December 3, 2009
SILLS CUMMIS & GROSS, P.C., PLAINTIFF-APPELLANT,
MATRIX ONE RIVERFRONT PLAZA, L.L.C., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-295-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 5, 2009
Before Judges Stern, Graves, and J.N. Harris.
This appeal involves one of the most recognizable structures in downtown Newark, The Legal Center at One Riverfront Plaza. This facility, a twenty story, 418,889-square foot Class A office building located in the heart of the Newark Renaissance, directly to the north of Pennsylvania Station, is home to several of New Jersey's largest law firms. One of those firms, plaintiff Sills Cummis & Gross, P.C. (Sills), appeals from a Chancery Division declaratory determination.*fn1 That ruling provided instructions to arbitrators who were recruited by the parties to ascertain the "fair market rental value" of premises as between Sills and its landlord, defendant Matrix One Riverfront Plaza, L.L.C. (Matrix). Because we believe that even as he adhered to common sense, the particular instructions given by the Chancery Division judge imperfectly parsed the unambiguous contractual parameters of the parties' arrangement. Consequently, we modify the judgment below.
Effective on September 1, 1989 (but to commence on October 1, 1989), Sills' predecessor*fn2 and then-landlord Newark Legal and Communications Center Urban Renewal Corporation (Legal Center Corporation),*fn3 entered into a twenty-five year Agreement of Lease (lease) for office space in a high rise office building known as The Legal Center, located in Newark. Several years later, the Legal Center Corporation assigned its rights under the lease to Matrix, who currently acts as Sills' landlord.
Throughout the course of the last twenty years, the parties entered into several formal lease amendments, called either Supplemental Agreements or Amendments to Lease (collectively lease supplements). By May 2008, the parties had agreed to at least eight lease supplements, plus two letter agreements that adjusted their respective rights, duties, and obligations under the original lease.
The lease described the premises being rented by Sills from the Legal Center Corporation as "the said spaces, fixtures, improvements, and other property of the Legal Center Corporation" as shown in several sketches and blueprints marked as exhibits and annexed to the lease. Effectively, the premises referred to in the initial lease gave Sills floors ten through thirteen of the facility, out of which the law firm would operate its business. Pursuant to the lease, Sills was not permitted to use the premises for any activity other than as offices dedicated to the practice of law. In Supplemental Agreement No. 2, dated April 1, 1990, Sills and the Legal Center Corporation expanded the premises to include areas in the facility for a mailroom and records storage. In Supplemental Agreement No. 7, dated August 30, 1999, Sills obtained the right to use portions of the facility's ninth floor, which were also absorbed into the parties' description of the premises.
Because the facility was located in downtown Newark, where parking spaces were scarce, the Legal Center Corporation, at the inception of the lease, offered to provide Sills with 150 around-the-clock parking spaces for Sills' "shareholders, directors, officers, members, or employees." The parking spaces were conveniently located in the subterranean parking garage (constructed by a third-party, NEDC Riverfront Corporation (NEDC)) partially within the footprint of the Legal Center Corporation's facility.
Paragraph 49 of the original lease specifically provided that these parking spaces would be made available at no additional cost to Sills. If the lease between Sills and the Legal Center Corporation terminated prematurely in whole or in part, Sills would surrender parking spaces to the landlord in the ratio of one parking space per 600 rentable square feet of space in the premises so terminated.
As noted, the parking area intended for Sills' use was not controlled by the Legal Center Corporation. Therefore, a collateral agreement between the landlord and garage owner NEDC was necessary. On October 20, 1989, the Legal Center Corporation and NEDC inked an agreement (Parking Agreement) for the Sills' parking spaces, which cost the Legal Center Corporation $1,250,000,*fn4 plus ongoing maintenance charges over the ensuing twenty-five years. The Parking Agreement provided that the parking spaces were for the exclusive benefit of Sills. If another tenant took over the premises, that new tenant would not automatically be entitled to those parking spaces, as the rights to them would revert back to the garage proprietor, with a prorata reimbursement to the landlord of the initial $1,250,000 payment.
