MARK ROMEO v. ANTHONY PERILLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6835-03T26835-03T2

MARK ROMEO,

Plaintiff-Appellant,

v.

ANTHONY PERILLO,

Defendant-Respondent.

_______________________________________________

 

Argued October 12, 2005 - Decided April 21, 2006

Before Judges Stern, Parker and Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Sussex County,

Docket No. L-559-00.

Stephen J. McGee argued the cause for appellant.

Holly L. Reinhardt argued the cause for respondent

(Daggett, Kraemer, Eliades, Vanderwiele & Ursin,

attorneys; George T. Daggett, on the brief).

PER CURIAM

Plaintiff appeals from an order of June 30, 2004 denying his motion for new trial following entry of a judgment in favor of defendant on a counterclaim in the amount of $6,400. In his four count complaint, plaintiff sought the value of property lost or destroyed when defendant-landlord entered his apartment and "evict[ed]" him while he was incarcerated. Plaintiff also demanded judgment for "emotional distress" and "mental cruelty" aggregating $45,000. In his counterclaim, defendant sought $7,000 for destruction of the apartment leased by plaintiff and damages resulting from plaintiff's filing of a criminal complaint against defendant which was subsequently "administratively dismissed by the Sussex County Prosecutor's Office."

The jury found that "the fair market value of plaintiff['s] . . . property at the time it was removed by the defendant" was $5,700, that defendant stored the property for one year after the removal, but that plaintiff "abandoned" his property "during that period of storage." Defendant was awarded $1,600 in unpaid rent, and $4,800 in damages on the claim of malicious prosecution, but was awarded no damages "for physical damage and repairs to the rental premises caused by the tenant . . . beyond ordinary wear and tear."

Plaintiff contends that: (1) N.J.S.A. 2A:18-72 applied to the case and requires recovery for the loss of his property,

(2) "the issue of abandonment of plaintiff's property should not have been argued nor submitted to the jury," (3) defendant was in any event liable to defendant under N.J.S.A. 2A:33-1 and 2A:39-1 et seq., (4) the defense of reliance on the advice of a police officer was "a valid defense to the counterclaim for malicious prosecution," (5) the alleged rent due should not have been permitted to offset the return of the security deposit,

(6) the findings of the loss of only $5,700 was not supported by the evidence, and (7) that plaintiff is entitled to double and treble damages and attorneys fees under the respective statutes.

I.

In October 1997, defendant rented his condominium in Vernon to plaintiff. The lease provided for a "month to month" term beginning in October 1997 at $800 a month for rent. The lease further provided for an $800 security deposit, which was paid. The lease banned pets and required the plaintiff to give "a 60-day notice" before vacating the apartment.

Defendant testified that plaintiff would pay the rent in cash at defendant's restaurant business in Garfield, but that he was "always" late. According to defendant, plaintiff "didn't want [] receipts" although defendant offered to provide them. Defendant further testified that plaintiff was two months behind on the rent by July 10, 1998 and that he had "filed" an action to collect the arrearages. According to defendant, plaintiff remained two months behind in his rent when plaintiff was arrested on March 8, 1999, and incarcerated in the Morris County Jail.

Plaintiff had a cat and a parrot in the apartment and arranged for employees of his business to take care of the apartment and "feed the animals." Plaintiff testified that "[a] few days after my arrest I called Mr. Perillo and told him I was in fact locked up [but wanted] . . . to keep the apartment and my dad would pay the rent . . . thereafter." Plaintiff claimed that his father had previously been in contact with defendant, "had paid the rent," "[a]nd that was gonna be the arrangement, because [plaintiff] wanted to keep the apartment."

Approximately two weeks after receiving the plaintiff's phone call, defendant received a call from a representative of the condominium association who informed him that "they got several complaints of pets in the apartment, abandonment and that it's cruelty to animals that nobody is taking care of them." Defendant was further informed that as the landlord and owner of the condominium, he was "responsible."

