence as its basis to void the [May] 2015 [a]greement in its entirety."
    Plaintiff continues that since "[t]he [May] 2015 [a]greement was put in place
    . . . to prevent and minimize future conflicts[,] . . . cancelling it goes against
    A-1948-17T4
    17
    the intent of the [a]greement." Moreover, according to plaintiff, "the [May]
    2015 [a]greement was not merely an agreement to arbitrate claims, it was
    expressly identified as a settlement agreement between the parties" and
    "[s]ettlement of litigation ranks high in our public policy."
    We agree that there is a strong public policy favoring settlement of
    litigation, Nolan v. Lee Ho, 
    120 N.J. 465
    , 472 (1990), and we "strain to give
    effect to the terms of a settlement wherever possible." Brundage v. Estate of
    Carambio, 
    195 N.J. 575
    , 601 (2008) (quoting Dep't of Pub. Advocate, Div. of
    Rate Counsel v. N.J. Bd. of Pub. Utils., 
    206 N.J. Super. 523
    , 528 (App. Div.
    1985)).   Because the "[i]nterpretation of a settlement agreement implicates
    significant legal and policy principles, . . . the standard for vacating a
    settlement is not easily met." Kaur v. Assured Lending Corp., 
    405 N.J. Super. 468
    , 474 (App. Div. 2009) (citing Nolan, 
    120 N.J. at 472
    ). Thus, "[b]efore
    vacating a settlement agreement, our courts require 'clear and convincing
    proof' that the agreement should be vacated." Nolan, 
    120 N.J. at 472
     (quoting
    De Caro v. De Caro, 
    13 N.J. 36
    , 42 (1953)).
    Equally well-settled is the principle that a settlement agreement between
    parties is a contract governed by basic contract principles, ibid., and, "absent a
    demonstration of 'fraud or other compelling circumstances,'" a court should
    enforce a settlement agreement as it would any other contract. Jennings v.
    A-1948-17T4
    18
    Reed, 
    381 N.J. Super. 217
    , 227 (App. Div. 2005) (quoting Pascarella v. Bruck,
    
    190 N.J. Super. 118
    , 124-25 (App. Div. 1983)). Among the contract principles
    applicable to settlement agreements "are that courts should discern and
    implement the intentions of the parties[,]" and not "rewrite or revise an
    agreement when the intent of the parties is clear." Quinn v. Quinn, 
    225 N.J. 34
    , 45 (2016). "Thus, when the intent of the parties is plain and the language
    is clear and unambiguous, a court must enforce the agreement as written,
    unless doing so would lead to an absurd result." 
    Ibid.
     "To the extent that there
    is any ambiguity in the expression of the terms of a settlement agreement, a
    hearing may be necessary to discern the intent of the parties at the time the
    agreement was entered and to implement that intent." 
    Ibid.
    A contract is ambiguous if its terms are "susceptible to at least two
    reasonable alternative interpretations." Nester v. O'Donnell, 
    301 N.J. Super. 198
    , 210 (App. Div. 1997) (quoting Kaufman v. Provident Life & Cas. Ins.
    Co., 
    828 F. Supp. 275
    , 283 (D.N.J. 1992), aff'd, 
    993 F.2d 877
     (3d Cir. 1993)).
    When a contract is ambiguous in a material respect, the parties must be given
    the opportunity to illuminate the contract's meaning through the submission of
    extrinsic evidence. Conway v. 287 Corp. Ctr. Assocs., 
    187 N.J. 259
    , 268-70
    (2006).   While extrinsic evidence should never be permitted to modify or
    curtail the terms of an agreement, a court may "consider all of the relevant
    A-1948-17T4
    19
    evidence that will assist in determining the intent and meaning of the contract"
    in attempting to resolve ambiguities in the document. 
    Id. at 269
    .
    As the Court explained in Conway,
    [e]vidence of the circumstances is always admissible
    in aid of the interpretation of an integrated agreement.
    This is so even when the contract on its face is free
    from ambiguity. The polestar of construction is the
    intention of the parties to the contract as revealed by
    the language used, taken as an entirety; and, in the
    quest for the intention, the situation of the parties, the
    attendant circumstances, and the objects they were
    thereby striving to attain are necessarily to be
    regarded. The admission of evidence of extrinsic facts
    is not for the purpose of changing the writing, but to
    secure light by which to measure its actual
    significance.
