STACI LOUROS, v. APOSTOLOS DIMITRIOU

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5665-03T55665-03T5

STACI LOUROS, Administratrix

of the Estate of Harry Paxos,

Plaintiff-Respondent/

Cross-Appellant,

vs.

APOSTOLOS DIMITRIOU, OLGA

DIMITRIOU, ESTATE OF OLGA

DIMITRIOU, and her heirs,

devisees and personal

representatives, and his/hers,

their or any of their successors

in right, title and interest,

Defendants-Appellants/

Cross-Respondents.

__________________________________

 
Submitted: April 11, 2005 - Remanded: May 13, 2005

Resubmitted: September 30, 2005 - Decided:

Before Judges Cuff and Weissbard.

On appeal from the Superior Court of New Jersey, Chancery Division-General Equity, Hudson County, Docket No. F-3007-02.

Arturi, D'Argenio & Guaglardi, attorneys for appellants/cross-respondents (Barry S. Guaglardi, of counsel; Anthony X. Arturi, Jr., on the brief).

Waters, McPherson, McNeill, attorneys for respondents/cross-appellants (Perry Florio, of counsel; Eric D. McCullough, on the brief).

PER CURIAM

In our May 13, 2005 opinion, we affirmed the judgment entered by Judge Olivieri in favor of plaintiff in all but one respect. We remanded for findings of fact and conclusions of law on the issue of accord and satisfaction. In an oral opinion rendered on May 24, 2005, Judge Olivieri found that the circumstances of the alleged final payment in December 1998 by John and Bill Dimitriou to Harry Paxos could not be considered an accord and satisfaction for the debt. Therefore, he rejected the defense and entered the June 3, 2005 order that dismissed plaintiff's complaint for foreclosure, discharged the mortgage between the parties, and entered a money judgment in favor of plaintiff. We affirm.

In the course of his May 24 oral opinion, Judge Olivieri questioned the credibility of all parties to the transaction. He expressly found that neither John nor Bill Dimitriou told Harry Paxos that the check delivered in December 1998 was the last payment that Harry Paxos would receive. He also found that the "final payment" notation on the check was meaningless because Harry Paxos did not read English and Bill Dimitriou acknowledged that he knew this limitation. The judge stated:

So, the defendants then would have this court accept as a matter of law that tendering a check to an individual that has "final payment" on it, an individual who doesn't read English, satisfies or perfects, if you will, the defense of accord and satisfaction. In this court's opinion it does not, because the court in Zeller [v. Markson Rosenthol & Co., 299 N.J. Super. 461, 465 (App. Div. 1997)] and Rose [v. Am. Paper Co., 83 N.J.L. 707, 709-10 (1912)] and Peterson [v. Hartford Acc. & Indemn. Co., 32 N.J. Super. 23, 31 (App. Div. 1954)] make it very clear that the court has to analyze all of the circumstances in a particular case to determine whether or not -- or to constitute an accord and satisfaction, it must appear that the defendant offered the partial payments and that the plaintiff accepted them with the intention that they operate as a satisfaction of the defendant's entire liability.

Under the law, for accord and satisfaction, it is necessary that the money be offered in full satisfaction and be accompanied by such acts or declarations as amount to a condition that if the money is accepted, it is to be in full satisfaction. A party seeking to settle for less than is claimed must, by his words or conduct in making the offer, clearly inform the other of what is sought and expected.

In this case, and as the court goes on in Rose vs. American Paper, [supra,] which is quoted in the Zeller opinion at page 465, there must be a clear determination or declaration that the money that is offered, which is less than what is claimed, is to be in full satisfaction and be of such a character that the creditor is bound to understand such offer. From Mr. Bill Dimitriou's own testimony, he said Mr. Paxos didn't read English. I do not accept the testimony, for the reasons I've indicated, that Bill and John Dimitriou explained to Mr. Paxos that this was a full and final payment.

As far as Mr. Paxos waiting for such a long period of time to take some action in this, I don't necessarily find that that impacts on the law of accord and satisfaction, for the reasons I've given, with the business dealings between and among these parties, Mr. Paxos waiting as long as he did does not impress this court, one way or the other, as far as how it impacts on the issue of accord and satisfaction.

Now, having made those findings of facts and having applied those facts to the law in the area of accord and satisfaction, as I understand it to be, I do not believe that the defense of accord and satisfaction is a viable defense in this matter, for the reasons that I've indicated.

The findings of fact rendered by Judge Olivieri are fully supported by the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). On this remaining issue, his application of the law to the facts as found is sound. Therefore, we affirm substantially for the reasons expressed in Judge Olivieri's May 24, 2005 oral opinion.

 
Affirmed.

Due to the death of Harry Paxos, on June 23, 2005, we granted a motion to substitute the Estate of Harry Paxos as plaintiff.

(continued)

(continued)

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A-5665-03T5

October 12, 2005