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,

Plaintiffs-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. C000102-15.

NOT FOR PUBLICATION WITHOUT THE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.
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Thomas P. Scrivo argued the cause for appellants (Cole 

Schotz, PC, and O'Toole Scrivo Fernandez Weiner Van 

Lieu, LLC, attorneys; Thomas P. Scrivo, of counsel and 

on the briefs; Greg Trif and Andrew Gimigliano, on the 

briefs).

William P. Munday argued the cause for respondent

(McCusker, Anselmi, Rosen & Carvelli, PC, attorneys; 

William P. Munday, Samuel B. Santo, Jr., and James 

Harry 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 

compelling 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 affirm.

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-5578-15 (App. Div. October 

24, 2017), to give context to the issue in this matter. The earlier appeal arose

from an action filed by plaintiffs, seeking enforcement 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. 
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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 

provision was an essential term of the parties' settlement agreement. We 

affirmed enforcement of the settlement agreement regarding the purchase of 

Berman's fifty-percent share in JHCA without the tax provision sought by 

Berman. We explained Berman's agreement to relinquish his half-interest in 

JHCA for a specific sum "was the essence of the settlement." Straus, slip op. at 

11. We held:

The Agreement contained terms identifying the interest 

to be transferred, the parties to the transfer, the price, 

the timeline, 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 plaintiffs 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 our opinion prompted Berman to 
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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, plaintiffs 

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 plaintiffs' 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 judge 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 CareOne] occupy the premises so that rent is supposed to 

be paid." 
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On January 31, 2018, plaintiffs filed a motion for reconsideration, which 

the judge denied. In his written decision denying reconsideration, the judge 

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 reflected rent was to be paid until the 

date of closing. 

The 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." 

The Chancery judge also held even if "Berman wrongfully violated his 

contractual obligations by disregarding the closing date, and even if this 

violation constituted a material breach of the settlement agreement, [plaintiffs] 
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would not be justified to withhold Berman's rent distributions in response." The 

judge rejected plaintiffs' 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 erase 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 interest in JHCA, which owned the property

leased to CareOne. Berman was entitled to share in the 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 Berman's entitlement to rent payments did not 

foreclose plaintiffs' pursuit of a separate litigation alleging Berman breached the 

settlement agreement and caused financial 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] free 
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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 agreement between parties to a lawsuit is a contract." Nolan 

v. Lee Ho, 120 N.J. 465, 472 (1990) (citing Pascarella 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 agreement 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 share in JHCA provided for the payment of rent "until 

 

2

 Plaintiffs have filed a separate lawsuit, alleging defendants breached the 

settlement agreement and demanding damages as a result.
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closing." Plaintiffs do not contend the settlement agreement is ambiguous or 

unenforceable. Rather, plaintiffs selectively choose the provisions of the 

settlement agreement that should be enforced. At no time in the original 

mediation agreement, the various drafts of the settlement agreement, or the 

Chancery judge's orders, is there a specific date established by which rent 

payments to Berman ceased. 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. The 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." 

Plaintiffs had no right to exercise self-help and cease making rent 

payments 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; and 
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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, 2016 order fails to justify refusing 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 monthly rent from 

CareOne. The settlement agreement was unambiguous and required the 

payment of rent to Berman "until closing."

Affirmed.