    [Ibid. (alteration in original) (quoting Atl. N. Airlines,
    Inc. v. Schwimmer, 
    12 N.J. 293
    , 301-02 (1953)).]
    The "[i]nterpretation and construction of a contract is a matter of law for
    the court subject to de novo review." Spring Creek Holding Co. v. Shinnihon
    U.S.A. Co., 
    399 N.J. Super. 158
    , 190 (App. Div. 2008) (quoting Fastenberg v.
    Prudential Ins. Co. of Am., 
    309 N.J. Super. 415
    , 420 (App. Div. 1998)). Thus,
    we accord no special deference to a trial court's interpretation of an agreement
    entered into by the parties. Kaur, 
    405 N.J. Super. at 474
    . However, "findings
    by the trial court are binding on appeal when supported by adequate,
    substantial, credible evidence[,]" and "[d]eference is especially appropriate
    when the evidence is largely testimonial and involves questions of credibility."
    A-1948-17T4
    20
    Seidman v. Clifton Sav. Bank, S.L.A., 
    205 N.J. 150
    , 169 (2011) (quoting
    Cesare v. Cesare, 
    154 N.J. 394
    , 411-12 (1998)).
    With these principles in mind, we review the judge's determination to
    void the May 2015 agreement, which constitutes the crux of this appeal. In
    voiding the agreement, based on the testimony of the parties as well as the
    terms contained within the four corners of the agreement, the judge determined
    that Marotte's selection and participation as the decision maker "was the most
    significant factor that . . . produced [the May 2015] agreement." Based on
    Marotte's "unique knowledge and experience with the parties and their
    disputes[,]" the judge found that "[his] participation was a critical part of [the
    May 2015] agreement."
    Because there was no provision in the May 2015 agreement for the
    selection of a replacement, as contained in the May 2013 agreement, the judge
    concluded that Marotte's resignation rendered performance of the May 2015
    agreement impossible and frustrated the purpose of the agreement. We are
    satisfied that the judge's factual findings are fully supported by the record and,
    in light of those facts, his legal conclusions are sound. Contrary to plaintiff's
    assertion, the judge did not void the May 2015 agreement by revising th e
    agreement to add a requirement that Marotte's participation was indispensable.
    Instead, the judge determined that the evidence adduced at the hearing
    A-1948-17T4
    21
    demonstrated that Marotte's resignation rendered the performance of the
    agreement impossible and frustrated the purpose of the May 2015 agreement.
    "The respective concepts of impossibility of performance and frustration
    of purpose are, in essence, doctrinal siblings within the law of contracts." JB
    Pool Mgmt., LLC v. Four Seasons at Smithville Homeowners Ass'n, 
    431 N.J. Super. 233
    , 245 (App. Div. 2013).
    Both doctrines may apply to certain situations in
    which a party's obligations under a contract can be
    excused or mitigated because of the occurrence of a
    supervening event. The supervening event must be
    one that had not been anticipated at the time the
    contract was created, and one that fundamentally
    alters the nature of the parties' ongoing relationship.
    [Ibid.]
    Indeed, "[b]oth the impossibility and frustration doctrines are concerned
    with '[a]n extraordinary circumstance [that] may make performance [of a
    contract] so vitally different from what was reasonably to be expected as to
    alter the essential nature of that performance.'" 
    Ibid.
     (second, third, and fourth
    alterations in original) (quoting Restatement (Second) of Contracts, ch. 11,
    intro. note at 309 (Am. Law. Inst. 1981)).       "The doctrines stem from the
    concept of an implied condition within a contract." 
    Ibid.
     "[T]he concept is
    that a contract is to be considered 'subject to the implied condition that the
    parties shall be excused in case, before breach, the state of things constituting
    A-1948-17T4
    22
    the fundamental basis of the contract ceases to exist without default of either
    of the parties.'"     Id. at 245-46 (alteration in original) (emphasis omitted)
    (quoting A-Leet Leasing Corp. v. Kingshead Corp., 
    150 N.J. Super. 384
    , 397
    (App. Div. 1977)).
