DANIEL SHAFFER v. TINY BLESSINGS II, MYRIAM & ELIAS SANTIAGO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6537-04T56537-04T5

DANIEL SHAFFER,

Plaintiff-Respondent,

v.

TINY BLESSINGS II, MYRIAM &

ELIAS SANTIAGO,

Defendants-Appellants.

___________________________________

 

Submitted March 29, 2006 - Decided July 13, 2006

Before Judges Wefing and Wecker.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

No. DC-29210-04.

Paul Sant'Ambrogio, attorney for appellants.

Pearce Fleisig, attorneys for respondent

(Randy T. Pearce, on the brief).

PER CURIAM

Defendants appeal from a judgment entered by the trial court in favor of plaintiff in the amount of $15,000, together with costs and pre-judgment interest. After reviewing the record in light of the contentions advanced on appeal, we reverse.

This is the third appeal involving these parties that has been calendared before this court this term. All of their disputes have revolved around their evidently acrimonious landlord-tenant relationship. Plaintiff owns a building in Bloomfield in which defendants have rented space and operated a day care center. Disputes developed as to the amount of rent defendants were obligated to pay, and plaintiff commenced a summary dispossess action that was tried to conclusion. Although the judge who presided over that matter determined that plaintiff had established that defendants were in default on their payment obligations under the lease, he dismissed plaintiff's complaint for failure to provide defendants the necessary notice.

Following that dismissal, plaintiff filed another summary dispossess complaint. That matter was tried before another judge, who found in favor of defendants. Plaintiff appealed and we reversed. Shaffer v. Tiny Blessings, No. A-1698-04 (App. Div. Dec. 8, 2005). We remanded the matter with directions that a judgment for possession be entered after proceedings to settle the amount of the past due rent.

While that appeal was pending, plaintiff filed a third summary dispossess action, asserting grounds other than the non-payment of rent alleged in the prior dispossess action. That matter was assigned to the same judge who presided over the trial of the second summary dispossess action; he dismissed the matter on grounds of the entire controversy doctrine. Plaintiff filed another appeal, and we reversed. Shaffer v. Tiny Blessings, No. A-4442-04T5 (App. Div. Dec. 13, 2005).

On November 19, 2004, undeterred by the fact that his efforts to obtain a judgment of possession based upon nonpayment had so far been unsuccessful, plaintiff filed yet another action, this time seeking a money judgment for the amount of unpaid rent and utilities alleged to be outstanding, together with counsel fees. This action, moreover, continued in the face of plaintiff's several appeals pending in this court.

This matter was assigned to yet another judge who, after reviewing the transcripts of the prior matters and briefs submitted by the parties, determined that defendants owed $1,875 for late payments, $2,252.41 for utilities, and $13,826.25 for legal fees. In light of the jurisdictional limit of the Special Civil Part, a judgment for $15,000 was entered for plaintiff.

We cannot fault this third trial judge for attempting to resolve, once and for all, the disputes in which these parties had become embroiled. We have concluded, however, that we are constrained to reverse.

We note, for instance, that plaintiff was attempting to collect in this case late fees based upon a clause in the lease that another judge had already declined to enforce as unconscionable. We recognize that the judge who heard the instant matter concurred with that assessment but proceeded to disregard the original determination that the clause was unenforceable in its entirety. The parties should not have attempted to relitigate before this judge what had been decided by another.

Further, although the trial judge engaged in a detailed review of the legal principles governing an award of counsel fees, we cannot subscribe to an award in favor of a party who, at that juncture, had not prevailed in his efforts to dispossess this tenant. The lease provision upon which the landlord relied provided "[t]enant shall pay all reasonable attorneys' fees necessary to enforce Landlord's rights." The trial judge noted in his letter opinion that this clause did not include a specification that the tenant was obligated only in the event the landlord prevailed. From that omission, he concluded that the landlord was entitled to fees for services by plaintiff's counsel in connection with the three earlier, unsuccessful dispossess actions.

We do not consider the absence of such limiting language dispositive. Rather, we deem it wholly anomalous to award counsel fees to a party who has been unsuccessful.

There is one remaining issue to be addressed. Defendants filed a counterclaim, seeking damages for what defendants characterized as plaintiff's persistent and malicious attempts to evict them. The judge dismissed that counterclaim and defendants contend that he erred in doing so.

We are unable to agree, particularly in light of our decision in Shaffer v. Tiny Blessings noted above, in which we remanded the matter for entry of a judgment of possession.

The portion of the judgment awarding plaintiff $15,000 is reversed; the dismissal of defendant's counterclaim is affirmed.

 

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A-6537-04T5

July 13, 2006