Defendant testified that he immediately contacted the Vernon Police Department to seek advice regarding the situation. He stated that the police told him that plaintiff is incarcerated and that he "can go in." Defendant, who lived in Lodi (Bergen County), went to the condo the day after receiving plaintiff's call. After discovering his key no longer worked, he "drilled the lock" and replaced it with a new one. When defendant opened the door, plaintiff's cat "ran out" of the apartment, and defendant also saw a gray "medium size[d]" bird "[f]lying around." After getting the bird into its cage, defendant took it to the condominium association office, together with a key to the new lock.

Defendant described the apartment as:

Unlivable, in my personal opinion, the way I would live. There was bird feces, I guess, all over the furniture, all over the carpeting, all over anything you could imagine. This bird was flying around. I don't think the bird was really in the cage much. The same thing with the cat, there was a litter box. There was the smell of cat urine all over the place. The carpet was just horrendous with burn holes in all the furniture, the kitchen floor, all the carpeting, this was a two floor unit, there was burn marks all over everything. Everything had to be replaced. I mean if you call that livable, I don't know.

The defendant further noted that the wall plates, which cover the light switches and electrical outlets, were "missing." According to defendant, "[t]he walls were [] atrocious," the carpet had "too many holes in it" and had to be replaced, as did the kitchen floor and dishwasher, and "[t]here was a tremendous amount of cleaning" that was necessary. Defendant indicated he had to pay "[a]bout $4,500" in damages "over and above wear and tear."

Margaret Perillo, the defendant's mother, testified she accompanied defendant when he entered the apartment after receiving the call from the condominium association. She testified that the apartment was "filthy" and "unbelievable," and the place looked "[l]ike nobody cleaned [it] for a long, long time . . . like nobody lived here." She added that the cat was "filthy" and the bird "flew around a little."

Defendant further testified that he "didn't touch [the] property" for "about two months" and instead called plaintiff's parents "to see what they wanted to do with his furnishings, his belongings, his clothing" because "I couldn't get in touch with him. . . . [H]e's incarcerated, I just didn't know where he was." Defendant claimed that plaintiff's father denied responsibility for his son's possessions, stating, "he had enough" and "we don't want to have anything to do with him at this point." Defendant further testified that he received a similar response upon contacting plaintiff's employees who claimed it was "not [their] business" and they were not involved. Thus, "about two months" after receiving plaintiff's phone call from the Morris County Jail and having not received any rent for four months, defendant decided to remove the property from the condominium.

According to defendant, he placed the property in storage "for a year," and after hearing no more from plaintiff or any representative of his during that period, "threw it out" because there was nothing of value to keep. Plaintiff's clothing was retained, but plaintiff subsequently refused to accept it.

Finally, defendant testified that he was charged by plaintiff with burglary of the apartment and theft of his property. Defendant "turn[ed] himself in" to the police, and was read his "rights," but was later advised the complaint was administratively dismissed. Defendant nevertheless paid $3,500 "for a lawyer in connection with this criminal charge."

According to the plaintiff, the apartment contained a "country French bedroom set," "a king-size water bed" and two night tables, "two full-size mattresses" and box springs, a sectional sofa consisting of a pit group, end tables and a coffee table, a Levitz couch and love seat, a fifty-inch Mitsubishi surround sound television, three RCA VCRs, a set of Mikasa China service for twelve, a full-sized microwave, cookware, a Pentium II Computer, various items of jewelry, his wardrobe, an African Gray Parrot, and two twenty-five inch RCA color TVs. Plaintiff claimed that he paid $39,549 for the property, and that it was worth about $21,140 when it was removed from the apartment. Plaintiff was only able to provide receipts for the jewelry, and asserted that he calculated the value of the furnishings based on "extensive research" he performed. Plaintiff testified:

I contacted auctioneer houses, classifieds, from the time of the crime -- from the time I purchased the belongings. It happened in '98, so I tried to find, to the best of my knowledge, what it would be worth then. Consignment shops, used furniture places. I believe there was eight used furniture stores, Leon Castner from Castner Auctioneer Houses. I went on -- to the library for a few days and I -- through the classified newspapers, present and again back to 1999, and to the best of my ability I found out what these items would be worth. Not -- you know, they weren't exact things, but very close.