    Frustration of purpose arises when "the obligor's performance can still
    be carried out, but the supervening event fundamentally has changed the nature
    of the parties' overall bargain." Id. at 246. "The frustration must be so severe
    that it is not fairly to be regarded as the risks that [the party invoking the
    doctrine] assumed under the contract."       Id. at 247 (alteration in original)
    (quoting Restatement (Second) of Contracts § 265 cmt. a).          Relief from
    performance of contractual obligations on the theory of frustration of purpose
    "will not be lightly granted; the evidence must be clear, convincing[,] and
    adequate." A-Leet Leasing Corp., 
    150 N.J. Super. at 397
    . By comparison,
    under the related doctrine of impossibility or impracticability of performance,
    a party is excused from having to perform his contract obligations "where
    performance has become literally impossible, or at least inordinately more
    difficult, because of the occurrence of a supervening event that was not within
    the original contemplation of the contracting parties." JB Pool Mgmt., 431
    N.J. Super. at 246.
    A-1948-17T4
    23
    Here, we agree with the judge's finding that there was clear and
    convincing evidence of frustration of purpose and impossibility of
    performance.    The supervening event of Marotte's unavailability as the
    decision maker fundamentally changed the nature of the parties' overall
    bargain and rendered performance under the May 2015 agreement impossible.
    Based on the contentious and acrimonious relationship of the parties,
    undoubtedly, collection disputes would abound, thus necessitating a procedure
    for their amicable resolution.        Because Marotte was responsible for
    definitively deciding those disputes, including issues related to the selection of
    debts, approval of settlement offers, commissions earned, collection efforts,
    and bad faith, as well as deciding issues related to the subject matter and
    interpretation of the May 2015 agreement itself, his unavailability frustrated
    the nature of the parties' overall bargain and rendered performance of the
    contract obligations impossible. Further, based on the judge's fact -findings,
    which are supported by the record, the unavailability of Marotte as the
    decision maker was not a risk defendant assumed under the contract, nor was it
    contemplated by the parties, as evidenced by the fact that a replacement
    decision maker was never addressed as in the May 2013 agreement.
    Plaintiff argues that based on the severability clause, the provisions
    within the May 2015 agreement that were unaffected by the identity of the
    A-1948-17T4
    24
    decision maker could have been severed from the agreement, and any disputes
    arising from those provisions could have been decided by a third party or the
    court. However, "[s]everability is only an option if striking the unenforceable
    portions of an agreement leaves behind a clear residue that is manifestly
    consistent with the 'central purpose' of the contracting parties, and that is
    capable of enforcement." NAACP of Camden Cty. E. v. Foulke Mgmt. Corp.,
    
    421 N.J. Super. 404
    , 437 (App. Div. 2011). That is not the case here.
    We also reject plaintiff's contention that the judge relied upon
    impermissible parol evidence as the basis for voiding the May 2015 agreement.
    "In general, the parol evidence rule prohibits the introduction of evidence that
    tends to alter an integrated written document."      Conway, 
    187 N.J. at 268
    .
    However, the rule excludes testimony "only when it is offered for the purpose
    of 'varying or contradicting' the terms of an 'integrated' contract; it does not
    purport to exclude evidence offered for the purpose of interpreting and giving
    a meaning to those terms[,]" as occurred here. Atl. N. Airlines, Inc., 
    12 N.J. at 302
     (quoting 3 Corbin on Contracts, § 579 (1951)).
    Plaintiff also argues that because the May 2015 agreement was a "carve
    out" from the May 2013 agreement, as acknowledged by the judge, the
    agreements must be read in conjunction with each other.            Where "two
    documents were separate pieces of paper but it was obvious . . . that they were
    A-1948-17T4
    25
    interrelated parts of a single transaction[,]" the documents are treated as a
    unitary contract. Gen. Inv. Corp. v. Angelini, 
    58 N.J. 396
    , 400 (1971); see
    also In re Resnick, 
    284 N.J. Super. 47
    , 60 (App. Div. 1995) (explaining that
    because decedent's will and attendant contract refer to one another and are
    closely related, the two documents "must be read in pari materia"). However,
    the May 2015 agreement makes no reference to the May 2013 agreement.
