New Jersey Superior Court Reports

SCOOTER JOLLEY, Plaintiffs-Respondents, v. BROWN AND
FILSON, INC., t/a SHELBY’S, Defendant-Appellant. No.
A-5993-04T1. Superior Court of New Jersey, Appellate
Division. Argued November 29, 2006. Decided December 27,

On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Docket No. SSX-L-626-00.

Before Judges WEFING, C.S. FISHER and Messano.

Kevin M. Hahn argued the cause for appellant (Courter,
Kobert & Cohen, attorneys; Mr. Hahn, of counsel; Amanda
Mulvaney, on the brief).

James M. Docherty argued the cause for respondents (Vinick
& Docherty, attorneys; Kathleen M. Lee and Mr. Docherty, on
the brief).

The opinion of the court was delivered by


In this commercial tenancy matter, we consider but do not
decide whether a tenant’s claim of constructive eviction
may legitimately be based upon the fact that the landlord
has sued for possession because the tenant here continued
in possession of the leased property for an unreasonable
period of time after the filing of the landlord’s suit. We,
thus, affirm the dismissal of the tenant’s novel
constructive eviction claim but reverse and remand for a
new trial on damages because the trial judge erred in
excluding the tenant’s expert testimony regarding the fair
market sale or rental value of the leasehold, which was
offered to show that the landlord did not take reasonable
steps in mitigating damages.

The record reveals that the parties have been in conflict
about the tenant’s ability to enjoy the leased premises in
Stanhope nearly from the onset of their relationship. For
many years, plaintiffs Jonathan Schwartz and Scooter Jolley
operated a business in the building in question. In June
1987, defendant Brown and Filson, Inc. (the tenant)
purchased this business from plaintiffs; the plaintiffs
retained ownership of the building and entered into a
ten-year lease with the tenant.[fn1]

The tenant began experiencing roof leaks within the first
month of the lease term. A lawsuit was commenced in the Law
Division by the landlord in 1989 as a result of the
tenant’s withholding of rent due to the roof leaks. In
1992, the parties entered into a written settlement
agreement of that suit, which, among other things, included
the landlord’s “recogni[tion] [of] its obligation to keep
the roof in repair with the intention of [l]andlord
providing the [t]enant with a dry store.” The agreement
also included a method for testing the integrity of the
roof as well as the landlord’s promise to make any
necessary roof repairs. In addition, the agreement declared
that, in the event of future water damage,

the Tenant shall be entitled to monetary recovery in the
following manner (which may be deducted from the rent):

a) the current retail value of the damaged or wet

b) said merchandise to be picked up by the Landlord
within 72 hours of notice to Landlord;

c) Tenant shall be entitled to the costs of clean-up and
repairs to the area affected by the leaks;

d) costs may include Tenant’s own costs of labor required
for said clean-up at $20.00 per man hour[;]

e) The Tenant agrees to act reasonably and responsibly in
respect to a, b, c and d hereof.

In July 1997, the parties entered into a new ten-year lease
agreement. Among other things, this new lease agreement
expressly obligated the landlord “to provide a water tight
roof and roof water removal system to satisfactorily remove
water from the roof” and declared, absent the application
of an exception not relevant here, that “[s]hould any leak
occur . . . the Landlord will be responsible for damages
upon the same terms as set forth” in the 1992 settlement

Three or four months later, the roof again began to leak
and, according to the tenant’s testimony, approximately
ninety-seven leaks occurred during the first three years of
the 1997 lease; the landlord acknowledged that it was given
notification of leaks on over twenty occasions. As a
result, the tenant made deductions from its rent payments
for certain expenses to which it claimed entitlement
pursuant to the 1992 settlement agreement. Included among
these deductions was an amount for the loss of business
during a Valentine’s Day sale in 2000; the tenant also
recognized that on two occasions it deducted an amount
based upon a labor charge in excess of the $20 per hour rate
referred to in the settlement agreement.

