ROSA LUCAS v. BENJAMIN A. SPARANO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3851-07T33851-07T3

ROSA LUCAS,

Plaintiff-Respondent,

vs.

BENJAMIN A. SPARANO,

Defendant-Appellant.

_________________________________________________________

 

Submitted December 10, 2008 - Decided

Before Judges Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-027073-07.

Kimm Law Firm, attorneys for appellant (Michael S. Kimm, on the brief).

Stuart J. Schneider, attorney for respondent.

PER CURIAM

Defendant Benjamin Sparano appeals from the judgment in favor of plaintiff Rosa Lucas that followed a non-jury trial in the Special Civil Part. We have considered the arguments raised by the parties in their briefs in light of the record and applicable legal standards. We affirm.

On October 29, 2007, plaintiff filed her complaint alleging Sparano had wrongfully withheld her security deposit in violation of N.J.S.A. 46:8-21.1. She sought double the amount of the deposit, $6000, plus attorney's fees and costs. Sparano filed an answer, counterclaim, and third-party complaint on November 19, 2007. He denied receiving any monies from plaintiff.

Instead, he alleged that the four third-party defendants, Jeff Palmer, Timothy Lucas, Luis Martinez and Joseph Spiegel (collectively, defendants), had each deposited $750 as security for their rental of Sparano's apartment at 5 Burnside Place, Wayne. Sparano further claimed that plaintiff and defendants violated various provisions of the lease and damaged the property, necessitating the cost and expense of repairs. He also alleged that plaintiff and defendants failed to give proper notice of their intention not to renew the lease at the conclusion of its one-year term. Sparano sought retention of the $3000 security deposit, an additional $1950 in damages, and $4000 "for [the] loss of two months['] rent" as of the date of the filing.

The Special Civil Part Clerk's Office forwarded notice to Sparano that his pleading had been mailed, and that unless otherwise notified, default would enter on his claims on January 7, 2008. On December 4, counsel for plaintiff notified the Clerk's office that he would not be representing defendants because he anticipated calling them as witnesses in his case. He asked the clerk to enter "a general denial" to Sparano's counterclaim on behalf of plaintiff. A copy was mailed to Sparano.

On January 8, 2008, the case was listed for trial. Plaintiff appeared with counsel; Sparano appeared pro se. Three of the four defendants were present, without counsel, as witnesses for plaintiff. The calendar judge forwarded the case to Judge Menelaos Toskos for trial. We have not been provided with the transcript of what, if anything, transpired before the calendar judge, however, there is nothing in the record to reflect that Sparano requested an adjournment at that time.

Judge Toskos commenced the trial. Sparano immediately interrupted, claiming Martinez, "one of the most important witnesses," was not present, and that he wanted "to have him here." Judge Toskos, indicating that Sparano could have subpoenaed witnesses for trial, but had not, pressed ahead with the trial. Sparano again interrupted, noting plaintiff's counsel had not "filed any answer . . . or anything" in response to the counterclaim. He told the judge he "should have an automatic default." Plaintiff's counsel showed Sparano the letter he filed with the clerk, and the trial proceeded.

Plaintiff testified she entered into a lease for the apartment with Sparano in early September of 2006. Her son was attending William Paterson University in Wayne and was going to share the unit with other students. The lease ran from September 2, 2006 through August 31, 2007 at a monthly rent of $2000 and required a security deposit in the amount of $3000. Plaintiff further testified that she paid the $3000 security deposit with a personal check made out to cash, a copy of which she presented at trial. She noted that the check was given to the realtor. During one of his frequent interruptions of the testimony, Sparano denied ever seeing the check prior to trial, claiming instead that the security was paid in equal cash payments of $750 by each of the defendants. Plaintiff testified that during the lease term, she sent defendant a check for her son's portion of the monthly rent.

Three of the defendants testified on plaintiff's behalf. Her son, Tim Lucas, testified that he gave the realtor a check given to him by his mother as a security deposit on the unit in early September 2006. Lucas testified that he lived in the unit with the three other defendants, and that when they vacated in August 2007, Sparano inspected the unit and said it was fine. Lucas claimed that the only time Sparano contacted him or his fellow tenants was to collect the rent and that he would sometimes appear at the unit unannounced. Lucas testified that no other people lived in the unit, and that he and the others paid all outstanding utility bills prior to vacating the unit. They left the apartment in good condition.

Jeffrey Palmer testified that he moved in the apartment on September 3, 2006 and that he never tendered any money for a security deposit. Palmer testified that shortly after moving in, he discovered a leak in the bathroom plumbing which had caused damage to the shower tiles and caulking. Palmer further claimed that Sparano had to replace the toilet during the second week of the tenancy because it would not flush. Palmer corroborated Lucas's testimony that all utility bills were paid, the apartment was left in good condition, and that Sparano had not lodged any complaints with them.

