Main Street Neal, LLC v. Jm40, LLC

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0667-25 MAIN STREET NEAL, LLC and YO ANTHONY, LLC, Plaintiffs-Appellants, v. JM40, LLC, Defendant-Respondent. ____________________________ Submitted September 22, 2026 – Decided October 15, 2026 Before Judges Paganelli and DeAngelis. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. LT-000994-24. Law Office of John Carrino, LLC, attorneys for appellants (Brenton J. LaMaire, on the briefs). Lombardi and Lombardi, PA, attorneys for respondent (Scott A. Telson, on the brief). PER CURIAM In this commercial landlord-tenant matter, plaintiffs Main Street Neal, LLC and Yo Anthony, LLC (Landlord) appeal from a September 30, 2025 order dismissing its complaint against defendant JM40, LLC (Tenant) for possession following a bench trial. Because the trial court's factual findings are sufficiently supported in the record and it correctly applied the law, we affirm. We are fully familiar with the underlying facts in this matter, having issued an opinion following Landlord's initial appeal. See Main Street Neal, LLC and Yo Anthony, LLC v. JM40, LLC, No. A-0011-24 (App. Div. July 31, 2025). We recite only the facts from our earlier opinion relevant to this appeal. "Tenant leases Landlord's 'Premises' for 'a restaurant with bar and banquet facility and ancillary businesses.'" Main Street Neal, slip op. at 2. The parties' Lease provides that Tenant is required to provide Landlord with written notice regarding its "repair or maintenance . . . that w[ould] exceed the cost of $1,000 . . . prior to commencement" and receive "written consent of the Landlord, which shall be liberally given" regarding certain "alterations, additions[,] or improvements." Id. at 2-3. Further, were Tenant to default "in the performance of any of the . . . covenants or conditions of this Lease" and not cure the default "within thirty A-0667-25 2 (90) [1] days after the Landlord g[a]ve[] the Tenant written notice of such default," the Landlord could "re-enter, possess and enjoy the Premises." Id. at 4. Moreover, the Lease provides: 24. Non-Waiver by Landlord. The various rights, remedies, options and elections of the Landlord under this Lease are cumulative. The failure of the Landlord to enforce strict performance by the Tenant of the conditions and covenants of this Lease or to exercise any election or option, or to resort or have recourse to any remedy conferred in this Lease or the acceptance by the Landlord of any installment of rent after any breach by the Tenant, in any one or more instances, will not be construed or deemed to be a waiver or a relinquishment for the future by the Landlord of any such conditions and covenants, options, elections or remedies, but the same will continue in full force and effect. [Id. at 4-5.] In our prior opinion, we noted Anthony Ianiello, on behalf of Landlord, and John Donald, on behalf of Tenant, provided the only testimony. Ianiello and Donald "agree[d] they did not comply with the written notices and consent" provisions of the Lease. Id. at 23. However, Ianiello, "refute[d] whether [Landlord] waived those provisions." Ibid. Because the non-waiver clause was 1 We recognize the discrepancy in the number of days. A-0667-25 3 not considered by the trial court, we remanded the matter for the court to "determine the credibility of the witnesses on this issue, apply the correct burden of proof, and determine whether Tenant established waiver." Ibid. On September 30, 2025, following our remand, the court placed its decision on the record. The court considered Donald's testimony that every communication between Tenant and Landlord was "verbal." Further, the court considered "the completion of [Tenant's] work . . . occurred before [Landlord] filed the Notice to Cease" upon Tenant and Landlord made "no allegation in its complaint that [Tenant] continued to do work" thereafter. Regarding Ianiello's testimony, the court highlighted that Landlord thought the rent was reasonable when the Lease "was signed" however, at the time of trial, Landlord "was not happy with the current rent, as he believed it to be far under market value." The court "revise[d] its original assessment of . . . Ianiello as a credible witness." The court found Ianiello "ha[d] a serious interest in the outcome of the case"; did not have a "fair" "recollection of the specific . . . allegations in the complaint"; came "off as a bit defensive and combative" on cross-examination; and provided testimony that "was not corroborated by substantial documentary evidence presented." A-0667-25 4 Further, the court found Ianiello "permitted some remediation . . . and . . . remodeling . . . [to be] done without it being in writing." The court determined Ianiello was "clearly . . . advised that work over $1,000 was to be completed and did not . . . ask that [Tenant] submit that request in writing" and the parties "had . . . been operating on verbal agreements throughout th[e] entirety of the tenancy." The trial court cited Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 571 (App. Div. 2003), for the proposition that "[w]aiver is a voluntary relinquishment of a known right." The court stated waiver "can occur where a party fails to declare a breach of contract and continues to perform under the contract after learning of the breach" and "may be deemed to have acquiesced in an alteration of the terms of the contract; thereby barring its enforcement," (citing Garden State Bldgs., L.P. v. First Fid. Bank, N.A., 305 N.J. Super. 