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affirming a trial court's finding of no meeting of the minds after a party repeatedly rejecting lease agreement and then notating "signing under protest"
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DOCKET NO. A-0259-14T2
11-10-2015
BERGENLINE PROPERTY GROUP, LLC, Plaintiff-Respondent, v. MARIA COTO, Defendant-Appellant.
Gregory T. Farmer, attorney for appellant. Roberta L. Tarkan, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-14067-13. Gregory T. Farmer, attorney for appellant. Roberta L. Tarkan, attorney for respondent. PER CURIAM
Plaintiff Bergenline Property Group, LLC obtained an order of eviction after defendant Maria Coto inserted the phrase "signing under protest" beneath her signature on a lease. We affirm the trial court's ruling that defendant's qualified signature failed to effectuate a valid lease. We remand for further fact finding on whether subsequent events affect the trial court's ruling that defendant may execute a judgment of possession.
I.
The following are the facts and procedural history through the trial court's orders. Those orders were based, without objection, on the facts set forth in letters from counsel, which are undisputed unless otherwise noted.
Defendant is a long-term tenant on premises owned and operated by plaintiff. There was an oral lease between the parties for most of the tenancy. On May 14, 2013, plaintiff served a notice to quit on defendant requiring her to execute a written lease or vacate the premises before August 31, 2013. The notice also requested a $1,115.08 security deposit. Plaintiff said defendant had to sign the lease by June 30, 2013, and pay the security deposit by July 1, 2013. Defendant objected to several provisions of the proposed lease and failed to sign it or pay the security deposit by those dates.
On July 16, 2013, plaintiff sent defendant an additional notice to quit informing her that she was in violation of N.J.S.A. 2A:18-61.1(i), due to her refusal to accept reasonable changes to the terms of her lease after written notice was provided. The notice to quit also informed defendant that her tenancy would terminate on August 31, 2013. Defendant did not sign the lease, pay the security deposit, or vacate the premises by that date.
On September 5, 2013, plaintiff filed an eviction complaint in the Special Civil Part. Following a hearing, plaintiff and defendant, as the court understood, "agreed that the Court will make a final determination regarding the reasonableness of several provisions of the proposed lease. The parties . . . agreed that they will be bound by the Court's determination." On February 14, 2014, Judge Marybeth Rogers issued a written opinion in which she modified various terms of the proposed lease. The lease as modified by the court provided, among other things, that: defendant had to pay $1,115.08 as a security deposit; that defendant had to remove a washing machine from her residence that could potentially damage the building; and guests may not stay overnight more than fourteen days in a twelve-month period without advance notice to plaintiff. Despite her prior agreement to be bound by the court-modified lease, defendant refused to sign it. Plaintiff made a motion for a judgment of possession.
On June 12, 2014, Judge Rogers held a hearing on plaintiff's motion for a judgment of possession. Judge Rogers orally ordered defendant to: sign and deliver the lease by 4:00 p.m. on June 16, 2014; pay the $1,115.08 security deposit; adhere to the occupancy restrictions; and remove the washing machine. Defendant failed to meet this deadline or adhere to the modified lease terms.
Plaintiff's counsel certified as follows. At about 7:00 p.m. on June 16, 2014, defendant's boyfriend delivered an unwitnessed lease, allegedly signed by defendant, and a post-dated check signed by her boyfriend. Plaintiff objected to both the lease and the post-dated check. Plaintiff's counsel agreed to extend, until June 18, 2014, the period of time for defendant to deliver an appropriately-signed lease and a security deposit.
Plaintiff's counsel further certified as follows. On June 18, 2014, defendant's boyfriend delivered two money orders for the security deposit, and a lease signed by defendant and witnessed by defendant's counsel. However, directly below defendant's signature on the lease appeared the words "signing under protest." Plaintiff's counsel said that the "signing under protest" language was unacceptable, and asked defendant to sign the lease in the presence of plaintiff's counsel. Upon arriving at the office of plaintiff's counsel, defendant refused to exit the car, strike the "signing under protest" language, or execute a new lease.
Plaintiff's counsel asked the trial court for a judgment of possession. In letters to the court, defendant's counsel defended defendant's "signing under protest" language as free speech, said it did not change the document, and stated "[p]arenthetically" that "if [plaintiff's counsel] was offended by that statement she could strike that language." However, defendant made no effort to strike that language thereafter. Moreover, defendant's counsel represented that defendant had removed the washing machine, but plaintiff's counsel certified that the washing machine was still visible in plaintiff's apartment.
