DANIELLE INFANTE v. JENNIFER KORTMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DANIELLE INFANTE,

Plaintiff-Appellant,

v.

JENNIFER KORTMAN, SUSAN

KORTMAN and RYAN SCHAFER,

Defendants-Respondents.

____________________________________

April 20, 2016

Before Judges Haas and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. DC-1135-14.

Cutolo Mandel, LLC, attorneys for appellant (Jeffrey S. Mandel, of counsel and on the brief).

Respondents have not filed a brief.

PER CURIAM

In this landlord-tenant matter, plaintiff Danielle Infante appeals from the Special Civil Part's September 9, 2014 judgment in favor of defendants, Susan Kortman, Jennifer Kortman, and Ryan Schafer.1 We are constrained to reverse and remand because, among other things, the trial judge did not make adequate findings of fact and conclusions of law as required by Rule 1:7-4, permit plaintiff to fully cross-examine the defense witness, or allow plaintiff to introduce testimony and documentary proof concerning the damages she asserts defendants caused to the leased apartment and her attempts to serve defendants with itemized statements of these damages.

We discern the following facts from the truncated record developed before the trial judge. Plaintiff is a landlord who, on September 15, 2012, leased an apartment to defendants for a one-year term.2 Defendants agreed to pay plaintiff $2175 on the fifteenth of each month, with a $45 charge being due for any late payments. Defendants also paid plaintiff a $3262.50 security deposit. The lease required plaintiff to return the security deposit plus interest to defendants at the end of the lease term, "less any charges expended by the [l]andlord for damages to the [p]roperty resulting from [t]enant's occupancy." It appears that Jennifer lived in the apartment with her son and that Susan did not live there.

On August 1, 2013, plaintiff sent defendants a letter, asking them to inform her by August 31 whether they intended to renew the lease for another one-year term. Plaintiff reminded defendants that they had agreed to repair damage to the kitchen walls and repaint the entire kitchen. She also told them they still owed rent for July 2013, and $90 in late fees. Plaintiff stated that she wanted to schedule a walk-through of the apartment before defendants vacated it.

In response to the letter, Jennifer informed plaintiff that she would be moving out. On August 16, 2013, plaintiff sent defendants another letter, stating that she had received $1600 in outstanding rent for July 2013, with $665 remaining due. Plaintiff also noted that defendants had not paid the August 2013 rent. Plaintiff advised defendants that a chandelier they had removed would need to be re-installed and reminded them of the needed kitchen repairs. Plaintiff again asked to inspect the apartment. Jennifer moved out of the apartment on September 14, 2013 but did not give plaintiff her new address.

On October 1, 2013, plaintiff emailed defendants stating

Obviously due to the unpaid rent, late [fees], unpaid [$100] towards the fridge repair . . ., failure to repair the kitchen after the toilet overflow, and so on[,] I can't return the security deposit. I don't understand your refusal to communicate, it only makes things complicated. I would like to send you the breakdown of everything. Please let me know where I should send it.

In response, Jennifer sent plaintiff an email on October 2, 2013. She stated, "You have the money in security to cover whatever is owed [let's] just call it even and part ways. We do not need a breakdown and would appreciate it if you would stop contacting us."

Beginning on October 11, 2013, plaintiff asserted that she sent defendants a series of letters, which itemized the damages plaintiff found when she was able to enter the apartment after Jennifer left. At the time Jennifer moved out, plaintiff stated that defendants still owed $575 in rent for August and $2175 for July, and five unpaid late fees totaling $225.

Because defendants did not advise plaintiff of their new address, plaintiff sent the letters to the apartment address by certified mail, return receipt requested, in the hope the post office would forward the letters to defendants. Plaintiff also sent emails to defendants detailing the amounts they owed. Defendants did not respond to any of this correspondence.

On November 15, 2013, plaintiff filed a pro se complaint against defendants seeking $6625 in unpaid rent, late fees, and damages defendants caused to the apartment. Defendants retained an attorney, and filed an answer and counterclaim alleging that plaintiff improperly retained defendants' security deposit. The trial judge conducted a bench trial over portions of two days in May 2014.

