SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0556-15T3

CANON FINANCIAL SERVICES,

INC.,

Plaintiff-Respondent,

v.

LINWOOD CITY BOARD OF

EDUCATION,

Defendant-Appellant,

and

QUALITY FIRST, INC.,

 Defendant,

and

LINWOOD CITY BOARD OF

EDUCATION,

Defendant/Third-Party

Plaintiff,

v. 

DOUGLAS GREEN, JR. and

DOUGLAS GREEN, SR.,

Third-Party Defendants.

________________________________

Argued April 26, 2017 – Decided

NOT FOR PUBLICATION WITHOUT THE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.

June 12, 2017
2 A-0556-15T3

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey, 

Law Division, Burlington County, Docket No. 

L-368-09. 

Christopher A. Barrett argued the cause for 

appellant (Cooper Levenson, P.A., attorneys; 

Mr. Barrett, on the briefs).

Howard N. Sobel argued the cause for

respondents (Law Offices of Howard N. Sobel, 

P.A., attorneys; Mr. Sobel, of counsel and on 

the brief; Margaret D. Nikolis, on the brief).

PER CURIAM

Linwood City Board of Education (LBOE) appeals from the trial 

court's order enforcing a settlement between LBOE and Canon 

Financial Services (CFS). Having reviewed the record in light of 

applicable legal principles, we affirm.

This appeal is rooted in a dispute over the lease of copiers. 

On November 3, 2006, LBOE and CFS entered into a lease (Lease) for 

the provision of seven articulated copiers. Quality First (QF), 

an entity that had done business with the LBOE for many years, was 

to supply the copiers. Four days prior to the finalization of the 

Lease, LBOE's administrator acknowledged receipt of the copiers 

by her signature on the Lease's first page. The Lease called for 

monthly payments of $1938 for the seven copiers.

For twenty-four months, LBOE made timely, monthly payments. 

In November 2008, LBOE ceased payment claiming that it never 
3 A-0556-15T3

received two copiers called for in the Lease from QF. LBOE also 

claimed that it ceased payment due to QF's failure to service the 

copiers.

CFS instituted litigation against LBOE for breach of the 

Lease. QF was also named as a defendant for its failure to provide 

the two copiers LBOE alleged were never received.

LBOE filed an answer with a cross-claim against QF and its 

two principals, Douglas Green, Sr. and Douglas Green, Jr. (the 

Greens). Default judgment was entered in favor of CFS against QF 

after that entity failed to file a responsive pleading.1 Default 

judgment was entered in favor of LBOE against QF and the Greens, 

individually, after they failed to file a responsive pleading. No 

dollar amount was assigned to the judgment based upon an issue 

relating to LBOE's proofs on its consumer fraud claim. 

At the conclusion of discovery, CFS filed a motion for summary 

judgment. Subsequent thereto and prior to the hearing, CFS and 

the LBOE engaged in settlement discussions. The discussions 

resulted in an agreement (Agreement). The Agreement was approved 

by resolution of the Board of Education. Among its terms, the 

Agreement addressed the copiers:

1. Terms of Settlement

 

1 CFS paid QF approximately $102,000 after it received confirmation 

of the delivery of the copiers called for in the Lease.
4 A-0556-15T3

(a) CFS will provide two (2) refurbished Canon 

IR7095 photocopiers to LBOE. These 

photocopiers will be refurbished by Canon 

Business Solutions (hereinafter "CBS") solely 

at the cost of CFS. These photocopiers will 

be incorporated into the Lease Agreement as 

the substitutes for copiers IR6570, serial 

number SLP20311 and IR6570 serial number 

SLP20329, the two copiers which were ordered 

by the LBOE but never delivered by QF to 

LBOE[;]

(b) The refurbished Canon IR7095 photocopiers 

shall be delivered to the LBOE on or before 

September 15, 2011;

(c) Commencing on October 1, 2011[,] and 

continuing for thirty-six (36) months (ending 

September 1, 2014), the LBOE shall pay to CFS 

the sum of One Thousand Nine Hundred ThirtyEight Dollars ($1938[]) a month which 

represents the full, complete monthly 

stipulated remaining payments due and owing 

from the LBOE to CFS on Lease Agreement No. 

01-317093.01, except otherwise provided for in 

the Agreement;

(d) After LBOE pays the remaining thirty-six 

(36) lease payments due to CFS, the LBOE shall 

have the option to purchase the photocopiers 

under Lease No. 01-317093.01 and[/]or the 

substitute copiers provided by QF, at fair 

market value. In the alternative, with at 

least sixty (60) days['] notice to CFS, the 

LBOE shall advise CFS of their intention to 

return these photocopiers which remain on the 

premises that are subject of the aforesaid 

Lease and or were substitute copiers provided 

by QF. The return of these photocopiers shall 

be arranged by the LBOE to CFS per the Terms 

and Conditions of the Lease Agreement[;]

(e) These terms and conditions are made with 

the understanding that the LBOE is not 

currently in possession of the photocopiers 
5 A-0556-15T3

that were originally contained under the Lease 

No. 01-317093.01. However, LBOE recognizes 

as part of this Lease Agreement it is 

receiving two substitute copiers from CFS.

