Preview
CAM-L-002948-20 03/31/2021 3:22:43 PM Pg 1 of 4 Trans ID: LCV2021845592
De
ZARWIN BAUM
Seviro KAPLAN SonAER TODDY
Kierstin M. Lange, Esquire
Member PA and NJ Bars
kmlange@zarwin.com
267-273-7406
March 31, 2021
Via E-Courts Only
The Honorable Sherri L. Schweitzer, J.S.C.
Superior Court of New Jersey
Camden County Hall of Justice
101 South 5th Street, 5th Floor
Camden, NJ 08103-4001
Re: HCP Ill Eagle, LLC v. Sleepy's LLC
Plaintiff's Reply in Further Support of Certification of Fees
Docket No. CAM-L-2948-20
Dear Judge Schweitzer:
As you know, I represent the Plaintiff/Movant, HCP III Eagle, LLC in the above
referenced litigation. On Friday March 19, 2021, Plaintiff's Motion for Summary Judgment
was granted in its entirety and Your Honor directed Plaintiff to submit a Certification of
Fees thereafter within five (5) days of entry of the Order, consistent with Plaintiffs
dispositive motion and the suggested means of resolving fees set forth therein. Please
accept this correspondence in lieu of a formal reply in further support of Plaintiffs
Certification of Fees.
Plaintiff's Certification of Fees was timely filed on Monday March 29, 2021 wherein
I affirmed the validity of all fees incurred, the reason and necessity of same and the fact that
Plaintiff has paid all fees incurred except the most recent charges. I did not include the
actual legal invoices because they are wrought with privileged information and defense
counsel already expressed that it is Defendant’s intent to appeal the Court’s decision.
Plaintiff has authorized me to provide these legal invoices to Your Honor for an in camera
review, if necessary. If Your Honor would like Plaintiff to produce same, please confirm
and I will arrange for delivery of all invoices to chambers without further delay.
2005 Marker STREET @ 161H FLOOR @ PHILADELPHIA, PA 19103 # (215) 569-2800 Fax (215) 569-1606 * Www.ZARWIN.COM
New Jersey OFrices: Jersey Ciry # Mr. Lauret @ DELAWARE OFFICE: WILMINGTON
CAM-L-002948-20 03/31/2021 3:22:43 PM Pg 2 of 4 Trans ID: LCV2021845592
wg
ZARWIN BAUM
DEVITO KAPLAN SCHAER TODDY
ATTORNEYS AT LAW
The Honorable Sherri L. Schweitzer, J.S.C.
March 31, 2021
Page 2
Ialso did not burden the Court with an itemized list of every phone call, letter, email
exchanged, and pleading filed in the three (3) lawsuits related to Defendant's defaults under
the Lease. Instead, I explained in summary form what has occurred and provided the Court
with the relevant docket nos., the court records speak for themselves.
I have been practicing law in the State of New Jersey for sixteen (16) years,
representing commercial landlords and their management companies for the entire
duration of that time. I have never once found it necessary to “demonstrate [my] expertise
and experience in a particular field”, certainly not after 1 successfully was awarded
summary judgment on my client’s behalf at the very onset of the litigation because
Defendant failed to set forth any viable defense to the contract claim, but instead continued
to assert common law defenses that directly contradicted the express terms of the
underlying contract (the Lease) it agreed to a decade prior.
Defense counsel asserts legal arguments within his certification, which fail as a
matter of law and must be disregarded. First, as a matter of law, counsel waived these
arguments by failing to raise them at the appropriate time prior to judgment on liability. If
there was any defense to Landlord’s enforcement of the Lease and the right to legal fees and
costs as the prevailing party because there was an issue with Landlord’s default notice,
defense counsel should have raised that in the pleadings or at a minimum in opposition to
summary judgment, which he did not. That defense was therefore waived. Defendant also
did not seek reconsideration of the Order granting summary judgment in Plaintiff's favor
either; therefore, that Order is now final. There are not any extraordinary circumstances
that shall entitle counsel to another bite at the apple in this regard and none have been
presented.
Second, even if the Court were to entertain defense counsel’s arguments, the
argument is flawed. Defendant unilaterally withheld Rent without any explanation
whatsoever for the months of April-June 2020!. Defendant never invoked its rights under
Section 45 of the Lease (force majeure provision). Force Majeure rights need to be exercised.
1 Defendant first asserted “frustration of purpose” due to the executive orders in its Answer filed in October
2020, so it would not have been until October 2020 that Landlord could have possibly by implication been
aware that Defendant was invoking Section 45 of the Lease, yet consistently objecting to its application
when Landlord tried to enforce same thereafter.
