FENNER REAL ESTATE, INC v. ELLEN KRAMER
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1989-16T4
FENNER REAL ESTATE, INC.,
c/o ESTATE OF WALTER FENNER,
Plaintiff-Respondent,
v.
ELLEN KRAMER,
Defendant-Appellant.
_____________________________
Submitted May 3, 2018 – Decided June 20, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. DC-
8017-16.
Ellen Kramer, appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Defendant Ellen Kramer appeals from the Special Civil Part's
December 15, 2016 judgment in favor of plaintiff Fenner Real Estate
Inc., for the Estate of Walter Fenner. We affirm.
On January 20, 2016, plaintiff filed a two-count complaint
against defendant for breach of contract and unjust enrichment.
The complaint alleged that plaintiff and defendant entered into a
written residential lease agreement for a term ending August 25,
2008. However, plaintiff filed an eviction action resulting in
defendant being evicted from the property, due to defendant owing
plaintiff "past due and unpaid rent in the amount of $18,985.00[,]"
which defendant failed to pay as required by the lease agreement.
Defendant filed an answer asserting the claim for rent was settled
for $3000 by written agreement on November 26, 2012. Defendant
also filed a counterclaim for repairs exceeding $15,000 that
plaintiff allegedly promised to reimburse defendant by rent
reductions.
The matter was tried on December 15, 2016. The judge took
testimony from Ken Copeland, the executor of the estate, and
defendant, both of whom were self-represented. Copeland confirmed
that the parties entered into a lease agreement in 2006 for the
rental of a three-bedroom house. After the lease term ended, the
tenancy continued as a month-to-month lease. However, in 2012,
plaintiff filed an eviction action in landlord-tenant court
against defendant for non-payment of rent.
On November 26, 2012, when they appeared for trial, the
parties entered into a consent judgment stipulating:
2 A-1989-16T4
1. [Defendant] agrees to the immediate entry
of a judgment for possession and that the
warrant of removal may issue and be served
upon [defendant] at [plaintiff's] request, as
permitted by law. [Plaintiff] agrees that the
warrant of removal cannot be executed (no
eviction) until [January 7, 2013] ("the move
out date"), unless [defendant] fails to comply
with paragraph 2(B).
2. . . .
B. [Defendant] shall pay [$3000], as
follows: [Defendant] to pay [$3000] on
[November 26, 2012] via bank check to be
allowed to remain on the premises.
[Defendant] acknowledges arrears are due.
3. A. If [defendant] does not make all
payments required in paragraph 2(B) of this
Agreement, [defendant] agrees that
[plaintiff], with notice to [defendant], can
file a certification stating when and what the
breach was and that the warrant of removal can
then be executed upon, as permitted by law,
prior to the agreed upon [move out date].
B. Even if [defendant] does make all
payments required in paragraph 2(B),
[defendant] still agrees to move no later than
[January 7, 2013]. If [defendant] does not
move by that date, [plaintiff] can have
[defendant] evicted, as permitted by law. The
[thirty] day period to execute upon a warrant
of removal is agreed between the [parties] to
be extended to incorporate the move out date.
Defendant, who was self-represented, signed the consent judgment,
which was prepared by plaintiff's attorney, made the required
payment of $3000, and vacated the premises on January 5, 2013.
3 A-1989-16T4
According to Copeland, who executed the consent judgment on
behalf of plaintiff, the $3000 was a "one[-]time payment which
didn't satisfy any past due amounts[,]" did not constitute a waiver
of the remaining amount owed, which exceeded $35,000, and only
allowed defendant to remain in the property until January 7, 2013.
Copeland's attorney had explained to him that "there's two
processes[,] [f]irst you get them removed and then you have to go
to special civil or small claims to get the past due amount."
Copeland testified defendant still owed past due amounts totaling
$10,150 for 2008, $11,270 for 2009, $9604 for 2010, $2220 for 2011
and $7161 for 2012. Copeland also submitted repair receipts
totaling approximately $4000 for damage to the property that he
allegedly discovered after defendant moved out and repaired prior
to renting the house again.
