NANCY LEE INC v. STEPHANIE COLELLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-0093-15T3

NANCY LEE INC.,

d/b/a HARDING WOODS,

Plaintiff-Respondent,

v.

FRANK and STEPHANIE COLELLA,

Defendants-Appellants.

______________________________

December 8, 2016

Argued October 13, 2016 Decided

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Docket Nos. LT-0951-14 and DC-0386-15.

Thomas F. Bullock argued the cause for appellants.

Lori C. Greenberg argued the cause for respondent.

PER CURIAM

In these back-to-back appeals, defendants appeal from a March 30, 2015 judgment of possession, a June 5, 2015 order denying reconsideration, and an August 24, 2015 judgment granting legal fees to plaintiff. We affirm.

Defendants, Frank and Stephanie Colella, were tenants at a mobile home park, owned and operated by plaintiff, Nancy Lee, Inc. The written lease agreement permitted defendants to have one pet, provided the pet was registered and they received written permission from plaintiff. The lease required pets be kept on a leash and under control at all times; no pets were permitted to run loose in the community. The lease agreement also contained a paragraph permitting the landlord to collect from the tenant the legal fees incurred as a result of summary dispossession and enforcement of the lease.

Defendants, who already owned two dogs, were denied approval for a dog. Early warnings had also been issued through Notices to Cease, requiring the removal of the other dogs they owned from the premises. Each Notice to Cease generated a one-hundred-dollar legal fee, payable as unpaid rent to plaintiff. On June 3, 2014, plaintiff sent defendants a Notice to Cease for having three unapproved, unregistered dogs, as well as a horse trailer. Defendants were also warned to pay unpaid rent or be subject to eviction.

On July 5, 2014, Frank Colella went to plaintiff's office to pay rent, but plaintiff's secretary informed him he also needed to pay $300 in legal fees for the notices. Mr. Colella refused to pay, asserting the fees were illegal. On the same day, Stephanie Colella went to plaintiff's office and was told the July rent check would be applied toward the $300 charges. Mrs. Colella informed plaintiff she would be hiring a lawyer to challenge the charges. Plaintiff took the July rent check from defendants but never cashed it and thereafter held defendants' rent checks without cashing them.

On July 8, 2014, plaintiff sent defendants a Notice to Quit, citing the three unapproved dogs and the unauthorized horse utility trailer on the property, and directed defendants to move out of the property within thirty days. Defendants attempted to appeal to the Rent Control Board, but the Board declined to review the matter because it did not adjudicate such disputes.

On August 6, 2014, defendants were again advised they were subject to a Notice to Quit and plaintiff would be proceeding to an action for eviction. Money orders and checks were returned to defendants each time they attempted to pay rent going forward. Plaintiff filed an eviction complaint and a complaint for non-payment of rent on October 15, 2014. Defendants still had one dog and one cat in the residence at the time of trial.

Trial commenced on January 16, 2015. On March 30, 2015, after hearing testimony, the trial judge entered a judgment of possession for plaintiff. The trial judge found defendants violated the lease by having unapproved animals. The judge denied plaintiff's claim regarding unpaid rent because defendants had attempted to pay the rent for three months. Defendants moved for a new trial and a stay pending appeal pursuant to Rule 4:49-1 and 6:3-3. On June 5, 2015, the trial judge denied the motion for reconsideration and granted the stay request.

On April 13, 2015, following the eviction judgment, plaintiff filed a complaint against defendants to recover legal fees and costs for breaching the written lease agreement. Both parties agreed the record would consist of written submissions to the court. On August 24, 2015, after reviewing the record and issuing a comprehensive written statement of reasons, the trial judge granted plaintiff $14,801.25. Relying upon the express terms of the lease and the certification of services submitted by plaintiff's counsel, the trial judge conducted a thorough review of the entries and made determinations about the reasonableness of the tasks performed. The trial judge found the lease terms to be reasonable, as were the fees certified by plaintiff's attorney. These appeals followed.

I.

We address defendants' appeal from the judgment of possession as follows. At the outset, we note all of the arguments defendants raise on appeal were not raised before the trial judge. Ordinarily, we will not consider issues that a party failed to raise in the trial court, and we find no reason to make an exception here. SeeNieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, even if defendants raised these arguments before the trial court, we note that the issues are now moot. We have found an "issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Comando v. Nugiel, 436 N.J. Super. 203, 219 (App. Div. 2014) (quoting Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006)). The relief sought by defendant's appeal from the eviction order would be to restore the tenancy. "Where a tenant no longer resides in the property, an appeal challenging the propriety of an eviction is moot." Sudersan v. Royal, 386 N.J. Super. 246, 251 (App. Div. 2005). Here, defendants sold their home, left the mobile home park, and now reside elsewhere. Thus, the appeals of the March 30, 2015 eviction order and the June 5, 2015 order denying a new trial are moot.

II.

We now turn to the August 24, 2015 judgment awarding plaintiff legal fees pursuant to the terms of the lease agreement. Defendants argue the trial court erred by failing to properly consider Green v. Morgan Properties, 215 N.J. 432 (2013), in reaching its conclusion. In Green, our Supreme Court stated an award of legal fees in a landlord tenant action must be based upon reasonableness, and tenants must be given the opportunity to challenge the reasonableness of lease clauses. Id. at 454-54. Defendants assert plaintiff did not prove its attorney's fees were reasonable. We disagree.

The trial court expressly considered the reasonableness of the fee application and discussed the application of Green, agreeing with defendants that Green "directed that attorney fee awards are governed by principles of reasonableness, that it is the burden of the party seeking the award to prove the fees are reasonable and that contractual fee shifting provisions are to be strictly construed." We agree with the trial judge's thorough discussion of the reasonableness of the fees.

Defendants urge us to rely on arguments made in the companion case, regarding lease violations in reviewing the reasonableness of the fee award. The previously discussed arguments do not affect our conclusion the trial court was within its discretion to grant legal fees. If properly included in the lease agreement, parties may contract to allow a landlord's recovery of attorney's fees or expenses, which is what the parties herein contracted for.1 See N.J.S.A. 2A:18-61.67 (stating tenants have the same opportunity to recover fees from landlord if lease gives the landlord the ability to recover fees).

Reasonable attorney's fees are included in the lease as "additional rent" pursuant to the landlord summary dispossess eviction proceedings. Therefore, because defendants violated their lease agreement, and the lease specifically provided for attorney's fees to be awarded to plaintiff in such a scenario, we cannot conclude the award was erroneous.

Affirmed.

1 Paragraph seven of the lease provides the following

If the Landlord proceeds with a Summary Dispossess action based on non-payment of Rent or Additional Rent, or proceeds to enforce any legal duty of the Tenant(s) imposed by law, at equity or by this Lease, or proceeds to exercise any legal right of Landlord under this Lease or at law or in equity, the Landlord shall have the right to have any other monies due to the Landlord which are called "Additional Rent", including, but is not limited to, expenses, disbursements, costs (including without limit court costs and filing fees), and Landlord's actual reasonable attorneys' fees which are paid to have the Summary Dispossess action or other action prosecuted. In all cases, Landlord shall have the right to receive actual attorney's fees, costs, disbursements and any other money including damages that may be awarded by the Court.