July 16, 2007
KILMER BUILDING REALTY HOLDINGS, L.P., PLAINTIFF-APPELLANT,
EATEAM, INC., DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. MID-LT-007045-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 13, 2007
Before Judges Wefing and Weissbard.
Plaintiff, Kilmer Building Realty Holdings, L.P. (Kilmer), appeals from an order of October 31, 2006, entered in the Special Civil Part, Landlord/Tenancy Division, awarding plaintiff $1893.33 for rent owed by its tenant, defendant Eateam, Inc., but denying plaintiff's request for late fees and attorneys' fees. We reverse.
On January 20, 2006, Eateam entered into a lease with Kilmer for space on the ground floor of a building at 2 Kilmer Road, Edison. The lease provided for a monthly fixed rent during the first year of $1893.33. Paragraph 5 of the lease provided that in the event that rent was not received by the landlord within five days after its due date, a late charge of ten-percent would be levied on the unpaid amount. The late charge was to be "immediately due and payable, as additional rent, together with the rent payment." Paragraph 13b (5) of the lease read as follows:
Tenant shall be liable for all costs, charges and expenses, incurred by Landlord by reason of the occurrence of any event of default, or the exercise of the Landlord's remedies with respect thereto, including Landlord's reasonable legal fees. Sums due to Landlord from Tenant under this Lease shall accrue interest, from the date such sums became due and payable, at a variable rate equal to two (2%) percentage points above the prime interest rate as set daily by JP Morgan Chase, N.Y.C., N.Y. (or such other federally insured financial institution selected by Landlord), but in no event less than eighteen (18%) percent.
Kilmer agreed to complete designated work on the premises by what was called the "commencement date." Kilmer claimed that all of the necessary work was completed by April 1, 2006, established that date for the commencement of rent, and advised Eateam to that effect. Eateam, however, took the position that the work was not completed or was not completed satisfactorily. As a result, Kilmer did additional work to remedy the problems identified by Eateam. Eventually, in a letter dated June 2, 2006, Kilmer indicated that the premises were acceptable as of April 20, 2006. However, Eateam subsequently took the position that the premises were not acceptable until May 31, 2006. Accordingly, Eateam began to pay rent as of June 1, 2006.
Kilmer instituted suit against Eateam for the April and May rent which remained unpaid. The matter was tried on December 7, 2006, and at the conclusion the judge rendered an oral opinion finding Eateam liable for the May rent but not for the April rent. However, concerning the late fee and counsel fees, the court, rather cryptically, stated as follows:
With reference to a late fee -- because it is a matter in controversy, and counsel fees -- because this is a matter in controversy, I am not assessing counsel fee or -- fees.
The reality is that both sides have legitimate arguments and given that, the Court finds that it would be inappropriate to assess counsel fees against one or the other.
On appeal, Kilmer challenges the denial of its request for both late fees and attorneys' fees. We agree.
We need go no further than the settled proposition that contracts, including leases, must be enforced as written. See Marchak v. Claridge Commons, Inc., 134 N.J. 275, 281 (1993). It is not the function of the court to write a different or better contract for the parties but to enforce the contract as written. See Liqui-Box Corp. v. Estate of Elkman, 238 N.J. Super. 588, 600 (App. Div.), certif. denied, 122 N.J. 142 (1990).
Here, the court found that rent was due for the month of May 2006. As a result, according to the clear and unambiguous terms of the lease, a late fee was to be added to that rent. In addition, attorneys' fees are permitted where the parties have agreed to such a provision contractually. R. 4:42-9; Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205, 222 (App. Div.), certif. denied, 174 N.J. 43 (2002). In this case, plaintiff was required to institute suit for the payment of rent that was found to be due for May but not for April. Again, the lease was clear that attorneys' fees were to be awarded in such a circumstance. In an appropriate case, if the attorneys' fees could be apportioned between that part of the suit which was successful and that which was not, such an apportionment would be required. We are not certain that is the case here but we leave the quantum of attorneys' fees to the trial judge on remand.
As noted, we simply find no basis in the lease or in the law for the trial judge's conclusion that late fees and attorneys' fees could be denied simply because there was a good faith dispute. Indeed, from his findings, it seems clear that the trial judge did not regard defendant's non-payment of the May rent to have been in good faith, although he reached a contrary conclusion with respect to April.
Reversed and remanded for an award of late fees and attorneys' fees.
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