Defendant acknowledged that a bedroom set was removed, but testified that it was "beat up" and in "horrendous" condition. He testified that the king-size water bed was "leaking," because of a "pinhole," that there were two twin-size mattress sets but "they [] both had stains on them, maybe from the cat . . . and a lot of burn holes." Defendant acknowledged that he found one nineteen-inch television that did not work, plaintiff's clothing and a computer. Defendant claimed that there was no jewelry, big screen television or Mikasa China set in the apartment when he entered.

On cross-examination, defendant conceded that he did not file the "necessary paperwork" for evicting a person and did not give notice to plaintiff because he did not know in which jail plaintiff was confined. Defendant further conceded that he never sent the plaintiff notice of the damage defendant claimed that plaintiff caused, nor made a demand for payment before the lawsuit was filed. Defendant explained that he "just took it up as losses" (before the complaint was filed) because the plaintiff "just got out of jail" and most likely could not pay it. Defendant further admitted that he never returned the plaintiff's security deposit, but had instead used it "towards [repairing] the damage" to the apartment.

Plaintiff was released from prison in June 2000, about one- and-a-quarter years after his phone call to, and last conversation with, defendant. He contacted defendant and asked for the contents of the apartment. Plaintiff testified that defendant told him he "gave everything away."

Plaintiff then went to the Vernon Police where he "talked to a few officers" and "explained the situation." He claims that based "[o]n their recommendation" he signed a complaint against defendant for "theft."

Plaintiff called Officer Scott Alsberge of the Vernon Township Police Department to testify on his behalf. Alsberge testified that on August 10, 2000, he advised plaintiff of the "procedure [for] filing complaints with the Court Administrator." On cross-examination, the officer noted "there's a difference between the procedure to file a complaint" and conducting an investigation, and he only advised plaintiff of "the procedure of filing complaints," but did not advise plaintiff to file a complaint. Plaintiff's complaint was dismissed without a trial for lack of evidence.

II.

On October 11, 2002, the trial court granted "Partial Summary Judgment On Liability Only, In Favor Of Plaintiff, And Against Defendant." The Order provided:

(1) Summary judgment is hereby granted in favor of plaintiff, and against defendant on the Complaint as to liability only;

(2) The matter shall be scheduled for trial on the Complaint as to damages only [] on plaintiff's claims pursuant to N.J.S.A. 2A:39-1, N.J.S.A. 2A:33-1 and N.J.S.A. 46:8-21.1 and upon the balance of disputed issues including defendant's counterclaim.

On November 19, 2002, the trial court entered an "Amended Order Granting Partial Summary Judgment On Liability Only," stating:

(1) Summary judgment is hereby granted in favor of plaintiff, and against defendant on the Complaint as to liability only on plaintiff's claims pursuant to N.J.S.A. 2A;39-1, N.J.S.A. 2A:33-1; N.J.S.A. 46:8-21.2, and N.J.S.A. 2A:18-72;

(2) The matter shall be scheduled for trial on the Complaint as to damages only and upon the balance of the disputed issues including defendant's counterclaims[.]

In entering the first order granting summary judgment, the judge noted that "[d]efendant conceded that as a landlord for twenty years he was aware there were pertinent regulations" and could not claim reasonable reliance on the police, or "claim ignorance of the law as a defense" for his unlawful entry in violation of N.J.S.A. 2A:33-1 and 2A:39-1. She also found that the security deposit was improperly withheld because "defendant did not provide a written summary of deductions" in violation of N.J.S.A. 2A:46:8-21.1. The second order merely added reference to N.J.S.A. 2A:81-72 as an additional basis for finding liability. No statement of reasons is appended to that order.

After hearing the evidence and discussing the requests for charge and jury instructions, the trial judge determined that whether plaintiff abandoned his property was an issue for the jury to consider. The judge stated:

[I]t seemed to me that on the charge that there is an abandonment issue put in issue by the Defendant, not of the premises, I've already ruled that the property could not be deemed abandoned, he had to get a court order and so forth to take possession. That's the possession issue. And they're gonna have to decide when he took possession, whether he took possession in March or he said two months later because that ties into the rent issue. The rent would continue to run until he took possession of the premises by going in and taking your stuff out and starting to renovate the unit.

