May 30, 2008
PSI SUMMIT HOSPITAL, INC., PLAINTIFF-RESPONDENT,
CORPORATE PARK ASSOCIATES, DEFENDANT-APPELLANT.
CORPORATE PARK ASSOCIATES, A NEW JERSEY LIMITED PARTNERSHIP, PLAINTIFF-APPELLANT,
PSI SUMMIT HOSPITAL, INC., A NEW JERSEY CORPORATION, AND PSYCHIATRIC SOLUTIONS, INC., A DELAWARE CORPORATION, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-7649-04 and L-8087-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 5, 2007
Before Judges Payne, Sapp-Peterson and Messano.
In this commercial lease litigation, appellant, Corporate Park Associates (CPA), appeals from a motion judge's order granting partial summary judgment against CPA on claims against respondent, PSI Summit Hospital and its parent, Psychiatric Solutions, Inc. (together, PSI), for breach of a lease agreement, from a judgment against CPA on remaining claims following a bench trial, and from a pre-trial order quashing subpoenas issued to attorneys for PSI's predecessor in interest, Summit Health, L.L.C. (Summit), to obtain testimony on the intent of a contractual term.
On appeal, CPA raises the following legal arguments:
PSI BREACHED THE LEASE AGREEMENT WITH CORPORATE PARK ASSOCIATES BY: (a) FAILING TO DILIGENTLY PURSUE THE CERTIFICATE OF NEED, AND (b) TERMINATING IN BAD FAITH.
A. The trial court's multiple factual and legal errors require this Court to appraise the record independently.
B. PSI had an obligation to pursue the approvals with due diligence that required that it do more than simply go through the motions of filing an application.
C. PSI's conduct violated the implied covenant of good faith and fair dealing.
D. PSI did not waive its right to contest PSI's lack of good faith and diligence prior to August 1, 2004.
GENUINE ISSUES OF MATERIAL FACT EXISTED AS TO WHETHER THE ZONING CONTINGENCY RIDER APPLIED TO THE OBTAINING OF APPROVAL FOR RELOCATION OF THE CERTIFICATE OF NEED, AND CPA SHOULD HAVE BEEN PERMITTED TO CONDUCT DISCOVERY AS TO THESE ISSUES, . . . INCLUDING DISCOVERY FROM THE TENANT'S ATTORNEYS.
A. The court below erroneously granted partial summary judgment.
B. Discovery should have been allowed as to the intent and meaning of the Zoning Contingency Rider.
Following our review of the record and the parties' legal arguments, we affirm.
For a number of years, Summit operated a psychiatric hospital on grounds in Summit, New Jersey that it leased from Fair Oaks Properties, L.L.C. pursuant to a lease agreement that expired on September 30, 2004. On July 25, 2003, DPMW Associates, L.L.C. (DPMW) purchased the Fair Oaks property with the intent to convert it into townhouses. Because the construction could not commence immediately, DPMW agreed with Summit to extend its lease to March 31, 2005. Nonetheless, it was evident to Summit that it would be necessary to find a new location for its operations. It did so, finding a vacant corporate property in a business development owned by CPA and located at One Corporate Place South in Piscataway.
In March 2004, extensive negotiations between CPA and Summit occurred over the terms of a lease of the property. Because of concerns that not all of the uses of the property that Summit intended were permitted by Piscataway's zoning ordinance, and that a variance might therefore be necessary, among the issues negotiated at the time was a rider, denominated a "Zoning Contingency Rider." As initially drafted by attorneys for Summit, Burton L. Eichler and Jeffrey H. Itzkowitz of the firm of WolfBlock Brach Eichler, the rider provided that the lease was contingent upon Summit obtaining the necessary building permit, together with all requisite approvals from the municipality and all other governmental entities applicable to the obtaining of the necessary building permit, on or before August 1, 2004, permitting the Tenant to construct, renovate and build upon the premises for Tenant's intended use which use includes a psychiatric hospital, including related office and administrative uses, including alcohol and drug treatment center, in conjunction with Tenant's development of the within parcel. The "building permit and approvals" referred to herein (the "Approvals") shall only be deemed to have been obtained following the expiration of all appeal periods relating to the Approvals . . . .
