PAUL MASLOW VS. RICHARD DONATO(L-0162-16, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3748-15T4

PAUL MASLOW,

Plaintiff-Respondent,

v.

RICHARD DONATO and
LISA KENNARD,

Defendant-Appellant.
________________________________

Submitted May 16, 2017 – Decided September 29, 2017

Before Judges Reisner and Sumners.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No. L-
0162-16.

Keith T. Smith, attorney for appellant.

Kristopher J. Facenda, attorney for respondent.

The opinion of the court was delivered by

SUMNERS, J.A.D.

Defendants Richard Donato and Lisa Kennard leased a home from

plaintiff Paul Maslow that resulted in an eviction complaint in

the Special Civil Part based upon non-payment of rent and utility
bills. The parties entered into a settlement agreement that was

incorporated into a consent judgment.1 The agreement set forth

the parties' respective responsibilities for a short sale of the

property to defendants, and defendants' obligations: to make

certain payments to plaintiff, make timely repairs to damages

caused by a broken water pipe that would authorize plaintiff's

insurance company to release holdback monies, and to place utility

accounts in their names.

About three months later, plaintiff sought defendants'

eviction because they breached the settlement agreement by failing

to pay rent. In response, defendants filed an order to show cause,

and successfully moved to transfer the matter to the Law Division.

Plaintiff subsequently moved to enforce the settlement

agreement, requesting the court to issue a warrant for removal

because defendants' breached provisions of the settlement

agreement. A hearing, where the parties testified and presented

documentary evidence, resulted in the court's determination that

defendants breached provisions of the settlement agreement and

that a warrant for removal shall issue.2 Defendants' motion for

1
This superseded an agreement reached three weeks earlier.
2
The hearing was conducted by the same judge who presided over
the dispute when it was a landlord/tenant eviction action in
Special Civil Part.

2 A-3748-15T4
reconsideration was denied, but their request to stay issuance of

the warrant was granted for a month provided they paid monthly

rent.

After defendants appealed, the court granted their request

to continue the stay pending appeal as long as they paid $1500

monthly rent and satisfied other conditions. We affirm defendants'

eviction because they failed to pay rent and a utility bill as

required under the consent judgment.

We first address defendants' challenge to evidentiary rulings

by the trial court. We review these evidentiary rulings for abuse

of discretion. Townsend v. Pierre, 221 N.J. 36, 53 (2015). To

establish that plaintiff had no right to evict them, defendants

argue the trial court should have allowed evidence that plaintiff

did not have a certificate of occupancy (C.O.) for the property

in violation of a municipal ordinance.3 We disagree.

The court determined that the C.O. evidence was not relevant

because the issues presented involved enforcement of the

settlement agreement, which allowed for eviction if certain

conditions were not satisfied, not whether plaintiff violated

occupancy requirements. See N.J.R.E. 401; N.J.R.E. 402. Any

defense related to the lack of a C.O. was waived when defendants

3
Atlantic City Ordinance §163-216.

3 A-3748-15T4
entered into the settlement agreement. Moreover, even though a

municipal ordinance requires a C.O. before a premises may be

occupied, the lack thereof does not automatically void a lease,

unless other factors require voidance. See McQueen v. Brown, 342

N.J. Super. 120, 128 (App. Div. 2001), aff'd 175 N.J. 200 (2002).

And defendants do not seek to void the lease, but want to avoid

eviction and remain in the property.

Also without merit is defendants' contention that under

N.J.S.A. 2A:18-55,4 the trial court's jurisdiction to evict them

ended when they paid $8000 in past due rent in accordance with the

settlement agreement. Since the parties' settlement agreement

required the payment and other conditions after the payment was

made, defendants' reliance on the statue is misplaced.

Hence, the crux of this appeal turns on whether defendants'

breached material terms of the consent judgment that justifies the

trial court's order to evict them. We "give deference to the

trial court that heard the witnesses, sifted the competing

evidence, and made reasoned conclusions." Griepenburg v. Twp. of

Ocean, 220 N.J. 239, 254 (2015) (citing Rova Farms Resort, Inc.

4
If . . . the tenant . . . shall at any time on or before entry
of final judgment, pay to the clerk of the court the rent claimed
to be in default, together with the accrued costs of the
proceedings, all proceedings shall be stopped[.] N.J.S.A. 2A18-
55.

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v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974)). Reviewing courts

"should 'not disturb the factual findings and legal conclusions

of the trial [court]' unless convinced that those findings and

conclusions were 'so manifestly unsupported by or inconsistent

with the competent, relevant and reasonably credible evidence as

to offend the interests of justice.'" Ibid. (quoting Rova Farms,

supra, 65 N.J. at 484). Review on appeal "does not consist of

weighing evidence anew and making independent factual findings;

rather, our function is to determine whether there is adequate

evidence to support the judgment rendered at trial." Cannuscio

v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div.

1999) (citing State v. Johnson, 42 N.J. 146, 161 (1964)).

We, however, owe no deference to the "trial court's

interpretation of the law and the legal consequences that flow

from established facts." Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995) (citations omitted). And we

consider de novo, the trial court's "interpretation of a contract."

Kieffer v. Best Buy, 205 N.J. 213, 222 (2011).

The Consent Judgment here provided that if defendants failed:

"TO MAKE ANY PAYMENT THAT IS REQUIRED IN PARAGRAPH 2b OF THIS

AGREEMENT, [DEFENDANTS] MAY BE EVICTED AS PERMITTED BY LAW AFTER

THE SERVICE OF THE WARRANT OF REMOVAL." Paragraph 2b referred to

the parties' attached settlement agreement, which was hand-

5 A-3748-15T4
written5 and captioned "Other Provisions." The following

paragraphs of the agreement are relevant to the trial court's

findings:

2. Defendants shall pay to Plaintiff . . .
$1,500 per month . . . on the 1st day of each
month[.]

3. Defendants shall complete all repairs
required by Plaintiff’s insurance company in
a workmanlike manner and in a manner
acceptable to the insurance company by 9/11/15
so that plaintiff may obtain the full balance
of any and all insurance holdback monies.
Defendants shall notify plaintiff by text
message when repairs are complete. Defendants
shall allow Plaintiff and Plaintiff's public
adjuster and insurance reps access to complete
all required insurance inspections. Failure of
the insurance company to accept said repairs
before 9/18/15 shall be a breach of this
settlement agreement by Defendants.

Within 20 days of Plaintiff receiving above
insurance holdback monies, Plaintiff shall
apply a $1,500 credit towards rent owed by
Defendants. This credit shall be for
materials used for repairs for insurance
monies and shall not exceed $1,500 and shall
be in the amount of Defendants' actual
material expenses based upon receipts given
to Plaintiff.

4. The parties agree to negotiate an Agreement
of Sale for the Short Sale approval of the
subject Property. This agreement of Sale shall
provide that Defendants shall have a period
of 45 days to obtain a mortgage commitment
from a lender of Defendants['] choice. . . .

5
Making the terms challenging to understand.

6 A-3748-15T4
 Failure to obtain this commitment within 95
days by (illegible), defendants or plaintiff
may cancel the Sales Agreement.

5. Tenant/Defendant shall place all utilities
(electric, water and sewer) in Defendants[']
name on or before 9/15/15. Plaintiff hereby
authorizes said utility transfer and will sign
additional authorizations needed provided
there is no cost to Plaintiff. Tenant shall
pay all balances on all utilities at the time
of the transfer. Failure to pay and switch
utilities as above shall be a breach of this
settlement agreement. Tenant shall notify
plaintiff of this change.

. . . .

8. Upon full compliance of this Settlement
Agreement, the Parties agree to execute a
month to month lease with rent of $1,500.00

9. This court shall retain jurisdiction of
this action and the enforcement of this
settlement agreement and Defendants[']
monetary and non-monetary obligations
hereafter. All obligations hereafter shall be
enforceable through closing of the short sale
referenced above. Plaintiff shall not have to
file a new action and tenant waives the right
to claim same.

Based upon our review of the record, we conclude that while

the trial court was mistaken in finding defendants breached the

settlement agreement by not putting the water and sewer account

in their names and not keeping repair receipts for the insurance

company, there is support for the court's findings that defendants

7 A-3748-15T4
breached other material provisions of the agreement thereby

warranting eviction.

Donato testified that the water and sewer account could not

be placed in defendants' names as required by paragraph five of

the agreement because they did not own the property. His counsel

sought to have the court take judicial notice of the utility's

administrative regulation evidencing the assertion and indicated

he would submit the regulation to the court. In its oral decision,

the court found there was no competent evidence to support the

assertion. We disagree. There was no determination by the court

that Donato's testimony was not credible, and given that the court

issued its oral decision at the conclusion of the hearing, it

appears the court never considered the regulation. Hence, we

conclude paragraph five was not breached.

We also conclude there was no breach of the settlement

agreement through defendants' failure to provide receipts for the

water pipe repair to the insurance company to enable the release

of "insurance holdback monies." The only mention of defendants'

duty to retain receipts is in paragraph three of the agreement,

which pertains to defendants' ability to receive a $1500 rental

credit. Since the agreement does not impose such obligation on

defendants, paragraph three was not breached.

8 A-3748-15T4
 While the record supports the court's determination that

defendants did not make timely repairs, the consent judgment does

not provide that such a breach can result in defendants' eviction.

The consent judgment calls for eviction only if defendants fail

to make the agreed-upon payments.

These errors, however, are harmless because the record

supports the court's findings that defendants failed to make

required payments. See R. 2:10-2. As the court found, defendants

failed to pay the water and sewer bill balance down to zero as

required by paragraph five, and had not paid all rent that was due

as required by paragraph two. Under the terms of the consent

judgment, defendants' failure to make these payments allowed

plaintiff to move before the court to evict defendants without

having to file a new action. Thus, issuance of the warrant for

removal was appropriate. Accordingly, the court's stay of the

warrant of removal shall be vacated.

Finally, defendants' contention that plaintiff's breaches of

the consent judgment bar him from seeking their eviction is without

sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Because we affirm the order on appeal, the trial court's June

15, 2016 order granting defendants a stay of eviction is hereby

vacated. The parties' respective motions concerning the stay are

dismissed as moot.

9 A-3748-15T4
Affirmed.

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