So the jury is going to have to decide the term, whether it was right there in March or went to May or something. Okay? That's on the rent issue.

Then the jury is going to have to decide if they believe or not that it was stored, that your goods were stored. There's all sorts of law about storing the stuff, okay, from before the landlord-tenancy amendments, and then in these new acts.

The way it works now under the new legislation is it's stored 30 days. And then the landlord can get rid of it. Now that doesn't of course apply because the new act came later.

. . . .

But the jury is going to have to decide, in my view, whether once it was stored, whether they feel you abandoned ownership of the property by never coming back for it for a period of time. They'll have to decide whether it was reasonable or not for them to destroy it or get rid of it in the end or whether it was abandoned by you. So I suggest you go downstairs and look into law on that issue because I disagree with [defendant] on abandonment of the premises, but clearly since you left and never came back, he would not be compelled to store the stuff till the end of time.

Plaintiff contends that in preparing for trial he relied on the grant of partial summary judgment and believed he was entitled to damages based on N.J.S.A. 2A:18-72, which was added to the amended summary judgment order, because that statute was not honored.

N.J.S.A. 2A:18-72 provides that:

A landlord of commercial or residential property, in the manner provided by P.L. 1999, c. 340 (C.2A:18-72 et al.), may dispose of any tangible goods, chattels, manufactured or mobile homes or other personal property left upon a premises by a tenant after giving notice as required by section 2 of P.L. 1999, c. 340 (C.2A:18-73), only if the landlord reasonably believes under all the circumstances that the tenant has left the property upon the premises with no intention of asserting any further claim to the premises or the property and:

a. A warrant for removal has been executed and possession of the premises has been restored to the landlord; or

b. The tenant has given written notice that he or she is voluntarily relinquishing possession of the premises. [Emphasis added.]

As plaintiff notes, "[i]t is undisputed that defendant did not file a summary dispossess action, nor did he obtain a warrant for removal." Nor did plaintiff voluntarily relinquish the premises. Plaintiff argues that defendant therefore improperly disposed of his property and that he is "entitled to recover twice the actual damages sustained" under N.J.S.A. 2A:18-82.

The statute concerning "abandoned tenant property," N.J.S.A. 2A:18-72 to -84, did not become effective until January 10, 2000, about ten months after plaintiff's arrest. L. 1999 c. 340 1. However, plaintiff contends that defendant was still bound by the statute's constraints because defendant testified that he removed the property from the apartment two months after plaintiff's call from the jail and then stored it for a year. Therefore, defendant would have been in possession of the property until May 2000, and had an obligation to comply with the statute. Plaintiff further argues that the trial court had granted summary judgment on this issue and accordingly, he "as a pro se litigant, proceeded to trial with the understanding that liability on the Complaint had already been determined and that he was proceeding on the Complaint only as to damages."

Defendant responds that "[u]nder the law that existed at that time, a landlord was not required to provide a tenant any notice with regard to personal property left in the leased premises after the termination of the lease." Instead, defendant cites Banks v. Korman Assocs., 218 N.J. Super. 370 (App. Div. 1987), for the proposition that his voluntary decision to hold plaintiff's property after he terminated the lease converted the relationship from landlord-tenant to bailor-bailee. According to defendant, "the mandates of a statute . . . did not go into effect until more than eight [] months after Plaintiff's property could reasonably [be] deemed abandoned."