Copeland testified that he did not file the complaint sooner
because he had "no forwarding address" for defendant and was unable
to locate her. As to defendant's counterclaim, Copeland testified
that he was never notified in writing about any repairs defendant
made to the property. However, he acknowledged that in 2011
following Hurricane Irene, defendant notified him orally that she
paid $1600 to a restoration company "to pump out approximately ten
to twelve inches of water out of the basement." Copeland testified
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that he gave defendant a $500 credit for that expense in an effort
"to be nice."
Defendant acknowledged entering into the lease agreement and
falling behind in rent payments. She agreed that some arrears
existed, but disputed the amount. She admitted signing the consent
judgment on November 26, 2012, when they went to landlord/tenant
court. However, according to defendant, "there was no amount
written on that agreement or anywhere else" indicating that any
additional monies were owed and she "agree[d] to pay [$3000]" and
to be evicted believing it was "a settlement for what [she]
owe[d]." She testified she borrowed the $3000 from her elderly
father believing that amount would satisfy her payment obligation
in full and "would never, ever, ever have signed that piece of
paper if [she] knew three and a half to almost four years later
[she] was going to be sued." She disputed Copeland's claim that
the lawsuit was delayed because he did not have her address,
testifying that he later sent her a water bill.
Although defendant disputed the amount Copeland claimed she
owed for past due rent, she had no bank statements or other
evidence to show that she made payments which were not credited.
She further disputed Copeland's claim for repairs made to the
property after she moved out, asserting that the house was in a
state of disrepair when she moved in and, despite her pleas for
5 A-1989-16T4
him to remediate these problems, she was "forced . . . to live in
a place that was uninhabitable." She explained that she rented
the house in that condition because she was "paying [$1400] instead
of [$1800] or [$2000 per month] for a three bedroom . . . house"
in that area.
As to her counterclaim, defendant testified that because of
the condition of the house, "[she] paid thousands of dollars" for
out of pocket expenses during the tenancy but only had some of the
receipts, "[n]ot all of them." Defendant's receipts totaled $5631
for mold remediation stemming from Hurricane Irene, exterminators
for vermin in the house, damage from termites and other expenses.
After the bench trial, the judge entered judgment in favor
of plaintiff. In his oral decision, the judge noted that defendant
admitted renting the property and acknowledged the lease
agreement, which was admitted into evidence. According to the
judge, it was also undisputed that a prior landlord/tenant case
resulted in defendant executing "a stipulation of settlement and
agreement[,]" on November 26, 2012, paying $3000, and vacating the
property. The judge explained that "ordinarily[,] . . . the case
would be over." However, the settlement agreement expressly
indicated that "additional monies" were due and owed.
Consequently, the judge concluded that "clearly[,] it wasn't an
accord [and] satisfaction."
6 A-1989-16T4
In rejecting plaintiff's claim for damage to the property,
the judge explained that "[his] lawsuit was for back rent" only.
The judge noted, however, that although this was "not a Marini1
hearing[,]" defendant had filed a counterclaim as an offset for
"certain out of pocket expenses for which she's testified to and
provided receipts for" and "[t]here's really not a whole lot of
dispute . . . that the property was not in the best of condition."
The judge therefore narrowed the disputed issues to "the amount
of money owed for the rent and the amount of money [defendant]
claim[ed] [she] paid out of pocket to help remediate . . . the
property so that [she] could live there." The judge found that
although plaintiff proved that he was owed $30,504 in back rent,
his recovery was limited to the jurisdictional limit of the Special
Civil Part of $15,000,2 which "would be offset by [$]5631" that
defendant proved "by a preponderance of the evidence was paid out
of pocket for a net award to . . . plaintiff of [$9369]." This
appeal followed.
1
Marini v. Ireland,
56 N.J. 130 (1970) (allowing a defendant
tenant to raise habitability issues in a landlord's summary
dispossess action for non-payment of rent and obtain a hearing
thereon, provided the tenant deposits the rent with the court
clerk).
2 See Rule 6:1-2(a)(1) (limiting claims cognizable in the Special
Civil Part to those in which the amount in controversy does not
exceed $15,000).
7 A-1989-16T4
On appeal, defendant raises the following points for our
consideration:
I. AN ACCORD AND SATISFACTION WAS REACHED
IN THIS CASE AND A NEW CONTRACT BETWEEN THE
PARTIES WAS ENTERED INTO AS A SUBSTITUTION FOR
THE EXISTING OBLIGATION AND THE PROMISES MADE
BY DEFENDANT, PAYMENT AND VACATION OF
PREMISES, WERE FULLY EXECUTED THUS SATISFYING
THE ESSENTIAL CONDITIONS OF AN ACCORD AND
SATISFACTION.
II. THIS DISPUTE RAISES A PURE CONTRACT
INTERPRETATION ISSUE INVOLVING THE
INTERPRETATION OF THE NOTICE TO EVICT. THE
TRIAL COURT ERRED BY TAKING A SINGLE CLAUSE
OUT OF CONTEXT AND DID NOT GIVE ANY
CONSIDERATION TO THE CIRCUMSTANCES
SURROUNDING THE SIGNING OF THE AGREEMENT,
VIEWING THE DISPUTED INSERTED PROVISION APART
FROM THE OBVIOUS PURPOSE OF THE DOCUMENT.
THEREFORE, FRUSTRATING THE EXPLICIT REASON FOR
THE SETTLEMENT WHICH WAS TO RESOLVE BOTH
EVICTION AND ALL RENT PAST DUE.
III. THE JUDGE'S FAILURE TO ALLOW DEFENDANT'S
ORAL EVIDENCE OF OUT OF POCKET EXPENSES . . .
, IN SUPPORT OF HER COUNTERCLAIM, SHOULD ALSO
BE REVERSED AS ERRONEOUS AND DEFENDANT'S
COUNTERCLAIM ALLOWED IN FULL . . . .
Our scope of review of a "trial court sitting in a non-jury
case" is limited. Seidman v. Clifton Sav. Bank, S.L.A.,
205 N.J.
150, 169 (2011). "The general rule is that findings by the trial
court are binding on appeal when supported by adequate,
substantial, credible evidence." Cesare v. Cesare,
154 N.J. 394,
411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins.
Co. of Am.,
65 N.J. 474, 484 (1974)). We do not disturb the
8 A-1989-16T4
"factual findings and legal conclusions of the trial [court]"
unless we are "convinced that they are so manifestly unsupported
by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Id. at
412 (quoting Rova Farms,
65 N.J. at 484). Equally well-established
is the principle that our review of "[a] trial court's
interpretation of the law" is plenary and "not entitled to any
special deference." Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan,
140 N.J. 366, 378 (1995).
Here, we are satisfied that the decision reached by the judge
was amply supported by the record. Defendant contends that "an
accord and satisfaction was reached" when the parties signed the
settlement agreement discharging the entire claim and the trial
judge failed to read the entire agreement in context and instead
read the arrears clause in isolation. Defendant further asserts
that plaintiff's delay in pursuing her for back rent demonstrates
that "the intent of the settlement . . . was meant to be final and
dispositive, not a mere offer of compromise."
"An accord and satisfaction is an agreement which, upon its
execution, completely terminates a party's existing rights and
constitutes a defense to any action to enforce pre-existing
claims." Gunter v. Ridgewood Energy Corp.,
32 F. Supp. 2d 166,
183 (D.N.J. 1998) (quoting Nevets C.M., Inc. v. Nissho Iwai Am.