On July 29, 2014, the court entered a judgment of possession against defendant, and permitted the filing and execution of a warrant of removal. Judge Rogers stressed that defendant placed the notation "signing under protest" under her signature. The court found:
A meeting of the minds is an essential element to the valid consummation of a contract. E.g., Cent. 48 Ltd. P'ship v. Macy Dept. Stores Co., 355 N.J. Super. 390, 406 (App. Div. 2002). [Defendant's] notation is an explicit representation of dissatisfaction with the contract. The Court shall not accept [defendant's] signature. Accordingly, [defendant] failed to execute the lease and thus violated the Court's order.
On August 8, 2010, defendant filed a motion for reconsideration. After hearing oral argument, Judge Rogers denied the motion on August 22, 2014. Defendant filed a notice of appeal of the July 29 and August 22 orders.
II.
This case is brought under the New Jersey Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12. The Act was "designed to limit the eviction of tenants to 'reasonable grounds' and to provide for 'suitable notice' of tenants in the event of an eviction proceeding." 447 Assocs. v. Miranda, 115 N.J. 522, 527 (1989). "[T]enants may not be removed from their residential premises except on one of various enumerated grounds constituting 'good cause.'" Id. at 528 (citing N.J.S.A. 2A:18-61.1). "One of the statutory grounds occurs if a landlord proposes 'at the termination of a lease, reasonable changes of substance in the terms and conditions of the lease, including specifically any change in the term thereof, which the tenant, after written notice, refuses to accept . . . .'" Riverview Realty, Inc. v. Williamson, 284 N.J. Super. 566, 568 (App. Div. 1995) (quoting N.J.S.A. 2A:18-61.1(i)).
"New Jersey and other jurisdictions have shown an increasing tendency to analogize landlord-tenant law to conventional doctrines of contract law." McGuire v. Jersey City, 125 N.J. 310, 321 (1991). "The interpretation of a contract is subject to de novo review by an appellate court." Kieffer v. Best Buy, 205 N.J. 213, 222 (2009). The formation of a contract is likewise reviewed de novo. See NAACP of Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 430 (App. Div.), certif. granted, 209 N.J. 96 (2011), appeal dismissed, 213 N.J. 47 (2013). We must hew to this standard of review.
III.
As noted by the trial court, "[a] legally enforceable agreement requires 'a meeting of the minds.'" Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 442 (2014) (citation omitted), cert. denied, ___ U.S. ___, 135 S. Ct. 2084, 192 L. Ed. 2d 847 (2015); Cent. 48 Ltd. P'ship, supra, 355 N.J. Super. at 406. "In order for a contract to form, . . . there must be a 'meeting of the minds,' as evidenced by each side's express agreement to every term of the contract." State v. Ernst & Young, L.L.P., 386 N.J. Super. 600, 612 (App. Div. 2006) (citation omitted).
"'In the very nature of the contract, acceptance must be absolute.'" Ibid. (citation omitted). "[I]f parties agree on essential terms and manifest an intention to be bound by those terms, they have created an enforceable contract." Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992). "Where the parties do not agree to one or more essential terms, however, courts generally hold that the agreement is unenforceable." Ibid. "'[I]t is requisite that there be an unqualified acceptance to conclude the manifestation of assent.'" Id. at 435-36 (citation omitted).
Therefore, the "parties' objective intent governs. A contracting party is bound by the apparent intention he or she outwardly manifests to the other party. It is immaterial that he or she has a different, secret intention from that outwardly manifested." Hagrish v. Olson, 254 N.J. Super. 133, 138 (App. Div. 1992); accord Schor v. FMS Financial Corp., 357 N.J. Super. 185, 191 (App. Div. 2002).
The trial court found that, by placing the words "signing under protest" beneath her signature on the lease, defendant manifested an intention that she did not assent to the terms of the modified lease, and thus did not comply with the court's order. Under the particular circumstances here, we agree.
Defendant's "signing under protest" came after a series of refusals by defendant to agree to the terms of the lease. Defendant agreed to be bound by the court's determination of the reasonableness of the challenged terms in the proposed lease, but when the court issued its opinion modifying several terms and ultimately approving the modified lease as reasonable, defendant breached that agreement and refused to sign the modified lease. The court ordered defendant to sign the modified lease and pay the security deposit by a deadline, but defendant failed to do so.
