NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

In this breach of contract case, Robert Kelleher and Beth Dee Bob FV, Inc. ("BDB") (collectively referred to as "plaintiffs") appeal from the entry of a judgment in favor of defendants1 following a jury trial on their counterclaim seeking damages for alleged unjust enrichment. We vacate defendants' judgment, reverse the dismissal of plaintiffs' amended complaint,2 and remand for further proceedings in conformity with this opinion.

Plaintiffs owned government-allocated permit rights to harvest clams. Pursuant to those rights, they harvested Mid-Atlantic surf clams, offshore quahog clams, and New Jersey inshore clams ("inshore clams") (collectively referred to as "the clams"). The Mid-Atlantic Fishery Management Council (the "Mid-Atlantic Council") and the New Jersey Department of Environmental Protection (NJDEP) regulated the harvesting by allocating permits for an annual permissible number of clams to harvest. Defendants are in the business of processing clam meat.

In March 1993, the parties entered into a five-year Allocation Lease Agreement (the "ALA").3 Pursuant to the ALA, plaintiffs leased their allocated rights to harvest the clams to PMD. In exchange, PMD agreed to pay plaintiffs a lump-sum fixed amount of annual rent for the right to harvest the clams. The ALA stated that "the amount of clams actually harvested by [defendants] shall not impact upon [defendants'] rental sum due." Defendants renewed the ALA (the "renewed ALA") for two consecutive five-year terms.

In December 1997, before the ALA had expired, defendants' counsel wrote to plaintiffs' counsel expressing an interest in exploring flexible "alternate pricing mechanisms" for determining the amount of rent for harvesting the clams. In January 1998, plaintiffs' counsel indicated that plaintiffs would agree to share, on a 50/50 basis, "the diminution in allocation from that existing at the beginning of the [ALA]." This correspondence, in part,4 purportedly memorialized a new term for the first renewed ALA, although the parties later disputed whether PMD's rental payments would be based in part on the size of the clam population, or the government's annual allocation amounts. In February 2003, plaintiffs and PMD entered into a second renewed ALA, without any further negotiations.

At some point, defendants maintained that they were unable to harvest inshore clams because the population of those clams decreased. In May 2006, during the term of the second renewed ALA, defendants' counsel wrote to his clients and advised them to

PMD stopped making payments. Defendants' counsel wrote to plaintiffs' counsel suggesting that they meet to discuss "a new agreement going forward under the changed circumstances." There is nothing in the record indicating that the parties negotiated such an agreement.

In November 2008, plaintiffs' counsel informed defendants that they had breached the "contractual obligations under the lease" and demanded $338,560 in outstanding rent. In December 2008, defendants' counsel wrote to plaintiffs' counsel stating that

In May 2009, plaintiffs filed their complaint seeking damages alleging breach of contract. In March 2011, plaintiffs filed an amended complaint adding a count seeking attorney's fees. Defendants filed an answer asserting that the parties had modified the ALA, raised the affirmative defense of "[i]mpracticability of [p]erformance," and filed their counterclaim seeking damages for unjust enrichment in the amount of $292,320.

Plaintiffs filed a motion for partial summary judgment seeking to preclude defendants from raising the doctrine of impossibility as a defense. Plaintiffs asserted that defendants' contractual performance — payment of a lump-sum annual rental amount — was not impossible, even though the alleged decrease in the population of inshore clams may have made harvesting less profitable for defendants.

On December 29, 2011, the judge issued a written decision and denied plaintiffs' motion. The judge did not address whether the parties amended the ALA to share equally in the loss of harvest conditions due to a reduction in the clam population or government allocations. Instead, the judge concluded that the inshore clam availability decreased by seventy-five percent,5 and he found that the reduction in inshore clams made it impossible for defendants to perform "under the contract."

Plaintiffs filed a motion for reconsideration. On February 28, 2012, the same judge denied reconsideration and rendered a written opinion. The judge, however, severed the renewed ALA, narrowed the dispute to the issues related to payment for the inshore clams, and held that defendants "may present their defense of impossibility before a jury...."6

Defendants filed a motion for summary judgment seeking to dismiss plaintiffs' amended complaint contending that the reduction in the inshore clam population made it impossible for them to perform their contractual obligations. They also sought summary judgment on their counterclaim. On May 24, 2012, a different judge rendered a written decision concluding that the first judge had "unequivocally decided that [d]efendants were relieved of their contractual obligations under the lease," and the second judge dismissed plaintiffs' amended complaint. He declined, however, to enter judgment on defendants' counterclaim indicating that it was unclear whether defendants had expected reimbursement.

The parties proceeded to trial solely on defendants' counterclaim for unjust enrichment for three days in February 2013. The judge instructed the jury that the amount in dispute was $274,280. The single issue during the trial was whether plaintiffs were unjustly enriched by that amount.

On February 6, 2013, the jury found that plaintiffs were unjustly enriched, and on February 13, 2013, the judge entered judgment in favor of defendants against only plaintiff BDB. On April 8, 2013, the judge denied plaintiffs' motion for a directed verdict and clarified that the entry of judgment on the counterclaim was against both plaintiffs.

On appeal, plaintiffs argue that the motion judges erred by (1) granting summary judgment to defendants dismissing plaintiffs' amended complaint; (2) relieving defendants of their contractual obligations based on the doctrine of impossibility; (3) severing the ALA and focusing on defendants' obligation to pay only for the inshore clams; and (4) failing to dismiss defendants' counterclaim.7 Although they also contend that defendants produced insufficient evidence at trial and that the trial judge gave a flawed jury charge, we need not reach those contentions because we conclude that it was error to dismiss plaintiffs' amended complaint.

I.

We review de novo a trial court's decision granting or denying summary judgment. Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013). Summary judgment must be granted when "`there is no genuine issue as to any material fact challenged and ... the moving party is entitled to a judgment or order as a matter of law.'" Ibid. (quoting R. 4:46-2(c)). The court must "consider whether the competent evidential materials presented, when viewed in 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 v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Applying this standard, we conclude that it was error to grant summary judgment to defendants dismissing plaintiffs' breach of contract claims. Looking at the facts in the light most favorable to plaintiffs, defendants agreed to pay a lump-sum annual rent for the right to harvest the clams, per the terms of the ALA. It is undisputed that defendants failed to fully pay plaintiffs for harvesting clams during the second renewed ALA. Thus, the trial court erroneously granted summary judgment to defendants.

II.

We agree with plaintiffs that the court erred by summarily relieving defendants from their contractual obligation to pay rent for the inshore clams. In May 2012, the motion judge concluded that the prior judge had ruled that defendants' impossibility defense "relieved [defendants] of their obligation[]" to pay for the inshore clams. But the first judge did not make that ruling as a matter of law. Rather, he correctly held that defendants "may present their defense of impossibility before a jury...."

The decision of the motion judge in May 2012, further illustrates that defendants' defense of impossibility must be resolved by a jury. He found that

The parties disputed, however, the degree of the reduction in the inshore clam population and what effect such a reduction had on defendants' obligation to pay rent. The parties specifically disputed whether they would share equally in any loss related to harvest conditions due to the unavailability of clams. In January 1998, plaintiffs agreed to share equally from loss due to "diminution in allocation," but in November 2008, defendants maintained that the parties' intent in 1998 was to share equally in any loss pertaining to harvest conditions, whether the loss resulted from changes "through allocation or changes in clam availability."

We have previously stated that

Thus, there are genuine issues of material fact as to whether the January 1998 modification to the ALA fully addressed the impact of the reduction in the harvestable inshore clam population; whether the contract modification only pertained to reduction in government allocations or also included changes in government allocations; the extent to which the inshore population was diminished; and whether the reduction in the number of harvestable inshore clams rendered PMD's performance of its obligations under the ALA literally impossible or inordinately more difficult. Resolution of these issues precluded a ruling by the judge on motion that defendants were relieved of their obligation to pay for the right to harvest inshore clams.

III.

Regarding the severance of the parties' agreement, it is unclear from this record whether defendants moved for such relief. We conclude, however, that in severing the agreement, the motion judge did not fully analyze the agreement or the parties' intent. On remand, if defendants seek a severance of the contract, then the judge should perform the requisite analysis.

"[A] contract is said to be divisible when performance is divided in two or more parts with a definite apportionment of the total consideration to each part." Menorah Chapels at Millburn v. Needle, 386 N.J.Super. 100, 111 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 188 N.J. 489 (2006). The divisibility of a contract is dependent on "the intent of the parties as gathered from the agreement itself and the surrounding circumstances." Ibid. When considering a request by a party to sever a contract, trial judges are expected to focus on the intent of the parties. Along these lines, the Supreme Court framed the issue by stating:

In severing the renewed ALA, the judge stated that

Plaintiffs steadfastly maintained that defendants were contractually obligated to make annual payments for the right to harvest all the clams, not just inshore clams. The judge focused on the amount of rent that PMD paid for each type of clam, rather than on the intent of the parties gathered from the lease agreements and the surrounding circumstances. The parties should be afforded the opportunity to more fully develop the record on severability so that the issue can be resolved by the judge, or a jury if there are genuine issues of fact as to the parties' intent.9 Great Atl. & Pac. Tea Co. v. Checchio, 355 N.J.Super. 495, 502 (App. Div. 2000).

We reverse the dismissal of plaintiffs' complaint, vacate defendants' counterclaim judgment, and remand for further proceedings in conformity with this opinion. We do not retain jurisdiction.