On May 31, 1997, Sills and the Legal Center Corporation executed Supplemental Agreement No. 3, in which several of the economic elements of the lease were changed, including a shortened term from the initial twenty-five years to nineteen years. Instead of the full quarter-century tenure, the parties agreed to two three-year renewals to round out the original letting, which permitted Sills, at its option, to extend the lease for three years at a time. If either of these three-year extension options were exercised, the "annual basic rental" that Sills would pay during that extension would "be equal to ninety percent (90%) of the fair market rental value of the premises, as determined by the Legal Center Corporation."
If Sills disagreed with its landlord's determination of the "annual basic rental," it was permitted to initiate an alternative dispute resolution mechanism - specifically, arbitration*fn5 - to answer the following contractually-strict question:
What is the fair market rental value for the premises for the three (3)-year extension period?
Furthermore, Supplemental Agreement No. 3 instructed the arbitrators exactly how to calculate the fair market rental value in Section 4(b)(i):
In determining fair market rental value, the arbitrators shall consider the premises in its "as is" condition, as if the premises were vacant and unencumbered by the Lease, as herein amended, and shall take into account all appropriate factors including, without limitation, that (1) the Legal Center Corporation will not pay a brokerage commission in connection with such extension; (2) the Lessee will not receive a finishing allowance or free rent period or other concessions then being offered to tenants entering into new leases for space of comparable size to the premises at the Legal Center or in comparable office buildings located in the Newark, New Jersey submarket; (3) no consideration is to be given to the fact that the building in which the premises is situated is owned by a subsidiary corporation of a public authority; and (4) the relevant market for determining fair market rental value of the premises for the extension period consists of comparable space in comparable office buildings located in Newark, New Jersey.
It is the language and method of calculation, and what factors should and should not be considered for the fair market rental value, that gave rise to the current dispute. On June 25, 2008, Sills elected to renew the lease and take advantage of its first three-year extension period, to commence on June 1, 2009. Matrix - by now Sills' landlord since 2001 - informed Sills on August 22, 2008, that the "annual basic rental" for the renewal term was $3,194,373 per year. Sills took issue with this determination, and on September 15, 2008, it requested arbitration pursuant to Section 4(b)(i) of Supplemental Agreement No. 3. The parties completed the selection of their arbitrators by October 15, 2008; the third arbitrator, selected by the parties' other two arbitrators, was enlisted shortly thereafter.
Instead of following through with the process of alternative dispute resolution and commending to the arbitrators' expertise the highly focused question framed by the parties, Sills instead filed a complaint in the Chancery Division on November 28, 2008. The complaint, entitled a "Complaint for Instructions to Arbitrators and Other Relief," sought a judgment from the court:
[d]irecting and instructing the arbitrators that "the premises" for which they are to determine fair market rental value does not include any consideration of the value, if any, of the parking spaces currently provided to Sills Cummis & Gross P.C. through the Parking Agreement.
Matrix filed an answer and counterclaim on January 16, 2009. Its Third Affirmative Defense raised what it called "preempt[ion]" pursuant to the Federal Arbitration Act (FAA), 9 U.S.C.A. §§ 1 to 16, and requested a dismissal of the complaint. However, Matrix's counterclaim - denominated a "Declaratory Judgment" action - followed Sills' lead and requested a judgment from the court: declar[ing] that the arbitrators must consider the value of the parking spaces currently provided to Sills when determining the fair market rental value of the three year extension period[.]
The first salvo of motion practice was launched by Sills, even before Matrix filed its responsive pleading. On December 12, 2008, Sills filed a motion to proceed summarily pursuant to Rule 4:67-2(b). Matrix filed a cross-motion "to proceed immediately with arbitration" pursuant to unspecified grounds.*fn6
The first Chancery Division judge treated the motions essentially as cross-motions, and on February 13, 2009, entered an order granting Sills' application to proceed summarily and denying the cross-motion. The order provided that "[t]he matter will be scheduled in the first instance for hearing on motion for summary judgment to be filed by plaintiff."