Thus, there is no merit to defendant's claim that the trial court failed to give her an opportunity to sign the modified lease. Defendant cites Housing Auth. & Urban Redevelopment Agency v. Spratley, 327 N.J. Super. 246, 256 (App. Div. 1999) (hereinafter "Spratley"), but there we reversed the Special Civil Part's judgment that the defendants did not have to sign the new leases.
After the deadline, defendant tried to present a lease allegedly containing her unwitnessed signature and a post-dated check signed by her boyfriend who was not a tenant. Defendant's offering of an unwitnessed lease that might be contestable by her, and a post-dated third-party payment that would not indicate her agreement, further evidenced her refusal to be bound by the terms of the lease, as well as her defiance of the court's order to sign the lease and pay the security deposit immediately.
When plaintiff gave defendant yet another opportunity to sign the lease, she marked her signature "signing under protest," explicitly manifesting her dissatisfaction with the modified lease. When plaintiff's counsel objected to that language qualifying defendant's signature and asked her to remove it, she refused.
Cf. Quigley v. KPMG Peat Marwick, LLP, 330 N.J. Super. 252, 266-267 (App. Div.) (finding the signer's insertion of "U.D." within his signature, without a "contemporaneous explanation" of the insertion's intended meaning, was not an outward manifestation that he was under duress), certif. denied, 165 N.J. 527 (2000).
After plaintiff sought a judgment of possession, defendant's counsel stated that plaintiff's counsel could strike the language. However, defendant's counsel did not represent that he had defendant's agreement to remove the language she had added, or that defendant would strike her language. Indeed, defendant made no effort to strike that language or re-sign the lease in the five weeks before the court entered the judgment of possession, or even in the subsequent four weeks before the denial of her motion for reconsideration.
Defendant now argues she still retained the power of acceptance of plaintiff's offer of the modified contract. However, her "signing under protest," and her refusal to remove that language, constituted a rejection of the modified lease and "terminate[d] the power of acceptance." Berberian v. Lynn, 355 N.J. Super. 210, 217 (App. Div. 2002), aff'd as modified, 179 N.J. 290 (2004). In any event, plaintiff's request for a judgment of possession withdrew plaintiff's offer, further terminating defendant's power of acceptance.
Finally, defendant's apparent refusal to be bound by the modified lease was further demonstrated by the ongoing dispute regarding whether the washing machine had been removed as required by the modified lease approved by the trial court.
In light of this history, the trial court could properly find that defendant's "signing under protest" did not represent her agreement to the terms of the modified lease, but rather another in a long series of refusals to agree to its terms. The court could also properly regard defendant's "signing under protest" as another breach of defendant's agreement to be bound by the terms the court found reasonable, and further defiance of the court's order that she sign the agreement.
This unusual history of refusal, particularly defendant's defiance of the trial court's order, supports the court's ruling. No party can "openly defy the court's authority to suit [her] own purposes, and expect to triumph." Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 117 (2005); see State v. Whaley, 168 N.J. 94, 100 (2001). The Special Civil Part must deal with a "huge volume" of cases involving often unrepresented litigants. See Chase Bank USA, N.A. v. Staffenberg, 419 N.J. Super. 386, 398 (App. Div. 2011); Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989). Allowing defendant to disregard her agreement to abide by the court's determination, defy its order to sign the modified lease, and employ a series of stratagems to postpone eviction while withholding then qualifying her acceptance, undermines the authority of the court and its ability to function. Moreover, it provides ample evidence to support the trial court's conclusion that defendant's "signing under protest" was not an absolute or unqualified acceptance of the modified lease, as required for the contract to be enforceable under our case law. See Weichert Co. Realtors, supra, 128 N.J. at 435-36; Ernst & Young, L.L.P., supra, 386 N.J. Super. at 612.
A judge's "findings warrant particular deference when they are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Rockford, 213 N.J. 424, 440 (2013) (citations and quotation marks omitted). Here, the trial court had seen defendant testify. It had also observed defendant's actions over many months of litigation. "An appellate court must pay deference to the trial court's feel of the case, given that, on appeal, review is confined to the cold record." Johnson v. Scaccetti, 192 N.J. 256, 282 (2007) (internal quotation marks omitted). Accordingly, we defer to the trial court's finding that defendant's "signing under protest" was not an unqualified acceptance of the modified lease.
IV.
Defendant advances three theories why the trial court erred in finding that her signature "under protest" did not constitute an unqualified acceptance. First, she argues signing the lease "under protest" constituted a legitimate reservation of rights. Second, she asserts the "under protest" language was a grumbling acceptance. Third, she contends the "under protest" language was immaterial.
A.
In support of her contention that the insertion of "signing under protest" constituted a valid reservation of rights, defendant cites Riverview and Spratley. In Riverview, a tenant objected to a termination-at-death clause of a lease, and refused to sign it. Riverview, supra, 284 N.J. Super. at 568. After the trial court entered a judgment of possession against the tenant, the tenant signed the lease, but orally stated that she did so "under protest" and that "she was not waiving her right to appeal the judgment." Ibid. Because we believed the validity of such a clause "can best be determined in the light of the circumstances that exist at the time of the defendant's death," we held that the tenant's signing of the lease under protest "is without prejudice to a determination at the time of her death of the legal effect, if any," of the termination-at-death clause. Id. at 570. Riverview is distinguishable from the instant case. As the trial court noted, the tenant in Riverview did not actually write "signing under protest" on the lease, and was reserving an issue that would arise, and could best be judged, only after her death.
In the second case defendant cites, Spratley, supra, 327 N.J. Super. at 249, tenants refused to accept a lease addendum permitting the Housing Authority to bring eviction proceedings for any drug-related criminal activity. Again, we refused to "decide the issue in the abstract," because the proper construction of the addendum could be decided "if a summary disposition action were brought against them for failure to abide by the lease provision." Id. at 252. We added that the addendum added little if anything to the prior lease, so "[d]efendants would thus have lost nothing had they signed the leases under protest." Id. at 253. We did not state that the tenants could qualify their signatures with the words "signing under protest."
By contrast to Riverview and Spratley, defendant here actually inserted the "signing under protest" language on the lease to qualify her signature. Moreover, her qualification indicated she did not accept the lease's clauses that were immediately applicable to her present situation, such as the clause barring washing machines. Further, the reasonableness of those clauses was not an issue best reserved for a possible future proceeding, but rather an issue on which the trial court had already ruled. Most importantly, given defendant's history of refusal to agree to the modified lease and her defiance of the court's rulings, the court could find plaintiff's qualified signature did not constitute an acceptance with a valid reservation of rights.
Similarly, we reject defendant's argument that we adopt the approach of N.J.S.A. 12A:1-308(a) in the New Jersey Uniform Commercial Code (NJUCC), which states: "A party that with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as 'without prejudice,' 'under protest,' or the like are sufficient." Ibid. However, the NJUCC, does not govern a lease of a residence. Rather, the NJUCC governs a lease only if it is a lease of "goods." N.J.S.A. 12A:2A-103 (h), (j); see also N.J.S.A. 12A:2A-501(5). Moreover, nothing in the NJUCC states that the trial court was required to find that defendant's insertion of the "signing under protest" language constituted assent, given defendant's prior refusal to sign the modified lease or follow the trial court's orders.
B.
Defendant also argues that adding the words "signing under protest" constitutes a grumbling acceptance. Defendant quotes a treatise which states:
If the response to an offer indicates dissatisfaction or displeasure with the
offer but still manifests an unequivocal and unconditional acceptance, it operates as an acceptance notwithstanding the "grumbling" statements of the offeree. An offeree need not be pleased with an offer; he need not like the offer and may even harbor ill feelings toward the offeror. Nonetheless, he has a power of acceptance and may exercise it though adding an expression of discontent in an otherwise clear manifestation of acceptance. Thus, where an employee responded to a renewal of his contract for another term by suggesting, in effect, "I don't like your offer, I don't think it's right or fair, but I accept it," the court rejected the employer's claim that this response was a qualified or conditional acceptance amounting to a counter offer. Rather, these expressions of dissatisfaction constituted a "grumbling acceptance" but an acceptance, nonetheless.
[J. Murray, Murray on Contracts, § 49[E] (5th ed. 2011).]
