TYLER GREEN v. SUSHEELA VERMA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6379-04T16379-04T1

TYLER GREEN,

Plaintiff-Respondent,

v.

SUSHEELA VERMA,

Defendant-Appellant.

_________________________________

 

Submitted May 24, 2006 - Decided August 1, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Somerset County,

No. L-1751-03.

Susheela Verma, appellant, attorney pro se

(Christine Salimbene, on the brief).

Haber & Silver, attorneys for respondent

(Carol Matula, on the brief).

PER CURIAM

Defendant appeals from a series of orders entered by the trial court. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant rented an apartment from plaintiff under a lease executed in 1997. Paragraph 19 of the lease provided:

At least (40) days prior to the expiration date of the Tenant's lease term, the Landlord shall provide to the Tenant a Notice of Renewal of the lease. Unless the Tenant provides written notice to the Landlord at least thirty (30) days prior to the termination of the lease term of his intention to vacate the premises on the expiration date of the lease term, said failure to notify shall be considered as the intention of the Tenant to renew the lease agreement for a new term at a new rent, as specified by the Landlord. Except for reasonable changes and allowable rent increase[s], all covenants, terms and conditions of the original lease shall remain in full force and effect for all additional lease terms.

Defendant remained in her apartment, and the lease was renewed annually through 2002. On December 2, 2002, she wrote to the landlord complaining of certain difficulties she had experienced with maintenance for the premises. She concluded her letter by stating that she was

not in a position to renew my lease for the next year and therefore will be looking for an alternative accommodation. Please take notice that I am not renewing my lease and will be a month to month tenant. I will give you at least 30 days notice before moving out.

The landlord responded in the following manner.

In reference to your letter dated December 02, 2002, we regret to inform you that we cannot grant your request. WE DO NOT OFFER MONTH-TO-MONTH TENANCIES. We do, however, offer the opportunity to request an extension on your lease. You can request an extension from one to six months, the lease must be up for renewal, and the account must be up to date. The tenant must be specific as to the time frame as only one request will be granted. Notify us in writing [] as to your plans . . . .

Defendant responded, stating she was unable to sign the lease, had no immediate plans to move and would advise when her plans became final. She remained in the apartment. On May 29, 2003, she provided notice to the landlord that she would be vacating the premises by June 30, 2003.

The landlord was not able to secure a new tenant immediately. It commenced this action in the Small Claims Section of Special Civil Part, seeking damages. Defendant filed an answer and counterclaim, together with a motion seeking to transfer the matter to the Law Division. Defendant's motion was granted.

We do not find it necessary to recite the various procedural difficulties that ensued. Ultimately, the trial court entered the orders on appeal before us. These are, in chronological order: 1) order filed August 9, 2004, denying discovery; 2) order entered September 30, 2004, denying reconsideration of the August 9 order; 3) order entered January 11, 2005, granting partial summary judgment to the landlord that defendant was subject to an annual lease and dismissing defendant's counterclaim seeking return of the security deposit; 4) order entered February 25, 2005, denying defendant's motion to vacate the prior partial summary judgment; 5) order entered April 7, 2005, directing the immediate release to plaintiff of $2,398.05 on deposit with the Clerk of the Superior Court; 6) order entered April 15, 2005, directing entry of judgment against defendant in the amount of $7,405.12; and 7) order entered June 28, 2005, denying defendant's motion for a revised order of judgment.

Defendant filed her notice of appeal August 5, 2005. We acknowledge that plaintiff has argued to us that defendant's appeal is untimely. We have elected not to address that contention but, rather, to deal with the merits.

We reject defendant's contention that her letters of December 2 and 17, 2002 transformed her tenancy into a month-to-month tenancy. Defendant could not unilaterally impose those terms upon her landlord. We affirm the order of January 11, 2005, substantially for the reasons expressed by Judge Derman in her oral opinion of January 7, 2005. Because we are satisfied that the order of January 11, 2005, should be affirmed, we also affirm the order of February 25, 2005, denying defendant's motion to vacate the order of January 11.

Defendant in her brief does not deal separately with the remaining orders. She asserts that the actions of the trial court deprived her of due process, constituted an abuse of the trial court's discretion and improperly dismissed her counterclaims. We are satisfied that defendant's arguments do not contain "sufficient merit to warrant discussion in a written opinion" because it would have no precedential value. R. 2:ll-3(e)(1)(E).

Defendant's final argument is that the trial court's award of counsel fees was improper. The trial court found that plaintiff was entitled to damages representing three months of lost rent, approximately $3900. Plaintiff acknowledged that defendant was entitled to certain credits, reducing plaintiff's award to a net of $1,898.05. The lease provided, "[i]f the Landlord sues the Tenant to collect the rent or for any default arising from the lease agreement, the Tenant shall pay all of the Landlord's reasonable attorney's fees and court costs . . . ." Plaintiff's attorney submitted a certification of her services. The trial court granted $7,228.12.

Defendant argues the amount is excessive because it is disproportional to the damages awarded and because it includes services provided in defense of the ultimately dismissed counterclaims as well as in prosecuting the complaint. We are not persuaded.

The lease agreement provides that the tenant would be responsible for all of the landlord's reasonable attorney's fees. It does not limit the fees in the manner defendant seeks. We do not consider it unfair to enforce the lease as written. Defendant is an attorney admitted to practice in this state. The procedural path she selected and the methods she employed had the result of protracting the conclusion of this matter and complicating its final resolution. We see no reason why the plain terms of the lease should be disregarded and the landlord should be forced to absorb additional legal expenses to defend against counterclaims which had no substantive basis.

The orders under review are affirmed.

 

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A-6379-04T1

August 1, 2006