                     NOT FOR PUBLICATION WITHOUT THE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-1618-15T3

STOCKTON UNIVERSITY,

           Plaintiff-Respondent,

     v.

KK VENTURES – ATLANTIC CITY,
LLC,

          Defendant-Appellant.
_________________________________

KK VENTURES – ATLANTIC CITY,
LLC,

           Plaintiff-Appellant,

     v.

STOCKTON UNIVERSITY,

          Defendant-Respondent.
___________________________________________________

           Argued January 10, 2017 – Decided March 9, 2017

           Before Judges Fisher, Ostrer and Leone.

           On appeal from the Superior Court of New
           Jersey, Chancery Division and Law Division,
           Atlantic County, Docket Nos. C-47-15 and L-
           1490-15.

           Stuart J. Moskovitz         argued    the   cause    for
           appellant.
            Stephen Hankin argued the cause for respondent
            (Hankin,   Sandman   Palladino   &   Weintrob,
            attorneys; Mr. Hankin, on the brief).

PER CURIAM

     On    December   12,   2014,   Stockton   University   purchased       the

former Showboat Casino and Hotel in Atlantic City from Caesars

Entertainment Operating Company, Inc. with the hope of opening an

Atlantic City "Island Campus." A 1988 restriction for the benefit

of Trump Taj Mahal Associates and Trump Taj Mahal Realty Corp.,

however, required the property's use as a "first class hotel

casino"    until   2082,    and   another   restriction,    which   Caesars

recorded in November 2014, prohibited the property's use as a

casino for ten years. According to Stockton University, Caesars

had represented as an inducement that Trump expressed a willingness

to discharge the 1988 restriction; when that inducement proved

false, Stockton University's intentions were frustrated and its

position    became    untenable.    Consequently,    on   April   3,     2015,

Stockton University (the seller) agreed to sell "no later than"

ninety days later, the property to KK Ventures – Atlantic City,

LLC (the purchaser) for $26,000,000; that contract lies at the

heart of this litigation.

     The contract unequivocally recognized and referred to the two

conflicting    restrictions.      One   provision   recognized    that      the


                                        2                              A-1618-15T3
property was sold "as is" and purchaser's decision to buy was "not

based on any covenant, warranty, promise, agreement, guaranty or

representation by seller . . . except to the extent expressly set

forth in this agreement." Another provision contained purchaser's

acknowledgement, review, and approval of the "pro forma title

insurance   policy,"     which    referred   to   the    Caesars    and     Trump

restrictions as "permitted exceptions." Attached as an exhibit to

the contract, in fact, was a proposed deed, which recited that

title would be subject to the Caesars restriction and "all other

covenants [and] restrictions . . . of record."1 And yet another

provision expressed purchaser's "confirm[ation]" and "aware[ness]"

of both the Trump restriction and Trump's intentions to enforce

that restriction, and the Caesars restriction, which "purport[s]

to   prohibit   gaming   and     gambling"   on   the   property;   purchaser

expressed its desire "to purchase the [p]roperty notwithstanding

the risks attendant to such matters."

      Seller did not expressly obligate itself to rid, or attempt

to rid, the property of either or both restrictions. Regardless

of whether seller commenced such litigation, the parties expressly

agreed that the seller would assign to the purchaser "all legal


1
  Elsewhere in the contract, the seller represented and warranted
that it was aware of no other lawsuits that would threaten or
affect its ability to convey "other than potential claims arising
in connection with" the Caesars and Trump restrictions.

                                       3                                  A-1618-15T3
claims, including but not limited to those claims that exist or

may exist under the [documents creating the two restrictions]."

Along those lines, the parties agreed that the seller could

unilaterally terminate the contract depending upon its obtaining

relief from one or both of the restrictions; in requiring that the

closing was to occur on an agreed upon date no later than ninety

days from April 3, 2015, i.e., July 2, 2015, the parties stipulated

in section 4(a) that

           [s]eller may cancel this [a]greement by giving
           written notice to such effect to [p]urchaser
           at any time during such ninety[-]day period
           if, and only if, [s]eller is unable to resolve
           to [p]urchasers['] satisfaction title issues
           pertaining to the [Trump restriction] and [the
           Caesars restriction] whereupon the [e]scrow
           (with all interest earned thereon) shall be
           returned to [p]urchaser and the parties shall
           be released of all further obligations
           hereunder.