However, no New Jersey court, let alone the Supreme Court, has yet adopted the theory of "grumbling acceptance." Nor is this the appropriate case to recognize such a theory. Defendant never explicitly stated "I accept your offer." Cf. ibid.; A. Corbin, 1 Corbin on Contracts, § 3.30 (1993) (giving the example: "I accept your offer as made, but I still insist that you are driving a very hard bargain."). Defendant cites her signature as acceptance, but she qualified her signature with "signing under protest." Viewed in light of her history of refusing to accept the modified lease, and her defiance of the trial court's orders, the court could find that defendant's "signing under protest" was not an unqualified assent. See, e.g., Hullman v. Bd. of Trs., 725 F. Supp. 1536, 1543, 1551 (D. Kan. 1989) (finding the plaintiff's signing a contract by attaching a memorandum stating he was signing "under protest," and not waiving his rights, was not a grumbling acceptance), aff'd 950 F.2d 665 (1991). This is not a situation where a contracting party, having accepted the signer's services despite similar protests in the past, then seized on the signer's latest protest to claim lack of assent. See Price v. Okla. Coll. of Osteopathic Med. & Surgery, 733 P.2d 1357, 1357-59, 1362 (Okla. App. 1986). Here, plaintiff consistently refused to accept defendant's "signing under protest" as assent.
Nor is this a situation where the signer, after stating it "accepted with prejudice" or protest, and after receiving the benefits of the agreement, thereafter attempts to claim it never assented to the agreement. See Mass. Hous. Fin. Agency v. Whitney House Assocs., 638 N.E.2d 1378, 1380-81 (Mass. App. Ct. 1994).
In addition, Murray on Contracts, supra, at § 49(C), states that the "offeror is entitled to a clear manifestation of acceptance by the offeree before the offeror will be said to be bound to a contract." "The offeror is not required to guess or draw inferences of assent from the offeree's response to the offer" and the offeror need not "infer assent from an equivocal response, but may reasonably assume [its] offer has not been accepted." Ibid. In taking both Sections (C) and (E) of Murray on Contracts together, in order for a "grumbling acceptance" to be valid, there must still be a "clear manifestation of acceptance" by the offeree. Here, there was not a clear manifestation of acceptance by defendant considering her history of refusal to agree to the modified lease and her repeated defiance of the trial court's order.
C.
Finally, defendant argues that the "signing under protest" language was immaterial. However, it is undisputed that defendant was "signing under protest" because of the terms in the proposed lease which she had challenged. These terms were essential and material, as demonstrated by the parties' dispute over these terms, their tendering those disputes to the trial court for resolution and agreeing to be bound by it, and the court's determination that those terms were reasonable, just, and fair, and had to be accepted by defendant.
Furthermore, the court expressly found some of the challenged terms to be material. For example, in finding the prohibition on washing machines to be reasonable, the court noted that "[t]he potential damage to the building that can flow from the washing machine is great." With regard to the provision limiting overnight guests, the court recognized that "rent controlled apartments are ripe for abuse," and acknowledged plaintiff's concern that defendant "was renting out rooms."
As set forth above, defendant's "signing under protest" language did not constitute an unqualified acceptance of those essential terms of the modified lease. "Where the parties do not agree to one or more essential terms, however, courts generally hold that the agreement is unenforceable." Weichert Co. Realtors, supra, 128 N.J. at 435. Thus, inclusion of that language was material.
V.
Defendant argues that upholding the trial court's rulings would be contrary to the purpose of the Anti-Eviction Act. She cites the findings in the 1986 amendment to the Act:
It is in the public interest of the State to maintain for citizens the broadest protections available under State eviction laws to avoid such displacement and resultant loss of affordable housing, which, due to housing's uniqueness as the most costly and difficult to change necessity of life, causes overcrowding, unsafe and unsanitary conditions, blight, burdens on community services, wasted resources, homelessness, emigration from the State and personal hardship, which is particularly severe for vulnerable seniors, the disabled, the frail, minorities, large families, and single parents.
[N.J.S.A. 2A:18-61.1a(d).]