2005 Market STREET # 1611 FLOOR @ PHILADELPHIA, PA 19103 # (215) 569-2800 # FAx (215) 569-1606 * WWW.ZARWIN.COM
New Jersey Orrices: Jersey Cry @ Mr. LAUREL @ DELAWARE OFFICE: WILMINGTON
CAM-L-002948-20 03/31/2021 3:22:43 PM Pg 3 of 4 Trans ID: LCV2021845592
‘La
ZARWIN BAUM
DEVITO KAPLAN SCHAER TODDY
ATTORNEYS AT LAW
The Honorable Sherri L. Schweitzer, J.S.C.
March 31, 2021
Page 3
In fact, at all times material hereto, Defendant opposed application of Section 45 of the
Lease and the relief provided therein, up to and including the day this Court entered
judgment in Plaintiff's favor, March 19, 2021.
If Defendant was objecting to occurrence of a force majeure event and vehemently
opposing application of Section 45 of the Lease, as it clearly was as reflected by the
pleadings, Landlord was under absolutely no obligation to provide Defendant with
additional time within which to fulfill its obligations set forth in Section 45 of the Lease.
As a result, Landlord enforced the remainder of the Lease as written. Landlord issued a
default notice in accordance with Section 12.1 of the Lease and provided Defendant the
requisite ten (10) day cure period. Defendant may not “have its cake and eat it too”...it
may not object to application of Section 45 of the Lease, yet also demand that Landlord
have provided 90 days for performance thereunder before issuing a default notice. That
argument is simply unreasonable and illogical. Defendant cannot benefit from its own
breach.
Finally, I believe that defense counsel continues to unknowingly misrepresent
certain facts to the Court in furtherance of these arguments, which are misleading the
Court and prejudicing Plaintiff. Defense counsel continues to rely upon the dates that
the executive orders were in effect, but that is irrelevant because Defendant operated in
direct violation of same. As I have previously certified as an officer of the Court, Tenant
temporarily ceased operations in the Leased Premises for only 77 days, despite the fact
that Governor Murphy’s Executive Order was in effect for 84 days. Plaintiff is on-site
and able to confirm this fact, the date of the order is not evidence of Defendant’s
operations. Defendant reoccupied and recommenced operations in the Premises on June
8, 2021; however, Landlord did not issue a default notice regarding the April-June 2021
Rent delinquency until August 11, 2021.
Despite having no obligation to provide Defendant with additional time since
Defendant was not invoking its rights under the force majeure provision, Plaintiff
attempted to amicably resolve the delinquency directly with Defendant before hiring
2005 Market STREET # 1611 FLOOR @ PHILADELPHIA, PA 19103 # (215) 569-2800 # FAx (215) 569-1606 * WWW.ZARWIN.COM
New Jersey Orrices: Jersey Cry @ Mr. LAUREL @ DELAWARE OFFICE: WILMINGTON
CAM-L-002948-20 03/31/2021 3:22:43 PM Pg 4 of4 Trans ID: LCV2021845592
wg
ZARWIN BAUM
DEVITO KAPLAN SCHAER TODDY
ATTORNEYS AT LAW
The Honorable Sherri L. Schweitzer, J.S.C.
March 31, 2021
Page 4
outside counsel. And, litigation was not commenced until September 2, 2021, after
Defendant made it clear to Plaintiff that it was unwilling to comply with its obligations
under the Lease.
In reality, Plaintiff provided Defendant far more time than the Lease entitled it and
Landlord acted reasonably at all times material hereto. Upon commencement of
litigation, Defendant defended in bad faith without any viable defense and removed the
summary dispossession action to the District Court of New Jersey on a diversity basis
despite the fact that diversity jurisdiction does not exist. At all times material hereto, the
court record clearly reflects that Defendant/defense counsel have done everything
possible to intentionally and strategically increase Plaintiff's fees and costs incurred to
enforce its rights under the Lease and in bad faith. As a result, on multiple occasions, I
have provided defense counsel notice of Plaintiff’s intent to pursue sanctions and fees at
the conclusion of this litigation pursuant to NJR 1:4-8. All of this is further justification
for the necessity of the fees incurred to date.
For these reasons, Plaintiff respectfully requests that this Court grant Plaintiff the
relief requested in its Certification of Fees. If you need anything further, please feel free to
contact me.
Thank you in advance for your courtesies in this regard.
Respectfully,
/s/ Kierstin M. Lange
Kierstin M. Lange
cc: Jeffrey Rea, Esq. (via ecourts)
? Plaintiff asserts that there is no diversity jurisdiction because a summary dispossession action does not
meet the amount in controversy requirement. Plaintiff’s Complaint sought possession only and even if it
were monetized it would not reach the $75,000.00 threshold since the monetary damages in this action were
less than $36,000 plus fees.