The rights conferred by this provision generate one of the first

bones of contention in this appeal.

     The dispute about the rights and obligations conferred by the

contract arose when – three weeks after the contract was executed

– the purchaser advised that it would not close unless seller

obtained a discharge of both the Trump and Caesars restrictions.

Seller   made   such   attempts;   it   met   with   Trump   and   Caesars

representatives to obtain releases and filed a proof of claim in

Caesars' bankruptcy proceeding. Those efforts failed, and, to keep

                                    4                              A-1618-15T3
viable the possibility that the transaction would close, seller

advised the purchaser on April 28 or 29, 2015, that it was

"waiv[ing] its [section 4(a)] right to cancel and [was] elect[ing]

to proceed to closing."

     On June 18, 2015, the purchaser again advised it would not

close unless the seller obtained releases of both restrictions.

Seller – still insisting it had no obligation to obtain the release

of either restriction – recounted its efforts to secure releases

and, when the purchaser refused to close on July 2, seller declared

the contract terminated.

     The day before, July 1, 2015, purchaser filed a complaint

against the seller in the Law Division, seeking damages for unjust

enrichment and a declaratory judgment that, among other things,

seller could not unilaterally terminate the contract.   On July 8,

the seller moved to dismiss that suit and, on July 10, filed its

own complaint in the Chancery Division and applied for injunctive

relief. On July 13, the judge issued temporary restraints in the

chancery action; he prohibited purchaser from filing a notice of

lis pendens on the property or otherwise interfering with the

seller's attempts to convey the property to another. The next day,

the purchaser filed an answer and counterclaim, which reasserted

the allegations contained in its Law Division complaint. The two

suits were later consolidated.

                                 5                          A-1618-15T3
       On August 10, 2015, after hearing argument regarding the

relief sought in both the order to show cause and the motion to

dismiss,    the   judge   issued     a    written   opinion   explaining      his

rationale for granting the seller's request for a judgment which:

declared the contract terminated as of July 2, 2015; permanently

enjoined    the   purchaser   from       interfering   with   a   sale   of   the

property; prohibited purchaser from filing a notice of lis pendens

on the property; dismissed the purchaser's Law Division complaint;

and awarded seller counsel fees in an amount to be determined.

       On August 31, 2015, the purchaser requested that seller supply

energy, as defined by the contract, to purchaser's neighboring

property.2 Seller immediately refused, asserting that the right to

energy contained in the contract's section 4(a) only "survived

termination . . . in the event . . . [the purchaser] made a request

between [April 3, 2015] and ninety days thereafter[,]" i.e., July

2, 2015. On September 2, 2015, the purchaser moved for an order

compelling seller to provide energy to Revel.

       On November 23, 2015, the judge denied the motion to compel

the providing of energy and granted seller $44,570.84 in counsel

fees and costs.3



2
    Purchaser had previously obtained the failed Revel casino.
3
    Seller subsequently sold the property.

                                         6                               A-1618-15T3
    Purchaser appeals the August 10 and November 23, 2015 orders,

arguing:

           I. IT WAS ERROR FOR THE [TRIAL COURT] FIRST
           TO GRANT A TRO ALTERING THE STATUS QUO AND
           THEN GRANT THE MOTION TO DISMISS THE
           COMPLAINT, PERMITTING [SELLER] TO TERMINATE
           THE CONTRACT AND RESELL THE PROPERTY.

                A. [Seller] was not    entitled   to
                injunctive relief.

                B. The motion for Judgment on the
                Pleadings should have been denied in
                that there was a prima facie case
                established by [Purchaser's] Com-
                plaint.

                C. [Seller] failed to meet the
                standards required for a motion for
                judgment on the pleadings.

                D. By rules of contract interpreta-
                tion [Seller's] Motion should have
                been denied.

                E.   [Purchaser's] Pleadings set
                forth a valid claim for unjust
                enrichment.

           II. IT WAS ERROR FOR THE [TRIAL COURT] TO DENY
           [PURCHASER'S] MOTION TO COMPEL ACCESS FOR
           PROVISIONS OF UTILITIES.

           III. IT WAS ERROR FOR THE [TRIAL COURT] TO
           GRANT [SELLER'S] ATTORNEYS FEES IN THE ABSENCE
           OF NECESSARY SUPPORT.