Defendant asserts, without real dispute, that he entered the apartment to dispose of the plaintiff's belongings in March 1999. Had defendant diligently researched the necessary legal procedures for removing a tenant's property, he would not have found that N.J.S.A. 2A:18-72 was then in effect. We therefore conclude that the trial court correctly determined at trial that N.J.S.A. 2A:18-72 was inapplicable in this case because the statute was not effective at the time defendant entered the apartment and took possession of plaintiff's property therein. "Generally, we favor interpretation of statutes that afford prospective application only" absent an "'unequivocal expression of contrary legislative intent.'" Nobrega v. Edison Glen Assoc., 167 N.J. 520, 536 (2001) (quoting Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 95 (1990)); see also Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 489 (App. Div. 2000) (holding that "courts favor prospective application of statutes"). "The purpose behind this rule is to give people fair notice of the laws that they are expected to follow; they cannot be expected to obey laws that have not yet been enacted." Lombardo, supra, 328 N.J. Super. at 489 (citing Street v. Universal Mar., 300 N.J. Super. 578, 580 (App. Div. 1997)).

Plaintiff argues that even assuming that N.J.S.A. 2A:18-72 was not in effect at the time of the underlying events and is therefore inapplicable, defendant remains liable under N.J.S.A. 2A:39-1, prohibiting unlawful entry, and N.J.S.A. 2A:33-1, prohibiting wrongful distraints. Plaintiff emphasizes that defendant at no time obtained "legal process" before entering the apartment as required by N.J.S.A. 2A:39-1, and, as previously noted, plaintiff further contends that "[t]he permitting of the abandonment argument by defendant, and submission of that issue to the jury was contrary [to] all prior rulings in the case, and was prejudicial to plaintiff's case," as he was prepared to try the case on damages only.

In her charge to the jury, the judge instructed:

In the event that you find that he did put it in storage, the answer to question number two, then you have to answer question number three. You have to decide whether he established, whether the Defendant landlord established that the Plaintiff had essentially abandoned his personal property during that period of time, so that it was appropriate for him to dispose of the property. In other words, the Defendant's view was he had no contact with the Plaintiff and I guess he gave up on his efforts to find the Plaintiff and considered it abandoned.

You have to decide whether under all the facts of the case if the Defendant landlord has established that it was reasonable for him to conclude the Plaintiff had abandoned his property.

I'll give you a definition of abandonment. Abandon: to abandon is defined as to give up with the intent of never again claiming a right or interest in.

No, in the event that you do find that it was reasonable for the landlord to conclude that the tenant had abandoned that property, then as a matter of law the landlord was permitted to sell it, destroy it or dispose of it in any fashion. He was allowed to do all those things under the law, if it's been abandoned. Okay. So you'll have to decide that issue. Number two, whether, if so, whether you find it was abandoned during that period of time.

It is unclear to us whether the judge actually revised her view with respect to the summary judgment on liability or considered the abandonment of the property issue as one which impacted on damages only. In either event, the amended summary judgment order included reference to N.J.S.A. 2A:18-72, and we believe the plaintiff was reasonably unprepared to meet the abandoned property claim, and the jury's verdict based on the finding that plaintiff abandoned his property must be vacated.

Plaintiff was hard pressed at argument before us to explain what more he could have presented on the question of abandonment of the property. But he could reasonably have relied on his pretrial understanding that he was granted summary judgment on liability. On the other hand, if we merely reinstated the jury's finding of $5,700 in terms of his property loss, defendant would be deprived of the abandonment defense he could properly assert in the absence of summary judgment and the non-applicability of N.J.S.A. 2A:18-72. While we acknowledge that defendant has not cross-appealed, we vacate the grant of partial summary judgment which may technically still exist based on other statutes to the extent it includes liability under N.J.S.A. 2A:18-72, and we remand for a new trial on plaintiff's complaint so that the issue of abandonment may be considered. We are unconvinced that a reasonable fact-finder could not find under the common law that, notwithstanding N.J.S.A. 2A:33-1 and 2A:39-1, that plaintiff abandoned his property by not contacting defendant for over a year. We find no basis in anything cited to us, or in our own research, to preclude a jury from finding that defendant acted reasonably in disposing of plaintiff's property at a time N.J.S.A. 2A:18-72 did not control his conduct.

The $1,600 verdict for two months unpaid rent on defendant's counterclaim must also be vacated, and remanded for a new trial. The counterclaim included no claim for unpaid rent, and the limited nature of the issues remaining for trial, as provided in the order granting partial summary judgment, did not include the issue of unpaid rent. Again, plaintiff was not prepared to call his father in support of his assertion about the amounts of rent paid.

III.

We find no basis for disturbing the $4,800 award on the counterclaim for malicious prosecution. Plaintiff argues that the trial judge erred in denying the proposed jury charge to the effect that reliance on a police officer's advice is a valid defense to malicious prosecution. Plaintiff cites Mondrow v. Selwyn, 172 N.J. Super. 379 (App. Div.), certif. denied, 84 N.J. 449 (1980), in support of the proposition that where an individual relies on the police filing a complaint, he shall not be liable for malicious prosecution. Plaintiff asserts that because he discussed the matter with a police officer, the judge should have charged the jury on the defense.

Mondrow is distinguishable from the present case. In Mondrow, a police officer took plaintiff's statement, looked through the statutes and typed a complaint for the defendant to sign. Id. at 382. Furthermore, the defendant in Mondrow testified:

It was my belief at the time . . .

that they had consulted either the Borough

Prosecutor or the judge or someone with a

lawyer's background. So, I did not question

the statutes because the police told me they

are very careful about doing this so that

people don't get accused improperly of the

wrong thing[.]

[Id. at 382-83.]

Furthermore, defendant's testimony was uncontradicted by the police officer.

Here, in contrast, the officer testified that "he advised [plaintiff] in the procedure of filing complaints" and denied preparing the complaint for him or advising him to file it. Clearly, plaintiff authored the complaint and was therefore solely responsible for its contents and filing. Stated differently, the officer gave no legal advice to the plaintiff nor encouraged him to file the charges. The officer simply gave the plaintiff directions on how to file the complaint he wanted to file.

We, therefore, affirm the award to defendant on the malicious prosecution counterclaim. We see no basis for requiring a retrial on that severable issue because a retrial is required on the other claims.

IV.

We remand for retrial on plaintiff's complaint with respect to his claim for property loss. In the absence of a cross-appeal, we see no basis for granting a new trial on the counterclaim but affirm the judgment for damages on the malicious prosecution claim. However, we do not preclude either party from moving before the trial court to amend the pleadings and for further relief in the discretion of the trial judge.

We remand for a new trial and further proceedings consistent with this opinion.

 

Plaintiff noted purchase prices during his testimony, and introduced two lists stating value at trial. Therefore, it does not appear that the "summary of items" in plaintiff's appendix was introduced at trial.

Both orders refer to oral argument having been presented, but we have not been presented with any transcript thereof.

N.J.S.A. 2A:39-1 provides that:

No person shall enter upon or into any real property or estate therein and detain and hold the same, except where entry is given by law, and then only in a peaceable manner. With regard to any real property occupied solely as a residence by the party in possession, such entry shall not be made in any manner without the consent of the party in possession unless the entry and detention is made pursuant to legal process as set out in N.J.S.[A.] 2A:18-53 et seq. or 2A:35-1 et seq.

N.J.S.A. 2A:33-1 authorizes a landlord distraint over a commercial tenant's property for failing to pay rent. However, the statute states "[n]o distraint shall be permitted for money owed on a lease or other agreement for the occupation of any real property used solely as a residence of the tenant." N.J.S.A. 2A:33-17, which provides the remedy for wrongful distress provides that "[i]f a distress and sale shall be made for rent not in fact due the person distraining or for whom the distress is taken, the owner of the property distrained, shall be entitled to recover double the value of the property so distrained and sold, together with full costs of any action."

Based on the quotation from the charge conference, it appears that she adhered to her view of summary judgment regarding abandonment and liability "of the premises."

For example, he might have called his employees or parents to testify about their efforts to obtain the contents in the apartment.

Plaintiff's claim of entitlement to the return of his security deposit and treble damages will have to abide the retrial and determination regarding plaintiff's losses and obligations on the counterclaim, in order to ascertain whether defendant owed any funds to plaintiff See N.J.S.A. 46:8-21.1.

(continued)

(continued)

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A-6835-03T2

April 21, 2006