2005 Market STREET # 1611 FLOOR @ PHILADELPHIA, PA 19103 # (215) 569-2800 # FAx (215) 569-1606 * WWW.ZARWIN.COM
New Jersey Orrices: Jersey Cry @ Mr. LAUREL @ DELAWARE OFFICE: WILMINGTON
Preview
CAM-L-002948-20 03/31/2021 3:22:43 PM Pg 1 of 4 Trans ID: LCV2021845592 De ZARWIN BAUM Seviro KAPLAN SonAER TODDY Kierstin M. Lange, Esquire Member PA and NJ Bars kmlange@zarwin.com 267-273-7406 March 31, 2021 Via E-Courts Only The Honorable Sherri L. Schweitzer, J.S.C. Superior Court of New Jersey Camden County Hall of Justice 101 South 5th Street, 5th Floor Camden, NJ 08103-4001 Re: HCP Ill Eagle, LLC v. Sleepy's LLC Plaintiff's Reply in Further Support of Certification of Fees Docket No. CAM-L-2948-20 Dear Judge Schweitzer: As you know, I represent the Plaintiff/Movant, HCP III Eagle, LLC in the above referenced litigation. On Friday March 19, 2021, Plaintiff's Motion for Summary Judgment was granted in its entirety and Your Honor directed Plaintiff to submit a Certification of Fees thereafter within five (5) days of entry of the Order, consistent with Plaintiffs dispositive motion and the suggested means of resolving fees set forth therein. Please accept this correspondence in lieu of a formal reply in further support of Plaintiffs Certification of Fees. Plaintiff's Certification of Fees was timely filed on Monday March 29, 2021 wherein I affirmed the validity of all fees incurred, the reason and necessity of same and the fact that Plaintiff has paid all fees incurred except the most recent charges. I did not include the actual legal invoices because they are wrought with privileged information and defense counsel already expressed that it is Defendant’s intent to appeal the Court’s decision. Plaintiff has authorized me to provide these legal invoices to Your Honor for an in camera review, if necessary. If Your Honor would like Plaintiff to produce same, please confirm and I will arrange for delivery of all invoices to chambers without further delay. 2005 Marker STREET @ 161H FLOOR @ PHILADELPHIA, PA 19103 # (215) 569-2800 Fax (215) 569-1606 * Www.ZARWIN.COM New Jersey OFrices: Jersey Ciry # Mr. Lauret @ DELAWARE OFFICE: WILMINGTON CAM-L-002948-20 03/31/2021 3:22:43 PM Pg 2 of 4 Trans ID: LCV2021845592 wg ZARWIN BAUM DEVITO KAPLAN SCHAER TODDY ATTORNEYS AT LAW The Honorable Sherri L. Schweitzer, J.S.C. March 31, 2021 Page 2 Ialso did not burden the Court with an itemized list of every phone call, letter, email exchanged, and pleading filed in the three (3) lawsuits related to Defendant's defaults under the Lease. Instead, I explained in summary form what has occurred and provided the Court with the relevant docket nos., the court records speak for themselves. I have been practicing law in the State of New Jersey for sixteen (16) years, representing commercial landlords and their management companies for the entire duration of that time. I have never once found it necessary to “demonstrate [my] expertise and experience in a particular field”, certainly not after 1 successfully was awarded summary judgment on my client’s behalf at the very onset of the litigation because Defendant failed to set forth any viable defense to the contract claim, but instead continued to assert common law defenses that directly contradicted the express terms of the underlying contract (the Lease) it agreed to a decade prior. Defense counsel asserts legal arguments within his certification, which fail as a matter of law and must be disregarded. First, as a matter of law, counsel waived these arguments by failing to raise them at the appropriate time prior to judgment on liability. If there was any defense to Landlord’s enforcement of the Lease and the right to legal fees and costs as the prevailing party because there was an issue with Landlord’s default notice, defense counsel should have raised that in the pleadings or at a minimum in opposition to summary judgment, which he did not. That defense was therefore waived. Defendant also did not seek reconsideration of the Order granting summary judgment in Plaintiff's favor either; therefore, that Order is now final. There are not any extraordinary circumstances that shall entitle counsel to another bite at the apple in this regard and none have been presented. Second, even if the Court were to entertain defense counsel’s arguments, the argument is flawed. Defendant unilaterally withheld Rent without any explanation whatsoever for the months of April-June 2020!. Defendant never invoked its rights under Section 45 of the Lease (force majeure provision). Force Majeure rights need to be exercised. 1 Defendant first asserted “frustration of purpose” due to the executive orders in its Answer filed in October 2020, so it would not have been until October 2020 that Landlord could have possibly by implication been aware that Defendant was invoking Section 45 of the Lease, yet consistently objecting to its application when Landlord tried to enforce same thereafter. 