We find no merit in these arguments.

    In disposing of these issues, which we slightly rephrase, we

find no error: (1) in the judge's interpretation of the contract,


                                 7                          A-1618-15T3
in his conclusions about the impact of the implied covenant of

good faith and fair dealing, and in his construction of the

parties' contractual rights and obligations without an evidentiary

hearing; (2) in the judge's rejection of the purchaser's argument

that seller was obligated to provide utilities for purchaser's

Revel property; and (3) in assessing counsel fees.4


                                I

     First, as for the relevant terms of the contract – quoted

earlier – there is no doubt the parties never agreed the seller

would be obligated to sue for the removal of either or both

restrictive covenants. Nor is there any doubt that the existence

of those restrictions was well known to the purchaser; the contract

repeatedly refers to them and contains the purchaser's stipulation



4
  We find no merit in purchaser's arguments that the judge erred
in granting injunctive relief. The judge applied the familiar
standards, see Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982);
Waste Mgmt. of N.J., Inc. v. Morris Cnty. Mun. Auth., 433 N.J.
Super. 445, 451-55 (App. Div. 2013), and, in his discretion,
determined that injunctive relief was warranted to preserve the
status quo pending resolution of the merits. We also reject the
purchaser's contention that the judge should not have resolved the
dispute's merits on the return date of the order to show cause.
Because there was no genuine factual dispute standing in the way
of the judge's declaration as to the meaning of the contract's
unambiguous terms, purchaser's complaint about the procedure,
arguably supported by Solondz v. Kornmehl, 317 N.J. Super. 16, 19-
20 (App. Div. 1998), exalts form over substance. We find
insufficient merit in these arguments to warrant further
discussion in a written opinion. R. 2:11-3(e)(1)(E).

                                8                           A-1618-15T3
that    the   property   was    being   purchased   "as   is"   and     that   the

purchaser "agree[d] to [p]urchase the [p]roperty notwithstanding

the risks attendant to" the restrictions. Although the contract

did not require that seller remove either or both restrictions,

it did grant the seller rights if relief was obtained; that is,

section 4(a), which designated the "time and place" of the closing,

specifically declared that closing would occur within ninety days

(on or before July 2), but it also "provided that" seller possessed

the right to "cancel" before expiration of the ninety days "if,

and only if, [s]eller is unable to resolve to [p]urchaser's

satisfaction" the limitations posed by the restrictions. The words

of the passage suggested that only the seller had a right to cancel

if it could not obtain relief from the restrictions, and declared

that it was purchaser's satisfaction that governed the sufficiency

of any efforts. This choice of words raises five central questions

about its meaning.

       The first is whether the contract contemplated that seller

could    make   efforts    to    remove     the   obstacles     posed    by    the

restrictions. It could.

       The second question is whether seller actually made efforts

to remove the restrictions. It did. There was no dispute that

seller communicated with the restriction holders on that score,

albeit without success.

                                        9                                A-1618-15T3
      The third question is, as purchaser argued in the trial court

and   here,   whether    the    seller   had   an   obligation   to   sue   the

restriction    holders    for   relief.   Clearly,    the   contract    itself

expressed no such obligation.5 The purchaser, however, argues that,

in the absence of a clear and unambiguous expression of the scope

of the seller's efforts, those efforts are to be gauged by the

legal obligations imposed by the implied covenant of good faith

and fair dealing. Our view of this contention requires some

explanation.

      The covenant of good faith and fair dealing is implied in all

contracts. Sons of Thunder v. Borden, Inc., 148 N.J. 396, 420

(1997). It arises from the general notion that "neither party

shall do anything which will have the effect of destroying or

injuring the right of the other party to receive the fruits of the

contract." Ibid. The covenant "cannot override an express term in

a contract," but "a party's performance under a contract may breach


5
  For example, the parties could have stipulated that seller was
obligated to commence suit in a court of competent jurisdiction
and could not cancel until exhausting those efforts. They could
have also included an obligation to pursue any appeal rights and
only after a final decision on appeal could seller cancel. Their
contract contains no such obligations. Indeed, given the fact that
the contract presupposed a relatively quick closing, no reasonable
person would suspect an intention that seller litigate the
obstacles posed by the restrictions to the point of an adverse
decision in the trial court or a final decision on appeal before
being entitled to cancel pursuant to section 4(a), which applied
only for the ninety days that followed the contract's execution.