However the contract, as executed following further negotiations, did not limit the approvals to those necessary to obtain a building permit. Instead, it contained a broader provision making the lease contingent upon the Tenant "obtaining all necessary site plan approvals, together with all requisite final, non-appealable approvals from the municipality and all other governmental entities applicable evidencing that Tenant may utilize the premises for its intended use, on or before August 1, 2004, permitting the Tenant to construct, renovate and build upon the premises for Tenant's intended use which is as a psychiatric hospital . . . ." In the event that the approvals could not be obtained before August 1, Summit, as tenant, effectively, retained the right to terminate the lease and receive a full refund of any good faith monies paid. If, prior to August 1, Summit demonstrated that it was "diligently pursuing all Approvals and has made all applications on a timely basis," it was entitled to a three-month extension on the approval period to October 31, 2004. A unilateral right of termination by Summit existed if the approvals were "not obtained on or before . . . October 31, 2004."
In likely exchange for the foregoing, CPA negotiated a third paragraph to the rider that provided, in revisions circulated on March 17 and March 23, if the approvals were not obtained by June 1, 2004, CPA was entitled to a Tenant Improvement Allowance (TIA Deposit) of $103,000 per month until the foregoing contingency was met or waived, or the lease was canceled. If the lease were cancelled, the TIA Deposits would be released to CPA as liquidated damages. If the contingency were met or waived, the TIA Deposits would be released to Summit.
The contingency provisions at issue stated, in final form:
1. The within lease is contingent upon the Tenant obtaining all necessary site plan approvals, together with all requisite final, non-appealable approvals from the municipality and all other governmental entities applicable evidencing that Tenant may utilize the premises for its intended use, on or before August 1, 2004, permitting the Tenant to construct, renovate and build upon the premises for Tenant's intended use which is as a psychiatric hospital, including related office and administrative uses, alcohol and drug patients, in conjunction with Tenant's development of the within parcel. The "site plan approvals and approvals for Tenant's intended use" referred to herein (the "Approvals") shall only be deemed to have been obtained following the expiration of all appeal periods relating to the Approvals . . . . Subject to paragraph 3 below [addressing the TIA Deposits], in the event Tenant is unable to obtain its Approvals on or before August 1, 2004, either party shall have the right to terminate this Lease and receive a full refund of any good faith monies paid, in which event this Lease shall be null and void and neither party shall have any further rights against the other. Tenant may, however, waive the requirements of this paragraph as to Approvals and preempt any termination by Landlord and choose to proceed under the Lease without Approvals having been obtained.
2. Notwithstanding the foregoing, and subject to paragraph 3 below [addressing the TIA Deposits], provided Tenant shows evidence that it is diligently pursuing all Approvals and has made all applications on a timely basis, Tenant shall have the right to extend the approval period for one additional three (3) month period until no later than October 31, 2004. Furthermore, if the Tenant's Approvals are not obtained on or before August 1, 2004 (or October 31, 2004 as outlined above), Tenant has the right in its sole discretion to terminate this Lease as set forth herein by giving written notice to Landlord and the Escrow Agent if the Approvals are not obtained. Failure to cancel the within transaction based upon failure to obtain the Approvals, or to seek an extension on or before August 1, 2004 (or October 31, 2004) shall not constitute a waiver of this contingency but, either Landlord or Tenant shall have the right to terminate the within transaction.
In addition to the foregoing, Tenant has the right, in its sole discretion, to terminate this Lease by written notice given to Landlord and Escrow Agent if (a) the Approvals set forth above are not obtained; (b) in the event litigation occurs in connection with any of the Approvals; (c) Tenant determines in good faith that the Approvals cannot be obtained; or, (d) any conditions have been set forth in the Approvals which are deemed onerous or objectionable to Tenant in its sole reasonable discretion. In the event Tenant elects to terminate this Lease pursuant to the provisions of this paragraph, this Lease shall be deemed terminated and the security deposit monies shall be refunded to Tenant whereupon neither party shall have any further liability hereunder.
Although the contingency provision retained its caption of "Zoning Contingency Rider," another provision of the lease stated that the "captions" in the lease were "not a part of the provisions of this Lease." The lease, providing for a twenty-one-year term, was signed on March 29, 2004.
