RICHARD H. POWELL v. FLETCHER TAYLOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0117-08T30117-08T3

RICHARD H. POWELL,

Plaintiff-Respondent,

v.

FLETCHER TAYLOR,

Defendant-Appellant.

___________________________________

 

Submitted August 5, 2009 - Decided

Before Judges Rodriguez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Cumberland County, Docket No. DC-1449-08.

James R. Swift, attorney for appellant.

Mitchell S. Berman, attorney for respondent.

PER CURIAM

Defendant, Fletcher Taylor, the owner of a Class A rooming house, appeals from the July 31, 2008 judgment, following a bench trial in the Cumberland County Special Civil Part, in favor of Richard H. Powell in the amount of $8,404.02. The judge issued a written opinion on the same date. We affirm.

Powell rented Unit #10 in Taylor's rooming house in Millville for $120 per week beginning in October 2006. At the commencement of the tenancy, Powell received a list of house rules. However, these rules were not posted in any common areas of the rooming house.

According to Powell, on Friday, March 28, 2007 at 11:30 a.m., he arrived at the rooming house and saw a locksmith changing the lock of his room. He protested about this. Taylor, together with William Brown, the property manager or superintendent, gathered Powell's belongings and placed them in the kitchen. Powell took what he could carry. He left behind a VCR, various CDs, pots and pans and an air conditioner.

Powell filed a complaint the same day, alleging that "Fletcher Taylor locked me out of my apartment for breaking a rule with no court order, and threatened me with physical harm. I lost half my property." Taylor answered and counterclaimed for back rent and damage to the carpeting. The matter was tried by Judge David W. Morgan.

Taylor testified to a different version. According to him, there had been numerous violations of the house rules involving Powell. He confronted Powell about the violations and requested that he leave voluntarily. Powell agreed to leave in a week. Taylor wrote a letter confirming their agreement and gave it to Powell.

According to Taylor, on March 28, 2007, Powell had moved out "99 percent of his stuff." Taylor denies that he threw out Powell by removing all his stuff to the kitchen. On cross-examination, Taylor conceded that he did not attempt to obtain any type of eviction notice because Powell voluntarily elected to leave the premises.

In support of Taylor's case, Brown testified that he entered Room 10 as soon as Powell left. There were only a few things left behind. There was no VCR, CDs, pots and pans or air conditioner unit. At the time of trial, Brown was holding for Powell the personal property he left behind.

Judge Morgan found, essentially, that Taylor did not follow the mandates of the Anti-Eviction Act (Act), N.J.S.A. 2A:18-61.1 to -61.12. The judge issued a written opinion, which states in pertinent part:

In this case there is no dispute that [Powell] was asked to leave due to [an] asserted violation of the rules attached to the lease and that no written notice to cease or notice to quit and delivery possession was ever provided. [Taylor] asserts he gave [Powell] a written letter after March 21, 2008 confirming [Powell's] "agreement to vacate," but the latter does not meet the technical standards for either timely notice to cease or quit, since it fails to contain those words, as is required by case law, and it was given days after the asserted violation and only a few days before the actual "eviction" took place. As such, the formal notice requirement for a notice to cease and notice to quit meeting the exacting time requirements has not been met, and absent a finding that [Powell] voluntarily left on his own, [Taylor's] actions in forcing [Powell] from the leasehold would constitute an unlawful eviction pursuant to N.J.S.A. 2A:18-61.2b and N.J.S.A. 2A:18-61.6d.

As to [Taylor's] assertion that [Powell] voluntarily agreed to leave and that the technical notice requirements of the statute did not have to be met, this court finds on the weight of the evidence that [Powell's] version of the facts is the more credible. While [Powell] may well have expressed upset with the strict rules and a desire to leave as a result, it is clear from the altercation that occurred on the scheduled date to leave that [Powell] did not leave voluntarily. [Powell] returned at 11:30 a.m. for a turnout point one-half hour later at 12 noon only to find his possessions removed from his room and placed in the common area and a locksmith changing the locks to his unit. Had he intended to leave on his own the court would have expected [Powell] to have been at the boarding house earlier in the day working on his own move rather than returning with only a half hour to spare and confronted with all his goods and wares spread before him in the kitchen. The fact that [Taylor] and not [Powell] was removing [Powell's] personal possessions in this court's mind confirms that it was [Taylor] and not [Powell] who had decided that [Powell] should vacate the premises.

The judge then assessed the following damages: compensatory damages $5,547 ($1,849 trebled); attorney's fees $3,448.20; costs $57; for a total of $9,052.20. On Taylor's counterclaim, the judge awarded: $240 in past due rent; $369.18 in property damage; and $39 costs for a total of $648.18.

Taylor appeals, contending that: (1) the trial court's finding of an illegal eviction was against the weight of the evidence; and (2) the trial court erred in assessing damages. We reject these contentions substantially for the reasons expressed by Judge Morgan in his July 31, 2008 written opinion.

With respect to the weight of the evidence argument, we note this standard is not used in non-jury trials. Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989). The standard used in non-jury trials is whether the findings made by the trier of fact could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proofs as a whole. Id. We give due regard to the ability of the fact finder to judge credibility. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Thus, our scope of review is limited.

Here, judged against that standard, we affirm. It is irrelevant that Taylor may have had sufficient grounds to evict Powell pursuant to the Anti-Eviction Act. Taylor did not follow the procedural safeguards of the Act. He short-circuited the statutory scheme by terminating Powell's tenancy on the spot, without notice or an opportunity to be heard. We are mindful that the judge rejected, as not credible, Taylor's assertion that the parties mutually agreed to terminate the tenancy.

From our careful review, we conclude that the assessment of damages is based on findings of fact, which are adequately supported by the evidence. R. 2:11-3(e)(1)(A).

Affirmed.

This includes a set-off for the damages awarded on Taylor's counterclaim.

While neither party asserts that [Powell] did agree to leave and then changed his mind, this court would have found that circumstance insufficient basis for negating the notice requirements of the statute. The agreement to leave would have no consideration to bind enforcement. Further [Powell] had a vested right to remain in the property until such time as he formally gave up possession or was the subject of a judgment for possession granted by the court. Since both parties agreed at trial that this case does not involve [Powell's] voluntary agreement and subsequent decision to stay, the court need not make this finding a formal part of its decision.

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A-0117-08T3

September 24, 2009