At trial, plaintiff testified that the letters she sent defendants by certified mail were returned. She stated that she had the receipts to prove she attempted to serve defendants with this correspondence. Because defendants did not respond, or provide her with their mailing addresses, plaintiff told the judge she sent emails to both defendants with this same information. The judge asked both defendants whether they "receive[d] anything from" defendant, and one of the defendants3 denied receiving anything other than an October 14, 2013 email.

Plaintiff attempted to follow up by discussing the series of emails she sent to defendants, as well as Jennifer's October 2, 2013 email advising plaintiff to keep the security deposit and that no "breakdown" of the charges for the damages was necessary. However, the judge stated "I don't want an email. I don't touch emails. . . . Email does not count." The judge also told defendants' attorney to "voir dire" his clients regarding which letters or emails they received. The attorney posed a joint question to defendants, and either Jennifer or Susan replied that "[t]he only [correspondence] that we received was the email . . . dated October 14[]. The other ones[,] I've never seen." Plaintiff was not given an opportunity to cross-examine the defendant who responded after this unusual voir dire.

In addition to the unpaid rent she sought, plaintiff testified there were five unpaid late fees for "September, February, June, July and August" at $45 dollars per month. In response, the judge stated, "I'm going to give you a late fee. I'll charge $45 for the July [sic], I'll charge $90 two months, and for August one month is $45. So that comes out to $135." Later, the judge stated, "I'm giving you two months for the July rent and one month for the August rent." The judge provided no explanation for these ambiguous rulings other than to tell plaintiff, "[t]hat's what I'm giving you. If you have a problem with my computations, appeal to the Appellate Division, all right?"

When plaintiff began to testify about a $100 charge defendants owed for damage to the refrigerator, defendants' attorney interjected and told the judge, "my clients inform me that . . . [the refrigerator] needed attention on three occasions, and the first two times they did contribute the $100. And based on the inability of whoever was fixing it to get it fixed, they refused to pay it a third time." Obviously, plaintiff could not cross-examine the attorney on his "testimony" on behalf of defendants. Instead, plaintiff tried to introduce an email from one of the defendants stating that she was going to pay the refrigerator repair fee, but the judge refused to consider it.

Plaintiff testified that defendants caused $4492.87 in other damages to the apartment, and itemized these damages for the court. When she finished, the judge repeated the amounts plaintiff sought for each repair but, after incorrectly adding them together, stated that the damages totaled $4491.05. When plaintiff attempted to tell the judge that she had also incurred other expenses, the judge refused to permit her to continue her testimony.

Jennifer testified and claimed that there was no damage to the apartment "beyond ordinary wear and tear[.]" During Jennifer's testimony, she presented several photographs of the apartment and asserted that the photographs showed there was no damage. Jennifer stated she took the photographs the day she left the apartment. The record does not reveal how many photographs were presented or what each of them depicted. Plaintiff later attempted to introduce her own photographs to rebut Jennifer's testimony, but the judge ignored her request.

Jennifer testified that the only correspondence she received from plaintiff was an October 14, 2013 email. Jennifer asserted that this email only discussed the overdue rent, the late charges, and the $100 refrigerator repair charge. Although this email listed approximately twenty-five other items that plaintiff had to repair, plaintiff did not include the cost of each repair in this particular email. According to plaintiff, she provided this information in her other correspondence.

After Jennifer completed her testimony on direct examination, plaintiff began to cross-examine Jennifer by asking if she had cooperated with plaintiff's request to do a walk-through. Defendants' attorney objected, and the judge told plaintiff that she could "only ask the questions that [Jennifer] testified to. . . . If she didn't testify to it, then you really can't talk about that." However, plaintiff's question was directly related to Jennifer's testimony about damages to the apartment.

At the conclusion of the trial, the judge issued an extremely brief oral decision. He found that the October 14, 2013 email that Jennifer admitted she received fulfilled the notification requirements of New Jersey's Security Deposit Act, N.J.S.A. 46:8-19 to -26. However, the judge found that there was "no itemization" of the amounts plaintiff paid to repair the damages listed in this email. The judge did not discuss the earlier letters plaintiff attempted to send to defendants by certified mail, which she asserted included this information. The judge also did not address Jennifer's October 2, 2013 email to plaintiff, which stated that defendants did not require an itemized list of the costs of repairing the damages.