Subsequently, on February 27, 2009, Sills filed its motion for summary judgment and Matrix cross-moved for the same type of relief. Neither party submitted certifications regarding the negotiations surrounding the lease or lease supplements; there was no direct evidence about the intent of the parties regarding the terms of the lease and lease supplements. Instead, both parties relied upon the verbatim language of the several leasehold instruments, each side believing that its interpretation required a judgment in its favor as a matter of law.
A different Chancery judge heard the summary judgment motions. He agreed with Matrix's position and determined that the arbitrators were permitted to take into account all appropriate factors in determining fair market value rental, which expressly included the 150 parking spaces used by Sills. The judge reasoned that it would be an unduly strained interpretation of the lease supplement to value the premises without the parking spaces, as Sills, not another tenant, would be occupying those premises during the three year extension, and would therefore be entitled to the very same parking spaces. Furthermore, the court noted that the agreement laid out four specific factors for the arbitrators to ignore when making their calculations, reasoning that if the parties intended for the 150 parking spaces to be similarly ignored, it would have been specifically mentioned in the terms of the agreement.
On March 27, 2009, the motion judge ordered:
The arbitrators are directed to consider all appropriate factors when determining the fair market rental value during the Extension Term including the one-hundred fifty (150) underground parking spaces made available to Plaintiff under Section 49 of the Lease.
Sills wasted little time; it filed the present notice of appeal three days later, on March 30, 2009.
On April 16, 2009, the motion judge supplemented his initial oral opinion pursuant to Rule 2:5-1(a). He explained that the phrase "unencumbered by the lease" was to be interpreted as meaning that the arbitrators "were not to fix the value by reference to the prior rental rate set forth in the earlier lease." The court ultimately concluded, "[a]ny other interpretation makes the phrase meaningless."
During oral argument, we were advised that after the Chancery Division's determination, the parties submitted their dispute to the arbitrators. The arbitrators made alternate determinations: one presumably included the value of the 150 parking spaces in fixing the fair market rental value for the premises for the three-year extension period, and the other did not. The exact contours of those alternate outcomes, including the nature of the evidence that was presented to the arbitrators, were not part of this record.
In essence, the parties continue to argue that the contract terms regarding valuation of the premises are clear and unambiguous. Both parties assert that their interpretation is correct, placing different meanings on the term "premises," and the phrase "vacant and unencumbered." While there remain stark differences of opinion, it is clear that the lease and the lease supplements were entered into by similarly-situated sophisticated commercial entities, which (by all accounts) have had vast experience in drafting, negotiating, and implementing real estate contracts and related agreements.
Sills argued that while the arbitrators were permitted to consider "all appropriate factors" to render a calculation of fair market rental, they could only do so after considering the premises vacant and unencumbered by the lease. The phrase, "vacant and unencumbered," according to Sills, meant that there is no current tenant; if Sills does not occupy the premises, then there is no parking agreement, as it is personal to Sills only, and therefore the complement of 150 parking spaces does not exist. Furthermore, according to Sills, the precise definition of premises in the lease never included a parking amenity. This definition was never changed by any of the lease supplements from the 1989 lease. Thus, the admeasurement of the fair market rental value of the premises - the arbitrators' charge - necessarily means that the value of the 150 parking spaces must be excluded from consideration as part of the premises.
In opposition, Matrix argued that parking is an appropriate factor for the arbitrators to consider when calculating fair market rental value, especially because it was not specifically excluded from the factors to be considered. Furthermore, Matrix argued that "unencumbered by the Lease" language does not mean that Sills and the 150 parking spaces do not exist, but only that the current actual rental should not be used as a basis for determining fair market rental value. Matrix averred that there is nothing ambiguous in the term premises and its physical description of the property is only a starting point for calculation. It asserted that numerous factors, including amenities such as parking, must be taken into consideration in order to determine the fair market rental value.