2005 Market STREET # 1611 FLOOR @ PHILADELPHIA, PA 19103 # (215) 569-2800 # FAx (215) 569-1606 * WWW.ZARWIN.COM New Jersey Orrices: Jersey Cry @ Mr. LAUREL @ DELAWARE OFFICE: WILMINGTON CAM-L-002948-20 03/31/2021 3:22:43 PM Pg 3 of 4 Trans ID: LCV2021845592 ‘La ZARWIN BAUM DEVITO KAPLAN SCHAER TODDY ATTORNEYS AT LAW The Honorable Sherri L. Schweitzer, J.S.C. March 31, 2021 Page 3 In fact, at all times material hereto, Defendant opposed application of Section 45 of the Lease and the relief provided therein, up to and including the day this Court entered judgment in Plaintiff's favor, March 19, 2021. If Defendant was objecting to occurrence of a force majeure event and vehemently opposing application of Section 45 of the Lease, as it clearly was as reflected by the pleadings, Landlord was under absolutely no obligation to provide Defendant with additional time within which to fulfill its obligations set forth in Section 45 of the Lease. As a result, Landlord enforced the remainder of the Lease as written. Landlord issued a default notice in accordance with Section 12.1 of the Lease and provided Defendant the requisite ten (10) day cure period. Defendant may not “have its cake and eat it too”...it may not object to application of Section 45 of the Lease, yet also demand that Landlord have provided 90 days for performance thereunder before issuing a default notice. That argument is simply unreasonable and illogical. Defendant cannot benefit from its own breach. Finally, I believe that defense counsel continues to unknowingly misrepresent certain facts to the Court in furtherance of these arguments, which are misleading the Court and prejudicing Plaintiff. Defense counsel continues to rely upon the dates that the executive orders were in effect, but that is irrelevant because Defendant operated in direct violation of same. As I have previously certified as an officer of the Court, Tenant temporarily ceased operations in the Leased Premises for only 77 days, despite the fact that Governor Murphy’s Executive Order was in effect for 84 days. Plaintiff is on-site and able to confirm this fact, the date of the order is not evidence of Defendant’s operations. Defendant reoccupied and recommenced operations in the Premises on June 8, 2021; however, Landlord did not issue a default notice regarding the April-June 2021 Rent delinquency until August 11, 2021. Despite having no obligation to provide Defendant with additional time since Defendant was not invoking its rights under the force majeure provision, Plaintiff attempted to amicably resolve the delinquency directly with Defendant before hiring 2005 Market STREET # 1611 FLOOR @ PHILADELPHIA, PA 19103 # (215) 569-2800 # FAx (215) 569-1606 * WWW.ZARWIN.COM New Jersey Orrices: Jersey Cry @ Mr. LAUREL @ DELAWARE OFFICE: WILMINGTON CAM-L-002948-20 03/31/2021 3:22:43 PM Pg 4 of4 Trans ID: LCV2021845592 wg ZARWIN BAUM DEVITO KAPLAN SCHAER TODDY ATTORNEYS AT LAW The Honorable Sherri L. Schweitzer, J.S.C. March 31, 2021 Page 4 outside counsel. And, litigation was not commenced until September 2, 2021, after Defendant made it clear to Plaintiff that it was unwilling to comply with its obligations under the Lease. In reality, Plaintiff provided Defendant far more time than the Lease entitled it and Landlord acted reasonably at all times material hereto. Upon commencement of litigation, Defendant defended in bad faith without any viable defense and removed the summary dispossession action to the District Court of New Jersey on a diversity basis despite the fact that diversity jurisdiction does not exist. At all times material hereto, the court record clearly reflects that Defendant/defense counsel have done everything possible to intentionally and strategically increase Plaintiff's fees and costs incurred to enforce its rights under the Lease and in bad faith. As a result, on multiple occasions, I have provided defense counsel notice of Plaintiff’s intent to pursue sanctions and fees at the conclusion of this litigation pursuant to NJR 1:4-8. All of this is further justification for the necessity of the fees incurred to date. For these reasons, Plaintiff respectfully requests that this Court grant Plaintiff the relief requested in its Certification of Fees. If you need anything further, please feel free to contact me. Thank you in advance for your courtesies in this regard. Respectfully, /s/ Kierstin M. Lange Kierstin M. Lange cc: Jeffrey Rea, Esq. (via ecourts) ? Plaintiff asserts that there is no diversity jurisdiction because a summary dispossession action does not meet the amount in controversy requirement. Plaintiff’s Complaint sought possession only and even if it were monetized it would not reach the $75,000.00 threshold since the monetary damages in this action were less than $36,000 plus fees. 2005 Market STREET # 1611 FLOOR @ PHILADELPHIA, PA 19103 # (215) 569-2800 # FAx (215) 569-1606 * WWW.ZARWIN.COM New Jersey Orrices: Jersey Cry @ Mr. LAUREL @ DELAWARE OFFICE: WILMINGTON