NOT FOR PUBLICATION WITHOUT THE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This superseded an agreement reached three weeks earlier.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.
4 A-3748-15T4
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.
10 A-3748-15T4