    Instead, unlike the May 2013 agreement, which provided for a three -person
    panel to settle "wind-down" disputes between the parties, the May 2015
    agreement created a stand-alone mechanism for handling collection disputes
    by having Marotte serve as the sole final decision maker.
    Plaintiff further argues that the judge erred in preventing Marotte from
    testifying at the hearing. Plaintiff asserts that had "Marotte been allowed to
    testify," the "judge would not have found [plaintiff's] testimony" lacked
    credibility "and a vastly different decision" would have been made.          In
    support, plaintiff relies on Marotte's deposition testimony to show Marotte's
    personal knowledge of the parties' intent in entering into the May 2015
    agreement.10
    10
    Although plaintiff's appendix includes a copy of the deposition transcript,
    the transcript was never submitted to the judge or moved into evidence at the
    hearing. Our Supreme Court has cautioned against "consider[ing] . . .
    deposition testimony that was not presented to the trial court and that was
    (continued)
    A-1948-17T4
    26
    Prior to the hearing, the judge issued an order specifying that the sole
    issue at the hearing would be "the parties' state of mind and intent[] when they
    entered into the May 2015 [a]greement and selected . . . Marotte to resolve the
    outstanding collection disputes[.]" At the beginning of the hearing, the judge
    reiterated his position and noted that although Marotte "s[a]t for a
    deposition[,]" he did not have to do so because the court "did not order nor . . .
    require any additional discovery." During the hearing, when Marotte arrived
    in the courtroom, the judge informed him that his testimony was not needed.
    "[C]ontrol[ling] and manag[ing] the introduction of testimony" is within
    the discretion of the trial court, Hall v. St. Joseph's Hosp., 
    343 N.J. Super. 88
    ,
    107 (App. Div. 2001), and "[its] decision . . . [is] conclusive unless clearly
    erroneous as a matter of law." Bosze v. Metro. Life Ins. Co., 
    1 N.J. 5
    , 10
    (1948). Here, we are satisfied the judge did not abuse his discretion. See
    N.J.R.E. 403 ("relevant evidence may be excluded if its probative value is
    substantially outweighed by the risk of . . . undue delay, waste of time, or
    (continued)
    submitted by the parties for the first time on appeal." Townsend v. Pierre, 
    221 N.J. 36
    , 45 n.2 (2015); see also Harris v. Middlesex Cty. Coll., 
    353 N.J. Super. 31
    , 48 (App. Div. 2002) (striking "the materials in plaintiff's appendix that
    were not included in the record below," and "not consider[ing] them in th[e]
    decision"). Although we will not strike the transcript from plaintiff's
    appendix, our decision on this issue does not require us to consider the
    deposition testimony.
    A-1948-17T4
    27
    needless presentation of cumulative evidence"). However, even assuming he
    did, it was harmless error, see Rule 2:10-2, because we are hard-pressed to
    conclude that the excluded testimony would be more probative of the parties'
    intent in entering into the May 2015 agreement than the testimony of the
    parties themselves.   Thus, the exclusion of Marotte's testimony does not
    constitute grounds for reversing the judge's decision as it is not "of such a
    nature as to have been clearly capable of producing an unjust result[.]" 
    Ibid.
    Next, plaintiff argues "that the New Jersey [Uniform] Arbitration Act
    applies to the [May 2015 agreement]" and "authorized the trial court to appoint
    a substitute [arbitrator]" if "Marotte[] [was] 'unable to act' to resolve the
    parties' collection issues." We disagree.
    "[T]he issue of whether parties have agreed to arbitrate is a question of
    law that is reviewed de novo." Jaworski v. Ernst & Young U.S. LLP, 
    441 N.J. Super. 464
    , 472 (App. Div. 2015).       "[I]t is equally true that the duty to
    arbitrate, and the scope of the arbitration, are dependent solely on the parties'
    agreement." Cohen v. Allstate Ins. Co., 
    231 N.J. Super. 97
    , 101 (App. Div.
