N. TORE LANDE, et al. v. FILIPE PEDROSO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5622-04T15622-04T1

N. TORE LANDE, an individual

and ELIZABETH E. LANDE, an

individual,

Plaintiffs-Respondents,

v

FILIPE PEDROSO, an individual,

Defendant-Appellant.

______________________________________________________________

 

Argued September 20, 2006 - Decided November 17, 2006

Before Judges Cuff and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. DC-2407-04.

Filipe Pedroso, appellant, argued the cause pro se.

Arthur C. Hopkins, Jr., argued the cause for respondents.

PER CURIAM

After a non-jury trial in the Special Civil Part, the judge dismissed the counterclaim of defendant, Felipe Pedroso (Pedroso), found in favor of the plaintiffs, N. Tore Lande and Elizabeth Lande (the Landes), and entered judgment in the amount of $6901.64. After reviewing plaintiffs' counsel's certification of services and considering defendant's objection, the trial judge awarded plaintiffs' counsel fees in the amount of $12,168.52. Defendant appeals the verdict of the trial court and the award of counsel fees.

After careful consideration of the record, and applying appropriate legal standards, we affirm substantially for the reasons expressed by Judge Gasiorowski in his oral opinions of May 18 and June 23, 2005. R. 2:11-3(e)(1)(A). We add the following comments.

The Landes filed this action in the Special Civil Part alleging defendant's violation of the Security Deposit Act, N.J.S.A. 46:8-19 to -26 (the Act). They sought the return of double their security deposit and the award of counsel fees and costs pursuant to the Act. Defendant, their landlord, answered by denying liability generally; he counterclaimed alleging that the Landes caused physical damage to the apartment in excess of the security deposit. He sought damages equivalent to the deficiency.

After consideration of all the testimony and evaluating the credibility of witnesses presented by both sides, the trial judge concluded that defendant had violated the Act. He determined that plaintiffs were responsible for one item of physical damage, a broken bi-fold glass door. He found defendant's remaining claims for physical damage to the apartment completely unsupported by the evidence. After deducting the costs attributable to the broken door from the security deposit, the trial judge doubled the remaining amount and granted judgment to plaintiffs along with costs.

The scope of our review of a judgment entered in a non-jury trial requires that the findings and conclusions of the trial judge not be disturbed if they are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). Here, our review of the record discloses that the trial judge's findings are amply supported by the evidence and the credibility determinations he made.

"In order to prove a cause of action for the return of a security deposit, the former tenant must show the existence and subsequent termination of a landlord-tenant relationship, the receipt of a security deposit by the landlord, and the failure of the landlord to return the deposit moneys." Veliz v. Meehan, 258 N.J. Super. 1, 4 (App. Div. 1992). Contrary to defendant's argument, the trial judge also correctly applied the factual determinations he made to the required legal elements of plaintiffs' claim under N.J.S.A. 46:8-21.1.

Defendant argues that the trial judge abused his discretion by awarding counsel fees that were excessive in light of the ultimate award of damages in the case. He further argues that he was entitled to a plenary hearing on the issue before such an award was made. Lastly, as a corollary to these arguments, defendant contends that the award of counsel fees in conjunction with the damage award exceeds the $15,000 jurisdictional limit of the Special Civil Part. Each of these arguments is without merit.

The award of reasonable attorney's fees to a prevailing tenant is discretionary under the Act. "[T]he court upon finding for the tenant . . . shall award recovery of double the amount of [the security deposit] together with full costs . . . and, in the court's discretion, reasonable attorney's fees." Ibid. The Supreme Court has noted that "fee determinations by trial courts will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995).

In his oral opinion of June 23, Judge Gasiorowski detailed the procedural history of the case, defendant's failure to answer in a timely fashion leading to a default judgment that was subsequently vacated, the unnecessary motion practice caused by defendant and the asserted defense and counterclaim that "absolutely and unequivocally [had] no merit." He distinguished the circumstances before him from those in Thomas v. Saijwani, 249 N.J. Super. 158 (App. Div.), certif. denied, 126 N.J. 390 (1991). There, we found the counterclaim was filed in good faith and the defense was not asserted for purposes of delay. Id. at 163. Our review indicates the trial judge did not abuse his discretion.

In Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 24 (2004), the Court noted that plenary hearings on counsel fee requests are reserved for the rarest and most exceptional circumstances. In our view, this is not such a case. The trial judge was aware of the tortured procedural history of the case, presided at the trial and heard all the proofs, and carefully considered the written objections defendant filed. There was no need for a plenary hearing.

Lastly, in Lettenmaier v. Lube Connection, Inc., 162 N.J. 134, 143-44 (1999), the Court concluded that counsel fees awarded under the Consumer Fraud Act should not be considered part of the amount in controversy for purposes of the jurisdictional limit of the Special Civil Part. See also Surf Cottages Homeowners Ass'n, Inc. v. Janel Assocs., Inc., 362 N.J. Super. 70, 75 (App. Div. 2003) (Attorney's fees awarded in condominium collection case are not part of the amount in controversy for purposes of the Special Civil Part's jurisdictional limit.). The judgment entered did not exceed the jurisdiction of the Special Civil Part.

The remainder of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Defendant is an attorney-at-law in New Jersey and represented himself pro se during the entire litigation and on this appeal.

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A-5622-04T1

November 17, 2006