The Agreement also called for LBOE to make the remaining 

payments on the Lease. LBOE made all but the last two payments. 

After CFS filed a motion to enforce the Agreement, LBOE remitted 

those payments.

Per the Agreement, CFS also sought the return of the seven 

copiers subject to the Lease or the substituted copiers provided 

by QF. In return, CFS acknowledged that it was obligated to 

provide two replacement copiers. In opposition, LBOE argued that 

it would return the two copiers for the replacement copiers, but

was unable to return the remaining five copiers as it was not in 

possession of them. 

Subsequent to oral argument, the motion judge held that CFS 

was entitled to enforcement of the Agreement relative to the return 

of the five copiers or the payment of the fair market value of the 

copiers. Since LBOE maintained that it was not in possession of 

the copiers at issue, the judge, relying on a certification from 

Elaine Monti, a "Senior Legal Specialist" for CFS, ordered LBOE 

to pay $20,382.88 as the fair market value. 

On appeal, LBOE raises the following arguments:

POINT I
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THE TRIAL COURT ERRED IN IGNORING AND 

OTHERWISE NOT ADOPTING THE SETTLEMENT 

AGREEMENT'S PLAIN MEANING AND SUPPLYING ITS 

OWN INTERPRETATION.

POINT II

ALTERNATIVELY, IF THE SETTLEMENT AGREEMENT IS 

DEEMED AMBIGUOUS AND NOT SUBJECT TO A PLAIN 

LANGUAGE CONSTRUCTION, THE TRIAL COURT ERRED 

BY FAILING TO CONDUCT A PLENARY FACT[-]FINDING 

HEARING.

We are not persuaded by these arguments.

We briefly state the principles that guide our analysis. 

"Settlement of litigation ranks high in our public policy." Nolan 

v. Lee Ho, 120 N.J. 465, 472 (1990) (quoting Jannarone v. W.T. 

Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 35 N.J.

61 (1961)). In furtherance of the strong policy of enforcing 

settlements, "our courts 'strain to give effect to the terms of a 

settlement wherever possible.'" Brundage v. Estate of Carambio, 

195 N.J. 575, 601 (2008) (citation omitted). Therefore, an 

agreement to settle a lawsuit will be honored and enforced in the 

absence of fraud or other compelling circumstances. Pascarella 

v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.), certif. denied, 

94 N.J. 600 (1983).

The "[i]nterpretation of a settlement agreement implicates 

significant legal and policy principles[.]" Kaur v. Assured 

Lending Corp., 405 N.J. Super. 468, 474 (App. Div. 2009). When 
7 A-0556-15T3

examining the terms of a settlement agreement, we are guided by 

the rules of contract construction. Brundage, supra, 195 N.J. at 

600-01; see also Thompson v. City of Atl. City, 190 N.J. 359, 379 

(2007). "The polestar of contract construction is to discover the 

intention of the parties as revealed by the language used by them." 

Karl's Sales & Serv., Inc. v. Gimbel Bros., 249 N.J. Super. 487, 

492 (App. Div.), certif. denied, 127 N.J. 548 (1991). In 

interpreting a contract, the focus is on "the intention of the 

parties to the contract as revealed by the language used, taken 

as an entirety; and, in the quest for the intention, the situation 

of the parties, the attendant circumstances, and the objects they 

were thereby striving to attain[.]" Lederman v. Prudential Life 

Ins. Co. of Am., Inc., 385 N.J. Super. 324, 339 (App. Div.) 

(citation omitted), certif. denied, 188 N.J. 353 (2006). In that 

regard, the court may not re-write a contract or grant a better 

deal than that for which the parties expressly bargained. Solondz 

v. Kornmehl, 317 N.J. Super. 16, 21 (App. Div. 1998). Moreover, 

"any action which would have the effect of vitiating the provisions 

of a particular settlement agreement and the concomitant effect 

of undermining public confidence in the settlement process in 

general, should not be countenanced." Dep't of Pub. Advocate, 

Div. of Rate Counsel v. N.J. Bd. of Pub. Utils., 206 N.J. Super.

523, 528 (App. Div. 1985).
8 A-0556-15T3

Even where the language of a contract is clear on its face, 

courts may determine its meaning by looking to extrinsic evidence, 

such as "the situation of the parties, the attendant circumstances, 

and the objects there were . . . striving to attain." Atl. N. 

