FENNER REAL ESTATE, INC, ETC. VS. ELLEN KRAMER (DC-8017-16, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-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

4 A-1989-16T4
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

10 A-1989-16T4
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.

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