HAN YANG PLAZA, LLC N/K/A MORE CHERRY HILL PLAZA, LLC v. OPTICAL CENTER et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2326-04T12326-04T1

HAN YANG PLAZA, LLC N/K/A MORE

CHERRY HILL PLAZA, LLC,

Plaintiff-Respondent,

v.

OPTICAL CENTER and JUNGHAE C. LEE,

Defendants-Appellants.

_______________________________________

 

Submitted November 30, 2005 - Decided January 13, 2006

Before Judges Grall and Lihotz.

On appeal from Superior Court of New Jersey, Special Civil Part, Camden County, Docket No. CAM-LT-5615-04.

The Stuart Law Office, attorneys for the appellant (Ian Stewart, on the brief).

Fleisher & Fleischer, attorneys for respondent (Nicola G. Suglia, on the brief).

PER CURIAM

Defendants, Junghae C. Lee, and Optical Center appeal the final judgment entered in favor of the plaintiff-landlord, Han Yang Plaza, LLC n/k/a More Cherry Hill Plaza, LLC, enforcing the use and occupancy terms of the parties' commercial lease. The judgment precludes the sale of cosmetics from the premises leased by Dr. Lee, as the lease recites the specified use for "OPTICIANS." Because the trial court's findings are supported by credible evidence in the record and the conclusions are consistent with controlling legal principles, we affirm substantially for the reasons stated by Judge Laskin in his oral decision issued October 14, 2004.

Plaintiff's representative, Yong Choi, executed the commercial lease with defendant, Dr. Lee, to occupy one of several store fronts in the D & Q Plaza, Cherry Hill. Dr. Lee, an optometrist, commenced her tenancy on May 1, 1997. After the initial five year term the lease was renewed for another five years.

The possession and use clause of the lease states: "the Tenant shall take possession of and use the Leased Property for the purpose stated above." That reference is to an unnumbered provision of the lease entitled "USE OF LEASED PROPERTY: OPTICIANS."

Dr. Lee, is an optometrist. Characterizing her business as "a[n] eye care and skin care business," she differentiated the work of an optometrist and that of an optician explaining: a doctor of optometry performs routine eye exams, diagnoses cataracts and glaucoma, treats eye diseases, sells glasses, contact lenses and hearing aides and makes referrals for Lasik surgery; an optician is only permitted to sell glasses. Dr. Lee stated the lease utilized the word "OPTICIAN" as a loose reference to the services provided by her business because in Korean, a language both she and Choi spoke, the word covered services of either opticians or optometrists.

In March of 2001, Dr. Lee began selling Shiseido cosmetics from her store. She asserted that although Choi knew of the cosmetic sales from the premises because his wife was one of her customers, he took no action to stop the sales.

Kimberly Chong, who became plaintiff's property manager in 2001, stated another shopping center tenant's lease authorized the sale of Shiseido cosmetics. Thus, Dr. Lee's utilization of her location for something other than the lease's permitted use, violates the terms of the lease and adversely impacts the other tenant's exclusive authorized use.

Chong placed a telephone call to Dr. Lee and sent written notice to cease the sale of cosmetics in early 2002. Dr. Lee acknowledged receipt of that notice but maintains plaintiff made no further issue of the sale of cosmetics until its attorney sent her correspondence in June 2004.

The complaint filed in this matter sought to remove the defendant from the premises for the non-payment of rent and for the breach of the lease contract because the leased premises were used for the purpose of selling cosmetics. During the October 14, 2004 hearing in landlord-tenant court, the parties resolved the rental payment issue. Unresolved was the landlord's claim of default as a result of the sale of cosmetics from the leasehold.

Defendant's primary contention is the use and occupancy clause of the lease is ambiguous, and should be construed broadly to permit a wide range of eye care services including cosmetic sales. She asserts the lease term "optician" was not meant to be limiting, because the parties found no word in the Korean language to describe the work she performs. Additionally, Choi's past inaction despite his knowledge, acts as an oral modification of the lease terms, permitting the use.

Judge Laskin in his findings and conclusions followed well-settled rules governing the construction of lease agreements.

Thereafter, the court entered an order dated November 1, 2004, requiring the tenant to "completely cease and desist from selling cosmetics by or before April 10, 2005."

The scope of appellate review of a trial court's fact-finding function is limited: "findings of the trial court should be affirmed if supported by sufficient credible evidence in the record." Nester v. O'Donnell, 301 N.J. Super. 198, 206 (App. Div. 1997) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)); N.J. Tpk. Auth. v. Sisselman, 106 N.J. Super. 358, 370 (App. Div.), certif. denied, 54 N.J. 565 (1969). The function of the court is to enforce the lease as written. The parties' intention, as disclosed by the language used in the document, taken in its entirety, controls the meaning of their contract. Cruz-Mendez v. ISU/Ins. Servs., 156 N.J. 556, 570 (1999); Liqui-Box Corp. v. Estate of Elkman, 238 N.J. Super. 588, 599 (App. Div. 1990); Renee Cleaners, Inc. v. Good Deal Super Markets, Inc., 89 N.J. Super. 186, 190 (App. Div. 1965). If that intention is clear from the contract itself, we may not alter the terms, or write a different or better contract for the parties. Swisscraft Novelty Co., Inc. v. Alad Realty Corp., 113 N.J. Super. 416, 421 (App. Div. 1971). In the event of ambiguity, to aid in ascertaining the parties' intention, the court may resort to proof of the circumstances under which the contract was made. City of Orange Twp. v. Empire Mortg. Servs., 341 N.J. Super. 216, 227 (App. Div. 2001).

 
The plain terms of this lease agreement support Judge Laskin's construction of the document. No ambiguity in its terms preclude the landlord's enforcement of the stated use for services generally rendered by opticians or optometrists. No ambiguity in its terms permit the sale of cosmetics. On the evidence presented, we cannot conclude plaintiff either acquiesced to Dr. Lee's use so as to make prospective enforcement unreasonable or waived the right to prospectively enforce the lease by accepting rent. City of E. Orange v. Bd. of Water Comm'rs, 41 N.J. 6, 17-18 (1963); Young v. Savinon, 201 N.J. Super. 1, 10 (App. Div. 1985). The lease itself expressly provided that the waiver of a violation shall not be construed as a waiver of a subsequent violation.

Affirmed.

Optical Center is presumed to be Dr. Lee's business.

Throughout reference is made only to Dr. Lee as the defendant, despite the inclusion of Optical Center as a party.

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A-2326-04T1

January 13, 2006