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Great Atlantic & Pacific Tea Co.

December 14, 2000

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., PLAINTIFF-APPELLANT,
v.
AMERIGO CHECCHIO AND ROMANO CHECCHIO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-3986-98.

Before Judges Kestin, Ciancia and Alley.

The opinion of the court was delivered by: Ciancia, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 14, 2000

This is a dispute concerning the interpretation of a commercial lease. Specifically, the question is whether the landlord or tenant is contractually obligated to pay for the repair of roof trusses and heating equipment. The tenant is appellant, The Great Atlantic & Pacific Tea Company (A&P), and the landlord/owners are respondents Amerigo Checchio and Romano Checchio (Checchios). The disputed issues were decided on cross-motions for summary judgment that were invited by the trial court. Although A&P had requested oral argument, the motions were decided on the papers. In a brief opinion of little more than two pages, the trial court set forth language from the lease and summarized some of the correspondence between the parties. The court believed the intent of A&P was "clearly set out" in a letter written by Joel Dicker, A&P's director of real estate development, approximately five months prior to the second amendment of the lease. The trial judge quoted a portion of that letter, *fn1 and then concluded: "It is clear to the court that Mr. Dicker intended to accept responsibility to make repairs to the building as well as the responsibility for the maintenance of the interior and exterior." With that pronouncement, summary judgment was granted in favor of the landlord and the tenant's summary judgment motion was denied. A&P appeals contending it should have been granted summary judgment. We now reverse the order for summary judgment in favor of the Checchios, but we do not go so far as to find that summary judgment should have been granted to A&P. In our view, material factual issues are present that preclude summary disposition in favor of either party.

Initially, we note our concern over the procedure and disposition in the trial court. A good deal of material was submitted to the trial court in support of the parties' respective motions. A&P timely requested oral argument in its notice of motion for summary judgment. Such a request "shall be granted as of right." R. 1:6-2(d). No basis is set forth in the record for a relaxation of this rule and we perceive none. Indeed, oral argument before this court confirmed the value of hearing from both sides so that the respective positions can be properly understood. Also, neither the parties nor we are well-served by an opinion devoid of analysis or citation to even a single case. Cross- motions for summary judgment do not preclude the existence of fact issues. See O'Keeffe v. Snyder, 83 N.J. 478, 487 (1980). The obligation to make specific findings on summary judgment motions in accordance with R. 1:7-4 has been explicitly stated in R. 4:46-2 since 1972. A trial judge is obliged to set forth factual findings and correlate them to legal conclusions. Those findings and conclusions must then be measured against the standards set forth in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995).

Our own review of the record indicates the following. A&P has operated a supermarket on the same premises in Fanwood continuously since 1971. The initial fifteen-year lease was entered into by A&P and a realty company that was the predecessor landlord to the Checchios. The lease contained renewal provisions that, if exercised, allowed extension through July 31, 2001. In 1983 the present parties agreed to an amendment of the lease, referred to by them as the First Amendment. The terms of that amendment are not relevant here. In December 1993, the parties entered into what is called a "Second Amendment to Lease," which, among other things, extended the lease term to November 30, 2013, with potential renewals to November 30, 2023.

The initial lease contains provisions for repairs in Article 18. In relevant part it reads:

LESSEE shall keep the interior parts of the building on the demised premises in as good repair as same are in when possession hereunder is given to LESSEE, except, without limitation, for repairs occasioned by fire, termites, the elements, other casualty or happening, unsafe condition or settling of the building, reasonable wear and tear, structural repairs, repairs to and of the heating equipment and sprinkler equipment and parts thereof, plumbing, water or sewage system, the air conditioning plant or system and repairs of an extraordinary character. . . . Excepting for such repairs as LESSEE has agreed to make herein, LESSOR shall make all replacements and any and all other repairs to the demised premises including, without limitation, sidewalks, and comply with all such rules, regulations and requirements; and LESSOR assumes liability for any and all damages and/or injuries . . . resulting from his breach of this covenant and hereby indemnifies and saves LESSEE harmless therefor.

There is no dispute that if this language were still controlling the landlord would be responsible for the repairs now in issue to the roof supports and trusses and the heating system.

The December 1, 1993 Second Amendment to the lease contains the following language in Article 8:

During the Extended Term and any Renewal Period, Tenant shall be solely responsible for all repairs and maintenance, including any necessary replacements that are required to be made to the parking lot and any repairs or replacements to the roof membrane of the store building located at the Premises; provided, however, that one-half (½) of the cost of any such replacement or capital improvement made to the roof membrane and the parking lot may be deducted from percentage rental if payable in the year that such work was performed. . . . Tenant may from time to time also at its sole cost and expense stripe and restripe the parking lot during the Extended Term and any Renewal Period.

It is the Checchios' contention that this language completely superseded the repair language found in Article 18 of the original lease and, therefore, the cost of repairing the heating system and roof supports is on A&P. The competing view from A&P is that the second amendments to the lease modify the prior lease terms only in certain limited respects. Although the Second Amendment expanded A&P's repair obligations, the increased duty, it is argued, went only to the parking area and the roof membrane.

A&P's motion for summary judgment was accompanied, among other things, by a certification from Joel A. Dicker, "Vice President, Development" for A&P. He indicated that he had negotiated the Second Amendment with the landlord, including Article 8, and the scope of that article was limited to the parking lot and roof membrane. He referred to a letter he had written on July 2, 1993 to the landlord, known as the "deal letter." Both sides attempt to draw strength for their respective positions ...


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