                     NOT FOR PUBLICATION WITHOUT THE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-0769-16T3

NEW JERSEY CHINESE COMMUNITY
CENTER,

           Plaintiff-Appellant,

     v.

CENTRAL JERSEY COLLEGE PREP
CHARTER SCHOOL,

          Defendant-Respondent.
______________________________________

           Argued November 14, 2017 – Decided December 1, 2017

           Before Judges Fisher, Fasciale and Sumners.

           On appeal from Superior Court of New Jersey,
           Law Division, Somerset County, Docket No.
           L-1444-15.

           Cynthia M.       Hwang     argued    the    cause    for
           appellant.

           Arthur L. Skaar, Jr., argued the cause for
           respondent.

PER CURIAM

     The trial of this tenancy action focused on a disagreement

about the scope of the premises leased by plaintiff New Jersey

Chinese Community Center (landlord) to defendant Central Jersey
College Prep Charter School (tenant). At the trial's conclusion,

the judge recognized that the written lease's description of the

premises was ambiguous, and he found, based on the parties'

intentions and their subsequent actions, that the disputed area

was part of the leased premises. Because our standard of review

compels deference to the trial judge's findings of fact, Rova

Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484

(1974), we affirm the dismissal of the landlord's tenancy action

substantially for the reasons set forth by Judge Kevin M. Shanahan

in his well-reasoned written decision.

     The   judge   found   that   the   landlord   owns   a   building    on

Schoolhouse Road in Somerset. Part of that building was leased to

the tenant in 2008. The parties' written lease defines the leased

premises as "some 45,000 square feet [of] space and facilities of

the southern portion of the building"; in attempting to elaborate,

"[a] copy of the floor plan indicating the space is hereto attached

and highlighted" was appended. This floor plan depicted areas that

were highlighted in both yellow and red. There is no dispute that

the yellow-highlighted area was leased to the tenant and that un-

highlighted areas were not leased. Only a single red-highlighted

area was disputed: the landlord claims the red area was not leased,

and the tenant claims it was.



                                    2                              A-0769-16T3
      Judge    Shanahan    found   the     lease   failed    to   provide      an

unambiguous designation of the leased premises. The lease did not

clearly express whether the red area was within or without the

leased area. For example, the lease didn't declare that the leased

premises are or are not "highlighted in yellow" or "that the area

in red" is or is not "part of the leased premises." The lease

stated only that the leased premises were "highlighted." This

unclear description created the ambiguity the judge was required

to   resolve   through    an   examination    of   parol    evidence    and    an

application    of   the   common   law's    familiar   canons     of   contract

interpretation.

      The judge observed, as the Court held in Tessmar v. Grosner,

23 N.J. 193, 201 (1957), that, in ascertaining the contracting

parties' common intentions, he was required to consider "the

relations of the parties, the attendant circumstances, and the

objects they were trying to attain" with an understanding that the

lease "must be construed in the context of the circumstances under

which it was entered into"; in addition, because of the ambiguity,

the judge was required to "accord[]" the contract "a rational

meaning in keeping with the express general purpose."

      Judge Shanahan ultimately endorsed the tenant's contention

that the disputed area – the area highlighted in red – was part

of the leased premises. The judge first recognized that another

                                      3                                 A-0769-16T3
paragraph in the lease obligated the tenant "to be responsible for

cost   of   approvals    and      construction    for    interior      alterations

affecting the leased premises," and the sentence that immediately

followed in that same paragraph contained the landlord's agreement

"to    permit     [t]enant   to     construct    a     gymnasium."      Finding     a

relationship      between    these    provisions,       the   judge    found    that

"shortly after the [l]ease's inception" the tenant "began to

physically convert" a portion of the leased premises "into a

gymnasium." And he further linked that agreement and those actions

to the disputed area because the disputed area was the only

conceivable space that had "ceilings high enough for a gymnasium."

In short, the landlord promised that the tenant could construct a

gymnasium in the leased premises and the only area that could be

so converted was the disputed area highlighted in red; if that

were not so, the authorization given by the landlord to the tenant

to physically convert a portion of the property into a gym would

have been nonsensical. Judge Shanahan also determined that the

disputed, red-highlighted area was in fact used by the tenant as

a gymnasium from the lease's outset – a finding that further

illuminated the parties' agreement about the scope of the leased

premises.    In    short,    the     events     that    followed      the   lease's

commencement fully supported the judge's determination that the

parties intended from the beginning that the disputed area fell

                                        4                                   A-0769-16T3
within the original description of the leased premises. Michaels

v. Brookchester, Inc., 26 N.J. 379, 388 (1958) (recognizing that

"[w]here ambiguity exists, the subsequent conduct of the parties

in the performance of the agreement may serve to reveal their

original understanding"). Any other interpretation, in light of

the   parties'    conduct,   would   have   rendered   meaningless   the

provisions regarding the conversion of portions of the leased

premises and the obligation of the tenant to obtain approval for

any modifications.

      For these reasons, as well as the findings the judge made in

examining the later lease amendments and the conduct of the parties

starting in 2013, the judge concluded that the disputed, red-

highlighted area was part of the leased premises. Those findings

command our deference. Rova Farms, supra, 65 N.J. at 484. Because

the resolution of the dispute about the scope of the leased

premises was determinative of the landlord's cause of action, the

judge properly dismissed the complaint.

      Affirmed.




                                     5                          A-0769-16T3
