DOCKET NO. A-5674-13T1
Law Office of John Tierney, LLC, attorneys for appellant (John Patrick Tierney, on the brief). Kaplin Stewart Meloff Reiter & Stein, P.C., attorneys for respondent (Amy L. SantaMaria, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Rothstadt and Currier. On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-0478-12. Law Office of John Tierney, LLC, attorneys for appellant (John Patrick Tierney, on the brief). Kaplin Stewart Meloff Reiter & Stein, P.C., attorneys for respondent (Amy L. SantaMaria, on the brief). PER CURIAM
Plaintiff Delco LLC, owner and operator of a shopping center in Rio Grande, brought this action against its tenant, defendant Starbucks Corp., seeking a determination that a so-called exclusivity provision in their lease agreement did not bar plaintiff from leasing space to a McDonald's franchise. Although the lease agreement prevented plaintiff from allowing another tenant from using its premises for the sale of coffee, espresso and tea drinks, it also, among other things, excepted application of this provision to "any tenant . . . occupying twenty thousand contiguous square feet or more . . . and operating under a single trade name."
In enforcing the plain language of this exception, the trial judge granted plaintiff's motion for summary judgment, declaring that plaintiff was entitled to lease forty thousand contiguous square feet to McDonald's for operation of a fast food establishment, where coffee would also be sold, without violating the terms of Starbucks' lease. The judge also dismissed Starbucks' counterclaim, as well as its third-party action against McDonald's. And, in later proceedings, the trial judge awarded $113,836.71 to plaintiff based on another lease provision that required the losing party to pay reasonable attorneys' fees to the "prevailing party" in any "action, proceeding, trial or appeal" brought "to enforce the terms . . . or declare rights" set forth in the lease agreement.
The terms of the exclusivity provision and its exceptions, as applied to the circumstances, are clear and unambiguous and without doubt permitted plaintiff to lease twenty thousand or more square feet to McDonald's. The judge correctly concluded plaintiff was entitled to a summary judgment declaring its rights, and we conclude that all Starbucks' arguments - with the exception of the counsel-fee issue - are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
We reverse, however, the August 20, 2014 order granting counsel fees to plaintiff in the amount of $113,836.71. Although there is no doubt the lease's counsel-fee provision permitted a fee award to plaintiff as the prevailing party in this action, the judge failed to make the findings required by our case law. See, e.g., Rendine v. Pantzer, 141 N.J. 292, 333 (1995). Indeed, the judge made no findings at all. We, thus, vacate the amount of the award and remand for further proceedings limited to a determination of a reasonable attorney fee.
Affirmed in part and reversed and remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION