NLH-SHORT HILLS, LTD., INC. v. TRUMP TAJ MAHAL ASSOC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0909-05T30909-05T3

NLH-SHORT HILLS, LTD., INC.,

Plaintiff-Respondent,

v.

TRUMP TAJ MAHAL ASSOCIATES d/b/a

TRUMP TAJ MAHAL CASINO RESORT;

TRUMP PLAZA ASSOCIATES d/b/a

TRUMP PLAZA HOTEL CASINO;

TRUMP'S CASTLE ASSOCIATES, L.P. d/b/a

TRUMP MARINA HOTEL CASINO,

and DONALD TRUMP,

Defendants-Appellants.

_______________________________________

 

Argued September 26, 2006 - Decided October 26, 2006

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. C-60-01E.

Gerard W. Quinn argued the cause for appellants (Cooper Levenson April Niedelman & Wagenheim, attorneys; Mr. Quinn, on the brief).

Salvatore Perillo argued the cause for respondents (Perskie Nehmad & Perillo, attorneys; Mr. Perillo and Elias T. Manos, on the brief).

PER CURIAM

Defendants, Trump Taj Mahal Associates d/b/a Trump Taj Mahal Casino Resort; Trump Plaza Associates d/b/a Trump Plaza Hotel Casino; Trump's Castle Associates, L.P. d/b/a Trump Marina Hotel Casino; and Donald Trump, appeal from an order of the Chancery Division entered on September 23, 2005, denying their motion to enforce terms of the stipulation of settlement previously entered into between the defendants and plaintiff, NLH-Short Hills, Ltd., Inc., on December 18, 2001 (the Stipulation), requiring plaintiff to remove a kiosk installed at the Trump Marina Hotel Casino in April 2005. We affirm.

The underlying litigation in this matter, commenced by plaintiff in May 2001, pertained to various license agreements entered into between plaintiff and defendants that permitted plaintiff to install and operate several kiosks for the sale of jewelry and accessories at three Trump properties in Atlantic City. The matter was settled by the parties entering into the Stipulation, pursuant to which plaintiff was to install and operate five kiosks at pre-determined locations in several of Trump's Atlantic City properties, including one at the Trump Marina Hotel Casino.

On May 3, 2003, plaintiff filed a motion alleging that defendants had violated the Stipulation by prohibiting plaintiff from installing three kiosks, two at the Trump Taj Mahal Casino Resort, and one at the Trump Marina Hotel Casino. On September 29, 2004, an order was entered in the Chancery Division barring plaintiff from proceeding with the two kiosks at the Trump Taj Mahal Casino Resort but permitting plaintiff to proceed with the installation of the kiosk at the Trump Marina Hotel Casino. Plaintiff installed the kiosk at the Trump Marina Hotel Casino in April 2005.

On August 23, 2005, defendants filed a motion seeking to enforce certain terms of the Stipulation concerning the manner in which plaintiff was maintaining and operating the kiosk at the Trump Marina Hotel Casino and sought court-ordered removal of the kiosk. Defendants contended that plaintiff was required by Paragraph 19 of the Stipulation to maintain and operate the kiosk at the Trump Marino Hotel Casino "in a manner consistent with the [plaintiff's] unit installed in the Trump Tower in New York City." Defendants asserted that plaintiff's kiosk at Trump Tower, New York City, sells only high-end jewelry and accessories, with little, if any, merchandise sold for less than $15, whereas plaintiff was selling costume jewelry and accessories for $10 or less at the Trump Marina Hotel Casino kiosk. Defendants also contended that the signage advertising personalty for sale at the Trump Marina Hotel Casino was less desirable than that at Trump Tower. Defendants assert that the sale of the less expensive jewelry and accessories, and the use of the signs, violated Paragraph 19 of the Stipulation which provides:

All Units to be installed shall be newly constructed specifically for use in conjunction with the applicable License Agreement and shall not have been previously installed in another location, either in whole or in part . . . . Plaintiff [NLH] reaffirms that pursuant to all the License Agreements, Plaintiff is required to, and will, maintain and operate the Units in a manner consistent with the unit installed in the Trump Tower in New York City.

Following oral argument on September 23, 2005, Judge William C. Todd, III, rendered an oral decision denying the motion. In doing so, Judge Todd stated:

The [Trump] defendant[s'] claim is that . . . portion of the stipulation essentially addresses what has been referred to as the level of product to be sold at this particular location. My initial reaction is that having reviewed everything, I do [not] see that as a reasonable interpretation of the language of the agreement . . . .

. . . .

