WILLIAM BRODY v. CYNTHIA MASON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6104-08T2

WILLIAM BRODY,

Plaintiff-Appellant,

v.

CYNTHIA MASON, SUZANNE HASKO,

CHRISTOPHER HASKO,

Defendants-Respondents.

__________________________________

Submitted May 4, 2011 Decided May 24, 2011

Before Judges Ashrafi and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Gloucester County, Docket No. DC-11146-08.

William Brody, appellant pro se.

Respondents have not filed a brief.

PER CURIAM

Plaintiff William Brody, a landlord, appeals from a Special Civil Part order that dismissed his complaint against his former tenants, defendants, Cynthia Mason, Suzanne Hasko and Christopher Hasko, and awarded defendants a $950 judgment on their counterclaim. We affirm.

Plaintiff filed a complaint in the Law Division, Special Civil Part, seeking to recover unpaid rent, late charges, real property damage, the replacement cost of a stove, and losses related to a newspaper article that quoted a defendant. Defendants filed a counterclaim seeking the return of their security deposit and costs incurred to move on short notice due to a mortgage foreclosure action. The parties represented themselves in a one-day trial on June 23, 2009. At the conclusion of the trial, the court entered an Order of Disposition dismissing plaintiff's complaint and awarding defendants a judgment for $950 on their counterclaim.

Plaintiff owns a house located in National Park (the premises). In July 2007, plaintiff entered into a lease agreement as landlord to rent the premises to defendants for a term of one year commencing August 1, 2007, and ending July 31, 2008, for $19,200 in rent payable in monthly installments of $1,600. When the lease expired in July 2008, defendants continued to rent the premises for the same monthly rent until they moved in October 2008. The lease also required defendants to pay at the lease inception a security deposit of $2,250, which defendants paid. Plaintiff did not inform defendants what he did with the security deposit, nor did he maintain it in an interest-bearing account.

According to plaintiff and his three witnesses, including his repairman who performed work at the premises after defendants left, the carpets had to be replaced at a cost of $2,909 because they had holes and stains that could not be repaired. Plaintiff spent an additional $6,874.75 in repairs. The interior of the premises had to be skim-coated and repainted because of holes in the walls, and parts of the exterior of the premises had to be painted. All of the doors were broken and had to be replaced. The odor of cat urine permeated the premises, and cat feces and debris had to be removed from the basement. Plaintiff also alleged defendants stole a stove. Plaintiff established no damages resulting from the newspaper article.

Defendants disputed plaintiff's claims. According to defendants and their four witnesses, when defendants moved into the premises there were holes in the walls and doors, and debris left by the previous tenant. The carpets had large black stains, smelled musty, and were infested with fleas. Defendants had to "bomb[]" the entire house. A heavy odor emanated from the basement. Plaintiff told defendants he was having difficulty scheduling his repairman to make the repairs, but they could move in and he would have the repairs completed later. However, when defendants moved out in October 2008 after receiving several letters concerning a mortgage foreclosure, the condition of the premises was the same, perhaps a little better. Additionally, defendants had to remove a wood burning stove from the basement that plaintiff said he did not want, and purchase a new kitchen stove because the existing stove was in bad condition due to rust. Defendants put the wood burning stove in the back yard of the premises and helped plaintiff load the old kitchen stove onto his truck.

The trial judge resolved the conflicting testimony in favor of defendants. The judge found that plaintiff's repairman was uncertain about when he performed work on the premises, and whether it was paid for by plaintiff; and that plaintiff's testimony that defendants stole a stove was not credible. The judge found credible the testimony of defense witnesses that the damage to the premises existed at the inception of the lease and remained throughout the tenancy. Based upon these credibility determinations, the judge awarded defendants their $2,250 security deposit plus interest. The judge deducted from that sum the rent defendants owed plaintiff for October 2008. The net result was the entry of a judgment on defendants' counterclaim against plaintiff for $950.

On appeal, plaintiff argues the judge erred in finding that neither he nor his repairman gave credible testimony. Our scope of appellate review of a judgment entered in a non-jury case is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The findings of fact on which the judgment is based "should not be disturbed unless 'they are so wholly [u]nsupportable as to result in a denial of justice[.]'" Id. at 483-84 (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). "Thus, '[w]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super.486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J.599, 615 (1997)). "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J.20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). Having considered the record in light of plaintiff's arguments, we find no reason to disturb the judge's findings, which are supported by sufficient credible evidence in the record.

Plaintiff also argues that the court improperly admitted hearsay testimony about the foreclosure proceedings, miscalculated interest on the security deposit, and failed to permit additional rebuttal evidence by plaintiff. We have considered plaintiff's arguments in light of the record and applicable law, and conclude that none of them are of sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E). We add only that there is no evidence in the record of the judge denying plaintiff's request to produce a rebuttal witness. Moreover, on appeal, plaintiff has not identified the rebuttal witness or explained the proposed testimony.

A