SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 3523

- 17T2 STRAUS ASSOCIATES II and 11 HISTORY LANE OPERATING COMPANY, LLC , d/b/a CAREONE AT JACKSON , Plaintiff s - Appellants ,

v. MURRAY BERMAN , Defendant

- Respondent,
and
JACKSON HEALTH CARE ASSOCIATES, Defendant

.

_ ____________________________

Argued February 27, 2019

– Decided April 2, 2019 Before Judges Koblitz, Currier and Mayer. On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C

000 102

- 15

.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

- 3.2 A

- 3523

- 17T2 Thomas P. Scrivo argued the cause for appellant s ( Cole Schotz, PC , and O'Toole Sc rivo Fernandez Weiner Van Lieu, LLC , attorneys; Thomas P. Scrivo, of counsel and on the brief s ; Greg Trif and Andrew Gimigliano, on the brief s ). William P . Munday argued the cause for respondent ( McCusker, Anselmi, Rosen & Carvelli, PC, attorneys; Wi lliam P . Munday, Samuel B. Santo, Jr., and James H ar ry Oliverio, on the brief).
PER CURIAM Plaintiffs Straus Associates II and 11 History Lane Operating Company,
LLC , d/b/a CareOne at Jackson (CareOne ) appeal from a January 19, 2018 order
compe lling the payment of rent "up to the date of closing" to defendants Murray Berman and Jackson Health Care Associates ( JHCA )

. 1 Plaintiffs also appeal from a March 16, 2018 order denying reconsideration. We affir m. We recite some facts from our prior decision in Straus Associates II and 11 History Lane Operating Company, LLC d/b/a CareOne at Jackson v. Murray Berman and Jackson Health Care Associates , No. A

- 557 8

- 15 (App. Div. October
24 , 2017) , to give context to the issue i n this matter

. T he earlier appeal arose from a n action filed by plaintiffs , seeking enforc ement of a settlement agreement between the parties regarding the sale of Berman's share in JHCA . The

1 The partnership JHCA owns the property leased to CareOne. Straus and Berman were partners in JHCA.3 A

- 3523

- 17T2

Chancery judge issued a May 13, 2016 order directing Berman to close on the sale of his interest in JHCA to plaintiffs within thirty days and reaffirmed plaintiffs' obligation to pay rent to Berman until the date of closing. Berman appealed from the May 13, 2016 order , arguing a certain tax
prov ision was an essential term of the parties ' settlement agreement . W e affirmed enforcement of the settlement agreement regarding the purchase of Berman's fifty

- percent share in JHCA without the tax provision sou g h t by
Berman

. We explained Berman's agreeme nt to relinquish his half

- interest in
JHCA for a specific sum "was the e ssence of the settlement." S traus , s lip op. at 11. We held :

The Agreement contained terms identifying the interest to be transferred, the parties to the transfer, the price, the time line, and the financial obligations of the parties pending closing. Thus, there are no missing terms essential to complete the transfer. [ Id

. at 11

- 12.] Plaintiffs did not file a cross

- appeal from the May 13, 2016 order

. Nor did p laintiffs seek relief, either from the trial court or this court, regarding the obligation to pay rent to Berman " until closing

. " After issuance of our opinion in October 2017 , no closing occurred. The lack of any action by plaintiffs subsequent to o ur opinion p rompted Berman to4 A

- 3523

- 17T2

file a motion on December 12, 2017, seeking enforcement of the settlement agreement and demanding payment of $7.5 million for his interest in JHCA and
rent arrears accruing through the date of closing. In January 2018 , p laintiff s filed a cross - motion to enforce litigants' rights by directing Berman to comply with the May 13, 2016 order by executing the settlement agreement and closing within ten days. On January 19, 2018, the Chancery judge granted Berman's motion and denied plaintiff s' cross

- motion. The judge ordered plaintiffs to " execut [e] and deliver [] the [f]inal [s]ettlement [a]greement , in the form attached to the [c]ourt 's May 13, 2016 order , to [Berman , ]

. . . close on the settlement within thirty days, and

. . . make the required settlement payment of $7,500,000.00 to [ Berman ]." The judge also ordered plaintiffs to pay "back rent due to [Berman] for . . . CareOne's lease of the Property in addition to any rental payments accruing now until the date of closing." The judg e required plaintiffs to pay rent to Berman accruing through the date of the closing consistent with the terms of the parties' settlement agreement. The judge stated, "[t]he settlement was pretty clear. Rent was supposed to be paid. [Plaintiffs had Care One] occupy the premises so that rent is supposed to be paid."5 A

- 3523

- 17T2

On January 31, 2018, p laintiffs filed a motion for reconsideration, which the judge denied. In his written decision denying reconsideration, the jud ge rejected plaintiffs' argument that the court's decision "favored Berman's contractual rights over [plaintiffs'] by excusing his nineteen

- month closing delay without excusing [plaintiffs'] concurrent rent obligation

. " The judge also found plaintiffs' claimed right to suspend rent payments when Berman declined to close and pursued his appeal of the May 13, 2016 order was contrary to the plain language of the parties' agreement. Every document memorializing the agreement between the parties to purchase Berman's fifty

