Sayles v. G&G Hotels, Inc., 429 N.J. Super. 266 (App. Div. 2013). This case involved the interpretation of an indemnification clause. In his opinion for the panel, Judge Fisher unpacked a “complex” provision and ultimately found it unambiguous even though the clause might have been better or more clearly drawn. The most quotable passage of the opinion cited Judge Learned Hand’s famous remark that “a mature and developed jurisprudence” does not “make a fortress out of the dictionary,” and added that “our jurisprudence does not make a fortress out of [Strunk & White’s] The Elements of Style.” The best way to appreciate the overall clarity of Judge Fisher’s linguistic analysis is to read this relatively brief opinion in the original, rather than any summary and regurgitation that could be provided here.
Since there was no ambiguity, the rule, cited by the panel, that ambiguous indemnification provisions are to be construed strictly against the indemnitee was inapplicable. The panel affirmed the decision below that indemnification was required, and remanded the case for the lower court to make a full assessment of the indemnitee’s losses and expenses. Those losses and expenses, Judge Fisher made clear, include attorneys’ fees. He permitted the indemnitee to file an application for attorneys’ fees and expenses incurred in the Appellate Division, and directed that the lower court thereafter include the Appellate Division’s fee and expense award in any overall judgment entered in favor of the indemnitee.
One other thing is worth noting. In most cases that the Appellate Division decides, the decision fully resolves the case, so that there is nothing left for the Appellate Division to decide thereafter. Yet, many Appellate Division opinions conclude with the normally superfluous statement that the court does not retain jurisdiction, which might lead some to the mistaken notion that opinions that do not expressly disclaim the retention of jurisdiction in fact retain jurisdiction. In this case, though, since the panel invited the indemnitee to move for appellate attorneys’ fees and expenses, Judge Fisher properly ended the opinion with the necessary clarifying statement that the judges “do not retain jurisdiction except to the extent that we consider and decide [the indemnitee’s] anticipated motion for fees and expenses.” This was one of the relatively rare cases where it was useful and appropriate for the Appellate Division to make a statement about retaining (or not retaining) jurisdiction.