I am satisfied that I should deny this motion essentially for the reasons that I articulated earlier. I do not think there is any reasonable basis for interpreting the provision of paragraph 19 as extending to the quality of product which is the basic and most fundamental issue here. I -- I also do [not] think it [is] reasonable to interpret it as extending to the issue of signage, what I consider to be a secondary issue that was raised here. I went through a fairly extensive analysis of -- of the specifics, but I think I can make this a little simpler and just focusing on that phrase, maintain and operate, on its face[,] that phrase does [not] speak to me of issues with respect to the quality of the product to be sold. Maintain sounds like maintaining a physical plant. Operate sounds like it talks about, you know, maybe the hours you [are] open, how your employees look. It does [not] seem to me that it [is] reasonable to interpret that paragraph as dealing with the quality of the product that can be sold[,] and I think a more specific analysis of the particular agreements that I referred to before is -- is all consistent with that. I acknowledged before that it [is] possible that someone could have suggested there were very specific discussions about this issue that would frame the dispute[,] and I do [not] have any doubt that if I heard there was -- if I saw a certification from one side or the other -- well, presumably from the defendant -- that said this issue was very specifically discussed[,] and we had an understanding with the attorneys when the agreement was being drafted and -- and signed, that [] might raise a factual issue. That [is] an interesting problem, but I do [not] have it now. I do [not] have those types of certifications before me[,] and I -- I have no reason to delay acting on this application at this point.

On appeal, defendants argue as they did below, that plaintiff "clearly violated the terms of the Stipulation of Settlement." Defendants contend that plaintiff's obligation to "operate and maintain" the kiosk was "not referring to simply maintaining the appearance of the kiosk hardware," but included "stocking and selling [] merchandise." Simply stated, defendants claim that Paragraph 19 of the Stipulation requires plaintiff to sell the same quality of product, and advertise that product in the same fashion, as it sells and advertises at the kiosk in Trump Tower in New York City.

A settlement between parties to a lawsuit is a contract, like any other contract, Nolan v. Lee Ho, 120 N.J. 465, 472 (1990), which "may be freely entered into and which a court, absent a demonstration of 'fraud or other compelling circumstances' should honor and enforce as it does other contracts. Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.) (quoting Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974)), certif. denied, 94 N.J. 600 (1983). An enforceable bilateral agreement requires an offer, an acceptance, consideration, and a meeting of the minds upon all the essential terms of the agreement. Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992). "[I]f [the] parties agree on essential terms and manifest an intention to be bound by those terms, they have created an enforceable contract." Weichert, supra, 128 N.J. at 435.

Contract interpretation is a legal issue for the court to decide in the first instance. Camden Bd. of Educ. v. Alexander, 181 N.J. 187, 194 (2004). The "[p]olestar of contract construction is to discover the intention of the parties as revealed by the language used by them." Karl's Sales and Service, Inc., v. Gimbel Bros., Inc., 249 N.J. Super. 487, 492 (App. Div.), certif. denied, 127 N.J. 548 (1991). In order to do so, the language used must be interpreted "in accord with justice and common sense." Ibid. "An agreement must be construed in the context of the circumstances under which it was entered into[,] and it must be accorded a rational meaning in keeping with the expressed general purpose." Tessmar v. Grosner, 23 N.J. 193, 201 (1957). See also, City of Orange Twp. v. Empire Mortg. Serv., 341 N.J. Super. 216, 224 (App. Div. 2001) (holding that "[w]here 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").

A court has no right to rewrite the terms of the contract "merely because one might conclude that it might well have been functionally desirable to draft it differently." Id. at 224. Moreover, the court may not make a better contract for the parties than they have seemed fit to enter into or alter it for the benefit or detriment of one of the parties. James v. Federal Ins. Co., 5 N.J. 21, 24 (1950). Even where the parties' intention is "doubtful or obscure, the most fair and reasonable construction, imputing the least hardship on either of the contracting parties, should be adopted so that neither will have an unfair or unreasonable advantage over the other." Tessmar, supra, 23 N.J. at 201. (internal citations omitted).

Reviewing courts "'do not disturb the factual findings and legal conclusions of the [motion] judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Tp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). However, "[a] [motion judge's] interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We have carefully considered defendants' argument in light of the applicable law. We conclude that their contention is without merit and does not warrant an extended discussion in a full, written opinion. Judge Todd's construction of Paragraph 19 of the Stipulation, as it pertains to plaintiff's obligation to "maintain and operate" the kiosk in a manner consistent with plaintiff's kiosk in Trump Tower, was a fair and reasonable interpretation of the provision based upon the record before him. Karl's Sales and Service, Inc., supra, 249 N.J. Super. at 492. Accordingly, we affirm substantially for the reasons expressed by Judge Todd in his oral opinion of September 23, 2005. R. 2:11-3(e)(1)(A) and (E).

Affirmed.

 

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A-0909-05T3

October 26, 2006