In January 2000, work began to replace the roof, which
resolved the long-standing problem with leaks. It is
undisputed that there were no further leaks in the roof
starting well before the landlord filed suit in the Special
Civil Part on September 15, 2000.

The landlord filed suit to obtain possession of the leased
premises, alleging that the tenant had not paid rent in the
amount of $16,651.45; this amount represented the amount of
deductions the tenant had previously made when it was
burdened by roof leaks. Soon after the suit was commenced,
the tenant moved for a transfer of the matter to the Law
Division, citing the “complexity of the issues” and claiming
a need for discovery and the joinder of additional parties
and claims. The judge who was then assigned to the matter
agreed with the tenant’s contentions and ordered a transfer
to the Law Division on October 13, 2000 for the reasons
expressed in a written decision.

On November 13, 2000, the tenant filed an answer and
counterclaim, which included, among other things, claims
for compensatory and punitive damages based upon (1) the
landlord’s “false[] and malicious[]” suit that was filed,
according to tenant, with “the intent and purpose to harass
and prevent the proper operation” of the tenant’s business
and with the “ulterior motive . . . to expunge or
renegotiate” the 1992 settlement agreement; (2) the
landlord’s alleged breach of the tenant’s right to quiet
enjoyment of the premises; and (3) the landlord’s alleged
“unconscionable commercial practices and other unlawful
practices” designed to terminate the tenancy.

On March 31, 2001, the tenant vacated the premises and
returned the keys to the landlord. The tenant then amended
its counterclaim, adding a claim which asserted that the
landlord had “deprived [tenant] of the quiet enjoyment” of
the premises and that the premises were rendered
“substantially unsuitable for the purpose for which they
were leased,” which constituted tenant’s “constructive
eviction” from the premises.

On September 6, 2002, the landlord moved for “an order
limiting issues to be decided by the jury and directing
judgment in favor of the plaintiffs on breach of contract
issues.” The tenant now argues on appeal that the motion
was procedurally deficient. Although there is merit to this
point, we find the tenant was not prejudiced by the
motion’s inadequate description of the relief sought. The
record reveals that the tenant understood that the landlord
was seeking, in part, the dismissal of the constructive
eviction claims and that the tenant had a full and fair
opportunity to respond to the landlord’s contentions. The
judge also understood the landlord’s motion in that way and
her ruling reveals that the judge either expressly or
implicitly applied the standards imposed by R. 4:6-2 and R.
4:46. We thus see no harm or prejudice to the tenant
arising from the landlord’s inartful motion or the
procedures that followed.

In dismissing the constructive eviction claim, the trial
judge focused on the undisputed fact that the roof leaks
had ended prior to the tenant’s departure from the
premises. Certainly, if the constructive eviction claim was
based upon an intrusion on the tenant’s right to the quiet
enjoyment caused by the water leaks, we would agree that
dismissal was appropriate. The mere timing of the
circumstances in that instance would militate against a
finding of constructive eviction. Repairs on the roof were
commenced in January 2000 and the roof was rendered
“leak-free” soon thereafter. After so many roof leaks over
so long a period of time, it was unreasonable for the
tenant to depart the premises on March 31, 2001, more than
one year after the roof was repaired. Its claim that it was
constructively evicted as a result of the previous roof
leaks was precluded by the tenant’s continued possession of
the premises for approximately one year after the problem
had been cured. See, e.g., Weiss v. I. Zapinsky, Inc., 65
N.J. Super. 351, 358 (App.Div. 1961).

However, the tenant also argued that his constructive
eviction claim was based upon the landlord’s suit for
possession. The trial judge did not address this latter

Whether a constructive eviction claim may be maintained
merely because a tenant has been sued for possession has
not been determined in this jurisdiction. After carefully
reviewing the record in light of this contention, we
conclude that we need not now decide whether a constructive
eviction may be based upon the landlord’s commencement of
litigation because the undisputed facts reveal that the
tenant delayed his departure from the premises for an
unreasonable period of time after being sued for

A claim for constructive eviction in this State must be
based upon a substantial breach of the tenant’s right to
the quiet enjoyment of the leased premises.[fn2] Reste
Realty Corp. v. Cooper, 53 N.J. 444, 457 (1969). In this
State, the doctrine of constructive eviction has been held
properly invoked where there has been a physical
interference with the tenant’s use of the premises, such as
when the landlord has failed to provide heat, Higgins v.
Whiting, 102 N.J.L. 279, 280-81 (Sup.Ct. 1926), or repair
defective plumbing, McCurdy v. Wyckoff, 73 N.J.L. 368, 369
(Sup.Ct. 1906), or prevent water seeping through exterior
walls, Reste Realty, supra, 53 N.J. at 458-59, or fix a
leaky roof, Weiss, supra, 65 N.J. Super. at 355. But our
courts have never applied this doctrine to a nonphysical
interference with the right of quiet enjoyment, such as is
argued here.

Even in jurisdictions that recognize the theory asserted by
the tenant, it is generally understood that a landlord’s
filing of an eviction suit is not alone sufficient to
support a tenant’s constructive eviction claim. See, e.g.,
Restatement (Second) Property, § 4.3(d) (1977). Some
courts have held, however, that a tenant may have a valid
basis for a constructive eviction claim when there is
evidence that the suit was brought with malice or in bad
faith or when there was a lack of probable cause for the
suit. See, e.g., Guntert v. City of Stockton, 126 Cal.
Rptr. 690, 694-95 (Cal.App. 1976); Kuiken v. Garrett, 51
N.W. 2d 149, 155-56 (Iowa 1952); Roseneau Foods, Inc. v.
Coleman, 374 P. 2d 87, 91 (Mont. 1962); D.M. Dev. Co. v.
Osburn, 625 P. 2d 157, 158 (Or.App. 1981); Kohl v. PNC Bank
Nat’l Assoc., 863 A. 2d 23, 24, 27-28 (Pa.Super. 2004),
leave to appeal granted, 882 A. 2d 479 (Pa. 2005). One
court has held that a landlord’s demand letters are
insufficient and that a single suit alone is not
sufficient, holding that there must be “substantial
evidence of repeated acts of malice or bad faith” for there
to be a nonphysical constructive eviction.” El Paso Nat.
Gas Co. v. Kysar Ins. Agency, Inc., 645 P. 2d 442, 444
(N.M. 1982) (emphasis added). Other jurisdictions have held
that even a malicious or non-meritorious eviction suit
cannot support a constructive eviction claim. See, e.g.,
Weisman v. Middleton, 390 A. 2d 996, 1001-02 (D.C.App.
1978); Rahman v. Federal Management Co., Inc., 505 N.E. 2d
548, 550 (Mass.App. 1987). We question whether the
recognition of a constructive eviction claim based upon the
malicious filing of a landlord’s suit or upon the filing of
a suit without probable cause would represent a salutary
addition to our common law because, as persuasively
observed by the Massachusetts court in Rahman, such claims
would have a tendency to chill a landlord’s right to
lawfully seek possession for fear of retaliation in the form
of a constructive eviction claim. Id. at 551; see also D.M.
Dev., supra, 625 P. 2d at 158. We also question the
necessity of such a claim because it presupposes that the
mere filing of one or more suits against a tenant has the
tendency to oust the tenant from the premises. Since our
laws and procedures do not permit the judicial removal of a
tenant without notice and an opportunity to be heard, we
question the reasonableness of a tenant’s decision to
abandon a leasehold when merely faced with a lawsuit,
particularly when there has been no showing that the
landlord possesses far greater economic power than possessed
by the tenant.[fn3]

