Opinion
DOCKET NO. A-1947-10T2
03-13-2012
LAVERNE BASTRESS, Plaintiff-Respondent, v. LAWRENCE SIMMONS, SR., Defendant-Appellant.
Lawrence Simmons, Sr., appellant pro se. Lanfrit and Tullio, L.L.C., attorneys for respondent (Kathryn Kopp, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County, Docket No. LT-0655-10.
Lawrence Simmons, Sr., appellant pro se.
Lanfrit and Tullio, L.L.C., attorneys for respondent (Kathryn Kopp, of counsel and on the brief). PER CURIAM
In this tenancy action, defendant appeals from the November 19, 2010 order entered by the Special Civil Part judge granting his landlord's motion to enforce an April 9, 2010 settlement agreement and entering a judgment of possession to the landlord. We affirm.
While this matter suffers from a tortured procedural history, the relevant record establishes that after plaintiff, defendant's landlord, filed a complaint against defendant in March 2010, for non-payment of rent, trial was scheduled for April 9. The parties appeared on that date and, following negotiations, they entered into a settlement agreement. Under the settlement agreement defendant agreed to pay $2725 to plaintiff no later than 5:00 p.m., April 12 and $1975 by the 5th of every month defendant remained in possession. Defendant also agreed to dismiss the complaint he filed against plaintiff and to vacate the property no later than June 30. Additionally, the agreement provided that in the event defendant failed to make the required payments, plaintiff could, upon notice to defendant, file a certification with the court requesting a warrant for removal. The court approved the settlement after finding that defendant understood the terms of the settlement agreement and voluntarily entered into settlement.
Thereafter, defendant failed to make payments in accordance with the agreement and also failed to vacate the premises. Rather than seek enforcement of the settlement agreement, plaintiff's counsel filed a new complaint for a judgment of possession based upon defendant's non-payment of rent for April and May. On the trial date defendant raised a Marini defense to the eviction action. The court ordered defendant to deposit into court the rent due after which the court would schedule a Marini hearing. Defendant failed to make the deposit as ordered and the court granted plaintiff a judgment of possession.
Defendant filed a series of motions seeking to vacate the judgment. With each motion the court ordered defendant to make certain deposits into Superior Court as a condition precedent to conducting the Marini hearing, but defendant failed to comply with the time constraints for making the deposits. Instead, defendant, on each occasion, would attempt to make the deposits after the time periods fixed by the court. An August 17 order denied defendant's motion for a reduction in rent based upon the landlord's breach of the implied covenant of habitability.
Defendant sought emergent relief from this court resulting in our order remanding the matter to the trial court for consideration of the merits of defendant's motion to vacate the judgment of possession. On remand, the trial court granted defendant's motion and ordered defendant to deposit the outstanding rent due by 4:30 p.m. on August 27, as a condition for continuing the Marini hearing. Defendant complied with this order. The court fixed a briefing schedule for the parties to address the issues raised in their respective motions.
Following oral argument on November 19, 2010, Judge Fred H. Kumpf entered an order accompanied by a statement of reasons. The court analyzed and concluded that defendant breached the provisions in the settlement agreement requiring him to vacate by June 30, 2010. The court also directed that plaintiff could apply for a warrant for removal in "due course."
As for defendant's motion to dismiss plaintiff's complaint, to release funds on deposit in Superior Court, and to transfer his purported counterclaim for damages in the summary dispossess action to the Law Division, the court denied the relief sought in its entirety.
The court reasoned that defendant's counterclaim for damages resulting from plaintiff's alleged lockout, negligence, removal of property and violation of defendant's right of privacy were not cognizable in a summary dispossess action but could form the basis of a separate action filed in the Law Division. The court also determined that defendant was not entitled to a release of the funds on deposit in Superior Court, as such a disposition would be "tantamount to a counterclaim barred by Rule 6:3-4(a)." Finally, the court noted that there were a number of technical deficiencies in defendant's motion, which the court viewed as a summary judgment motion because the motion included matters outside of the pleadings.
On appeal, defendant contends plaintiff was not entitled to the relief granted by the court and that plaintiff is "guilty of gross breaching of the settlement agreement." We have considered defendant's arguments in light of the record and the applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Kumpf in his November 19, 2010 cogent and well-reasoned written opinion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Marini v. Ireland, 56 N.J. 130 (1970) (holding that the breach of an implied warranty of habitability or covenant to repair may be used by a tenant as a defense in an eviction action based upon non-payment of rent where defects have been asserted as a basis for withholding of rental payments).