Shortly after execution of the lease, on April 23, 2004, an asset purchase agreement was signed by PSI for the purchase of the Summit psychiatric hospital and other hospital properties owned by Summit's principal, Dr. Richard Kresch. The agreement included the lease between Summit and CPA, and an assignment of rights and obligations under the lease was later made with the consent of CPA.
In May or June 2004, PSI executive Ron Fincher contacted a consultant, David Kostinas, to assist PSI in obtaining approvals for its operation at the new location, and was informed by him that what Fincher had been led by Kresch to believe would be an expedited ninety-day process for obtaining a transfer of the certificate of need (CN) could be delayed from 150 days to two years because of PSI's move into territory of a competitor, the University of Medicine and Dentistry of New Jersey.
A preliminary step in the approval process was instituted by Summit and PSI on May 25, 2004, when an application was filed by their attorneys, WolfBlock, with the New Jersey Department of Health and Senior Services (NJDHSS) to transfer Summit's acute care facility license to PSI. The license was issued to PSI on July 21, 2004, effective June 25, 2004, following the settlement of compliance issues.*fn1 After conversations with the State on July 7, 2004 suggested potential problems in obtaining a CN, on July 16, 2004, PSI formally retained Kostinas to prepare a CN application, a process that Kostinas stated would take him three to four weeks. The application was completed and sent to PSI for its review on August 26, 2004. However, the application could not be considered until September 1, 2004 under regulations authorizing review only of applications that were complete on the first of the month.
Because of timing problems encountered in obtaining necessary approvals, in late July 2004, Fincher and another PSI executive met with Peter Sudler, the manager of CPA General, L.L.C., the General Partner of CPA, to explore lease options.
At the meeting, Sudler was allegedly informed of the difficulties PSI anticipated in obtaining a CN. According to Fincher, Sudler expressed irritation at the delay, stating that he should have been informed of the problem earlier by his uncle, Eichler, and that PSI was using the wrong attorney group. However, Fincher testified that Sudler did not state that the CN was not a necessary approval, or that PSI had failed to act diligently or in good faith. Although, at trial, Sudler testified that he did not understand that the purpose of the meeting with PSI was to discuss its request for an extension of time to prepare and obtain a CN, during cross-examination, he was confronted with his deposition, in which he admitted that the request for an extension was made so that PSI could make a CN application. Additionally, at the meeting, the subject of CPA's carrying charges for the property was discussed, and it was Fincher's understanding that those charges were $30,000 per month. At trial, Sudler denied stating this figure, indicating that the monthly charges were approximately $90,000.
Following the meeting, Sudler directed a CPA employee to contact the Allman Group, an entity that handled regulatory matters on CPA's behalf, and to direct it to "investigate whether or not the Certificate of Need process that had been related to [Sudler] by Mr. Fincher was, in fact, accurate." Sudler testified at trial that he did not receive a written communication on this subject from the Allman Group; he did not indicate whether an oral communication had occurred.
On July 29, 2004, PSI sent a letter to CPA exercising its right under the lease's rider to extend the approval period for three months until October 31, 2004. The letter stated that PSI had not yet been able to obtain all necessary approvals from government entities to allow the Tenant to utilize the premises subject to the Lease for Tenant's intended use as a psychiatric hospital. Among other items, Tenant has not yet received approvals pursuant to the Certificate of Need process which are required by the New Jersey Department of Health. Tenant is diligently pursuing all approvals in an expeditious manner.
Sudler did not object to the extension. At trial, he was cross-examined with respect to his position at the time in the following exchange:
Q: . . . Under the zoning contingency . . . if there was no extension granted because [PSI] hadn't given [CPA] sufficient evidence that they had acted diligently, they would have been stuck as of August 1st with the lease.
A: They would have only been stuck if I would have stuck them, which is never what I would have done -
Q: All right. The initial time period [is] August 1st, 2004, correct?
Q: And that if they have not acted diligently - pursuing all approvals and had made all applications in a timely basis, then you could have argued that they were not entitled to any extension of that, correct?
A: I could have, yes.
Q: Yes. Okay. But not arguing, if you truly believe that they were not diligent at that time, if you had taken that position, they would not then have been in the position to get an extension of time to get a Certificate of Need that you now claim they weren't even entitled to go after, correct?