- percent interest in JHCA ref lected rent was to be paid until the date of closing

. T he judge declined to rewrite the payment of rent provision as agreed to by the parties. The judge held , "[t]he [c]ourt is not now empowered to determine whether the [rent] cap was omitted because of an oversight; the [c]ourt can conclude only that the settlement agreement as written has no rental cap. To impose it now would give [plaintiffs] more than it bargained for."
T he Chancery judge also held even if " Berman wrongfully violated his
contrac tual ob ligations by disregarding the closing date, and even if this violation constituted a material breach of the settlement agreement, [plaintiffs]6 A

- 3523

- 17T2

would not be justified to withhold Berman's rent distributions in response." The judge rejected plaintiff s' demand to "enforce the terms [of the settlement agreement] it deems favorable and discharge others." The judge concluded plaintiffs' argument would "preserve the buyout provision, would preserve the mandatory closing deadline, but would arbitrarily era se the rent payment provision. This sort of selective performance is simply not an available remedy for breach

– the aggrieved party must take the contract as it is or not at all." The judge further held Berman did not receive an unjust windfall by pursuing an appeal of the May 13, 2016 order. Since 2016, CareOne paid rent and Berman held a fifty

- percent inter est in JHCA , which owned the property leased to CareOne. Berman wa s entitled to share in t he profits, risks , and liabilities as a fifty

- percent owner of JHCA. In addition, plaintiffs did not pay the $7.5 million purchase price for Berman's interest in JHCA and had the
benefit of interest on that amount since 2016. The judge explained that Be rman's entitlement to rent payments did not foreclose plaintiffs' pursuit of a separate litigation alleging Berman breached the settlement agreement and caused f inancial injury as a result . The Chancery judge found the only issues before him were "whether and how the settlement agreement shall be enforced. With those questions decided, [plaintiffs are] free7 A

- 3523

- 17T2

to bring a new suit to allege Berman materially breached and to recover whatever damages that breach caused." 2 On appeal, plaintiffs contend the Chancery judge erred by: (1) not enforcing the settlement agreements as written, and (2) abusing his discretion in concluding plaintiffs were obligated to pay rent arrears after the contractual and
court

- ordered closing dates

.

" A settlement agreemen t between parties to a lawsuit is a contract. " Nolan
v. Lee Ho , 120 N.J. 465, 472 (1990) (citing Pasc arella v. Bruck , 190 N.J. Super. 118, 124 (App. Div. 1983))

. Where the contract terms are clear, "it is the function of a court to enforce [the contract] as written and not to make a better contract for either of the parties ." Kampf v. Franklin Life Ins. Co. , 33 N.J. 36, 43 (1960). An unambiguous settlement agreem ent between sophisticated parties should be enforced in accordance with "the plain and clear language they chose."
See CSFB 2001

- CP

- 4 Princeton Park Corp

. Ctr

. , LLC v. SB Rental I, LLC , 410 N.J. Super. 114, 120 (App. Div. 2009). Here, the plain terms in each iteration of the agreement between the parties for the sale of Berman's s hare in JHCA provided for the payment of rent "until

2 Plaintiffs have filed a separate lawsuit, alleging defe ndants breached the settlement agreement and demanding damages as a result

.8 A

- 3523

- 17T2

closing." Plaintiffs do not contend the settlement agreement is ambiguous or unenforceable . Rather, plaintiffs selectiv ely choose the provisions of the
settlement agreement that should be enforce d . At no time in the original mediation agreement, the various drafts of the settlement agreement, or the Chancery judge's orders, i s there a specific date established by which re nt payments to Berman cease d . The agreements and the Chancery judge's orders explicitly provide rent would be paid until closing. The determination that rent is due until closing is supported by the language in the court's May 13, 2016 order. T he judge deleted plaintiffs' proposed language that there would be no obligation to pay rent to Berman accruing " after February 25, 2016 (the agreed upon closing date )." Instead, the judge handwrote, "[p]laintiffs are obligated to Berman for any rental payments accruing until the date of closing." The judge explained his reason for revising the form of order, stating "it's only fair since the closing didn't occur that the rents be paid through closing."
Plaintif fs had no right to exercise self

- help and cease making rent payment s to Berman on a self

- selected date . As of June 2016, we note the following: closing had not taken place ; Berman remained a partner in JHCA;
CareOne occupied the property owned by JHCA and paid monthly rent; and9 A

- 3523

- 17T2

plaintiffs had the use of the $7.5 million, representing the purchase price for Berman's share in JHCA. Plaintiffs' contention they were prepared to close but for Berman's appeal from the May 13, 2 016 order fails to justify refusin g to pay rent under these circumstances. During the nineteen months that Berman's appeal was pending, plaintiffs not only retained the use of the $7.5 million to be paid to Berman for the purchase of his interest in JHCA, but also continued to collect mo nthly rent from
CareOne. The settlement agreement was unambiguous and required the payment of rent to Berman "until closing ." Affirmed.