                                     10                                A-1618-15T3
that implied covenant even though that performance does not violate

a pertinent express term." Wilson v. Amerada Hess Corp., 168 N.J.

236, 244 (2001).

     The   covenant     has    been      found     to       apply   in     three   general

circumstances. As we recognized in Seidenberg v. Summit Bank, 348

N.J. Super. 243, 260 (App. Div. 2002), the covenant has been

applied: (1) when a contract fails to provide a term necessary to

fulfill the parties' intentions, Onderdonk v. Presbyterian Homes

of N.J., 85 N.J. 171, 182 (1981); (2) when a contracting party

performs   in    bad   faith      even    though        its    performance         did   not

necessarily breach any express contractual term, Sons of Thunder,

supra, 148 N.J. at 420; and (3) to assess the performance of a

party   that    retained      a   degree      of    discretion           regarding       its

contractual performance, Wilson, supra, 168 N.J. at 250-51.

     Without     any   particular        clarity        –    or,    more    importantly,

without any factual assertions – as to which aspect of this concept

should have been applied, purchaser contends in its appeal brief

that seller breached the implied covenant by "failing to take any

reasonable legal action to resolve the outstanding conflicting

restrictions." Specifically, in its brief, purchaser asserts that

the seller should have filed quiet title actions to remove the

restrictions. But purchaser has not particularized which of the

covenant's     three   aspects     should     be    considered,            i.e.,   whether

                                         11                                         A-1618-15T3
purchaser seeks a performance by the seller that was omitted from

the contract, Onderdonk, supra, 85 N.J. at 182, whether seller

acted in bad faith even though it acted consistently with the

letter of the contract, Sons of Thunder, supra, 148 N.J. at 420,

or whether seller had the discretion to decide the extent to which

it would exert its energies in resolving the restrictions on the

property, Wilson, supra, 168 N.J. at 250-51.

      In considering these possibilities – and in recognizing that

the implied covenant serves a narrow purpose and that it should

not "impos[e] unintended obligations upon parties [or] destroy[]

the   mutual   benefits   created   by   legally   binding   agreements,"

Northview Motors, Inc. v. Chrysler Motors Corp., 227 F.3d 78, 92

(3d Cir. 2000); see also Seidenberg, supra, 348 N.J. Super. at 262

– it is important to observe that the contract's language that

does relate to seller's attempts to remove the restrictions appears

in the context of a passage that presents a ground upon which only

seller would have the right to cancel: "[s]eller may cancel . . .

if, and only if, [s]eller is unable to resolve" the restrictions.

Put in this context, what purchaser would have the court do is

impose a greater obligation on seller than that stated in the

contract when, even if there was such an obligation, it was only

a prerequisite for the seller's unilateral right to cancel. Stated

another way, the purchaser complains seller did not take sufficient

                                    12                            A-1618-15T3
steps to create the ground upon which seller could unilaterally

cancel prior to July 2, 2015. We do not see how that alleged

failure frustrated purchaser's reasonable expectations; the right

emanating      from    the    alleged    implied      promise    to    litigate      the

restrictions belonged only to the seller.

     In addition, the reach of the implied covenant in a particular

setting is governed by the facts and the parties' goals and

intentions. Id. at 262-63. To generate a factual dispute about the

surrounding circumstances, the dissatisfied party is obligated to

provide evidential material suggestive of the implied covenant's

application. What is unusual here is purchaser's failure to offer

any sworn statements in responding to the order to show cause, let

alone a sworn statement to support its argument that seller

frustrated     its     expectations       by    failing   to    commence    lawsuits

directed toward clearing title of the restrictions. Purchaser's

complaint      and    counterclaim       were   not   verified,       and   purchaser

presented no affidavit or certification to support the contention

that purchaser expected greater efforts from seller regarding the

removal   of    the    restrictions.       Because     the   purchaser      presented

nothing   evidential         but   the   contract     itself,    the    trial     judge

correctly rejected the claim that the implied covenant imposed

greater obligations on seller than expressly set forth in the



                                          13                                    A-1618-15T3
contract or that would appear to be a reasonable extension of the

parties' contractual expressions.

