ANTHANASIOS DELIMARIS et al. v. COUNTY OF CAMDEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6006-04T56006-04T5

ANTHANASIOS DELIMARIS and

BALCONI, INC., t/a THE

LOBSTER TRAP,

Plaintiffs-Appellants/

Cross-Respondents,

v.

COUNTY OF CAMDEN,

Defendant-Respondent/

Cross-Appellant.

________________________________

 

Argued September 26, 2006 - Decided October 13, 2006

Before Judges Lisa and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-4118-04.

Jeffrey P. Resnick argued the cause for appellants/cross-respondents (Sherman, Silverstein, Kohl, Rose & Podolsky, attorneys; Alan C. Milstein and Mr. Resnick, of counsel and on the brief).

Howard L. Goldberg, Assistant Camden County Counsel argued the cause for respondent/cross-appellant (Deborah Silverman Katz, Camden County Counsel, attorney; Mr. Goldberg, on the brief).

PER CURIAM

Plaintiffs, Anthanasios Delimaris and Balconi, Inc., t/a The Lobster Trap, appeal from a summary judgment dismissing their complaint. Defendant, County of Camden, cross-appeals from an order denying its request for counsel fees. We affirm on the appeal and cross-appeal.

Plaintiffs' claims arose out of a lease with the County, after public bidding, by which plaintiffs operate a restaurant in a County-owned building in a Camden County Park. In 1993, the County advertised for proposals for a lease of an existing building to be operated as a snack bar and restaurant. The building is located in a park along the Cooper River in Pennsauken Township. The parkland surrounding the subject building is extensive and is open to the public for multiple recreational uses. The bid specifications expressly prohibited the sale of alcoholic beverages.

Plaintiffs were the successful bidders. The County adopted a resolution on April 22, 1993 authorizing a lease with plaintiffs. The lease was executed on March 18, 1994. In accordance with the bid specifications, it provided for a ten-year term commencing April 1, 1994, with a ten-year option, which plaintiffs would have the right of first refusal to exercise.

The agreement acknowledged the parties' understanding that the use of the building as a restaurant was a permitted use under Pennsauken's zoning code. The agreement further provided that plaintiffs would submit any plans or specifications which may need approval by the Township of Pennsauken and that the County agreed it would cooperate with plaintiffs "in obtaining all necessary permits, variances[,] licenses, etc." We have been provided with a portion of the minutes of a Pennsauken Planning Board work session, held on May 4, 1993, at which the County and plaintiffs made a joint presentation of conceptual plans. In their entirety, the minutes describe the presentation as follows:

The existing building was shown. The deck will be used for dining - part of it is covered. Trees are proposed. Additional parking will be added. Handicapped parking will be provided. It will be open seven days a week, seven months a year. Hours of operation will be 9: 00 A.M. until 11:00 P.M. There will be no inside seating.

Plaintiffs operated the restaurant for several years, after which they approached the County and sought permission to serve alcoholic beverages. It was determined that this would constitute a material change in the original bid specifications and would therefore require re-bidding. On September 3, 1998, plaintiffs and the County entered into an agreement terminating the 1994 lease. The County advertised for new bids. The specifications provided that the purpose of the bids was to enter into a lease "to operate a restaurant facility, including the sale of alcoholic beverages" in the subject building. Plaintiffs were the only bidders, and the County accepted their proposal. On September 17, 1998, the County adopted a resolution authorizing a lease "for a term of ten (10) years, with a five (5) year option." The specifications expressly provided: "The lease to be issued by the County of Camden shall be for a term of ten (10) years. The Board of Chosen Freeholders shall have the sole option of extending the lease for an additional five (5) years." Plaintiffs' bid proposed a ten year lease with a five year option, without specifying which party would have the option to renew.

