C. F. Seabrook Co. v. Beck

CourtNew Jersey Superior Court – Appellate Division
Citation174 N.J.Super. 577,417 A.2d 89
PartiesC. F. SEABROOK COMPANY, Plaintiff-Appellant, v. Mary Ann BECK, Defendant-Respondent.
Decision Date19 June 1980

Philip Stripling, Haddon Heights, for plaintiff-appellant (Farr, Reifsteck & Wolf, Haddon Heights, attorneys).

Joel Solow, Bridgeton, for defendant-respondent (Robert D. Pitt, Director, Camden Regional Legal Services, Inc., attorney; Joel Solow and Ira Jay Katz, on the brief).

Before Judges CRANE, MILMED and KING.

The opinion of the court was delivered by

KING, J. A. D.

On this appeal plaintiff landlord contends that the trial judge erred (1) in ordering a retroactive abatement of rent for months in which the rent had previously been paid in full; (2) in awarding an abatement of $250 a month where the total rent was $325 a month; (3) by not making specific findings of fact on the issue of habitability and notice of defects as required by R. 1:7-4 and (4) by demonstrating prejudice against plaintiff and thereby denying it due process of law.

The demised premises were an old farmhouse on two acres of land in a rural section of Deerfield Township, Cumberland County. The house was surrounded by 40 acres of farmland; the nearest residence was approximately one-third of a mile away. Defendant had signed a written month-to-month lease in which she agreed to pay $325 a month commencing April 1, 1978.

According to defendant, she was supposed to move in on April 1, but because plaintiff had failed to install a stove and the heat was not functioning, she was unable to occupy the premises until May 14. Three of plaintiff's maintenance employees said that about the time of the inception of the lease the house was in reasonably good condition.

Defendant testified that shortly after she moved in and throughout the summer she spoke to Thomas Turner, plaintiff landlord's representative, concerning "various things that were not working" but that those "various things" were not repaired. However, Turner said that on many occasions when plaintiff attempted to effect repairs defendant was not home to allow entry to the workmen. Furthermore, Turner recalled that defendant specifically complained of only two items during the summer of 1978 lack of a stove and a running toilet. The stove was delivered and hooked up on June 23. Turner said that he gave defendant a credit on rent for the missing stove. Plaintiff introduced into evidence several repair orders which indicated that plaintiff performed some repairs during the spring and early summer of 1978.

Defendant stopped paying rent in either August or September of 1978; she did not state which month. By letter dated September 19, 1978 defendant explained why she had stopped payment on her rent check. She complained of the following conditions: (1) a defective water pump which caused water and dampness in the basement and mildew and mold in the basement and the first floor; (2) the water was not "working" in the upstairs bathroom toilet and the downstairs basin; (3) the screens and storm windows needed repair or replacement; (4) the furnace did not run; (5) there was no ceiling light fixture in the dining room; (6) there was dry-rot and termite damage in the basement; (7) the exterior of the house needed painting and (8) interior paint was peeling because of the dampness.

Turner responded to this letter on September 28, 1978. Turner said that plaintiff would be "more than willing" to correct items one through six on defendant's September 19 letter, but pursuant to their September 23 conversation defendant was supposed to have contacted Turner to make arrangements for plaintiff's repairmen to enter the house and she had not done so. At trial Turner said that defendant did not contact him thereafter, nor did he attempt to contact her.

Thereafter, on October 13 defendant's attorney informed plaintiff that the items listed in the original letter should be repaired. The attorney offered to settle the matter by having defendant pay rental of only $150 a month until plaintiff repaired the premises. No agreement was reached and the complaint for possession was filed on December 12, 1978.

Somewhat different defective conditions became manifest between the time plaintiff filed its complaint in December 1978 and the May 7, 1979 trial date. Defendant's principal witness was Robert Curley, a real estate broker who was formerly the senior housing inspector for the City of Bridgeton. He inspected the premises on three occasions, March 12, April 27 and May 6, 1979. Following his March inspection Curley prepared a report listing the defective conditions, many of which violated the State housing code. (For some reason, even though both parties and the court heavily relied upon this report, it was not marked into evidence.) The report cited the following defective conditions: (1) raw sewage leaking into the crawl space under the house, apparently from a blocked pipe or overloaded cesspool; (2) poor water drainage in the kitchen sink, first-floor toilet and first-floor wash stand; (3) several electrical problems, including exposed wires and the need to install or repair various lights, light switches and receptacles; (4) loose windows and defective screens and storm windows; (5) a leak under the window in the second floor bedroom; (6) dampness in the basement, (7) rotted wood near the northwest corner of the foundation and (8) deteriorating paint or wallpaper in the kitchen, ceiling, porch roof and the entire exterior. At trial Curley said that the sewage leak created the worst problem.

