KENDRA FITTS v. RUJAK REALTY, LLC

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3898-16T1

KENDRA FITTS,

        Plaintiff-Respondent,

v.

RUJAK REALTY, LLC,

     Defendant-Appellant.
_______________________________

              Submitted April 11, 2018 – Decided May 2, 2018

              Before Judges Currier and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Special Civil Part, Passaic
              County, Docket No. DC-9171-16.

              Terry S. Bogorad, attorney for appellant.

              David R. Cubby, attorney for respondent.

PER CURIAM

        Defendant Rujak Realty, LLC, appeals the April 26, 2017 order

entering judgment in favor of plaintiff Kendra Fitts.                     After a

review of the contentions in light of the record and applicable

legal principles, we affirm.
      We discern the following facts from the bench trial.                        In

April 2016, plaintiff and defendant executed a lease agreement for

the   use   of    a    commercial    space     effective   May   1,     2016,   and

terminating April 30, 2017.          Plaintiff operated a business in the

space.      In August and September 2016, there were break-ins at

plaintiff's business through a window.              Plaintiff suffered a loss

of merchandise on both occasions.

      When plaintiff sought to have defendant properly secure the

window with grates, defendant refused.                As a result, plaintiff

asked to terminate the lease early.                 The parties agreed that

plaintiff could vacate the premises prior to the expiration of the

lease term conditioned on her signing a lease surrender agreement.

Defendant drafted the surrender agreement and plaintiff executed

it on September 30, 2016.

      Under      the   lease    surrender     agreement,   plaintiff     released

defendant "from any liability or responsibilities [under the lease

and] . . . any claims or damages which [plaintiff] may have in

connection    with     the     premises   arising   out    of   [her]   tenancy."

Defendant, in turn, released plaintiff from any responsibilities

to it, after the completion of a final inspection of the premises.1


1
   Defendant's counsel represented to the court that it withheld
the security deposit only because of plaintiff's early termination
of the lease, not for any damage sustained to the premises during
plaintiff's occupancy.

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The lease surrender agreement was silent as to any obligations for

unpaid rent or the security deposit.

      Plaintiff subsequently vacated the premises and requested the

return of her $6200 security deposit.        Defendant refused to remit

the security deposit.      Consequently, plaintiff filed a complaint

against defendant for the return of the monies.

      Plaintiff represented herself during the bench trial on April

26, 2017.     She testified that defendant's representative told her

he would not return the security deposit because he did not know

how long it would take to re-lease the space.2

       Defendant's witness disputed plaintiff's version of events.

He testified that when plaintiff requested the early termination

of her lease, he agreed, but said in exchange for him relinquishing

the $10,000 of unpaid rent owed under the lease, he would keep the

$6200 security deposit.      The witness stated that the release in

the surrender agreement to defendant of all claims or damages

meant that plaintiff was releasing the security.

      In an oral decision issued from the bench, the judge found

the   lease    surrender   agreement   did    not   contain   any     terms

relinquishing plaintiff's right to her security deposit.                 The

judge stated that any ambiguities in the document were construed


2
  Defendant found a new tenant to occupy the unit within two weeks
of plaintiff vacating the premises.

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against defendant as the drafter of the agreement.                            He also

concluded that had defendant intended to retain the security

deposit, it would have included that provision in the lease

surrender agreement.

       On April 26, 2017, the trial court entered judgment in favor

of plaintiff in the amount of $6,200, plus costs.                        On appeal,

defendant argues that the evidence produced at trial did not

support the verdict.

       "Final determinations made by the trial court sitting in a

non-jury case are subject to a limited and well-established scope

of review."       D'Agostino v. Maldonado, 
216 N.J. 168, 182 (2013)

(quoting Seidman v. Clifton Sav. Bank, SLA, 
205 N.J. 150, 169

(2011)).       Although our review of legal determinations made by the

trial court is de novo, we do not disturb the factual findings 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."                 Ibid. (quoting Seidman, 
205 N.J.   at    169).      Additionally,    we       defer   to   the    trial   court's

credibility determinations because it "'hears the case, sees and

observes the witnesses, and hears them testify,' affording it 'a

better      perspective   than   a    reviewing      court     in    evaluating     the



                                         4                                    A-3898-16T1
veracity of a witness.'"          Gnall v. Gnall, 
222 N.J. 414, 428 (2015)

(quoting Cesare v. Cesare, 
154 N.J. 394, 412 (1998)).

      New Jersey courts "have shown an increasing tendency to

analogize     landlord-tenant       law       to    conventional   doctrines       of

contract law."     McGuire v. Jersey City, 
125 N.J. 310, 321 (1991).

For   a    contract     to   be   enforceable,         "an   agreement    must     be

sufficiently definite in its terms that the performance to be

rendered    by   each    party     can    be       ascertained   with    reasonable

certainty."      W. Caldwell v. Caldwell, 
26 N.J. 9, 24-25 (1958).

"The polestar of contract construction is to discover the intention

of the parties as revealed by the language used by them."                    Karl's

Sales & Serv. v. Gimbel Bros., 
249 N.J. Super. 487, 492 (1991).

      Generally, courts give "the terms of an agreement . . . their

plain and ordinary meaning."             M.J. Paquet v. N.J. DOT, 
171 N.J.
 378, 396 (2002).        "[W]here the terms of a contract are clear and

unambiguous there is no room for interpretation or construction

and the courts must enforce those terms as written." Karl's Sales,


249 N.J. Super. at 493 (citing Kampf v. Franklin Life Ins. Co.,


33 N.J. 36, 43 (1960)); see also Cty. of Morris v. Fauver, 
153 N.J. 80, 103 (1998).

      In reviewing a contract, courts may not "remake a better

contract for the parties than they themselves have seen fit to

enter into, or to alter it for the benefit of one party and to the

                                          5                                 A-3898-16T1
detriment of the other."        Karl's Sales, 
249 N.J. Super. at 493

(citing James v. Fed. Ins. Co., 
5 N.J. 21, 24 (1950)).              Moreover,

"[a] court has no power to rewrite the contract of the parties by

substituting a new or different provision from what is clearly

expressed in the instrument."        E. Brunswick Sewerage Auth. v. E.

Mill Assocs., Inc., 
365 N.J. Super. 120, 125 (App. Div. 2004).

     Here,    defendant     argues   that     the   language   in   the     lease

surrender agreement releasing it from "all claims" includes the

forfeiture of plaintiff's security deposit.               But the agreement

does not reference the security deposit or unpaid rent.                        The

agreement    specifically    includes     a   discharge   of   liability       and

responsibility to plaintiff for any damages arising out of her

tenancy on the premises.      However, it is silent as to the parties'

rights to the security deposit.

     Without a specific reference to the deposit, the trial judge

concluded that he could not find the parties intended for plaintiff

to relinquish her right to the monies.              He stated: "I will note,

there's not one single word in here about the rent or about the

security deposit.    And it is shocking to me that if that's really

the intent of what the agreement is, that you wouldn't include it

in the agreement."

     We agree.    Defendant, a sophisticated real estate company,

drafted the lease surrender agreement that sought to expressly

                                      6                                   A-3898-16T1
limit its liability to plaintiff.         Had defendant also intended to

retain plaintiff's security deposit, it would have included that

provision in the agreement.      There is no reference to the security

deposit in the agreement. Therefore, we cannot discern a different

intent   of   the   parties   other   than   what   is   contained   in   the

agreement.

     We are satisfied that the trial judge's determination that

the parties did not intend for plaintiff to relinquish her right

to the security deposit was supported by the substantial credible

evidence in the record.

     Affirmed.




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