     Our fourth question concerns the meaning of the reference to

the grounds for seller's right to unilaterally cancel prior to

July 2.    The provision in question states that the relief seller

obtained from the restrictions would be judged by whether it met

"purchaser's satisfaction."6

     To be sure, in this regard, the parties did not clearly

express their intentions about what it was that would permit seller

to unilaterally cancel the contract prior to July 2.            Seller has

argued    that   the   emphasized   phrase   constituted   "a   scrivener's

error" and that it was "seller's satisfaction" not "purchaser's

satisfaction" that the parties intended to insert, because the

seller sought to retain the right to use the property as an "island

campus" if it could obtain relief from the restrictions. We agree

this is the most sensible reading, as removal of the restrictions

to seller's satisfaction would enable it to operate an "island


6
  For the reader's convenience, we again repeat the salient part
of the provision at length. After expressing that the closing
would occur on a date within ninety days, i.e., by July 2, the
provision also provided "[s]eller may cancel this [a]greement by
giving written notice to such effect to [p]urchaser at any time
during such ninety[-]day period if, and only, if [s]eller is unable
to resolve to [p]urchaser's satisfaction title issues pertaining
to the [Trump and Caesars restrictions] whereupon the [e]scrow
(with all interest earned thereon) shall be released to [p]urchaser
and the parties shall be released of all further obligations."

                                     14                             A-1618-15T3
campus," the very intention that generated its interest in the

property in the first place. Indeed, the purchaser seems not to

contradict seller's argument on this point. If seller's efforts

had to satisfy seller's satisfaction, then there is no basis for

inferring an implied covenant for seller to make greater efforts

than seller desired. Moreover, whether the efforts had to satisfy

seller   or   purchaser   is   ultimately   irrelevant,   because   that

satisfaction was a prerequisite only for seller's right to cancel

before July 2, 2015, and it never exercised that right.

     All of what we have said about the provision in question is

mere prologue to the fifth and last question. Whatever might have

been argued about the provision's meaning, it is undisputed that

the provision granted only the seller the right to cancel before

July 2, 2015. And, as is also undisputed, the seller waived that

unilateral right to cancel. Consequently, it makes no difference

if seller's efforts in seeking relief from the restrictions could

be said to be inadequate. Those efforts – whether strenuous or

half-hearted – would have only generated seller's unilateral right

to cancel, and seller waived that right.

     That waiver left the parties with the obligation to close by

July 2; if they did not, then, absent further agreement, "either

party" possessed the right to "terminate" the contract and, upon

termination, "neither party" would incur "any further rights,

                                   15                           A-1618-15T3
obligations or liabilities whatsoever" and purchaser would be

entitled to the return of its $26,000,000, with accrued interest,

from escrow. In short, before July 2, only seller had the right

to terminate depending upon its efforts to remove either or both

restrictions. And, if the parties did not close by July 2, both

parties possessed the right to terminate. When purchaser refused

to close on July 2, seller declared the contract terminated.

       For all these reasons, we find no merit in purchaser's

argument that a proper interpretation of the implied covenant of

good   faith   and   fair   dealing   prohibited   entry   of   a   judgment

declaring the contract's termination. Seller's alleged failure to

do more to remove the restrictions – purchaser's only asserted

ground for application of the implied covenant – had no bearing

on the contract's termination.7


7
  Purchaser has also argued that its claim of unjust enrichment
should have been permitted to proceed. In this regard, purchaser
complains that the seller was able to "use the $26,000,000 deposit
as a starting point for higher bids" and enriched itself as a
result. To be sure, that $26,000,000 sat in escrow pending closing
or pending its return upon a termination of the contract was a
fact; to the extent seller might have utilized that fact as the
means of obtaining some other offer on the property following
termination does not suggest seller was unjustly enriched.
Purchaser's claim to relief must be based on a contractual or
quasi-contractual theory of liability, Castro v. NYT Television,
370 N.J. Super. 282, 299 (App. Div. 2004); Caliano v. Oakwood Park
Homes Corp., 91 N.J. Super. 105, 108-09 (App. Div. 1966). For
reasons already stated, there is no merit in any of purchaser's
contractual, implied-contractual, or quasi-contractual theories


