MARGARET N. OSMANE v. EDWARD S. NEIDLINGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6233-08T26233-08T2

MARGARET N. OSMANE,

Plaintiff-Respondent,

v.

EDWARD S. NEIDLINGER,

Defendant-Appellant.

_______________________________

 

Submitted May 25, 2010 - Decided

Before Judges Skillman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County, Docket No. DC-3120-09.

John F. Richardson, attorney for appellant.

Margaret N. Osmane, respondent pro se.

PER CURIAM

Defendant Edward Neidlinger appeals from a Special Civil Part judgment awarding plaintiff Margaret Osmane $15,057 and dismissing his counterclaim. We affirm.

The following facts are derived from evidence submitted at trial.

According to plaintiff, in 2006, the parties entered into an oral rental agreement pursuant to which defendant would pay monthly rent of $400 and perform odd jobs around plaintiff's house. The parties expected this arrangement to be short-term, as defendant planned to sell his property in Pennsylvania, pay plaintiff what he owed her for rent, and then move out of her home.

Defendant was still living in plaintiff's home in September 2007. Beginning that month, defendant agreed to pay one-half of the monthly utility bills, $25 per month for food, and $30 per month for the use of a cell phone, which was on plaintiff's cell phone account. Plaintiff also loaned defendant cash, paid for sundry items such as beer and cigarettes, and made mortgage payments on defendant's Pennsylvania property totaling more than $10,000, in exchange for defendant's promise to re-pay her for these items. Plaintiff kept a written accounting of what defendant owed her, which was admitted into evidence at trial. The written accounting indicated the defendant owed plaintiff $1,601.50 for his portion of the utilities, groceries and cell phone expenses from September 2007 to May 2008, and $13,398.50 for loans and mortgage payments on the Pennsylvania property.

On May 30, 2008, defendant signed an agreement (the re-payment agreement), which provides as follows:

This is to confirm that once my loan application is approved, I will pay you $15,000. This amount is to cover monies that you have given me as a loan and for utilities I owe you from August 2007.

Should my loan for the property I own in Pennsylvania not be approved or in the event of my death, this is to confirm that the total amount owed you will be paid once my property is sold. (Emphasis added.)

Plaintiff claimed that this agreement did not include outstanding rent because defendant had promised to pay back rent from the sale of stock from his mother's estate.

Defendant denied the existence of a rental agreement, or an agreement to pay utilities and expenses. He claimed that the parties only agreed that he would "take care of the lawn and whatever needed to be taken care of around the house" in lieu of paying rent. Plaintiff admitted that defendant had done some jobs around the house, such as installing new windows, cutting the grass, and trimming trees on the property, and that she did not pay him for these services. However, she explained that her non-payment was consistent with that part of the rental agreement requiring defendant to do odd jobs around the house in addition to paying rent.

Defendant moved out of plaintiff's home in September 2008, leaving behind some of his personal belongings. When he returned weeks later to remove those belongings, an argument ensued between him and plaintiff, which led plaintiff to throw his belongings onto the front lawn from a second-floor window, damaging them.

The Pennsylvania property sold in April 2009. Shortly thereafter, defendant issued two checks to plaintiff totaling $12,500. Defendant wrote on the checks, "Pay Back on Loan."

Plaintiff filed a complaint, alleging breach of the re-payment agreement, and seeking damages of $15,000. Plaintiff claimed that the $12,500 payment defendant made satisfied the back rent owed for the twenty-eight months defendant lived with her, and the utilities, groceries, cell phone charges and loans made to defendant from the time he signed the re-payment agreement until he moved out in September 2008.

Defendant filed a counterclaim for damage to his television, CD player, DVD player, pictures, clothing, and a gold pocket watch, which plaintiff had thrown from the house. Defendant "guessed" that it cost $400 for the clothing and $2,000 for the other items. He provided no receipts as to the value of the items.

The trial judge credited plaintiff's testimony and concluded that defendant owed plaintiff $15,000. The judge found that, despite the "Pay Back on Loan" notation on the checks defendant gave plaintiff, the $12,500 was for back rent, and expenses and loans incurred after defendant signed the re-payment agreement. The judge also dismissed defendant's counterclaim, concluding that defendant failed to prove the actual value of the damaged personal belongings.

On appeal, defendant contends that the judge erred in finding that plaintiff satisfied her burden of proof, issued a verdict contrary to the weight of the evidence, failed to make the proper credibility findings, and erred by dismissing his counterclaim.

On appeal from a judgment entered in a non-jury case, "the findings on which it is based should not be disturbed unless '. . . they are so wholly insupportable as to result in a denial of justice,' and . . . the appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). We should not "disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963); see also Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009). Credibility determinations are included within the trial court's deferential factfinding authority. State v. Barrow, 408 N.J. Super. 509, 516 (App. Div.), certif. denied, 200 N.J. 547 (2009). "However, '[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]'" and is subject to de novo review. Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 149 N.J. 366, 378 (1995)), certif. denied, 199 N.J. 129 (2009).

We are satisfied that the judge's factual and credibility findings are amply supported by adequate, substantial, and credible evidence and we have no occasion to disturb them. Rova Farms, supra, 65 N.J. at 484. We affirm substantially for the reasons expressed in the judge's oral decision rendered July 8, 2009.

 
Affirmed.

(continued)

(continued)

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A-6233-08T2

July 14, 2010