510, 524 (App. Div. 1987)). Further, the court stated "the intent to waive need not be stated expressly provided the circumstances clearly show that the party knew of the right and then abandoned it either by design or indifference," (citing Knorr v. Smeal, 178 N.J. 169, 177 (2003)). Moreover, the court concluded "[w]aiver could also be found if the conduct of an entity after information of breach of contract is such as to justify an inference of operation rather than rescission of A-0667-25 5 the contract." (Citing Iafelice ex rel. Wright v. Arpino, 319 N.J. Super. 581, 588 (App. Div. 1999) (quoting Bonnet v. Stewart, 68 N.J. 287, 294 (1975))); see also Merchs. Indem. Corp. v. Eggleston, 37 N.J. 114, 130-31 (1962). The court determined the burden to establish waiver is "by a clear, unequivocal and decisive act," (citing Borough of Closter v. Abram Demaree Homestead, Inc., 365 N.J. Super. 338, 354 (App. Div. 2004) (quoting W. Jersey Title & Guar. Co. v. Indus. Tr. Co., 27 N.J. 144, 152 (1958))). The court found Landlord "knowingly and voluntarily relinquished [its] rights to exercise the . . . [notice and writings] provisions in th[e L]ease agreement by virtue of its acquiescence to the . . . parties ['] . . . business practice, which was for work to be completed upon verbal notice." Further, concerning the non-waiver clause, the court found Ianiello "had knowledge as to the specific provision in the [L]ease" and made a "knowing relinquishment of the non-waiver provision." The court summarized that it again dismisses this matter, and it finds that [Landlord] knowingly and voluntarily waived its right to exercise the non-waiver provision in the [L]ease by continuously allowing work to be completed at the premises without permission being sought or granted in writing and, significantly, . . . [Tenant] did not cease violating . . . the [L]ease after the December of 2023 Notice to Cease was sent to it. A-0667-25 6 On appeal, Landlord argues the trial court: (1) abused its discretion by failing to assess Donald's credibility and assessing Ianiello's credibility by "revising its past determination," "over a year after [Ianiello] testified," and "not based on any new evidence"; (2) failed to state Tenant's burden to establish Landlord's waiver was by clear and convincing evidence; (3) failed to cite or apply "the proper legal standard for [finding] waiver"; (4) must be reversed pursuant to N.J.S.A. 12A:2A-207 and N.J.S.A. 12A:2A-208; (5) erred by finding "that [Landlord] waived [its] right to enforce Lease terms based only on the conduct for which [Landlord] initiated this action"; (6) "made unsuppo rted factual findings . . . on remand that directly contradicted its supported factual findings from its [initial trial] decision"; (7) improperly "shift[ed] . . . the burden of proof from" Tenant; (8) "abused its discretion by finding that [Land lord] knew about the" non-waiver provision; and (9) erred by applying the statute concerning residential tenancies, N.J.S.A. 2A:18-53, to this commercial relationship. Further, Landlord contends there were "other individuals who are the primary representatives charged with enforcing other Lease terms" but they did not testify at trial and "[e]vidence simply was not presented of [the parties] numerous email exchanges" concerning their "substantial[] operat[ion] within A-0667-25 7 the terms of the Lease" because Tenant "failed to raise the issue of waiver or present evidence thereof." Landlord argues we should exercise original jurisdiction and "render [our] own determination as to whether [Tenant] established a waiver by clear and convincing evidence." "In our judicial system, the trial court controls the flow of proceedings in the courtroom. As a reviewing court, we apply the abuse of discretion standard when examining the trial court's exercise of that control." State v. Jones, 232 N.J. 308, 311 (2018). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established polices, or rested on an impermissible basis.'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)) (internal quotation marks omitted). "Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review[.]" D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013) (quoting Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)). "We may not overturn the trial court's fact[-]findings unless we conclude that those findings are 'manifestly unsupported' by the 'reasonably credible evidence' in the record." Balducci v. Cige, 240 N.J. 574 , 595 (2020) (quoting Seidman, 205 N.J. at 169 ). A-0667-25 8 On an appeal from a bench trial, "[w]e give deference to the trial court that heard the witnesses, sifted the competing evidence, and made reasoned conclusions." Allstate Ins. Co. v. Northfield Med. Ctr., P.C., 228 N.J. 596, 619 (2017) (quoting Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015)). "[W]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). Our Supreme Court has recognized "an appellate court's review of a cold record is no substitute for the trial court's opportunity to hear and see the witnesses who testified on the stand." Balducci, 240 N.J. at 595. "[W]e defer to the trial court's credibility determinations because it 'hears the case, sees and observes the witnesses, and hears them testify, affording it a better perspective than a reviewing court in evaluating the veracity of a witness.'" City Council of Orange Twp. v. Edwards, 455 N.J. Super. 261, 272 (App. Div. 2018) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)) (internal quotation marks omitted). "Only when the trial court's conclusions are so clearly mistaken or wide of the mark should we interfere to ensure that there is not a denial of justice." Gnall, 222 N.J. at 428 (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)) (internal quotation marks omitted). A-0667-25 9 However, where the trial court's decision constitutes a legal determination, we exercise de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Ibid. "The interpretation and construction of a contract is a matter of law for the trial court, subject to de novo review on appeal." Cumberland Farms, Inc. v. N.J. Dep't of Env't Prot., 447 N.J. Super. 