                                NOT FOR PUBLICATION WITHOUT THE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-3388-17T3

WATERFRONT MONTESSORI,
LLC,

          Plaintiff-Respondent,

v.

FRANK XU and XIAOMIN LI,

     Defendants-Appellants.
______________________________

                    Argued March 12, 2019 – Decided April 11, 2019

                    Before Judges Hoffman and Suter.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-3123-16.

                    Charles A. Yuen argued the cause for appellants
                    (Scarinci & Hollenbeck, LLC, attorneys; Charles A.
                    Yuen, of counsel and on the briefs).

                    Cindy N. Vogelman argued the cause for respondent
                    (Chasan Lamparello Mallon & Cappuzzo, PC,
                    attorneys; Cindy N. Vogelman, of counsel and on the
                    brief; Kirstin Bohn, on the brief).

PER CURIAM
        In this contract dispute over payment of private-school tuition, defendants

appeal from a February 21, 2018 Law Division order granting summary

judgment to plaintiff, Waterfront Montessori, Inc. For the reasons that follow,

we affirm.

        On January 25, 2016, defendants executed a tuition agreement (the

Agreement) for the 2016-17 school year for their son's first grade education.

Defendants also signed a re-enrollment form, 1 paid a $1500 tuition deposit, and

received an invoice showing the balance of tuition owed, $21,400, and a May 9,

2016 due date.2

        On May 30, 2017, plaintiff received defendants' check paying the unpaid

balance in full, along with the signed invoice. Defendants then sent plaintiff an

email on June 13, 2017, advising of their intention to withdraw their son from

the school, "[a]s we're moving."       In the same email, defendants requested

plaintiff refrain from depositing the tuition check for the 2016-17 academic year;

however, it appears defendants had already stopped payment on the check, based



1
  Defendants' son attended the school for pre-kindergarten and kindergarten
during the 2014-15 and 2015-16 academic terms.
2
    Plaintiff later extended the due date to May 31.



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                                         2
on a phone call from plaintiff's bank the following morning. Plaintiff responded

by email, requesting defendants remove the stop payment on their check, and

reminding them they "signed a tuition contract . . . that obligates you to pay the

tuition for 2016-17 in full[,] regardless of whether [your son] is a student here

or you withdraw him from the school."

      When defendants failed to lift the stop payment on their check and refused

to honor the balance of their tuition agreement, plaintiff instituted this action.

Each side filed a motion for summary judgment. Following oral argument, the

court denied defendants' motion and granted plaintiff's motion, holding there

was no ambiguity in the tuition contract. Plaintiff then filed a motion for

attorney's fees, as allowed by the tuition agreement. The court granted that

motion, and then entered a final judgment in favor of plaintiff in the amount of

$37,016.98, including $15,616.98 in attorney’s fees. This appeal followed.

      We apply the same standard as the trial court in reviewing summary

judgment de novo. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016). The

evidence is reviewed "in a light most favorable to the non-moving party," and a

summary judgment motion is denied "only where the party opposing the motion

has come forward with evidence that creates a genuine issue as to any material




                                                                          A-3388-17T3
                                        3
fact challenged." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 529

(1995).

      On appeal, defendants assert the motion judge improperly granted

summary judgment to the plaintiff as a matter of law. In another case involving

a lawsuit for non-payment of private school tuition, Princeton Montessori

Society, Inc. v. Leff, 248 N.J. Super. 474, 478 (App. Div. 1991), we held that

"where the contract expressly provides that no deduction or refund will be made,

the entire tuition is payable despite the fact that the student withdraws from the

school. In these circumstances the education institution has no duty to mitigate

damages."

      Defendants urge us to overrule Princeton Montessori, arguing it no longer

constitutes good law. We disagree.

      Defendants cite an earlier case, Fayman v. Trustees of Burlington College,

103 N.J. Super. 476 (Ch. Div. 1968), where the trial court held the parents of a

student liable for unpaid tuition for the first of two semesters, but declined to

award damages for the second semester, since the college "complied with its

legal duty to mitigate damages by obtaining a replacement" for the parents' child

for the second semester. Id. at 478. However, in Princeton Montessori we

specifically noted, "We disagree with the Fayman decision to the extent that it


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                                        4
. . . requires an educational institution to mitigate damages." 248 N.J. Super. at

482.

       Defendants also argue the Agreement contains ambiguous language. The

signed agreement states, "Parent(s) are obligated to pay for the full school year

. . . . No refund or cancellation of the tuition or fees will be made . . . for

withdrawal of the Student . . . ." However, if the school dismisses a student,

"any tuition paid . . . will be refunded" less a pro rata portion. Ibid. Plaintiffs

claim they relied on the later clause when they withdrew their son; however, the

Agreement clearly contains no provision for cancellation or refund except when

the school dismisses the child. Ibid. We discern no ambiguity.

       "[W]here the terms of a contract are clear and unambiguous there is no

room for interpretation or construction and the courts must enforce those terms

as written." Karl's Sales & Serv. v. Gimbel Bros., 249 N.J. Super. 487, 493

(App. Div. 1991) (citing Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960)).

Courts may not "remake a better contract for the parties than they themselves

have seen fit to enter into, or to alter it for the benefit of one party and the

detriment of the other." Ibid. (citing James v. Fed. Ins. Co., 5 N.J. 21, 24

(1950)). Here the language of the tuition agreement clearly states "[n]o refund




                                                                           A-3388-17T3
                                        5
or cancellation of the tuition or fees will be made" when the student is withdrawn

from the school.

      Defendants also challenge the amount of attorney's fees and costs

awarded. The Agreement defendants signed specifically provides for "an award

of reasonable attorney fees and court costs against the non-prevailing." To

determine attorney fees, the court must calculate a lodestar, defined as a

reasonable number of hours multiplied by a reasonable hourly rate for the

litigation. This evaluation must be conducted critically. Rendine v. Pantzer,

141 N.J. 292, 334-36 (1995). "The court should assess the experience and skill

of the prevailing party's attorneys and compare their rates to the rates prevailing

in the community for similar services by lawyers of reasonably comparable skill,

experience, and reputation." Id. at 337 (quoting Rode v. Dellarciprete, 892 F.2d

1177, 1183 (3d Cir. 1990)). The court should also exclude hours that are not

reasonably expended including those otherwise unnecessary. Id. at 335 (quoting

Rode, 892 F.2d. at 1183). When the court follows these guidelines, the appellate

court should not disturb the fee unless there is a "clear abuse of discretion." Id.

at 317.

      The motion court found the requested hourly fee of $400 per hour "clearly

excessive," in light of the simple "breach of contract issue" presented; instead,


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                                        6
the court awarded attorney's fees at the rate of $325 per hour based on the court's

knowledge of fees in the relevant community.          The court also eliminated

unnecessary hours, finding hours charged for service of the complaint were

shared equally by the parties – plaintiff could have been more diligent in finding

defendants' address and defendants could have been less technical in avoiding

service. The court carefully reviewed the billing records of plaintiff's attorney,

and rejected or reduced various items deemed unnecessary. We discern no

indication the court abused its discretion in its determination of the amount of

attorney's fees and costs awarded.

      To the extent not specifically addressed here, defendants' remaining

arguments lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

      Affirmed.




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