NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3856-17T2
PAONESSA COLON & RECTAL
SURGERY, PC,
Plaintiff-Respondent,
v.
CERNERO CHILDREN'S TRUST and
JMC MANAGEMENT GROUP, LLC,
Defendants/Third-Party
Plaintiffs-Appellants,
v.
NINA PAONESSA, Individually and
as Guarantor of Paonessa Colon &
Rectal Surgery, PC,
Third-Party Defendant-
Respondent.
___________________________________
Submitted June 5, 2019 – Decided June 14, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-0825-15.
James F. Weber, attorney for appellants.
McOmber & McOmber, PC, attorneys for respondents
(R. Armen McOmber, of counsel and on the brief).
PER CURIAM
This appeal stems from a commercial lease. The lease provided that if a party
had to retain an attorney to enforce any lease provision, the other party would be
liable for reasonable costs and attorney's fees. Due to the landlord's anticipatory
breach of the lease, plaintiff, Paonessa Colon & Rectal Surgery, PC, the tenant,
retained an attorney who successfully filed a declaratory judgment action and
obtained a summary judgment order enforcing the lease as written. The summary
judgement is not challenged on this appeal. In separate orders, the court awarded
plaintiff counsel fees and costs and denied defendants' motion for reconsideration.
Defendants, Cernero Children's Trust (Cernero), the landlord, and JMC
Management Group, LLC (JMC), appeal from an order that denied reconsideration
of the order awarding plaintiff attorney's fees. They argue that the lease term that
provides for fees requires an actual breach or violation of the lease. We disagree.
The lease provision at issue, paragraph thirty-five, states in relevant part:
In the event that Landlord must retain an attorney to
collect rent, enforce any provision of this Lease,
successfully defend any action brought by or on behalf of
Tenant, or regain possession of the premises, Tenant shall
be liable to Landlord for all reasonable costs and attorney
A-3856-17T2
2
fees associated therewith and actually incurred. In the
event that Tenant must retain an attorney to enforce any
provision of this Lease or successfully defend any action
brought by or on behalf of Landlord, Landlord shall be
liable for all reasonable attorney fees associated therewith
and actually incurred.
(Emphasis added).
In his written statement of reasons for awarding plaintiff attorney's fees, Judge
Dennis R. O'Brien rejected defendants' argument based on the unambiguous
language of the "fully integrated lease." Judge O'Brien would "not read language
into the terms of the lease." Rather, the judge enforced the lease as written.
We affirm, substantially for the reasons expressed by Judge O'Brien.
Defendants' arguments are without sufficient merit to warrant further discussion.
R. 2:11-3(e)(1)(E).
Affirmed.
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