With no further explanation, the judge awarded plaintiff $135 in late fees and $2750 in overdue rent, totaling $2885. Although the lease specified that the security deposit was $3262.50, the judge stated it was $3264.85. The judge subtracted the $2885 in unpaid rent and late fees from this amount, and found there was $379.85 left. Citing N.J.S.A. 46:8-21.1, the judge doubled that figure and awarded defendants $759.70 in damages, $50 in court costs, and allowed defendants' attorney to submit a certification for attorney's fees.

On September 9, 2014, the judge entered judgment in favor of defendants for $809.70.4 The judge stated in the judgment that defendants' attorney had submitted a certification of services and, after subtracting $60 from the amount the attorney sought, the judge granted defendants $2061.73 in attorney's fees. This appeal followed.

On appeal, plaintiff contends that the judge failed "to set forth any findings of fact or conclusions of law to justify his decision"; incorrectly refused to permit her to present evidence regarding the damages she alleged defendants caused to the apartment and her attempts to serve them with an itemized list of these damages; and prevented her from cross-examining Jennifer. We agree.

We first address the evidentiary decisions made in this case. We review a trial judge's evidentiary rulings under an abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). We give substantial deference to the trial judge's discretion on evidentiary rulings. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). We will not reverse unless the trial judge's ruling was "so wide off the mark that a manifest denial of justice resulted[.]" Brenman v. Demello, 191 N.J. 18, 31 (2007) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

"The rules of evidence may be relaxed 'to admit relevant and trustworthy evidence in the interest of justice' in actions within the cognizance of the Small Claims Section of the Special Civil Part. N.J.R.E. 101(a)(2)(A). . . . The test is relevance and trustworthiness." Penbara v. Straczynski, 347 N.J. Super. 155, 162 (App. Div. 2002) (holding that the trial judge should have considered receipts relating to carpet damage and determined if the evidence was probative and trustworthy). Here, plaintiff attempted to introduce relevant evidence concerning the damages she asserted defendants caused in the apartment and the itemized lists of these damages she attempted to serve upon them. Inexplicably, the judge cut off plaintiff's testimony on these topics throughout the trial.

As a result, plaintiff was not permitted to complete her testimony about the damages she sought. The judge also refused to consider most of the emails plaintiff attempted to present without any cogent explanation other than "[e]mail does not count." Given the lower evidentiary standard applied in proceedings in the Special Civil Part and the highly probative nature of plaintiff's proofs, the judge mistakenly exercised his discretion by excluding this evidence.

There were numerous other procedural mistakes. The judge allowed defendants' attorney to interject during plaintiff's testimony and advise the judge that his clients had provided him with information rebutting plaintiff's testimony. At another point, the judge instructed defendants' attorney to collectively "voir dire" his clients to respond to a point plaintiff was attempting to make.

The judge also did not permit plaintiff to conduct any meaningful cross-examination of defendants. "It has long been held that cross-examination is the 'greatest legal engine ever invented for the discovery of truth.'" State ex rel J.A., 195 N.J. 324, 342 (2008) (quoting California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489, 497 (1970)). The credibility of defendants concerning the damages to the apartment was a critical issue in this case. However, the judge did not permit plaintiff to cross-examine whichever defendant responded to her attorney's voir dire question during plaintiff's testimony. When plaintiff later attempted to ask Jennifer about the walk-through plaintiff requested before Jennifer vacated the apartment, the judge mistakenly refused to permit this question, even though it was directly related to the issue of damages. The judge also denied plaintiff's request to introduce photographs to rebut Jennifer's testimony that there were no damages at all in the apartment.

Although documents were marked for identification, they were not adequately identified in the record. For example, Exhibit P-1 was identified only as "Emails/Letters" without any further description. Thus, it is not clear what specific emails and letters were considered. Although the judge referred to at least one email in his decision, and other documents were discussed at trial, the transcript indicates that none of the exhibits were formally accepted into evidence.