423, 438 (App. Div. 2016). "[W]e . . . give contractual terms 'their plain and ordinary meaning[.]'" Kieffer v. Best Buy, 205 N.J. 213, 223 (2011) (quoting M.J. Paquet, Inc. v. N.J. Dep't of Transp., 171 N.J. 378, 396 (2002)). Under New Jersey law, waiver is the voluntary and intentional relinquishment of a known right. An effective waiver requires a party to have full knowledge of his [or her] legal rights and intent to surrender those rights. The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference. The party waiving a known right must do so clearly, unequivocally, and decisively. [Knorr, 178 N.J. at 177 (citations omitted).] The settled rule is "whenever a party to a contract has consistently acted in such a way as to indicate to his co-contractor that he does not intend to hold A-0667-25 10 the latter to a particular provision in the agreement, he is to be taken to have waived his right to enforce that provision." Schlegel v. Bott, 93 N.J. Eq. 607, 610 (E. & A. 1922). Generally, a party to a written contract can waive a provision of that contract by conduct despite the existence of a so-called anti[-]waiver or failure to enforce clause in the contract. These clauses typically stipulate that the rights and remedies of the parties will not be diminished, waived, or extinguished by one party granting any indulgence, forbearance, or extension of time to the other party not by any failure or delay in asserting or exercising rights or remedies. This general rule, that a party to a written contract may waive a provision despite the existence of an anti[-]waiver or failure to enforce clause, is based on the view that the non[-]waiver provision itself, like any other term of the contract, is subject to waiver by the agreement or conduct during performance. . . . Anti[-]waiver provisions seek to give a contracting party some assurance that its failure to require strict adherence to a contract's term will not result in a complete and unintended loss of its contract rights if it later decides that strict performance is desirable. However, a provision that a term or condition of any sort cannot be eliminated by a waiver, or by an estoppel, is ineffective, and a party has the same power to waive the condition, or to be estopped from asserting it, as though the provision did not exist. . . . [13 Williston on Contracts § 39.36 (4th ed. 2021).] A-0667-25 11 The party asserting waiver, bears the burden of establishing it by "clear and convincing evidence." Home Owners Constr. Co. v. Borough of Glen Rock, 34 N.J. 305, 317 (1961); see also Headley v. Cavileer, 82 N.J.L. 635, 640 (E. & A. 1912) ("[W]aiver will not be inferred unless the evidence is clear and convincing."). Model Jury Charge 1.19 provides: Clear and convincing evidence is evidence that produces in your minds a firm belief or conviction that the allegations sought to be proved by the evidence are true. It is evidence so clear, direct, weighty in terms of quality, and convincing as to cause you to come to a clear conviction of the truth of the precise facts in issue. The clear and convincing standard of proof requires that the result shall not be reached by a mere balancing of doubts or probabilities, but rather by clear evidence which causes you to be convinced that the allegations sought to be proved are true. [Bhagat v. Bhagat, 217 N.J. 22, 46 (2014) (quoting Model Jury Charges (Civil), 1.19, "Burden of Proof – Clear and Convincing Evidence" (rev. Aug. 2011)).] "Generally, waiver . . . is regarded as a conclusion of fact to be arrived at or rejected on the basis of evidence adduced. It is only where one conclusion can be reached on the facts adduced that it becomes a matter of law." Jasontown Apartments v. Lynch, 155 N.J. Super. 254, 259 (App. Div. 1978) (citations omitted). "When deciding a purely legal issue, review is de novo." Kaye v. A-0667-25 12 Rosefielde, 223 N.J. 218, 229 (2015) (quoting Fair Share Hous. Ctr., Inc. v. N.J. State League of Muns., 207 N.J. 489 , 493-94 n.1 (2011)). Applying this well-established law, we conclude there is no basis for us to disturb the trial court's credibility or factual findings. The court made its findings after a trial and having the opportunity to consider, firsthand, the witnesses' testimony. We are not persuaded by Landlord's arguments concerning its failure to call witnesses, regarding its understanding of the Lease, or offer documents, regarding the parties' operation under the Lease. Indeed, these issues were at the heart of the trial and there is no suggestion either party was limited in their proofs. Further, our review of the remand transcript does not reveal a request by either party to re-open the record. Under these circumstances, we are satisfied the trial court did not abuse its discretion in relying on the trial transcript and its recollection concerning the witnesses' testimony in making its factual findings. Moreover, the trial court applied the correct law when analyzing the waiver issues. Landlord's suggestion that the court misapplied the burden of proof or the law of waiver is belied by the record. We add only that the court's failure to use the words "clear and convincing" is insufficient to establish it applied the incorrect burden of proof. We are convinced the court's recitation A-0667-25 13 of Borough of Closter sufficiently established it understood and applied the correct burden. Moreover, the court found no evidence the parties had not waived the Lease provisions. To the extent we have not addressed any remaining arguments, we determine that they are insufficient to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-0667-25 14