                                      16                             A-1618-15T3
                                       II

       Purchaser   also   contends    seller   was    obligated    to   provide

energy for purchaser's neighboring Revel facility notwithstanding

the contract's termination. The contract, in fact, acknowledged

an obligation to provide energy, if requested by the purchaser,

between the contract's effective date and throughout the ninety-

day    period   that   followed;     this   provision   also   permitted       an

extension if requested by the purchaser. Of particular interest

is     the   provision's     acknowledgement         that   this    agreement

"survive[s]" the contract's termination.8



of recovery. Consequently, the claim of unjust enrichment lacked
a proper foundation.
8
    The provision's relevant portion states:

             Between the [e]ffective [d]ate and ninety (90)
             days thereafter, subject to further extension
             if [p]urchaser so requests, in its sole
             discretion on a month-to-month basis of
             successive months until [p]urchaser obtains
             alternative energy sources, [s]eller shall
             provide [p]urchaser with power, electricity,
             and hot and cold water ("[e]nergy"), from its
             energy facility for use by [p]urchaser in and
             for its Revel . . . facilities. . . . This
             [s]ection . . ., and the obligation of
             [s]eller to provide the [e]nergy and the
             rights   of   [p]urchaser  to   purchase   the
             [e]nergy, shall be an independent contractual
             obligation and survive the termination of this
             [a]greement and [s]eller's election to not


                                      17                                A-1618-15T3
     The survival language is particularly relevant because the

purchaser made no demand for energy until August 31, 2015, months

after both the contract's termination and the commencement of this

litigation, and three weeks after the trial judge rendered what

would have been a final judgment but for the quantification of the

counsel fee award.

     Like   its   other   arguments,   purchaser   provided   no     sworn

statement that disclosed or suggested the parties' particular

intentions about this energy agreement.9 Instead, purchaser relies

solely on the language of the applicable contractual provision.

In considering the provision's overall tenor – as illuminated by

the indisputable circumstances as to when the request was made and

the property's status at that time – we conclude seller's agreement

to supply energy: (1) obligated purchaser to make a demand for

energy by July 2, i.e., within the ninety-day period between the

effective date and the anticipated closing date; and (2) survived

only if the termination occurred pursuant to seller's exercise of



            proceed to [c]losing as set forth in section
            4(a)[.]
9
 In support of the motion, purchaser's attorney submitted his own
certification, which merely attached the relevant portions of the
contract, and copies of letters exchanged by counsel on this
subject. The certification otherwise presented only an argument
about the contract's language; it did not disclose or suggest any
information about the parties' intentions.

                                  18                               A-1618-15T3
its unilateral right to cancel that, as we have already observed,

seller waived.

     In   arguing   the   energy   provision   survived   the    contract's

termination, purchaser provides a convoluted explanation, which

depends on the particular placement or absence of commas, for how

the energy provision imposed a continuing obligation beyond the

contract's   termination     and   the   commencement     of    litigation.

Purchaser first urges our consideration of the comma prior to

"subject" in the provision's opening phrase, i.e., "Between the

[e]ffective [d]ate and ninety (90) days thereafter, subject to

further extension if [p]urchaser so requests, . . . [s]eller shall

provide . . . ."      Purchaser contends that the placement of the

comma prior to "subject" and the absence of a comma between

"further extension" and "if [p]urchaser so requests" demonstrates

that the request for an extension relates to an extension of the

ninety-day period and not of a further extension of the supply of

energy that was provided pursuant to a timely request. Stated

another way, the purchaser asserts that it had the contractual

right to extend the time for the initial commencement of a transfer

of energy beyond the ninety-day period and that the right to

request an extension did not depend on it having made an initial

request within the ninety-day period.



                                    19                              A-1618-15T3
     We find no merit in this argument that the placement or

absence of commas demonstrates the plausibility of his strained

interpretation.    We   need   only    invoke   what   the    Supreme     Court

recognized many years ago:

            Punctuation marks are rarely, if ever, an
            infallible token of intention, for punctuation
            is to a large degree arbitrary and very often
            a matter of individual taste unrelated to the
            expression of the intention, and the comma is
            frequently   employed    merely   to   indicate
            rhetorical   pauses   and    interruptions   in
            continuity of thought and sometimes with an
            eye to structure without regard to precision
            in the delineation of the common purpose.
            Although   not   to   be    entirely   ignored,
            punctuation cannot be allowed to control the
            meaning of the words chosen to voice the
            intention.