The new lease agreement was entered into on January 29, 1999. Consistent with the bid specifications, the term of the lease was for ten years, commencing February 1, 1999, with "an optional five (5) year extension which may be solely exercised by the Board of Chosen Freeholders of the County of Camden." In accordance with a request submitted by correspondence from plaintiffs' attorney, in negotiating the specific language of the lease, this provision further provided that the County would exercise the five-year option unless it decided "to terminate the use of the building as a restaurant bar or the tenant is in breach of this lease." Another provision in the lease provided for an increased rental to be paid by plaintiffs during the five-year extension period. The provision began with the following: "The COUNTY and DELIMARIS and BALCONI agree to a five (5) year option to the original ten (10) year term, which option shall be solely exercised by the County of Camden. If said five (5) year option is exercised by the COUNTY . . . ." Plaintiffs continued their operation of the restaurant. It evolved into a year-round full-service restaurant with indoor seating.

At all times since the inception of the first lease, a parking area existed in front of the restaurant building. Other parking areas exist throughout the park. All of these parking areas are for use by members of the public who are utilizing the park and its various amenities, including this restaurant. Parking has always been on a first-come, first-served basis. Neither lease and neither set of bid specifications contained any provisions for parking, and no dedicated parking spaces were ever provided for the restaurant.

In approximately 2003, the County installed a new playground area in close proximity to the restaurant. According to plaintiffs, this intensified traffic in the immediate area of the restaurant and infringed upon available parking for its employees and customers. Plaintiffs placed signs purporting to designate certain parking spaces as restricted to restaurant use. The County required removal of the signs. Plaintiffs also attempted to create a private parking area. The County objected. Some negotiations in an effort to resolve the problem were unsuccessful.

During this time frame, plaintiffs also submitted some letters to the County requesting permission to construct a new addition to the existing building, described in one letter as being approximately 2,800 square feet, to be used as a banquet and catering facility. The County responded to each letter. It declined to approve this major expansion. In one such response, a County freeholder advised plaintiffs:

As a result of the Cooper River's increased popularity, there has also been an increase in requests for facilities in the park. I am establishing a Cooper River Planning Committee whose sole purpose will be to evaluate proposals and develop guidelines for expansions to the park. A long-range plan is needed to secure the future beauty of Cooper River Park.

I will be happy to forward Mr. Delimaris' request for a banquet facility to the committee at the appropriate time. Until then, please advise your client to refrain from any and all exterior building alterations.

Plaintiffs commenced this action. They alleged the County breached the agreement by failing to provide additional parking and by refusing to approve their expansion proposal. They also claimed that the lease should have provided plaintiffs with a right of first refusal to exercise the five year renewal option, rather than the County. They contended that the lease was mistakenly prepared to the contrary by virtue of a scrivener's error or mutual mistake. Plaintiffs sought specific performance or reformation to (1) enforce an alleged promise by the County to provide additional parking; (2) prohibit the County from seeking to void the lease, and, in connection with this demand, ordering that the lease be reformed to provide plaintiffs (rather than the County) the option to renew; and (3) require the County to approve plaintiffs' expansion proposal. The complaint also sought $500,000 in damages for loss of business and other damages.

The trial court granted the County's motion for summary judgment, finding that based upon the contract documents, no material facts were in dispute and the County was entitled to judgment as a matter of law. The County then moved for counsel fees pursuant to Rule 1:4-8 and N.J.S.A. 2A:15-59.1, contending that plaintiffs' claims were frivolous. The judge denied the motion and also denied the County's subsequent reconsideration motion. This appeal and cross-appeal followed.

We first note that the record on appeal does not include a statement of all items submitted to the trial court on the summary judgment motion as required by Rule 2:6-1(a)(1). We have been furnished with the contract documents, including the bid specifications, plaintiffs' bid proposals, resolutions awarding the bids, and the contracts themselves, with respect to both transactions. We have also been provided with various letters exchanged between the parties regarding parking spaces, the proposed expansion of the building and the like. And we have been furnished the one-page document consisting of a portion of the minutes of the May 4, 1993 Pennsauken Planning Board meeting. We have been provided no certifications or affidavits that may have been made part of the motion record. Of course, our decision is based upon only the materials furnished to us.

Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2. . . . [W]hen the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (citations omitted). On appeal, we apply the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).

Applying these principles, it is plain to us that, viewing the evidence most favorably to plaintiffs, no rational factfinder could find they were entitled to the relief they requested. The 1999 agreement (as well as the earlier one) simply does not provide for parking. Therefore, the County could not have breached its agreement with plaintiffs by failing to provide some amount of parking, dedicated or not, as plaintiffs may desire. The representations made at the Pennsauken Planning Board in 1993 do not support plaintiffs' claim and do not establish a genuine factual issue. Obviously, the restaurant has operated since 1994. Whatever representation was made to the local planning board, more than a decade before the institution of this lawsuit, about additional parking and handicapped parking for a seasonal outdoor snack bar has no relevance to the current operation and, in any event, does not provide the basis for any contractual obligation on the County's part.

There was no scrivener's error in drafting the 1999 agreement to provide the County with the sole option to exercise the five-year renewal option. This provision was plainly expressed in the bid specifications. We find disingenuous plaintiffs' contention that they believed they, not the County, were entitled to exercise the option because that was the arrangement in the 1994 agreement. Through counsel, plaintiffs specifically negotiated a beneficial enhancement of the option renewal provision, persuading the County to agree that the County would exercise the option unless it terminated the use of the building as a restaurant altogether. And, of course, plaintiffs signed the lease agreement, which in plain language, and in two separate provisions, clearly and unambiguously provided that the County possessed the sole option to exercise the renewal option.

With respect to the proposed building expansion, we first note that the provision in the 1994 agreement was geared to zoning approvals for the initial startup of the snack bar operation. Thus, the County agreed to cooperate with plaintiffs in obtaining necessary permits, variances, licenses, and the like. Apparently, all cooperation that was needed was provided, because the operation began, and there is no evidence in the record of any lack of permits, licenses, or other necessary approvals. The 1999 agreement contained no such broad provision. It obligated plaintiffs to be responsible "for all costs of maintaining and/or repairing the facility." In that regard, plaintiffs had the right "to undertake, at its own expense, cosmetic and/or structural modifications to the facility, subject to the approval of the COUNTY and all applicable regulatory entities." And, it was agreed that the County would not unreasonably withhold such approval.

Plaintiffs' proposed expansion was certainly not routine maintenance or repairs and was not cosmetic in nature. Whether the proposed expansion was the type of "structural modification" contemplated by this provision is doubtful. Even if it were, however, there is no genuine issue as to whether the County unreasonably withheld its approval. The County's given reason for declining to approve the addition was a legitimate one, based upon sound governmental and planning principles. Plaintiffs have provided no competent evidence to refute the reasonableness of the County's action.

Further, there is serious question as to whether such a major expansion could be permitted under this public contract. The bid specifications were for the use of the existing building as a restaurant. The addition of a major new structural component, to be used for a related, but different purpose, a catering and banquet facility, might well be impermissible without re-bidding. The situation may be comparable to the addition of alcohol service, which did necessitate re-bidding.

Based upon the record before us, we are satisfied that, viewing the evidence most favorably to plaintiffs, their claims are not sustainable and summary judgment was properly granted to the County.

With respect to the County's cross-appeal, the award of counsel fees for bringing or maintaining a frivolous action are discretionary and should be awarded sparingly, only when entitlement to such relief is clearly warranted. Although plaintiffs' claims lacked merit and were properly dismissed on summary judgment, we are not persuaded that plaintiffs had no basis in law or in fact to assert the claims. With respect to the proposed building expansion, for example, plaintiffs relied upon contract language in both agreements which might provide a basis for their claim. We decline to find a mistaken exercise of discretion by the trial judge in denying counsel fees.

 
Affirmed.

(continued)

(continued)

12

A-6006-04T5

 

October 13, 2006