Joseph Spiegel testified that his father signed the lease on his behalf. He confirmed that he too did not contribute to the security deposit and corroborated much of the prior two witnesses' testimony.

Sparano produced a second lease that he testified was the actual lease signed by all the parties. Before Judge Toskos recessed for lunch, he urged Sparano to review with plaintiff's counsel any other documentary evidence he intended to introduce. Immediately after recess, Sparano repeatedly asked the judge how he should proceed, and whether "we [are] doing the counter[claim] or are we disputing their claim against me first." Judge Toskos patiently informed Sparano that it was his opportunity to put forth a defense.

Sparano then introduced a series of documents demonstrating his attempts to contact the four defendants to confirm their intention not to renew their lease. He also sent a subsequent letter, dated September 17, after they had vacated the premises, advising that since they had failed to give him written notice of their intention to vacate, he was now holding them responsible for September's rent. This letter also advised defendants that "there was excessive damage to the property" which Sparano was "in the process of itemizing and repairing." Sparano also introduced violation notices from the town indicating that too many individuals were residing in the apartment, notices of garbage ordinance violations at the property, and utility bills that he claimed were the responsibility of plaintiff and defendants.

Before cross-examination, Sparano requested "directive (sic) verdict for insufficient evidence that's been presented[.]" The judge properly permitted plaintiff's counsel the opportunity to cross-examine. Sparano objected, claiming he was unprepared, that he did not have his witnesses present, and that he did not "have the documents" necessary to his case. He further contended that plaintiff and defendants had defaulted. Judge Toskos explained, "[W]e're here to try this case. This is the date that was listed on the calendar call. You have to be prepared to try your case."

During re-direct, Sparano set forth the damages he alleged defendants had caused, requiring him to use the security deposit to effectuate repairs.

The damage . . . include[s] . . . front door, light fixtures in the bathroom, bathroom toilet and tiles, had to all be re-cemented and re-caulked. Damage to the floors, foyer, . . . steps[,] . . . kitchen cabinets and the racks are missing from the stove and oven[.] The walls had to be painted and spackled again . . . after it was just done the year before. Washer and dryer [was] broke . . . . [L]eaking water [went] into the garage from playing basketball outside banging against the siding, loosen[ing] the modeling (sic) underneath[.] The[y] displaced the pool cover and did damage . . . .

Sparano did not introduce any documentary evidence to support his claim for damages. Instead, he renewed his objection to proceeding with the trial when he was not prepared.

Judge Toskos concluded that plaintiff had paid $3000 as a security deposit in September 2006 and that it had accumulated $112.90 in interest as indicated by a Clifton Savings Bank passbook provided by the defendant. The judge further found that although defendants violated municipal sanitation regulations in the spring of 2007, the violations were isolated and "were all resolved to the satisfaction of the municipality." Judge Toskos found defendants to be credible in their testimony regarding the condition of the premises when they vacated, and he found "no proof of any damages, other than the allegations by the landlord[,]", noting that no bills or testimony by repairmen or contractors had been presented and that no itemization of the security being withheld was ever given to the tenants as required by statute. Lastly, the judge found that it was plaintiff's and defendants' responsibility to pay the unpaid balance of $292.56 on the municipal water bill when they vacated the premises. Therefore, he subtracted that amount from $3112.90, doubled the result pursuant to N.J.S.A. 46:8-21.1, and entered judgment against Sparano for $5640.68, plus reasonable counsel fees. He dismissed with prejudice Sparano's third-party complaint, finding he had failed to carry his burden of proof. On January 23, 2008, after considering plaintiff's counsel's certification of services, the judge entered judgment against defendant for $5640.28 plus $1880 in counsel fees.

Sparano, now represented by counsel, moved for a new trial. In his certification, he attached invoices and proposals from various repairmen for the damages caused by defendants. Additionally, he claimed that although this evidence was available at the time of trial, he was "surprise[d]" when the case went forward. Reminding the judge that he was a pro-se litigant unaware of trial procedure, Sparano claimed that he never intended to try the case without an attorney. Plaintiff opposed the motion.

Judge Toskos heard oral argument on the application. Sparano's counsel argued that his client was not prepared to proceed with trial and was only "prepared to proceed with a default judgment based on the notice that default would be answered (sic) the day before." Plaintiff's counsel noted that Sparano had ample opportunity to obtain counsel in advance of the court appearance, noting further that his wife was an attorney whose address was the same as that used in defendant's pro se filing.