            [Casriel v. King, 2 N.J. 45, 50 (1949); accord
            Perez v. Zagami, LLC, 218 N.J. 202, 210-11
            (2014) (recognizing the same approach in
            interpreting the meaning of statutes).]

The polestar, as our jurisprudence has firmly established, is not

governed by the decision to insert or delete a comma but the

intention of the parties "as disclosed by the language used, taken

as an entirety," including "the situation of the parties, the

attendant    circumstances,    and    the   objects    they   were   thereby

striving to attain." Casriel, supra, 2 N.J. at 50; see also Jacobs

v. Great Pacific Century Corp., 104 N.J. 580, 586 (1986). So,

while the presence or absence of a comma will not necessarily be

ignored, courts find a greater appreciation for the parties'

                                      20                                A-1618-15T3
intentions from context, Schenck v. HJI Assocs., 295 N.J. Super.

445, 452-53 (App. Div. 1996), certif. denied, 149 N.J. 35 (1997),

the contract's design, Krosnowski v. Krosnowski, 22 N.J. 376, 387

(1956); Allied Bldg. Prods. Corp. v. J. Strober & Sons, LLC, 437

N.J. Super. 249, 261-62 (App. Div.), certif. denied, 220 N.J. 207

(2014), and an overwhelming sense of a provision when considered

as a whole, Borough of Princeton v. Bd. of Chosen Freeholders of

Cnty. of Mercer, 333 N.J. Super. 310, 325 (App. Div. 2000), aff’d,

169   N.J.   135   (2001).   This   concept   was   never   more   elegantly

expressed than when Judge Learned Hand wrote that the meaning of

a provision "may be more than that of the separate words, as a

melody is more than the notes, and no degree of particularity can

ever obviate recourse to the setting in which all appear, and

which all collectively create." Helvering v. Gregory, 69 F.2d 809,

810-11 (2d Cir. 1934).

      Purchaser's exaltation of the provision's punctuation – in

the absence of sworn statements to support the interpretation

urged – runs counter to the common sense of the undertaking. A

"mature and developed jurisprudence" neither makes "a fortress out

of the dictionary," Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.),

aff’d, 326 U.S. 404, 66 S. Ct. 193, 90 L. Ed. 165 (1945), nor, for

that matter, "a fortress out of The Elements of Style," Sayles v.

G & G Hotels, Inc., 429 N.J. Super. 266, 274 (App. Div.), certif.

                                     21                              A-1618-15T3
denied, 213 N.J. 537 (2013). To be sure, the parties were careless

in describing the extent to which the right to energy might survive

the contract's termination. The only harmonious and nonsensical

result, however, is one that required the purchaser's request for

energy within the ninety-day period and one that would survive

only seller's exercise of its unilateral right to terminate prior

to July 2. No other interpretation is plausible in light of the

parties' overall intentions.

     We, thus, reject purchaser's contention that the judge erred

in denying his motion to compel seller to provide purchaser's

neighboring property with energy.


                               III

     Purchaser lastly argues that the trial judge erred in awarding

counsel fees because the seller's application was inadequate and

left the judge to speculate in quantifying a reasonable fee.10

     To be sure, there were deficiencies in the fee application.

As is often the case, the moving party assumed the attachment of

the law firm's invoice to the client would provide the court with



10
  Purchaser has not argued the fee award was unauthorized. The
contract expressly declared that "in the event either party files
a lawsuit . . . in connection with this [contract] . . . then the
party that prevails in such action shall be entitled to recover
. . . reasonable attorneys' fees and costs incurred in such
action."

                               22                           A-1618-15T3
enough information to make the findings required by Rendine v.

Pantzer, 141 N.J. 292, 334-37 (1995). But, as the trial judge

painstakingly explained in his comprehensive written opinion,

those deficiencies resulted in a drastic reduction of the amount

sought in fees and expenses from $81,863.34 to $44,570.84. In

other words, where the judge was unsure about what services the

attorneys performed, he simply denied the particular request. We

will not second-guess the experienced judge. In fact, we affirm

in this regard substantially for the reasons set forth in the

judge's thorough written decision.

    Affirmed.




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