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Washington and Court, L.L.C. v. Bangz Salon Hoboken

November 6, 2009

WASHINGTON AND COURT, L.L.C., PLAINTIFF-APPELLANT,
v.
BANGZ SALON HOBOKEN, L.L.C., DEFENDANT-RESPONDENT, AND JOSEPH E. BRANCO, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. DC-012632-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2009

Before Judges Rodríguez and Chambers.

This appeal involves a dispute that arose out of a commercial lease between plaintiff Washington and Court, L.L.C., the landlord, and defendant Bangz Salon Hoboken, L.L.C., the tenant. The landlord brought this suit to recover disputed Overhead Charges due under the lease. After conducting a bench trial, the trial court held for the tenant, and entered a detailed order dated September 30, 2008, with respect to expenses that the landlord could assess to the tenant as Overhead Charges. The landlord now appeals that order. We affirm in part, reverse in part, and remand for further proceedings.

I.

The parties, both represented by counsel, entered into a lease agreement dated September 24, 2004, in which the tenant rented commercial space in a building identified in the lease as 89 Washington Street, Hoboken, New Jersey. The lease was for a term of ten years and provided the tenant with the option to renew for an additional five years.

In addition to the payment of rent, Paragraph 42 of the lease requires the tenant to pay 10.272 percent of certain costs, expenses, and charges for the building, denoted as the "Overhead Charge." The tenant was required to pay $800 per month as the estimated Overhead Charge. After the conclusion of the calendar year, the landlord was obligated to calculate the actual Overhead Charge and assess the tenant any underpayment or provide credit for an overpayment. The lease waived the Overhead Charge for 2004; the parties settled their dispute with respect to the Overhead Charges for 2005; this case involves the parties' dispute for the Overhead Charge for 2006.

The landlord calculated that the tenant's Overhead Charge for 2006 was $15,891.29. After deducting the $9,600 paid by the tenant in estimated payments, the landlord assessed the tenant the balance of $6,291.29. The tenant did not pay the amount, challenging the accuracy of the calculations for a number of reasons, including the fact that it had not seen proof of payment, that certain expenses did not relate to 89 Washington Street, and that other expenses were not properly included as part of the Overhead Charge.

The landlord brought this action seeking recovery of the unpaid Overhead Charge along with late fees and attorney fees.*fn1

At trial, the landlord's property manager, the landlord's building superintendent, and the tenant's principal, defendant Joseph E. Branco, testified. The trial court found ambiguities in the lease, and ruled on whether certain disputed items were properly included as Overhead Charge. It concluded that the landlord had not proven the Overhead Charge sought and determined that an accounting would be necessary. A detailed order dated September 30, 2008, was thereafter entered.

In this appeal, the landlord contends that the trial court erred in reforming the lease, that the lease contains no ambiguities, and that the order entered is not supported by the record.

II.

On appeal, we defer to the factual determinations of the trial judge provided they are supported by adequate, substantial and credible evidence. Rova Farms Resort v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). However, our review is de novo on questions of law and the legal consequences that flow from the established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Generally, the interpretation and construction of a contract is a question of law for the court to decide, and our review is de novo. Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998).

When interpreting a contract, our task is to discern the intent of the parties. J.L. Davis & Assocs. v. Heidler, 263 N.J. Super. 264, 270 (App. Div. 1993). When doing so, we must "consider the relations of the parties, the attendant circumstances, and the objects [the parties] were trying to attain." Ibid. (quoting Karl's Sales & Serv., Inc. v. Gimbel ...


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