The judge noted that Sparano was in court pursuant to a "trial notice," and that no default had ever been entered in the case. He further noted that during the lunch recess in the trial, Sparano could have obtained the documentary evidence he now supplied in the motion. Judge Toskos recognized that Sparano's wife was an attorney and that he could have requested her representation, but that no appearance was ever filed. In sum, the judge denied the motion for a new trial, and this appeal ensued.

Before us, Sparano argues that "due to the unfairness exacted of a pro se party, the judgment should be vacated and a new trial directed." He contends he was denied "effective confrontation" and "fair process." In his reply brief, Sparano additionally argues that the judge 1) abused his discretion in "forcing [him] to proceed pro se"; 2) failed to consider the evidence, thus, resulting in "erroneous" findings of fact; and 3) otherwise improperly denied his motion for a new trial. We find no merit in these contentions.

All of Sparano's procedural claims can be reduced to one essential argument, i.e., he was not prepared to try the case because he believed he was summoned to court to proceed to default judgment since his counterclaim and third-party claims were never answered. However, this argument totally ignores the fact that plaintiff initiated the suit against him. Sparano was fully aware of that because he filed his pleading in response. Throughout these entire proceedings, Sparano has never denied receipt of the trial notice, nor has he ever alleged that he lacked sufficient time to secure representation and/or to marshal his proofs as to plaintiff's claim. In fact, he appeared at trial and produced various documents that he claimed demonstrated plaintiff's breach of the lease, or supported his claim for rent due because of plaintiff's improper termination. Meanwhile, plaintiff's claim was for the return of her security deposit; defendant's contention that the security deposit was utilized to make repairs was the essential controversy in the case. Why he failed to bring any proof as to legitimate deductions from the security deposit occasioned by defendants' damage of the premises is simply unexplained.

Instead, Sparano inexplicably argues that he thought he was summoned to court to proceed on a default hearing because his pleading was never answered. However, pursuant to Rule 6:6-3, a party seeking the entry of a default judgment by the clerk on a sum certain must make a "request" and supply an "affidavit setting forth a particular statement of the items of the claim[.]" R. 6:6-3(a). In most other cases, where the "claim is for an un-liquidated sum[,]" the party "shall apply to the court" and the court "shall enter judgment . . . either upon oral testimony in open court or upon affidavit containing the qualifications of the affiant and the information that would be required in the case of oral proof." R. 6:6-3(c). Sparano never applied for default judgment, nor did he submit his proofs to the clerk or the judge. Moreover, if Sparano truly believed he was going to court to obtain a default judgment, he was woefully unprepared because he had none of the bills for the repairs that supported his claim and would have entitled him to judgment against plaintiff and defendants. In short, even if Sparano misconstrued the purpose of the trial notice, he was fully unprepared to proceed to obtain a default judgment.

Absent good cause, adjournment requests in the Special Civil Part must be made no later than five days before trial. R. 6:4-7. No formal request for an adjournment was ever made prior to the trial. As to the informal requests Sparano made throughout the proceedings themselves, we note that whether an adjournment should be granted is a decision "'peculiarly within the sound discretion of the trial court[.]'" Abtrax Pharms. v. Elkins-Sinn, 139 N.J. 499, 513 (1995)(quoting Allegro v. Afton Village Corp. 9 N.J. 156, 161 (1952)). We will "not interfere unless . . . an injustice has been done." Allegro, supra, 9 N.J. at 161. As we have already mentioned, Sparano's proffered reason for seeking a delay was simply not credible, and we cannot conclude that Judge Toskos mistakenly exercised his discretion or that an injustice resulted.

We reach this conclusion fully recognizing Sparano's pro se status. However, pro se litigants are required to abide by the Rules. Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997). While relaxation may be appropriate to ensure that they are accorded the same procedural due process rights as those represented by counsel, Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982), Sparano has failed to demonstrate any reason why his requests for an adjournment should have been granted. We have no doubt that without counsel, his ability to "confront" adverse witnesses suffered. But, our Supreme Court has held that the possibility of losing a civil lawsuit does not implicate the right to counsel. Eaton v. Eaton, 119 N.J. 628, 645 (1990).

Sparano's arguments regarding the substantive evidence in the case are equally unavailing. Our review of the factual findings made by the judge in a non-jury trial is quite limited. Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007). "'We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Mountain Hill, L.L.C. v. Township of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). In general, the judge's factual "findings . . . should not be disturbed unless they are so wholly insupportable as to result in a denial of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)(internal quotations omitted).