However, we need not further consider whether our common
law should recognize a constructive eviction claim based
upon the tenant being haled into court on a malicious or
non-meritorious suit for possession because the tenant here
did not immediately or within a reasonable period of time
vacate the premises as a result of the landlord’s lawsuit.
Instead, the tenant met the suit head on, sought its
transfer to the Law Division and then filed a multi-count
counterclaim, while remaining in the premises for more than
six months after the suit was commenced. Because of its
unreasonable delay in departing from the premises when sued
by the landlord, the tenant’s constructive eviction claim,
even if maintainable in this jurisdiction, could not

In Reste Realty, the Court reaffirmed the common law rule
that a tenant’s continued occupation of the leasehold for
an unreasonable period of time after the basis for the
constructive eviction arose would warrant a loss of the
claim. 53 N.J. at 461. Ascertaining what constitutes an
unreasonable delay in leaving the premises “depends upon
the circumstances of each case.” Ibid. In Reste Realty,
there were repeated incursions of water into the leased
premises. In the midst of these problems, the landlord’s
building manager died, and, as explained by the Court,

the tenant complained, patiently waited, hoped for relief
from the landlord, and tried to take care of the water
problem that accompanied the recurring rainstorms. But
when relief did not come and the “crowning blow” put five
inches of water in the leased offices and meeting rooms
on December 20, 1961, the tolerance ended and the
vacation came ten days later after notice to the landlord.
The trial court found as a fact that under the
circumstances such vacation was within a reasonable time,
and the delay was not sufficient to establish a waiver of
the constructive eviction. We find adequate evidence to
support the conclusion. . . .

[53 N.J. at 461-62.]

In Weiss, we held that a tenant’s constructive eviction
claim was not sustainable when the tenant remained in the
premises for slightly more than four months following the
repair of the roof, and deemed that delay to be
unreasonable. 65 N.J. Super. at 358. In Duncan Dev. Co. v.
Duncan Hardware, 34 N.J. Super. 293, 298-99 (App.Div.
1955), we held that the tenant’s continued possession of
the premises “after the landlord’s failure to comply with
his covenant to install a separate heating unit and [the
parties’] concurrence in the substituted arrangement
whereby the tenant was for four years allowed a reduction
in rent during the winter mothers operated as a waiver of
the covenant.”

Guided by these past experiences, we are satisfied that the
tenant here failed to depart the premises within a
reasonable time following the event which it now claims
brought about its constructive eviction. As we have
observed, the landlord’s complaint was filed on September
15, 2000. Rather than depart, the tenant remained in the
premises, fought back and, indeed, guaranteed that the
litigation would not be rapidly or summarily resolved by
successfully obtaining the action’s transfer to the Law
Division. Following transfer, the tenant filed an answer
and counterclaim, and the parties engaged in discovery. It
was not until March 31, 2001 that the tenant removed itself
from the premises, over six months after the filing of the
landlord’s complaint. Even if the tenant could maintain a
constructive eviction action based upon a landlord’s filing
of an unmeritorious or malicious suit for possession, an
issue which we need not presently resolve, we conclude that
the tenant’s continued occupation of the premises for more
than six months following the filing of the landlord’s
alleged malicious suit was unreasonable and warranted a
dismissal of the action. We, thus, affirm the order that
dismissed the tenant’s constructive eviction claim.[fn4]

We will, however, remand for a new trial on the question of
whether the landlord took reasonable steps to mitigate its
damages because we find that the trial judge took too
restrictive a view of what evidence is relevant to that

In overruling a longstanding common law principle, the
Court in Sommer v. Kridel, 74 N.J. 446 (1974) held for the
first time that a landlord is under a duty to mitigate
damages caused by a defaulting residential tenant. This
doctrine was later held to apply to commercial leaseholds.
See McGuire v. City of Jersey City, 125 N.J. 310, 320
(1991); Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406
(App.Div. 1989). The burden of proving the reasonableness
of the landlord’s mitigation efforts was placed on the
landlord, Sommer, supra, 74 N.J. at 457; McGuire, supra,
125 N.J. at 316, and in assessing whether the landlord has
satisfactorily carried this burden, the factfinder must
consider, among other factors, “whether the landlord, either
personally or through an agency, offered or showed the
[premises] to any prospective tenants, or advertised it in
local newspapers,” Sommer, supra, 74 N.J. at 458-59. The
Court recognized that the issue is fact-sensitive,
observing that “there is no standard formula for measuring
whether the landlord has utilized satisfactory efforts in
attempting to mitigate damages, and each case must be judged
upon its own facts.” Id. at 459.

