UNITED COMMUNITY HOUSING RENEWAL CORP. v. ANDREA McCRAY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 2008-05T1 2008-05T1

UNITED COMMUNITY HOUSING RENEWAL CORP.,

Plaintiff-Appellant,

v.

ANDREA McCRAY,

Defendant-Respondent.

_____________________________________________________________

 

Submitted August 29, 2006 - Decided September 8, 2006

Before Judges R. B. Coleman and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-31851-05.

Essex-Newark Legal Services, attorney for appellant (Felipe Chavana, Executive Director; Laurel H. Dumont, on the brief).

Respondent has not filed a brief.

PER CURIAM

On October 23, 2005, plaintiff, United Community Housing Renewal Corp., filed a summary dispossess action in the Special Civil Part for non-payment of rent pursuant to N.J.S.A. 2A:18-53b against defendant, Andrea McCray.

At a limited plenary hearing on November 4, 2005, after the court heard testimony from Sylvia Johnston Clark, plaintiff's Vice President, the court calculated that there was $4,558 in past and present rent due for an apartment leased by defendant at 330 South 7th Street, Newark, where defendant had resided since October 1999. During Clark's testimony, the court examined the lease between the parties, in which paragraph five provided that "if the tenant fails to comply with the terms of the lease the landlord may charge expenses incurred as additional rent and those expenses include late fees . . . including reasonable attorneys fees." The court thus determined that in addition to the base rent, there was $735 in late fees and attorney fees due the landlord as "additional rent."

Thereafter, defendant testified that although she agreed with the court's calculation of the amount due, she was withholding rent because of needed repairs, consisting of a list of fifteen items, thirteen of which she had previously provided to plaintiff by several letters. Only three of the repairs had been addressed by the landlord. Among the deficiencies notified by defendant were the heat being nonfunctional unless the thermostat was turned to eighty degrees, broken latches on two windows resulting in drafts, air coming in from the bottom and sides of the front door, chipping wall paint, a broken kitchen light, a burned-out kitchen outlet and a broken dryer vent. When the promised repairs were not addressed, defendant began withholding rent in February 2005.

Defendant also testified to her disagreement with having to pay late fees during the period she was withholding her rent and for having to pay attorney fees "when the attorney didn't show up twice." Defendant claimed that the matter had been previously before the court in August, but it had been dismissed by plaintiff. It was rescheduled to October, when the present complaint was adjourned.

After hearing defendant's testimony, the court verified that defendant was raising a habitability defense to the complaint for possession brought by plaintiff. See Marini v. Ireland, 56 N.J. 130 (1970). Defendant indicated that, notwithstanding her disagreement with having to pay late fees and attorney fees, she was prepared to deposit the total amount of rent into court. The judge informed defendant that the law required him to request she deposit not only the base rent but an amount that included late fees and attorney fees into court because the court, based on its backlog of cases that day, could not hear her habitability defense until a future date. The court indicated that when it made "a determination as to rebate . . . [it would] then consider [whether] the late charges and attorneys fees [were] appropriate. In other words, if I think there was . . . within good cause why the rent was withheld, then I'll deny the late fee, and same thing with the attorneys fees, but we're not going to litigate it today." The court then ordered defendant to immediately deposit $5,879 into court, and to deposit future rents as they became due by the tenth day of the month.

After defendant reiterated that she had given plaintiff a written list of needed repairs on several occasions, the court ordered both parties to report "downstairs" to the clerk's office for a date when the habitability defense would be addressed, first by mediation and if necessary by plenary hearing and to ask the clerk to make a copy of defendant's most recent list of repairs for the file and for plaintiff, so there would be no question that the landlord was in receipt of the list.

Defendant's notice of appeal indicates she appeals the judgment entered in this action on November 4, 2005 in favor of plaintiff. Defendant contends that the trial court erred in requiring defendant to deposit late charges and attorney fees as a requirement for asserting a habitability defense. Defendant, in her brief, asserts that she had the funds to deposit the rent arrears, but lacked the resources to deposit the additional $735 in late charges and attorney fees that the court ordered be deposited.

