HOWARD SMITH v. KOLTEX APARTMENTS, L.L.C

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1334-07T4

HOWARD SMITH,

Plaintiff-Respondent,

v.

KOLTEX APARTMENTS, L.L.C.,

Defendant-Appellant.

__________________________

 

Submitted December 8, 2008 Decided

Before Judges Lisa and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-26039-07.

Barr & Canada, L.L.C., attorneys for appellant (Jon-Henry Barr, on the brief).

Keith O.D. Moses, attorney for respondent.

PER CURIAM

Defendant Koltex Apartments, owned by Christopher Koltun, appeals from a Special Civil Part judgment entered in the amount of $10,000 in favor of plaintiff, Howard Smith, a former tenant. The record that has been supplied to us is minimal. We have only a copy of the order of judgment entered in this separate Special Civil Part proceeding awarding Smith $10,000 in damages, and an unfiled copy of a complaint by defendant and Koltun suing Smith for "unpaid rent" in the amount of $4560. In the trial transcript, the court refers to the hearing that resulted in the $10,000 judgment as a return date of an order to show cause filed by Smith. For the reasons that follow, we affirm the trial court's determination that defendant's failure to appropriately store the contents of Smith's apartment after his eviction caused his personal property to be lost, but we remand for a further hearing on the issue of damages.

We glean from the transcript that Smith was evicted as a result of a landlord-tenant case filed by defendant for nonpayment of rent. An order of removal issued on July 9, 2007.

Smith, a disc jockey who has been in the business for several years, testified as to a handwritten list of items that he left in the apartment after his eviction, including turntables, a mixer, CD players, an equalizer, a compressor, over 1000 vinyl records, and the like. Smith also testified that the total value of these items was $17,000. He did not explain how he valued any of the lost items. He did not give dates of purchase. He did not introduce any lists of comparable merchandise, sales receipts, or any documents whatsoever as to the value of the items as new, used, or replaced. His handwritten list was admitted into evidence, but we have no copy of it. Interestingly, at the start of the trial, Smith complained that Koltun was actually wearing a brand-new shirt of Smith's that had been left in the apartment, an accusation that Koltun did not deny.

After hearing Smith's recitation of the value of his lost possessions and Koltun's testimony as to the rent Smith owed, the judge said the following:

[S]omebody took this equipment and either put it in the hallway and it was taken since it's extremely valuable by other tenants or other people, or it was simply taken and sold or what have you. But I do believe that the equipment was in the apartment. And I do believe that Mr. Smith was entitled to get this equipment. Therefore, I find for the plaintiff in this case.

Now, how do I award damages? The first thing I'll do is deduct the $3,880 in credit. Mr. Koltun will get credit for that. And I also think that there is some fat in the $17,000 figure. Having said all that, I will having deducted $3,880 for back rent and reducing the amount of the $17,000 valuation, I am going to enter a judgment in favor of the plaintiff for $10,000. That's how much I believe he's entitled to.

We'll prepare a copy of an order and you can either pay him the $10,000 or find out how you can get that equipment back to him.

Neither Koltun nor defendant complied with the statutory duty of care imposed on a landlord to protect the contents of a tenant's home after an eviction. See N.J.S.A. 2A:18-73 to -76. Koltun claimed merely that he left phone messages for Smith to come and retrieve his belongings, but that he had no forwarding address and received no return calls. In contrast, Smith claimed that when he first came to retrieve his belongings, everything in his apartment had been moved out into the hallway of the apartment building. All of his disc jockey equipment was missing. Smith presented the testimony of a friend and a cousin in support of his claim. Defendant presented the testimony of the building superintendent and the painter who worked in Smith's apartment after the eviction.

Defendant appeals the entry of the $10,000 judgment based on the lack of evidence as to the existence and value of plaintiff's belongings. Regarding the existence of the belongings, we are bound by the credibility findings made by the court. Credibility is always for the factfinder to determine. Tennenbaum & Milask V. Mazzola, 309 N.J.Super. 88, 93 (App. Div. 1998). Therefore, the scope of our review is limited. We give due regard to the ability of the trial judge to assess credibility and will not ordinarily disturb the determinations. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We will not make an independent assessment of the evidence as if we were the court of first instance. State v. Locurto, 157 N.J. 463, 470-71 (1999).

Although the trial judge did not specify why he found the testimony of Smith and his witnesses to be more credible than that of defendant and its witnesses, the reasons are readily apparent from a review of the record, including the contextual details provided by all of them. See id. 472-75. Koltun did not deny instructing others to move Smith's belongings out into the hallway; he merely disputes that any of them had value. Even defendant's witnesses, other than Koltun, reluctantly admitted seeing one or two of the claimed lost items. Although we concur with the judge's determination that Smith's belongings were lost because of defendant's failure to comply with its statutory obligations to exercise reasonable care, which makes defendant liable for the loss, we do not agree with the manner in which their value was determined.

The trial judge essentially accepted plaintiff's net opinion as to the value of the items without requiring him to provide any details about them, or extrinsic evidence to corroborate his statements. "[I]t has consistently been held in this State that the owner of an article of personal property is competent to testify as to his estimate of the value of his own damaged property and that the extent of its probative value is for the consideration of the fact-finder. . . . Indeed, if an item is brand new, proof of the item's original cost may sustain an owner's burden of proof as to value." Penbara v. Straczynski, 347 N.J. Super. 155, 162 (App. Div. 2002). Without something other than Smith's net opinion as to value, however, we cannot determine if the estimates have any basis in fact. He did not offer approximate dates of purchase, comparable prices, advertisements, catalogues, receipts, or the history of the items. Smith's perfunctory recitation of item and value, without anything more, was simply inadequate.

In the complete absence of justification for plaintiff's estimates, we cannot find that the court fulfilled its responsibility to perform judicial fact-finding. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) ("The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence"). Accordingly, we remand for the purpose of requiring Smith to make a more detailed presentation of the value of his lost belongings, which should include approximate date of purchase, amount paid, replacement cost, and similar information. Value must be determined anew on a more complete record. Similarly, defendant must provide more explicit proof of the claimed unpaid rent offset by the security deposit because there was no testimony indicating the propriety of the court's use of this amount either.

Affirmed in part, reversed in part.

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A-1334-07T4

March 17, 2009