In pretrial rulings, the trial judge reserved to herself
the interpretation of the lease but held that a jury would
be required to resolve the damage disputes, including the
question of whether the landlord had taken reasonable steps
to mitigate. At trial, the tenant planned on calling an
expert to testify about the fair market rental and sale
value of the premises. However, the judge sustained the
landlord’s objection, finding that this expert testimony
was irrelevant. We conclude the judge was mistaken in this

As indicated above, the tenant removed itself from the
premises on March 31, 2001. The landlord, however, did not
find a new tenant or a purchaser for an extended period of
time. It was not until July 2002 that the landlord reached
an agreement with a third party for the purchase of the
building for $1,580,000. Because of the considerable
passage of time from the tenant’s departure to the sale of
the building, the tenant argued that the landlord failed to
take reasonable steps to mitigate the damage.

In attempting to show that its mitigation efforts were
reasonable, the landlord called James Spada, a
vice-president of Weichert Realtors; Weichert was retained
by the landlord in March 2001 to obtain a purchaser of or a
tenant for the building. Spada testified that the listing
agreement set “asking price[s]” of $2,100,000 for the sale
of the building and $8 per square foot for the rental of
the premises. However, Spada also testified that a sale
price of $1,800,000 and a rental at the rate of $7 per
square foot were “achievable.” As observed, it took
approximately fifteen months for the landlord to find a
buyer for an amount far less than Weichert’s “asking
price.” Following Spada’s testimony, the judge barred the
tenant from calling its expert to testify that a rental at
the rate of $6 per square foot represents a fair market

It was incongruous for the trial judge to have permitted
the landlord to provide expert testimony as to the fair
market rental and sale value of the property in asserting
the reasonableness of the landlord’s efforts at mitigation
while thereafter precluding the tenant from presenting the
same type of evidence. The judge based her decision to bar
the tenant’s expert testimony on the fact that there was no
dispute that the landlord had retained a realtor to obtain
a buyer or tenant in seeking to mitigate and concluded that
it was reasonable for the landlord to rely upon the
realtor’s advice. We recognize that the landlord’s reliance
upon the realtor’s advice is something a factfinder may
consider in determining the reasonableness of the
landlord’s efforts. By the same token, it is relevant to
the resolution of the fact-sensitive mitigation issue to
consider whether the realtor hired by the landlord adopted
a reasonable approach in marketing the property —
fixing an appropriate listing price is undoubtedly a
critical aspect of such a marketing effort and testimony
about the reasonableness of the listing price is certainly

Relevant evidence is that which has a “tendency in reason
to prove or disprove any fact of consequence” to the
determination of the action, N.J.R.E. 401, and unless there
is some other basis for excluding it, all relevant evidence
is admissible, N.J.R.E. 402. Relevance turns on whether
there is a “logical connection” between the evidence offered
and the issues in question. Verdicchio v. Ricca, 179 N.J.
1, 33 (2004). In defining what is meant by a “logical
connection,” we held in State v. Hutchins, 241 N.J. Super.
353, 358 (App.Div. 1990) that such a nexus exists when “the
thing sought to be established is more logical with the
evidence than without it.” One commentator has indicated
that this test is met even when the proffered evidence
“obliquely” supports the existence of a fact in issue.
Biunno, Current N.J. Rules of Evidence, comment 1 to
N.J.R.E. 401 (2006).