    1989). "Thus, '[i]n the absence of a consensual understanding, neither party is
    entitled to force the other to arbitrate their dispute'" and "[s]ubsumed in this
    principle is the proposition that only those issues may be arbitrated which the
    parties have agreed shall be." Quigley v. KPMG Peat Marwick, LLP, 330 N.J.
    A-1948-17T4
    28
    Super. 252, 271 (App. Div. 2000) (first alteration in original) (quoting In re
    Arbitration Between Grover & Universal Underwriters Ins. Co., 
    80 N.J. 221
    ,
    228-29 (1979)).
    Here, as the judge astutely pointed out, unlike the May 2013 agreement
    or the corresponding March 2015 arbitration agreement executed only seventy-
    three days prior, absent from the May 2015 agreement was "the word
    arbitration," "any specific agreement for arbitration[,]" or the "invocation of
    the arbitration law."    Moreover, there was no arbitration mechanism, no
    arbitration panel, and Marotte was not identified as an arbitrator, but rather as
    the individual responsible for making "a final and binding determination."
    Thus, it is abundantly clear that the May 2015 agreement was not an
    arbitration agreement governed by the Act.
    On the other hand, the May 2013 agreement explicitly provided that
    disputes would "be submitted to binding arbitration" to the three person panel
    and, in the event the neutral third arbitrator "withdr[e]w" or was "dismiss[ed],"
    "each party's representative [arbitrator] shall meet and choose a neutral third
    arbitrator." Although the corresponding March 2015 arbitration agreement, to
    which the judge relegated the parties, made no express provision for the
    replacement of the neutral third arbitrator, its provisions "set[] forth the terms
    and conditions of the binding arbitration" to which the parties "both agreed to
    A-1948-17T4
    29
    participate" "pursuant to the [May 2013 agreement]." Because the arbitration
    agreement refers to and effectuates the May 2013 agreement, the two
    documents "were interrelated parts of a single transaction[,]" Angelini, 
    58 N.J. at 400
    , and "must be read in pari materia." Resnick, 284 N.J. Super. at 60.
    Plaintiff argues further that given the "overwhelming evidence that
    [defendant was] a wrongdoer with respect to the [May] 2015 [a]greement[,]"
    "pursuant to the unclean hands doctrine, the trial court erred in voiding the
    [May] 2015 [a]greement in total and by denying [plaintiff's] requested relief."
    The equitable doctrine of unclean hands grants discretion to a trial court to
    refuse relief to one who is a wrongdoer with respect to the subject matter of
    the suit, Borough of Princeton v. Bd. of Chosen Freeholders, 
    169 N.J. 135
    , 158
    (2001), and requires that "[a] suitor in equity must come into court with clean
    hands and . . . keep them clean after his entry and throughout the proceedings."
    
    Ibid.
     (first alteration in original) (quoting A. Hollander & Son, Inc. v. Imperial
    Fur Blending Corp., 
    2 N.J. 235
    , 246 (1949)). Thus, the doctrine of unclean
    hands is applied against a person bringing a claim in equity to bar "the special
    remedies of equity," but "does not deny legal rights, or foreclose a defense by
    a defendant brought into equity." Merchs. Indem. Corp. v. Eggleston, 
    37 N.J. 114
    , 132 (1962).
    A-1948-17T4
    30
    Here, the "suitor" in equity is plaintiff, not defendant. Plaintiff filed a
    verified complaint and order to show cause, seeking equitable relief through
    the appointment of a replacement for Marotte in the May 2015 agreement.
    Thus, the doctrine of unclean hands is inapplicable as it does not "foreclose a
    defense by a defendant brought into equity." 
    Ibid.
    To the extent we have not specifically addressed a particular argument
    or any of plaintiff's remaining arguments, it is because either our disposition
    makes it unnecessary or the argument is without sufficient merit to warrant
    discussion in a written opinion. 
    11 R. 2
    :11-3(e)(1)(E).
    Affirmed.
    11
    For example, plaintiff argues the judge should have denied defendant's
    counterclaim for a declaratory judgment. The judge, in fact, dismissed the
    counterclaim, and that decision has not been appealed.
    A-1948-17T4
    31