ANN MORRIS v. LARRY FRISKE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANN MORRIS, ASSIGNEE FOR

M. AYOUB AND G. POSTER,

Plaintiff-Respondent,

v.

LARRY FRISKE AND KEIKO FRISKE,

Defendants-Appellants.

_____________________________

January 7, 2014

Submitted December 18, 2013 Decided

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. SC-3513-12.

Steven J. Zweig, attorney for appellants.

Ann Morris, respondent pro se.

PER CURIAM

Defendants appeal from a December 6, 2012 order of judgment in the amount of $2431 entered pursuant to the Security Deposit Act (the "Act"), N.J.S.A. 46:8-19 to -26, after a small claims trial. We affirm substantially for the reason expressed by Judge Michael E. Hubner in his well-reasoned oral opinion.

Defendants leased their single-family home to three tenants.1 Pursuant to the written lease, the tenants gave a security deposit in the amount of $3600. After the lease terminated on June 30, 2012, tenants M. Ayoub and G. Poster assigned to plaintiff their rights to obtain their security deposit.2

Plaintiff made numerous unsuccessful attempts to obtain the security deposit from Friske, by texting, mailing, having a phone conversation, and meeting with him. Defendants did not return the security deposit within thirty days of the end of the lease or provide a timely written notice explaining the reasons for withholding the deposit. Plaintiff notified Friske that the tenants were entitled to $2000, which she calculated to be a $3600 security deposit minus tenants' unpaid rent. Friske belatedly notified one of the tenants that the property was damaged and he would not be returning the security deposit.

The judge heard testimony from plaintiff and Friske. The judge considered defendants' contention that they were entitled to use the security deposit to pay for alleged property damage to the premises. The judge credited defendants $1600 in outstanding rent plus miscellaneous expenses. The judge found that defendants wrongfully withheld $1200 of the security deposit, which he doubled pursuant to the Act.

On appeal, defendants argue that plaintiff had no standing to file this lawsuit and that, by not joining one of the tenants, she failed to join a person needed for its just adjudication.3 Defendants also contend that the judge erred by (1) allowing plaintiff to testify; and (2) rejecting their claims for late fees, garbage removal, and damages to the premises.

The Act "was enacted to protect tenants from overreaching landlords who require security deposits and then divert them to their own use." Gibson v. 1013 N. Broad Assocs., 172 N.J. Super. 191, 194 (App. Div. 1980). See also Jaremback v. Butler Ridge Apartments, 166 N.J. Super. 84, 87 (App. Div. 1979). In pertinent part, N.J.S.A. 46:8-21.1 provides:

Within 30 days after the termination of the tenant's lease . . . the owner . . . shall return by personal delivery, registered or certified mail the sum so deposited plus the tenant's portion of the interest or earnings accumulated thereon, less any charges expended in accordance with the terms of [the] . . . lease . . . to the tenant . . . . [A]ny such deductions shall be itemized and the tenant . . . notified thereof by personal delivery, registered or certified mail.

. . . .

In any action by a tenant . . . or other person acting on behalf of a tenant . . . for the return of moneys due under this section, the court upon finding for the tenant . . . shall award recovery of double the amount of said moneys, together with full costs of any action and, in the court's discretion, reasonable attorneys' fees.

"The 'moneys' referred to represent the net amount due to the tenant for the security deposit and interest 'less any charges expended [by the landlord] in accordance with the terms' of the lease." Jaremback, supra, 166 N.J. Super. at 87 (alteration in original). Moreover, "[a] court may not withhold the statutorily mandated doubling of a wrongfully retained security deposit based on its view that the landlord's violation . . . was de minimus or other equitable considerations." Hale v. Farrakhan, 390 N.J. Super. 335, 343 (App. Div. 2007).

The judge's findings were based on observations of various photographs and the testimony from Friske and plaintiff. The judge made factual findings based on credibility determinations and consideration of the evidence presented. The judge's findings were clear and precise, and we find no basis upon which to intervene or disturb his factual determinations.

Finally, we reject defendants' contention that the judge erred by admitting into evidence testimony from plaintiff. We review evidentiary rulings of the trial court for abuse of discretion. State v. Marrero, 148 N.J. 469, 483-84 (1997). Unless there has been "a clear error of judgment," we will not upset those rulings. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Plaintiff testified to her personal knowledge regarding the condition of the premises and her attempts to obtain the security deposit after the tenants vacated. Against this standard, we conclude that by permitting plaintiff to testify, the trial judge properly exercised his discretionary authority and his analysis did not amount to "a clear error of judgment." Ibid.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that defendants' remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Defendant Larry Friske acted as the contact person for the tenants.

2 Plaintiff is the mother of one of the tenants.

3 We find no support whatsoever in the record for these meritless arguments, which have been raised for the first time on appeal. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We add that we have no reason to question the judge's finding that "there's an assignment here where [tenants] assigned all their right, title, an interest in this matter to [plaintiff] to pursue on their behalf. So . . . . it's as if [tenants are] here."