Here, Judge Toskos did not refuse to consider all the evidence; he simply found plaintiff's proofs more credible. The Security Deposit Act, N.J.S.A. 46:8-19 through -26, "establishes the landlord's obligations in unmistakable and definite terms, and clearly provides a mandatory remedy for default." Yi v. Re/Max Fortune Properties, Inc., 338 N.J. Super. 534, 538 (App. Div.), certif. denied, 169 N.J. 610 (2001). "[O]nce a court determines that the thirty-day period prescribed by the statute expired without a return of the balance due, a tenant is entitled to the remedy provided by the statute, i.e., twice the amount wrongfully withheld." Ibid. (internal quotations omitted). Judge Toskos specifically found that plaintiff and defendants left the premises in good condition and that Sparano had failed to return plaintiff's deposit or provide an itemized list of deductions in lieu thereof. N.J.S.A. 46:8-21.1.

Lastly, defendant argues the judge improperly denied his motion for a new trial. "A new trial may be granted . . . on motion made to the trial judge . . . if . . . it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a) (made applicable to the Special Civil Part by Rule 6:6-1). Sparano contends that the evidence he produced with his motion--the bills from contractors and items purchased for repairs--make the judge's factual findings "clearly erroneous." He also argues that the judge's denial of his request for an attorney requires a new trial.

"Clearly, a new trial will be required if the judge['s] . . . erroneous trial rulings resulted in prejudice to a party[.]" Pressler, Current N.J. Court Rules, comment 1.1 on R. 4:49-1 (2009); see also Crawn v. Campo, 136 N.J. 494, 511-12 (1994). However, as we discussed in greater detail above, Judge Toskos did not err in denying defendant's adjournment requests, whatever the reasons proffered.

As to the argument that a new trial was warranted as a result of new evidence, our Supreme Court has stated:

When a motion for a new trial is made under R. 4:49-1 to produce additional evidence, such a motion should be granted when that evidence would probably alter the judgment and by due diligence could not have been discovered before the court announced its decision . . . . These are also among the prerequisites to relief from a final judgment within one year under R. 4:50-1. Under that rule it is well established that it must appear that the evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence for use at the trial, and that the evidence was not merely cumulative . . . . These guidelines are equally applicable to motions made within ten days of the court's judgment under R. 4:49-1. These motions are addressed to the sound discretion of the trial court and will not be disturbed unless that discretion has been clearly abused.

[Quick Chek Food Stores v. Springfield, 83 N.J. 438, 445-46 (1980) (emphasis added) (citations omitted).]

Sparano's additional evidence was not newly-discovered under this standard.

Moreover, many of the receipts for alleged repairs are handwritten notations by unidentified persons with only the service or price listed. They are unsigned, undated, or dated well after defendants vacated the premises, and not on company letterhead. Some are for items unlikely to have been purchased for reasons related to the tenancy, e.g., supplies from a Staples store. We cannot conclude that Judge Toskos mistakenly exercised his discretion when he denied the motion for a new trial.

Affirmed.

Because the issue is not specifically raised, and, furthermore, is not relevant to the questions posed on appeal, we need not consider whether plaintiff's "general denial" is a permitted pleading in the Special Civil Part. See R. 6:3-1 (making Rule 4:5-3, which prohibits general denials in answers, applicable to practice in the Special Civil Part).

This lease was attached as an exhibit to defendant's answer, counterclaim and third-party complaint. It was signed by plaintiff, Martinez, Palmer, and Bruce Spiegel, Joseph's father. This lease reflected that the $3000 security deposit was being held in the Clifton Savings Bank. Judge Toskos concluded that this was the lease in effect between plaintiff and Sparano.

One letter, dated June 15, 2007, clearly reflected Sparano's "understanding from speaking with [defendant] Palmer" that defendants did not intend to renew the lease, and that Sparano instructed the realtor to "begin advertising and show[] the house."

In his subsequent motion for a new trial, defendant included as an exhibit a bank check made out to him for $3000. This may have been forwarded by the realtor, we cannot say for sure. However, any dispute as to whether plaintiff actually tendered the security deposit was resolved by Judge Toskos in her favor.

The judge failed to make specific findings regarding Sparano's claim that plaintiff and defendants were responsible for rent after the lease terminated because they failed to give notice of non-renewal. However, in concluding Sparano failed to carry his burden of proof, the judge also implicitly rejected this claim. That finding is amply supported by the correspondence Sparano himself sent to plaintiff and defendants in which he acknowledged his "understanding" that they would not rent the premises after September 1, and his intention to have the realtor find another tenant.

Judge Toskos denied plaintiff's cross-motion for counsel fees based upon Rule 1:4-8(6)(2).

Defendant alleged plaintiff never responded to his counterclaim, though plaintiff's counsel's letter of general denial was received by the court clerk and a copy was sent to defendant.

We note that an itemized list of deductions for repairs was never furnished at trial or in support of Sparano's motion for a new trial.

(continued)

(continued)

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A-3851-07T3

March 13, 2009