A: If I had taken that position.
Q: Right. And if you had taken that position - you could have said to them, this lease is in full force and effect as of August 1 and you're bound by it, correct?
A: I could have said that but I didn't.
As Sudler also testified at trial, [i]t was not my intention to blow up the transaction. My intention was to get a tenant in a building that was empty. And I was going to do anything I could to facilitate the tenant going into the building.
If that meant giving an extension or helping to get a Certificate of Need I was willing to do anything. I didn't want a vacant building. And I certainly didn't want a lawsuit and a claim for damages, which is unfortunately what I ended up with.
In mid-August 2004, after unsuccessfully seeking a further extension of the DPMW lease's termination date of March 31, 2005, PSI commenced negotiating for the purchase of the Fair Oaks property from DPMW. An offer of $6.5 million was made and rejected.
Later that month, on August 26, 2004, Fincher caused PSI's counsel to send a letter to CPA's counsel seeking to change the terms of the rider to extend the lease's governmental approvals period by six months to April 30, 2005. The letter stated:
Presently, my client is paying approx $100,000 a month to the landlord for fit-up and carrying costs. In October my client will be faced with a go / no go situation under the terms of the lease. PSI wishes to extend that deadline by 5 months while making Peter whole on his carrying costs, but without investing further in the fit-up until they are sure of the move to Piscataway.
PSI's attorney proposed a monthly $30,000 payment to cover carrying costs and a moratorium on the $103,000 per month TIA Deposit. PSI also sought to negotiate a unilateral right to cancel the lease upon thirty days notice. According to the letter, "[t]his would essentially put things on hold and preserve the status quo without Peter getting hurt by carrying costs or my clients throwing away fit-up costs on a building they may never move into." Sudler declined PSI's offer in a letter dated August 30, 2004, in which he indicated that CPA's carrying costs for the property were $90,000 and that "[a]ny monthly carry discussions - which amount to an option - would have to revolve around this figure at a minimum. I am available to discuss this matter with your client further."
As we previously stated, the CN application was filed by Kostinas on behalf of PSI on September 1. According to Fincher, PSI still intended to relocate the hospital to the Piscataway property. However, it continued to pursue an alternative plan to acquire the property upon which the hospital was presently located in Summit in order to protect PSI's investment if it could not obtain a CN in a timely manner or without onerous conditions.
On September 21, 2004, DPMW and PSI reached agreement on the sale of the Summit property for $15,500,000. On September 29, 2004, PSI terminated the lease with CPA, and on October 1, it executed the sale agreement with DPMW. PSI withdrew its application to transfer the CN on November 11, 2004 as unnecessary.
Cross-suits followed, which were consolidated for discovery and trial. Among the discovery sought was testimony by attorneys Eichler and Itzkowitz regarding their intent in framing the governmental approvals provision as it eventually was drafted. In orders dated March 3, 2006, the motion judge quashed the subpoenas served on the two attorneys on grounds of relevance, stating that the lease provision was unambiguous.
Thereafter, the motion judge granted partial summary judgment in PSI's favor on the issue of whether a CN was a necessary governmental approval within the meaning of the lease agreement. The judge found that it was, construing the relevant terms of the agreement, as finally executed, as unambiguous on that issue.
Following entry of partial summary judgment, in July 2006, a different judge conducted a bench trial on the issues of whether PSI had diligently pursued the CN, whether it breached the implied covenant of good faith and fair dealing when terminating the lease, and damages. On November 8, 2006, the trial judge issued a written decision and entered final judgment in PSI's favor, awarding it damages in the amount of its security deposit and costs of suit. The judge explicitly determined that PSI had exercised good faith and due diligence in pursuing the CN both in the periods before and after August 1, 2004 and had rightfully terminated the lease when it determined that it would not receive the CN before the October 31, 2004 deadline. In reasoning in this fashion, the judge implicitly also determined that PSI did not breach its implied covenant of good faith and fair dealing when terminating the lease. Additionally, the judge found that CPA had waived any claim of lack of diligence on the part of PSI in the period prior to August 1, 2004 when it agreed to an extension of the governmental approvals deadline to October 31, 2004. The judge dismissed CPA's cross-complaint alleging breach of contract.
We first address CPA's argument that the motion judge erred in concluding on motion for partial summary judgment that the CN was a necessary governmental approval within the meaning of the lease's contingency rider. In framing its argument, CPA first focuses on the phrase "all requisite final, non-appealable approvals from the municipality and all other governmental entities applicable evidencing that Tenant may utilize the premises for its intended use," and it argues that the motion judge took the phrase out of context because he omitted consideration of the following language: "permitting the Tenant to construct, renovate and build upon the premises for Tenant's intended use . . . in conjunction with Tenant's development of the within parcel." Properly considered, CPA contends, the "approvals" specified in the sentence are those approvals "permitting the Tenant to construct, renovate and build upon the premises for the Tenant's intended use." CPA then argues that a CN is not such an approval.
We disagree with CPA's position, interpreting the plain language of the contingency clause to require (1) all necessary site plan approvals and (2) all requisite final, non-appealable approvals from the municipality and other governmental entities applicable evidencing that Tenant may utilize the premises for its intended use. The position that receipt of two types of approvals was contemplated by the parties is reinforced by the next sentence of the rider which defines as "Approvals" the "site plan approvals and approvals for Tenant's intended use." (Emphasis supplied.) Moreover, as we recognized in In re Certif. Of Need Granted to the Harborage, 300 N.J. Super. 363 (App. Div. 1997):
Pursuant to the Health Care Facilities Planning Act, N.J.S.A. 26:2H-1 et seq. (the Act), and specifically N.J.S.A. 26:2H-7, no health care facility, including a hospital, may construct new facilities or expand an existing one or initiate a new health care service, unless a CON [Certificate of Need] has been applied for by the facility and been granted by the State Commissioner of Health . . . . [Id. at 367.]
That requirement remains, unaltered. Thus, even if we were to accept CPA's limited interpretation of the rider, which we do not, a CN would still be a necessary precursor to construction, renovation and other building on the premises.
CPA then argues that, despite lease language stating that lease captions "are not a part of the provisions of this lease," the caption, "Zoning Contingency Rider," provides evidence of the limited scope of the provision. CPA further argues that there would have been no need to include approval of the transfer of the CN as a contingency, because Summit's principal, Dr. Kresch had assured both CPA and PSI that the State was required to permit the transfer of the CN to an adjacent county. However, the language of the rider encompasses "all" requisite governmental approvals. It does not provide an exception for the CN.
The issue of whether a contractual term is ambiguous is a question of law to be decided by the trial court. Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002). We stated there:
The court makes the determination whether a contractual term is clear or ambiguous. "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.'" The court should examine the document as a whole and the "court should not torture the language of [a contract] to create ambiguity."
A party that uses unambiguous terms in a contract cannot be relieved from the language simply because it had a secret, unexpressed intent that the language should have an interpretation contrary to the words' plain meaning. Indeed, that would be contrary to settled law. [Ibid. (citations omitted).]
We agree with the motion judge in this case that the contingency clause, as finally negotiated, lacked ambiguity, and instead clearly encompassed governmental approvals in addition to those required simply for construction or renovation of the premises. Accordingly, no extrinsic evidence was required as an aid in contractual interpretation. Thus, the discovery that CPA claims it was deprived of obtaining, including but not limited to the subpoenaed depositions of attorneys Eichler and Itzkowitz, was unnecessary to a determination of the plain meaning of the contract's language. We thus affirm the grant of partial summary judgment to PSI on this issue, as well as the motion judge's orders quashing the subpoenas issued to Eichler and Itzkowitz.
CPA also argues that the trial judge erred in finding that PSI acted diligently and in good faith in its application for a CN and that it properly terminated the Corporate Park lease. In this regard, we agree with the trial judge that CPA waived any argument with respect to PSI's diligence in the period prior to August 1, 2004 by permitting PSI to extend the contingency period to October 31, 2004, without objection. In support of that position, the trial judge found, contrary to CPA's position at trial and on appeal, that CPA was aware at the time of the mid-July 2004 meeting with PSI what the status of the CN application was and was also aware of PSI's concerns regarding receipt of a timely approval of its application. The judge's conclusion was founded upon adequate evidence in the record that included Sudler's deposition testimony acknowledging his knowledge that the CN application remained unfiled, and we thus have no occasion to find otherwise. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Moreover, Sudler's trial testimony that he had no intention of declaring the lease at an end as of August 1, 2004, despite the language of the lease permitting such action, provides powerful evidence of Sudler's intentional waiver of a known right. Belfer v. Merling, 322 N.J. Super. 124, 139 (App. Div.), certif. denied, 162 N.J. 196 (1999).