Rule 1:2-3 provides that "[t]he verbatim record of the proceedings shall include references to all exhibits and, as to each, the offering party, a short description of the exhibit stated by the offering party or the court, and the marking directed by the court." We have said that "the trial judge has the ultimate responsibility of conducting adjudicative proceedings in a manner that complies with required formality in the taking of evidence and the rendering of findings." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002) (noting, among other things, the trial judge's review and consideration of documents "without any identification for the record"). The failure to adequately identify documents for the record "not only violate[s] basic rules of trial practice, R. 1:2-3, but inhibit[s] the appellate process by depriving the appellate court of a complete record on appeal." Ibid.

Most importantly, the judge failed to make sufficient findings of fact to support any of his conclusions. Credibility was obviously an important issue, because plaintiff claimed the apartment was extensively damaged, and Jennifer denied this. In addition, plaintiff testified in detail about the correspondence she sent defendants itemizing the damages, and Jennifer claimed she only received one email that did not itemize the cost of repairing the damages. At the same time, the record contains an email that Jennifer sent plaintiff advising her to keep the security deposit, forego providing an itemized list of the damages, and stop trying to contact defendants. However, the judge made no credibility findings on these important issues.

The judge's decision also contains no explanation for his conclusion that plaintiff was not entitled to deduct anything for the damages she asserted defendants caused to the apartment. Again, this was a critical issue. Under N.J.S.A. 46:8-21.1, a landlord must return the security deposit plus any accumulated interest via "personal delivery, registered or certified mail" within thirty days of the termination of the lease. The landlord may deduct "any charges expended in accordance with the terms of a contract, lease, or agreement[.]" Ibid. These deductions must be itemized, and the landlord must give the tenant notice of any deductions. Ibid. A tenant may sue if the landlord violates N.J.S.A. 46:8-21.1, and if successful, the tenant will be awarded double the amount wrongfully withheld, along with court costs, and "reasonable attorney's fees" at the court's discretion. Ibid.

However, a tenant is not entitled to "the 'doubling' remedy provided by N.J.S.A. 46:8-21.1 if in fact the tenant has violated his [or her] obligations under the lease" such as failing to pay rent, failing to give proper notice prior to terminating the lease, or unlawfully holding over. Reilly v. Weiss, 406 N.J. Super. 71, 80 (App. Div. 2009); see Penbara, supra, 347 N.J. Super. at 160-61; Lorril Co. v. La Corte, 352 N.J. Super. 433, 441 (App. Div. 2002). In "a case involv[ing] offsetting amounts . . . the trial judge must determine the amount of those offsets and, if they are greater than the security deposit withheld, there is no deposit to return to the tenant and no valid basis for enforcing the notification requirement of the statute." Penbara, supra, 347 N.J. Super. at 160-61.

Here, the trial judge did not follow these rules. Instead, the judge offset the security deposit with defendants' unpaid rent. He then deducted $135 in late fees without explaining why he did not also deduct the two additional late fee payments that plaintiff sought. The judge then doubled the remaining amount, without any further offsets for the damages plaintiff asserted defendants caused to the apartment. Again, the judge provided no explanation for this decision.

Rule 1:7-4(a) clearly states that a trial "court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury[.]" See Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) (requiring an adequate explanation of the basis for a court's action). "Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). The failure to provide findings of fact and conclusions of law "constitutes a disservice to the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)).

Because the trial judge did not make any meaningful findings of fact on credibility or the other disputed issues in this case, did not allow plaintiff a full opportunity to cross-examine the opposing witness, and made other procedural mistakes, the judgment must be reversed and the matter remanded for a new trial.

Reversed and remanded. We do not retain jurisdiction.

1 Plaintiff named Jennifer's boyfriend, Schafer, as a defendant, but he was not listed as a tenant in the lease that is the subject of this appeal. Jennifer testified that Schafer did not permanently live at the apartment and stayed there only occasionally. Because the trial record reveals nothing more about the nature of Schafer's involvement in this matter, we do not refer to him further in this opinion. For ease of reference, we will collectively refer to Susan and Jennifer as "defendants."

2 Plaintiff had first rented the apartment to Susan and Jennifer in September 2010 for a one-year term, and she leased it to them for another one-year term in September 2011.

3 The transcript does not identify which of the defendants responded to the judge's question.

4 This figure included the $759.70 in damages and $50 in court costs