In Marini, supra, the Supreme Court held that because of an inequality of bargaining power between a landlord and tenant, a landlord must be held to an implied covenant of habitability and a corresponding duty to make necessary repairs. In that case, the Court established a tenant's right to withhold rent upon the landlord's failure to make repairs after reasonable notice to the landlord was given. The Court "suggested that if the trial of a matter is delayed the defendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if he prevails." Id. at 147.

In Edmond v. Waters, 149 N.J. Super. 579, 581 (App. Div. 1977), this court held that it was error to enter a judgment for possession against a tenant who, asserting a Marini defense, agrees to deposit rent monies, but refuses to deposit costs, citing former Rule 1:13-2(a). See Rule 4:42-8(a) (costs shall be allowed as of course to the prevailing party.) (emphasis added). We further stated:

The only authority for requiring the deposit of rent is found in Marini v. Ireland, supra, at 147, where the court suggested that "if the trial of the matter is delayed the defendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if he prevails." Although the trial was initially delayed, the trial judge did not call upon the defendant to deposit the unpaid rent; rather, he required that the unpaid rent be paid directly to the landlord. This amounted to giving the landlord "a remedy not sought and not available" in a summary dispossess action. Sprock v. James, 115 N.J. Super. 111, 113 (App. Div. 1971). On the adjourned hearing date, the trial was imminent; no further delay was even contemplated. Under those circumstances, requiring the deposit of the unpaid rent on this date was error. Id. at 581.

In Stanger v. Ridgeway, 169 N.J. Super. 47 (Dist. Ct. 1979), relied on by defendant, the judge, in interpreting Marini and Edmonds together, concluded that when trial is not imminent it is the judge's discretionary function to determine whether to require a deposit. The judge noted that the term "deposit" had not been defined and the only type of deposit clearly erroneous is to require payment directly to the landlord. Id. at 50. The judge concluded, however, that when further delay is contemplated, the judge has discretion to require a deposit, the nature of which is yet undefined, and to decide the type of deposit required. The deposit required should reflect the reason for requiring deposits, as expressed in our case law, to protect the landlord if he prevails. Ibid. The court, however, stated that, "The key point is that the tenant show sincerity of defense and the ability to pay for the protection of the landlord . . . and to protect the court from being overburdened with actions destined to become moot." Ibid. The judge, however, pointed out,

While it is clear that the entire scheme of protection of tenants' rights is bottomed on the tenant paying the rent, it is equally true that once a tenant pays his rent a whole host of statutory rights become involved in his behalf. The interest of the Legislature is crystal clear that payment of the rent gives such protection. To hold that the tenant who is ready, able and willing to pay is debarred from his rights is too hypertechnical. The law is intended to work justice, not defeat it.

[Id. at 54.]

Defendant argues that the court's posting requirement of late charges and attorney fees is in direct conflict with Edmond. Defendants contends that we made clear in Edmonds that a tenant may not be required to post extra money in addition to her monthly rent in order to assert her right to live in a habitable apartment by virtue of our determination that it was error for the judge to have required the defendant to deposit costs in the amount of $7.80 with the clerk. Costs typically are awarded only to a prevailing party. However, at the time a deposit of rent is ordered, which is necessarily prior to the trial on habitability, there is no prevailing party.

Defendant claims that she was prepared to deposit with the clerk all the base rent arrears. She lacked, however, the additional funds needed to meet the court's posting order, which included $735 of late charges and attorney fees, which by virtue of paragraph five of the lease itself constituted "additional rent." Defendant asserts that as a consequence of the trial court's ruling, defendant not only stands to lose her right to assert habitability defenses and to seek rent abatement, but also stands to forfeit her home. Defendant contends that the trial court's requirement that defendant post late charges and attorney's fees as additional rent in order to assert a Marini defense effectively eliminates the Marini remedy for the vulnerable, low income group of tenants for which Marini was specifically crafted.