Airlines, Inc. v. Schwimmer, 12 N.J. 293, 301 (1953). Our courts 

"permit a broad use of extrinsic evidence to achieve the ultimate 

goal of discovering the intent of the parties." Conway v. 287 

Corporate Ctr. Assocs., 187 N.J. 259, 270 (2006). In Sachau v. 

Sachau, 206 N.J. 1, 5-6 (2011) (quoting Schwimmer, supra, 12 N.J.

at 302), the Court stated: "A court's role is to consider what is 

'written in the context of the circumstances' at the time of 

drafting and to apply 'a rational meaning in keeping with the 

expressed general purpose.'"

In this dispute regarding the interpretation of the Agreement 

and its enforcement, we find the resolution lies within the

language of the Lease, which explicitly referenced seven copiers. 

The litigation resolved by the Agreement invoked the non-payment 

by LBOE of the monthly charge for the lease of seven copiers. A 

matter in dispute relative to the litigation was LBOE's contention 

that, although it paid for the lease of seven copiers, it only 

received five copiers. In reaching an accord, CFS agreed to remedy 

that issue in contest by providing two replacement copiers. The 

Agreement also provided for an option to purchase the copiers 
9 A-0556-15T3

referred to in the Lease "and/or the substitute copiers provided 

by QF at fair market value." This language afforded LBOE the 

option to return the copiers referenced in the Lease or other 

substituted copiers. As such, the language referencing the lack 

of possession by LBOE of the copiers from the Lease did not vitiate 

its obligation to return five copiers. 

We are satisfied the judge correctly considered the Agreement 

as a whole and in the context of the resolution of the matters in 

dispute between the parties. In the judge's view, it was 

"inexplicable" that the LBOE paid the full monthly amount assigned 

by the Lease when it did not receive all seven copiers.

As the judge noted in her decision, no explanation from LBOE 

was provided for the missing copiers: 

The Board of Education has chosen not to 

provide me with a certification from anybody 

that would outline the history of this copier 

debacle which started nine years ago, almost 

nine years ago, with signing for seven, 

getting only two, maybe losing five, the 

middle of the night swap out of the machines. 

Nobody has bothered to tell me anything about 

that. All I know is counsel says my client 

told me they don't have them, they're not 

hiding in the schools, and we don't have to 

pay for them. But there are no inferences 

that can be drawn from the settlement 

agreement other than the Board of Education 

understood they were on the hook for seven 

copiers and they said they would return them 

or buy them, and they haven't returned them. 
10 A-0556-15T3

We agree. Construing the Agreement in the context of the 

conditions under which it was entered, we conclude the judge's 

interpretation of the Agreement was grounded in the law and

consistent with the circumstances under which it was drawn.

LBOE also argues that the monetary amount assigned by the 

judge as fair market value for the unreturned copiers was 

erroneous. However, similar to the lack of explanation by LBOE 

for the missing copiers, it offered no proof of value; having 

clung to its position that there were no copiers to return. The 

only proof submitted to the judge regarding value was the Monti 

certification. We find no abuse of discretion in the judge's 

assessment of the fair market value of the copiers by resort to 

that certification.

An award of damages must be calculated with reasonable 

certainty and should not be based upon "mere speculation." 

Caldwell v. Haynes, 136 N.J. 422, 442 (1994). Precision in such 

calculations is not essential. The trial record need only provide 

a sufficient "foundation which will enable the trier of the facts 

to make a fair and reasonable estimate." Id. at 436 (quoting Lane 

v. Oil Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987)). 

Here, the judge's determination of damages was grounded in the 

sole evidence presented and was not based upon speculation.
11 A-0556-15T3

Finally, LBOE argues that the judge erred in not granting its 

motion for reconsideration. Again, we disagree. 

We review the trial court's denial of a motion for 

reconsideration under an abuse of discretion standard. Marinelli 

v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). 

Reconsideration is "a matter within the sound discretion of the 

[c]ourt to be exercised in the interest of justice[.]" Palombi 

v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting 

D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). 

Reconsideration is appropriate if "1) the [c]ourt has expressed 

its decision based upon a palpably incorrect or irrational basis, 

or 2) it is obvious that the [c]ourt either did not consider, or 

failed to appreciate the significance of probative, competent 

evidence." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 

1996) (quoting D'Atria, supra, 242 N.J. Super. at 401); see also

Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-

62 (App. Div.), certif. denied, 174 N.J. 544 (2002). 

Reconsideration is not appropriate as a vehicle to bring to the 

court's attention evidence that was not present, but was available, 

in connection with initial argument. Fusco, supra, 349 N.J. Super.

at 463.
12 A-0556-15T3

Having considered the record in light of our standard of 

review and controlling legal principles, we discern no basis for 

error in the denial of the motion for reconsideration. 

Affirmed.