The price sought by the realtor on behalf of the landlord
was a factor to be considered in weighing the
reasonableness of the landlord’s marketing efforts.
Admittedly it was not the only factor, but evidence as to
the reasonableness of the price at which the property was
listed for sale or rental amply meets the test of what
constitutes relevant evidence. Accordingly, we conclude
that the trial judge mistakenly excluded the expert
testimony offered by the tenant.

In the same vein, we also reject the judge’s conclusion
that a landlord need only retain a competent realtor and
may simply rely upon that realtor’s advice. Certainly, that
is a factor to be considered, but it is not conclusive. In
taking such an approach, the landlord was not entitled to
hide behind the alleged unreasonable or unsuccessful steps
taken by its realtor, and the judge’s conclusion that,
absent fraud or collusion, a landlord acts reasonably when
adhering to a realtor’s advice was mistaken. Here, the
realtor admittedly listed the property at what is
acknowledged to be an “asking price” with the assumption
that an agreement with a third party would be reached at
something lower. Although there was evidence that third
parties expressed interest in the property, no agreement
was reached for either a sale or a rental for approximately
fifteen months following the tenant’s departure. During
that period, the landlord twice renewed its listing
agreement with the realtor at the same sale and rental
prices despite the fact that the listing had failed to
generate either a buyer or a tenant. It is not conclusive
in that circumstance to assume, as did the trial judge,
that the landlord’s adherence to the realtor’s advice was
reasonable. Considering the passage of over one year during
which the landlord and its realtor persisted in the same
asking price, a factfinder could conclude that the landlord
had ceased to act reasonably in seeking to mitigate the
damage; indeed, the factfinder would be entitled to find,
in sifting through the expert testimony presented by both
sides, that the initial asking price was too exorbitant and
rendered unreasonable the landlord’s marketing efforts. We
intimate no view in this regard; it suffices to say that
the tenant’s expert had relevant evidence to provide on
these questions and the trial judge mistakenly barred that
testimony, thus militating a new trial on damages.

The order of December 18, 2002, which dismissed the
tenant’s constructive eviction claim, is affirmed; the
judgment of June 27, 2005, which awarded damages to the
landlord in the amount of $380,332.79, is vacated. The
matter is remanded for a new trial.[fn5] We do not retain

[fn1] Schwartz and Jolley later formed JS Properties, L.L.C.
when entering into a subsequent lease agreement with the
tenant in 1997. For convenience, we will hereafter refer to
these parties collectively as “the landlord.”

[fn2] The 1997 lease contains an express provision
guaranteeing the tenant’s right to quiet enjoyment.
Paragraph 26 of the 1997 lease states that “[t]he Landlord
covenants and represents that the Landlord is the owner of
the premises herein leased and has the right and authority
to enter into, execute and deliver this lease; and does
further covenant that the Tenant on paying the rent and
performing the conditions and covenants herein contained,
shall and may peaceably and quietly have, hold and enjoy
the leased premises for the term aforementioned.”

[fn3] For that reason, we conclude that the tenant’s
assertion of a fear that the sheriff would arrive and
padlock the premises was an unreasonable basis for a
constructive eviction because such an occurrence could not
lawfully occur in the absence of a valid direction from the

[fn4] We recognize that the trial judge did not rule upon
this aspect of the tenant’s constructive eviction claim.
However, appeals are taken from orders not opinions. See
Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001).
For the reasons we have expressed, the trial judge
correctly dismissed the constructive eviction claim even
though she did not address this aspect of the tenant’s
counterclaim. See Isko v. Planning Bd. of Livingston, 51
N.J. 162, 175 (1968).

[fn5] After the trial judge barred the tenant’s expert
testimony, which left the tenant with no evidence to submit
on the mitigation claim other than that which was extracted
by way of the cross-examination of Spada, the tenant
consented to a dismissal of the jury and the resolution of
the issues by the trial judge. We conclude that in fairness
the right to trial by jury on this issue should not be
deemed waived by what occurred at trial in the wake of the
judge’s erroneous ruling.