We start with an observation: we are struck at first blush with the incongruity of the parties' use of the machinery of the judiciary to resolve a commercial dispute that was initially entrusted to the sound determination of specialized arbitrators. We do not begrudge the use of the publicly-financed judicial system of dispute resolution, but we question the utility of complex business arbitration if the parties intend to concurrently apply to a court for parallel stylized declarations of rights, instructions to arbitrators, or declaratory judgments.
We note that neither Sills' application for judicial relief in its Complaint for Instructions to Arbitrators and Other Relief nor Matrix's request for Declaratory Judgment appear to be contemplated by the Arbitration Act. See N.J.S.A. 2A:23B-5. For example, they do not 1) ask to compel or stay arbitration pursuant to N.J.S.A. 2A:23B-7, 2) request provisional remedies pursuant to N.J.S.A. 2A:23B-8(a), 3) seek the appointment of an arbitrator pursuant to N.J.S.A. 2A:23B-11(a), 4) move to enforce subpoenas or discovery obligations pursuant to N.J.S.A. 2A:23B-17, 5) apply for judicial enforcement of a preaward ruling pursuant to N.J.S.A. 2A:23B-18, or 6) demand confirmation, vacation, modification, or correction of an award pursuant to N.J.S.A. 2A:23B-22 to -25. Indeed, the question presented to the Chancery Division appeared to be squarely within the ken of the parties' private agreement to arbitrate and was poised to be resolved there.
The touchstone for our frame of reference is the New Jersey Supreme Court's recognition that it and the Legislature treat arbitration of disputes as a highly favored dispute resolution method. Wein v. Morris, 194 N.J. 364, 375-76 (2008); Martindale v. Sandvik, Inc., 173 N.J. 76, 92 (2002); Barcon Assocs., Inc. v. Tri-County Asphalt Corp., 86 N.J. 179, 186 (1981). The Court has clearly stated its respect for this dispute resolution forum on many occasions. See generally Muhammad v. County Bank of Rehoboth Beach, 189 N.J. 1, 23 (2006), cert. denied, 549 U.S. 1338, 127 S.Ct. 2032, 167 L.Ed. 2d 763 (2007); Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 168 N.J. 124, 132-33 (2001); Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282 (1993); Barcon Assocs., supra, 86 N.J. at 186.
However, we have also ruled that "[a]s a matter of both federal and state law, 'arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'" Angrisani v. Fin. Tech. Ventures, L.P., 402 N.J. Super. 138, 148-49 (App. Div. 2008) (quoting AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed. 2d 648, 655 (1986)). The primary issue presented in this appeal clearly does not fall within the orbit of a dispute where one party claims it never agreed to submit to arbitration. Both parties were ready, willing, and able to devote themselves to the arbitration process. Yet, for an unknown reason, they either distrusted the arbitrators or believed in the greater decisional accuracy of the judiciary, and they invoked the right to a judicial determination. We are concerned that this continued practice may have the capacity to eventually erode the efficacy of alternative dispute resolution processes.
While parties are entitled to waive arbitration, that usually is an all-or-nothing proposition. For there to be a waiver of arbitration rights, a party must know of the right and affirmatively state the intent to waive the right. Knorr v. Smeal, 178 N.J. 169, 177 (2003). "An effective waiver requires a party to have full knowledge of his legal rights and intent to surrender those rights." Ibid.
Parties can expressly waive their rights to arbitration. Wein, supra, 194 N.J. at 376. They can also waive these rights by implication. Knorr, supra, 178 N.J. at 177. "The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or by indifference." Ibid. However, "[t]he party waiving a known right must do so clearly, unequivocally, and decisively." Ibid.
We have held that "there is a presumption against waiver of an arbitration agreement, which can only be overcome by clear and convincing evidence that the party asserting it chose to seek relief in a different forum." See Spaeth v. Srinivasan, 403 N.J. Super. 508, 514 (App. Div. 2008) (citing Am. Recovery Corp. v. Computerized Thermal Imaging, 96 F.3d 88, 92 (4th Cir. 1996); Sherrock Bros. v. Daimler Chrysler Motors Co., L.L.C, 260 Fed. Appx. 497, 500 (3d Cir. 2008)). There is no single test for the type of conduct that may waive arbitration rights. In fact, "the mere institution of legal proceedings... without ostensible prejudice to the other party" does not constitute a waiver. Hudik-Ross, Inc. v. 1530 Palisade Ave. Corp., 131 N.J. Super. 159, 167 (App. Div. 1974). Rather, the presence or absence of prejudice has been deemed determinative of the issue of waiver. Angrisani v. Fin. Tech. Ventures, L.P., supra, 402 N.J. Super. at 149-50.
In light of the business sophistication of the parties and the absence of any prejudice to either of them, we cannot - in any principled fashion - conclude that they have waived the right to go back to an arbitral forum to conclude their dispute. That their detour to court may have taxed our increasingly short supply of judicial resources is unfortunate, but we have a job to do, as did the Chancery judge.
We approach our task with an appreciation for the limited record that was presented to the motion judge and thereafter to us. This is understandable because the parties sought their respective declarations of rights speedily through summary judgment practice without any discovery. Thus, our decision is informed by the constrained record developed early in the life cycle of the litigation.
This court employs the same standard as the trial court in its review of the grant of a summary judgment order. Trinity Church v. Atkin Olshin Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608, 713 (1998). In making such a determination, a court must weigh "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. Inc. v. Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536).
The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged.
In that instance, the moving party will be entitled to summary judgment. Ibid.; Brill, supra, 142 N.J. at 540.
The arbitration issue before us arises as a matter of contract law. A provision of a contract is ambiguous if it is "susceptible to at least two reasonable alternative interpretations." Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997) (quoting Kaufman v. Provident Life and Cas. Ins. Co., 828 F. Supp. 275, 283 (D.N.J. 1992), aff'd, 993 F.2d 877 (3d Cir. 1993)). See also Conway v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 269 (2006). Here, notwithstanding Sills' invitation to remand the dispute if we find ambiguity, we agree with both parties that the lease and Supplemental Agreement No. 3 are not reasonably susceptible to dual interpretations.
"Where the terms of a contract are clear and unambiguous there is no room for interpretation or construction and the courts must enforce those terms as written." Karl's Sales & Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 493 (App. Div.), certif. denied, 127 N.J. 548 (1991). "[A court] determine[s] a written agreement's validity by considering the intentions of the parties as reflected in the four corners of the written instrument." Leodori v. Cigna Corp., 175 N.J. 293, 302 (2003). "[I]t is not the function of the court to make a better contract for the parties, or to supply terms that have not been agreed upon." Graziano v. Grant, 326 N.J. Super. 328, 342 (App. Div. 1999).
Here, the parties agreed that the fair market rental value of the premises would be calculated in a precise and narrow fashion. Instead of giving the arbitrators free rein to assemble all relevant data available to them in order to calculate the fair market rental value, the parties eliminated certain considerations. For example, the role of brokerage commissions was removed from deliberation, tenant concessions and fit-up allowances were not to be considered, the status of the landlord as an affiliate of a public authority was to be ignored, and the relevant market for "comparable space in comparable office buildings" was limited to the City of Newark. Thus, the real estate brokers who were called upon to decide the fair market rental value could not rely upon the myriad factors that would ordinarily inform such a determination.
This is not that unusual. Fair market rental value is not necessarily a self-defining term. Oscar v. Simeonidis, 352 N.J. Super. 476, 487 (App. Div. 2002). We have recognized that the fair market rental value of a property can be determined even if the lease fails to articulate any guidelines or standards, but such a determination can be problematic. See, e.g., P.J.'s Pantry v. Puschak, 188 N.J. Super. 580, 584-85 (App. Div. 1983). Fair market value has been defined as the price that a willing buyer would offer and a willing seller would accept. City of Trenton v. Lenzner, 16 N.J. 465, 476 (1954), cert. denied, 348 U.S. 972, 75 S.Ct. 534, 99 L.Ed. 757 (1955). Thus, all of the considerations that would influence a willing buyer and willing seller in making their decisions are relevant to a determination of fair market value. Village of South Orange v. Alden Corp., 71 N.J. 362, 368 (1976).
Here, the parties subtracted another ingredient from the fair market rental value of the premises. They agreed to treat "the premises in its 'as is' condition, as if the premises were vacant and unencumbered by the Lease, as herein amended." When the motion judge ordered the arbitrators to consider the 150 parking spaces, he either ignored or overruled the intent of the parties to eliminate the specific, idiosyncratic trappings of the parties' lease. In essence, the parties agreed to turn back the hands of time and treat the extended term of the lease as if the past had not existed. Although this may not reflect the real world, there is nothing to prevent the parties from agreeing to this delusion.
Although this may be contrary to what would usually be expected in the task of figuring out fair market rental value for, say, taxation purposes, New Brunswick v. State of N.J. Div. of Tax Appeals, 39 N.J. 537, 544-45 (1963) (noting that the fair rental value - rather than the actual rent payable under an existing lease - must control, but this does not mean that the actual rent is to be disregarded), private parties are free to agree that empirical rent is to be ignored. That is precisely what happened in this leasing arrangement, for better or for worse.
Nevertheless, the parties' elimination of the use of the actual lease and its emolument of 150 parking spaces, does not end the inquiry. Supplemental Agreement No. 3 also provided that the fair market rental value inquiry "take into account all appropriate factors." This, as the Chancery Division seemed to realize, included the possibility that evidence of comparable leases - but not the parties' lease and lease supplements - probably would provide for comparable parking and would include the silent (or perhaps not-so-silent) value of those parking spaces in its economic valuation. The art and science of establishing a fair market rental value by "tak[ing] into account all appropriate factors" does no violence to the parties' intentions or reasonable expectations. Supplemental Agreement No. 3 only required the arbitrators to wear blinders for the existing lease and its amendments. The parties did not expect them to ignore potential economic realities that might include the value of parking spaces in comparable leases if there were competent proofs available to support those realities.
The Chancery judge went astray in failing to give effect to all of the parties' agreed-upon terms and to harmonize the seemingly inconsistent provisions of their many agreements. Thus, Sills was correct that the exquisitely precise use of its 150 parking spaces for use in the fair market rental valuation was bargained away by Matrix's predecessor. However, there was nothing in the parties' multi-faceted arrangement to prevent the arbitrators from considering evidence of other relevant and comparable parking rights in a principled fashion when drawing the contours of an answer to the lease supplement's question, "[w]hat is the fair market rental value for the premises for the three (3)-year extension period?"
We modify the determination of the Chancery Division and remand for the entry of a judgment that excises from the final judgment the words in paragraph two, "including the one-hundred fifty (150) underground parking spaces made available to Plaintiff under Section 49 of the Lease." Because we are unsure how our determination and the required excision would affect the arbitrators' decision-making, it would be appropriate for the parties to invoke N.J.S.A. 2A:23B-20(a) to request modification of the award pursuant to N.J.S.A. 2A:23B-24(a)(1) ("an evident mistake in the description of  property referred to in the award."). If modification is not feasible, the parties may be required to conduct the arbitration anew pursuant to the principles we have decided, agree between themselves to a more pragmatic resolution of their dispute, or apply to the Chancery Division to fashion an equitable and fair remedy.
Affirmed in part, reversed in part, and modified. We do not retain jurisdiction.