The record indicates that defendant objected to the judge requiring that she post not only base rent but also additional rent as provided by paragraph five of the lease. The record does not indicate, however, that defendant expressed to the judge, either during the limited plenary hearing or post-hearing, after reporting to the clerk's office, that although she could post the base rent of $4,558, that she could not post the additional rent of $735 and thus requested permission only to post the base rent, as adequate protection to the landlord should plaintiff prevail at a habitability hearing and that the trial court denied her request. In our view, therefore, the record is inadequate to review the court's posting requirement on abuse of discretion grounds. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. Super. 542, 548 (App. Div. 1959).

In view of the incompleteness of the record filed with this appeal, we asked the clerk of this court to ascertain whether a judgment of possession had issued, whether a request for a warrant for removal had ever been made, and whether defendant had vacated the premises. The clerk's investigation confirmed that a judgment for possession was never requested by plaintiff, a request for a warrant has never been made, and defendant continues to reside in the residence.

We decline on this incomplete record to review the trial court's posting order on the substantive ground of legal error urged by defendant. We do so because we deem defendant's appeal to be interlocutory, based on the record recited above. The court made no findings of fact that plaintiff was entitled to a judgment of possession. The only determination made by the judge was that defendant should deposit funds with the clerk pending a future hearing on habitability.

Interlocutory adjudications are appealable only on leave granted pursuant to Rule 2:5-6. Granting leave is within our exclusive authority as an exercise of our discretion "in the interest of justice." R. 2:2-4. It is the exclusive prerogative of this court to determine whether extraordinary circumstances are present warranting a piecemeal appeal. See, e.g., Fu v. Fu, 309 N.J. Super. 435, 439-40 (App. Div.), appeal granted, 155 N.J. 585 (1998); Hallowell v. American Honda Motor Co., 297 N.J. Super. 314, 318 (App. Div. 1997). We find no such extraordinary circumstances warranting a piecemeal appeal in this case. See Pressler, Current N.J. Court Rules, comment 1 on R. 2:8-2 (2006). For the above reasons, we dismiss defendant's appeal. R. 2:8-2.

Dismissed.

 

It is unclear whether the court's calculation of late fees included fees resulting from the originally-scheduled court appearance of October 24, 2005, which was adjourned because plaintiff appeared without counsel.

The transcript does not indicate that the court granted plaintiff a judgment for possession and ordered a warrant for eviction to issue if plaintiff failed to deposit the entire sum of $5879 with the Special Civil Part Clerk. A form attached to defendant's civil case information statement, attached to her notice of appeal, titled Tenancy and captioned in the names of the parties has a stamp affixed thereto which reads "MARINI HEARING, TENANT TO DEPOSIT $5, 879 BY 11-4 . . . IF ANY REQUIRED DEPOSIT [IS NOT MADE] BY YOU JUDGMENT FOR POSSESS[ION] ISSUED FOR LANDLORD BY PARTIES [RE]QUEST]. By letter dated March 23, 2006, and filed March 27, 2006, addressed to the attention of Larry A. Pinkus, Case Manager of the Appellate Division, Laurel DuMont, Esq., appellant's attorney, wrote by way of supplement to appellant's appellate brief: "Defendant's understanding is that the judgment for possession [was] entered in this tenancy matter when she failed to deposit with the clerk of the court the amount of rent ordered by [the] judge." "According to the Landlord/Tenant Pre-Calendar Call Instructions, if a court ordered deposit is not made, a judgment for possession will be entered in favor of landlord (see Item #3, Appendix XI-S to 2006 Edition of Rules Governing the Courts, p. 2442.)." "Defendant filed this appeal in order to protect her rights and avoid becoming homeless." The 2005 version of the Landlord/Tenant Pre-Calendar Call Instructions has the identical recommended instructions.

There is no filed judgment in favor of plaintiff contained in defendant's appendix. An order suppressing brief of [plaintiff] for failure to file a timely answering brief was entered and filed by the Clerk of the Appellate Division on May 24, 2006.

The appendix contains no first party affidavit or certification by defendant.

(continued)

(continued)

11

A-2008-05T1 2008-05T1

 

September 8, 2006