It is significant that the lease does not overtly require due diligence by PSI in obtaining approvals in the period after August 1, 2004, but only in the period prior to its request for an extension. Nonetheless, we find the trial judge's conclusion that due diligence was demonstrated to have been soundly based upon facts demonstrating that a CN could not be sought before transfer of the facility license, which only occurred on July 21, 2004, although the transfer was made retroactive to June 25, 2004. Thereafter, PSI acted promptly in meeting with representatives of the NJDHSS on July 7, and when potential problems in obtaining a CN were raised at that meeting, in hiring Kostinas on July 16, 2004 to prepare the CN transfer application - a complex process that Kostinas testified would require three to four weeks.*fn2 Further, it is undisputed that N.J.A.C. 8:33-5.2(a) provides that the twelve review cycles of the expedited review process that PSI sought to employ begin "on the first business day of each month," and thus a mid-month application would not have been considered until the next review cycle commenced. Practically, then, a September filing was not unreasonable in the circumstances, or a manifestation of a lack of diligence on PSI's part.
Evidence adduced at trial amply demonstrated that approval of the CN application by the NJDHSS was not anticipated to be a "slam dunk," and that utilization by the Department of the full ninety-day period for review set forth in N.J.A.C. 8:33-5.2(a), if not more, was a likelihood. Thus, PSI faced the real possibility that issuance of a CN would be delayed at least until November 1, 2004, and that its construction and renovation of the Piscataway facility could not commence until that date, at the earliest. Yet, Fincher and Sudler had not successfully negotiated a lease extension beyond October 31, 2004, and PSI's lease with DPMW expired on March 31, 2005. In this circumstance, we find no fault with the trial judge's determination that PSI acted reasonably in commencing negotiations with DPMW to purchase the Summit property, and in eventually purchasing that property and in terminating the lease with CPA.
Our view of the matter is not affected by the fact that PSI did not respond to the NJDHSS's September 23, 2004 request for additional information from PSI with respect to its CN application. The contingency rider to the lease did not require that PSI wait until October 31, 2004 to effect a termination, but instead permitted termination during the extension period if PSI determined in good faith that the necessary approvals could not be obtained within the rider's deadlines or if it determined that the conditions for approval were onerous. A review of the requests for extensive further information set forth in the NJDHSS's September 23 letter provides evidence that the Department did not regard approval of the transfer of the CN to PSI for its use in Piscataway to be assured, and that even if the CN application were eventually granted, the application process would be extended and arduous. In this circumstance, we find it reasonable for the trial judge to have concluded that PSI exercised good faith in terminating the lease when it did and in choosing to purchase the property that it was presently occupying. In this regard, we note that the extensively-negotiated rider at issue contained a liquidated damages clause, and as a result, CPA received significant compensation as the result of PSI's termination decision.
Our determination that the trial court's finding of good faith and due diligence on PSI's part was based upon substantial competent evidence in the record negates any argument that PSI breached its duty of good faith and fair dealing in connection with its business dealings with CPA, Wilson v. Amerada Hess Corp., 168 N.J. 236, 244 (2001). The trial judge did not err in implicitly concluding that there was no bad motive or intention by PSI in this matter. Id. at 251. See also Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 225 (2005). PSI's termination of the lease did not deny CPA the benefit of the bargain that it struck with PSI. As we have demonstrated, PSI's unilateral power to terminate the lease was balanced by CPA's right to obtain liquidated damages should such termination occur. The fact that the liquidated damages provision was included within the rider provides compelling evidence of the parties' contemplation that a termination such as that which occurred here could rightfully take place.
In its remaining arguments, CPA contests certain of the trial court's factual findings. We decline to address those arguments, determining that the errors that CPA claims to have existed were either nonexistent or inconsequential to the resolution of this appeal. R. 2:11-3(e)(1)(A) and (E).