9 A-1989-16T4
Corp.,
726 F. Supp. 525, 536 (D.N.J. 1989), aff'd sub nom.,
899 F.2d 1218 (3d Cir. 1990)). "The traditional elements of an accord
and satisfaction" are "(1) a dispute as to the amount of money
owed; (2) a clear manifestation of intent by the debtor to the
creditor that payment is in satisfaction of the disputed amount;
(3) acceptance of satisfaction by the creditor." A. G. King Tree
Surgeons v. Deeb,
140 N.J. Super. 346, 348-49 (Cty. Dist. Ct.
1976). "[A]n accord and satisfaction requires a clear
manifestation that both the debtor and the creditor intend the
payment to be in full satisfaction of the entire indebtedness."
Zeller v. Markson Rosenthal & Co.,
299 N.J. Super. 461, 463 (App.
Div. 1997). "In the absence of evidence of such intention, the
defense of accord and satisfaction is unavailing to defeat a
creditor's claim for payment in full." Id. at 466.
Here, both parties testified at trial regarding their intent
in entering the settlement agreement. Although defendant
testified that her $3000 payment was in full satisfaction of the
arrears and that she would have never agreed to the settlement if
she knew that she would still owe past due rent, she never received
anything to that effect in writing. On the contrary, the agreement
specified that defendant acknowledged arrears were due, which was
consistent with Copeland's intent and understanding of the
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agreement. Thus, we are satisfied that the judge correctly
rejected defendant's defense of an accord and satisfaction.
Defendant further argues that it is unfair that plaintiff was
"allowed to keep the [$3000], . . . avoid the trouble, expense and
uncertainty of an eviction proceeding, . . . promptly . . . rent
the premises [and] still be allowed to pursue [her] in court for
the original balance." Defendant asserts that because she complied
with the settlement agreement, it is an "injustice" for the judge
to award judgment to plaintiff when he "gave up absolutely
nothing." According to defendant, in so doing, the judge
"nullified the purpose of the settlement."
The terms of a settlement agreement are generally "given
their plain and ordinary meaning." M.J. Paquet, Inc. v. N.J.
Dep't of Transp.,
171 N.J. 378, 396 (2002). A court cannot
interpret a settlement agreement in a manner that is broader than
the parties intended, nor may it vary the material terms. Grow
Co. v. Chokshi,
403 N.J. Super. 443, 464 (App. Div. 2008).
Settlement agreements that require tenants to pay and vacate
the premises (commonly called a "'pay and go' settlement"), provide
"that although a judgment for possession is being entered,
customarily on the day that the settlement is made, the tenant
must nevertheless make some agreed-upon payment and must move out
by an agreed-upon date." Franco v. Rivera,
379 N.J. Super. 273,
11 A-1989-16T4
274 n. 1 (Law Div. 2005). However, because "[p]ossession of the
premises is the only available remedy [to a landlord] for non-
payment of rent," and "money damages may not be awarded in a
summary dispossess action[,]" Hodges v. Sasil Corp.,
189 N.J. 210,
221 (2007), neither a landlord nor tenant are precluded from
seeking to recover money damages in a subsequent proceeding.
Moyano v. Williams,
267 N.J. Super. 213, 216-17 (Law Div. 1993).
See Berzito v. Gambino,
63 N.J. 460, 469 (1973) (holding tenants
were not precluded from seeking to recover rent paid prior to
court's ruling in summary dispossession action that landlord had
breached the warranty of habitability).
Here, plaintiff could not obtain money damages through the
settlement agreement negotiated in the summary dispossess action
filed against defendant in landlord/tenant court. Thus, he had
no choice but to seek repayment of back rent through a subsequent
proceeding in the Special Civil Part. Additionally, defendant
preserved her right to file a counterclaim to recover money damages
as an offset. Thus, the judge correctly entered judgment in
plaintiff's favor and properly evaluated defendant's counterclaim
for unreimbursed expenses she incurred during the tenancy. We
discern no reason to disturb the judge's decision based on his
factual findings and legal conclusions following the bench trial.
Affirmed.
12 A-1989-16T4
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