By May 6 plaintiff offered proof that most of these deficiencies had been corrected. The following still needed to be done: (1) repaint or repaper the wall and ceiling area in the kitchen, (2) paint the exterior, (3) put in three windowpanes, (4) scrape the paper and the paint on the second floor ceiling, (5) paint the first-floor foyer, (6) replace a windowpane on the second floor, (7) install glass in the storm windows, (8) paint the roof over the rear porch and (9) repair a leak under the second-floor window which caused plaster to fall.

Regarding the sewage problem, one of plaintiff's employees testified that at some undesignated time he twice cleaned the septic tank and cesspool. He said that the cause of the problem the first time was that the tank was too full. The second time, there were paper towels in the system.

The trial judge, relying in part on photographs submitted into evidence but not reproduced on this appeal, found that plaintiff had breached its warranty of habitability. The judge did not give much weight to the testimony of plaintiff's employees, saying that he would not expect them to admit that "the place was in terrible condition." The judge particularly noted the sewage problem and a "dangerous" lack of porch railings. He reduced the rent to $75 a month, stating that "if we are going to have property that belongs in the slums we are going to have slum rates." The judge held that the abatement would be retroactive to April 1, the commencement of the tenancy, and would continue until every condition noted in Curley's report was corrected. However, he emphatically told defendant that she must permit plaintiff's employees to have ready access to the premises to make the needed repairs.

Defendant first contends that the appeal should be dismissed because a written judgment was never signed. She argues that since the judge never signed a judgment, this court will find it difficult to determine what is being appealed. Plaintiff responds that a judgment was entered in this case, and supplies a copy in its reply brief. This issue was the basis of plaintiff's motion "to determine propriety of appeal."

Defendant's argument is without merit. Clearly, only judgments, not opinions, are appealable; it is the judgment which enables the reviewing court to determine what was done below. Credit Bureau Collection Agency v. Lind, 71 N.J.Super. 326, 328, 177 A.2d 36 (App.Div.1961); Homeowner's, etc., Inc. v. South Plainfield Sewerage Auth., 60 N.J.Super. 321, 323, 158 A.2d 847 (App.Div.1960). However, in county district court cases the judgment need not be signed by the trial judge. Under R. 6:6-4:

Upon receipt of the verdict of a jury, or upon determination by a judge sitting without a jury, the clerk shall note the judgment on the jacket and it shall take effect forthwith. The clerk shall thereupon enter the judgment and tax the costs.

That was done in this case. The judgment as entered by the clerk on the jacket states:

Habitability defense established. Rent abated to $75 per mo. Retroactive to April 1, 1978 until Inspector Robert E. Curley removes every exception at which time rent will return to the figure in the lease.

Judgment for possession. Warrant on request. The court retains jurisdiction.

Defendant next contends that the appeal should be dismissed because under N.J.S.A. 2A:18-59 the judgment is not appealable. Plaintiff argues that any habitability issue goes to jurisdiction and that the court in this case exceeded its jurisdiction, thus rendering the judgment appealable under N.J.S.A. 2A:18-59.

N.J.S.A. 2A:18-59 provides in pertinent part that "proceedings had by virtue of this article shall not be appealable except on the ground of lack of jurisdiction." In an action for possession based on nonpayment of rent the county district court has jurisdiction only where there exists a default in rent. Marini v. Ireland, 56 N.J. 130, 137, 265 A.2d 526 (1970); Passaic Housing Auth. v. Torres, 143 N.J.Super. 231, 236, 362 A.2d 1254 (App.Div.1976). Failure of the tenant to pay rent does not alone confer jurisdiction; rather, there is a default when the rent is due, unpaid and owing. Marini, supra, 56 N.J. at 139, 265 A.2d 526, 531. "Thus a tenant's evidence in substantiation of a defense that there is no default or that the default is not in the amount alleged by...

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