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Sharon Saums v. Estate of Walter B. Foster

April 15, 2011

SHARON SAUMS, PLAINTIFF-RESPONDENT,
v.
ESTATE OF WALTER B. FOSTER, JR., DEFENDANT-APPELLANT.
SHARON SAUMS, PLAINTIFF-APPELLANT,
v.
ESTATE OF WALTER B. FOSTER, JR., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2071-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 22, 2011

Before Judges Parrillo, Yannotti and Roe.

In these consolidated appeals, plaintiff Sharon Saums (Saums) and defendant Estate of Walter B. Foster, Jr. (Estate) challenge an order entered by the Law Division on June 10, 2010, which entered judgment for Saums on her claims and for the Estate on its counterclaims but found that neither party was entitled to damages. We affirm.

I.

Here, Saums alleged that she performed general contractor services and had renovations performed on property in the Borough of Rocky Hill (Borough), which was originally bought and owned by Walter B. Foster, Jr. (Foster) and his wife. Saums sought recovery of $33,185.25 in expenses for the renovation to the property. Saums also sought the recovery of $6000 she paid Foster towards the purchase of the property, as well as $41,894 in so-called "in lieu of rent payments" she gave to him.

The Estate denied that Saums was entitled to any of the monies she sought in her complaint, and filed a counterclaim seeking $33,400 for damage to the property and lost rent in an amount between $67,400 and $78,800 due to its inability to lease apartments on the first and second floor of the house. The Estate also sought treble damages, attorneys' fees and costs based on Saums's alleged violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -45 (CFA). The matter was tried before Judge Linda Feinberg, sitting without a jury.

At the trial, evidence was presented which established that, in the relevant time period, the home on the property was more than one hundred years old and was in a state of disrepair. Foster had purchased the house to provide a residence for his son, Walter Kim Foster (Kim), who was unemployed and suffered from a history of alcoholism and drug addiction. In 2002, Kim began dating Saums, who was at the time the principal creative director of Saums Interiors, a licensed New Jersey home improvement contractor.

In 2003, the Borough issued a notice to Kim that the house would be condemned because it was in a state of disrepair. Saums and Kim discussed the matter with Foster and offered to restore the house, with the intention that they would ultimately purchase the property. They negotiated a sale price and Foster prepared a written contract but Saums did not sign it because of her concern about Kim's condition, which had apparently deteriorated. Nevertheless, Saums gave Foster two deposit checks, totaling $6,000.

Saums said that, although she did not enter into a formal contract to purchase the property, she and Foster entered into a contract, under which Foster agreed to keep the property off the market, not evict Kim, and hold the price at $180,000, provided Saums paid him about $1400 per month to cover his mortgage payments. From June 2004 to November 2006, Saums made payments to Foster that totaled $41,894, and he kept the property off the market.

In August 2003, Saums solicited a proposal from Princeton Design and Installation, LLC (PDI) for the renovation of the house. In September 2003, PDI submitted a proposal, which estimated that complete renovation of the house would cost $164,351. Dennis O'Neill (O'Neill) of PDI began work on the house shortly thereafter.

O'Neill testified that, as part of the renovations, PDI's workers removed a partition wall in the second floor apartment to create a larger, single bedroom. O'Neill said the wall that was removed was not a load-bearing wall. He also said that PDI's workers finished the floors, kitchen and bathroom and painted the unit. O'Neill stated that PDI's staff began work on the first floor apartment but was forced to leave with the work uncompleted because Kim had engaged in erratic behavior by removing asbestos, causing O'Neill to pull his workers off the job for their safety. Saums testified that she paid $33,185.25 for the work performed on the house.

In 2005, Foster's wife suffered a stroke, and title to the property was conveyed from Foster and his wife to Foster. Foster died in May 2007, and Kim moved in with his mother in Princeton. Kim rented the upstairs apartment of the Rocky Hill residence and kept the rent money. Kim's health rapidly deteriorated and he died in January 2008.

Foster's will was probated, and his daughter Penelope Foster (Penelope) became the executrix of the Estate. Penelope said that she tried to rent the upstairs apartment of the Rocky Hill house but learned that ...


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