However, the Anti-Eviction Act specifically provides that one of the grounds for "good cause" to remove a tenant arises when the landlord proposes "reasonable changes of substance in the terms and conditions of the lease, including specifically any change in the term thereof, which the tenant, after written notice, refuses to accept." N.J.S.A. 2A:18-61.1(i). Here, the trial court found that plaintiff had carried its "burden of proving that any change in the terms and conditions of the lease, rental or regulations both is reasonable and does not substantially reduce the rights and privileges to which the tenant was entitled." Ibid. The court also found that "the tenant, after written notice, refuse[d] to accept" the modified lease containing the changed terms. Ibid. "The clear language of the statute thus indicates that a landlord may remove a tenant" under these circumstances. See Cashin v. Bello, ___ N.J. ___, ___ (2015) (slip op. at 11). As "defendant had been provided some formal means to express her refusal to accept" the challenged terms, and she defied the trial court's contrary rulings, the court was not required to view "indulgently" defendant's non-acceptance of the terms. 447 Assocs., supra, 115 N.J. at 533.
In light of the unusual circumstances posed by defendant's history of refusal and defiance, we affirm the trial court's July 29, 2014 order entering a judgment of possession, because defendant's "signing under protest" showed she failed to accept the modified lease. We also affirm the court's August 22, 2014 order denying reconsideration.
VI.
Defendant next argues that subsequent events show her acceptance of the modified lease. She also argues that plaintiff waived any complaint about her "signing under protest" by accepting her payments under that lease.
Following the trial court's denial of defendant's motion for reconsideration, it denied defendant's motion for a stay pending appeal. Defendant then filed in this court an emergent motion for a stay. On September 3, 2014, we granted the stay and ruled that "[d]efendant must comply with all court orders and all terms of the lease as modified by the Court on February 14, 2014, including the timely payment of rent. Within one week, defendant must re-sign the lease and remove the words 'under protest.'"
In accordance with our order, defendant signed a lease on September 8, 2014, omitting the words "signing under protest." Thereafter, in this court, plaintiff filed a motion to vacate the stay pending appeal, alleging that defendant had not removed the washing machine, and defendant filed a cross-motion for summary disposition. On November 13, 2014, we denied both motions. In denying plaintiff's motion, we found:
The continued presence of a washing machine in the apartment is a violation of trial court's February 14, 2014 order approving the lease as modified, of the modified lease which defendant has signed, and of this court's September 3, 2014 order requiring defendant to comply with all court orders and all terms of the lease as modified. Defendant must remove the washing machine from the premises before November 20, 2014, on which date plaintiff may inspect the apartment to ensure removal. This court's September 3, 2014 order stayed removal and lock-out based on the trial court's July 29, 2014 and August 22, orders only, and shall not be read to prevent plaintiff from seeking removal, lock-out, or other relief from the trial court based on alleged violations of the lease subsequent to September 3, 2014, including failure to remove the washing machine if it is still on the premises on November 20, 2014.Defendant now contends that she has removed the washing machine and thus complied with all of the essential terms of the lease. Defendant also contends that plaintiff, without any reservation of rights, accepted defendant's security deposit and monthly rent payments starting in July 2014.
Plaintiff's appellate brief does not address these allegations because they are related to events that occurred after the orders on appeal. Plaintiff adds only that "acceptance of rent was without prejudice with consent of [defendant's] counsel at the beginning of the eviction trial." Plaintiff also represented that it had not deposited defendant's checks.
We agree with plaintiff that defendant's appeal of the trial court's July 29 and August 22 orders does not encompass these events occurring from September 2014 onward. Further, we lack information about defendant's alleged removal of the washing machine; her alleged compliance with the other terms of the modified lease, such as the occupancy restrictions; plaintiff's alleged acceptance of rent after the judgment of possession; or defendant's counsel's alleged consent thereto.
Accordingly, we remand to the trial court to hold a hearing to consider whether these allegations are true, and whether the events occurring after its August 22 order affect its ruling that plaintiff may execute a judgment of possession.
We note that receipt of "payments after the initiation of statutory dispossess proceedings provides only evidence of a waiver which should be considered together with all other existing circumstances in determining whether the defense of waiver has been sustained." Jasontown Apartments v. Lynch, 155 N.J. Super. 254, 263 (App. Div. 1978); accord A.P. Dev. Corp. v. Band, 113 N.J. 485, 497-98 (1988). --------
The trial court may also consider defendant's September 8, 2014 signing of the modified lease pursuant to this court's stay order. Defendant alleges her signature represented not just compliance with a condition of our stay, but her unqualified acceptance of the modified lease. The trial court may assess the truth of that allegation.
Our stay shall continue until the trial court's hearing. We do not retain jurisdiction.
Affirmed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION