HAROLD HEBNER v. FERNANDO RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1828-08T31828-08T3

HAROLD HEBNER,

Plaintiff-Appellant,

v.

FERNANDO RODRIGUEZ,

Defendant-Respondent.

___________________________________

 

Argued February 9, 2010 - Decided

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. SC-3320-08.

Marisol Perez argued the cause for appellant (Lite, DePalma, Greenberg & Rivas, LLC, attorneys; Bruce D. Greenberg, of counsel; Jay T. Baitner, on the brief).

Malcolm J. McPherson, Jr., argued the cause for respondent.

PER CURIAM

Plaintiff Harold Hebner appeals from a Special Civil Part order dismissing his complaint against his landlord, defendant Fernando Rodriguez. Plaintiff's action sought return of his security deposit and statutory penalties for violating the provisions of the Security Deposit Act (Act), N.J.S.A. 46:8-19 to -26. Following a bench trial, the court determined defendant was entitled to retain the entirety of plaintiff's security deposit, despite his failure to comply with the notice requirements of the Act, because plaintiff owed him monies for past rent, damages and other debts that exceeded any possible recovery to plaintiff by enforcement of the Act. We affirm.

Defendant is the owner of a two-family house in Lyndhurst. In January 2004, plaintiff entered into an oral, month-to-month tenancy to rent the ground floor of defendant's property. Plaintiff gave defendant a check for $2,150. Half of this amount constituted a security deposit and the balance covered the first month's rent.

Shortly after moving into the ground-floor apartment, plaintiff qualified for housing assistance through the federal Section 8 program. See 42 U.S.C.A. 1437f. This federal housing program subsidizes the private housing market rents of low-income tenants. Davis ex rel Davis v. Phila. Hous. Auth., 121 F.3d 92, 93-94 (3d Cir. 1997). Initially, plaintiff was contributing $414 per month towards the rent; later that monthly obligation was reduced to $278. Despite the subsidy, plaintiff had difficulty paying his rent and fell into arrears. In an effort to keep plaintiff in the apartment, defendant agreed to accept $225 per month as plaintiff's rental share. Unfortunately, plaintiff's financial difficulties continued.

Plaintiff testified he approached defendant and offered to perform maintenance work around the premises to reduce or offset his outstanding rental obligation. Plaintiff asserted he and defendant reached an oral agreement confirming this arrangement. Although defendant acknowledged he once granted plaintiff a rent abatement in exchange for his labor, plaintiff strenuously denied any agreement to an on-going accommodation in lieu of paying rent.

In June 2006, defendant filed an eviction proceeding. A consent judgment required plaintiff to vacate the premises by August 21, 2006. When plaintiff did not comply, a warrant for removal was issued and eviction was effectuated on September 6, 2006. On September 13, 2006, the Sherriff's office locked plaintiff from the premises and changed the locks.

Plaintiff asserted he called defendant several times requesting return of his security deposit but defendant neither released plaintiff's money nor advised why monies were withheld. In October 2008, he filed this complaint seeking $3,000, presumably for the return of his security deposit along with interest and statutory damages for defendant's failure to provide a written notice accompanied by an itemization of claims made against the security deposit. See N.J.S.A. 46:8-21.1 (providing for double recovery for a landlord's failure to return a tenant's deposit).

During the hearing, plaintiff testified he voluntarily left the apartment in "broom swept" condition, but for normal wear and tear. Also, plaintiff believed the sum of $1,500, representing unpaid rent as of March 2006, was offset by labor he performed on the property, including spackling and painting seven rooms, felling two trees, repairing a water pipe, replacing shingles, and removing an old furnace from the building's basement. Plaintiff did not pay rent from April 2006 until the date of eviction.

Defendant also testified. He agreed plaintiff's unpaid rent balance as of March 8, 2006 was $1,500 and noted plaintiff had not paid rent for the months of April to September, 2006. Additionally, the sum of $144.45 was spent to change the apartment locks, pursuant to court order following the eviction, and $500 had been loaned to plaintiff in December 2004, but not repaid, to secure his release from the Bergen County Jail. The total of these items was $3,044.45.

Defendant also sought the cost he expended to repair the premises following plaintiff's eviction. Defendant inspected the apartment and discovered

[i]t was . . . like a bomb hit it. There was [sic] just papers everywhere. It was a disgrace. Animals in the back. Feces in the back. He did [ ] come back and remove the animals later, because I had gone to the Lyndhurst [Animal Shelter], and by the time I came back[,] thankfully the animals - he did come back and take the animals.

I had to throw the cages out, the feces[,] everything.

Defendant testified he was forced to replace all flooring and three doors in the apartment. He produced a receipt from Lowe's home improvement store in the amount of $1,223.96, dated September 26, 2006. Defendant testified the Lowe's receipt reflected his purchase of materials and that he paid a contractor approximately $1,000 to complete the repairs. In total, defendant claimed $5,268.42 was due from plaintiff. Defendant stated he told plaintiff because this sum far exceeded plaintiff's security deposit, he decided to keep the deposited funds. Defendant acknowledged he had not provided plaintiff with a written statement that "itemized" the claimed deductions as required by N.J.S.A. 46:8-21.1.

Plaintiff suggested the repairs made after he vacated the apartment were "long overdue" and the conditions complained of pre-existed his occupancy. For example, plaintiff stated the formerly white carpets were thirty-five years old and needed to be replaced. Also, the kitchen floor "had a bubble in it from the time [he] moved in[.]" Plaintiff did not discuss or dispute defendant's asserted need to replace three doors.

At the close of evidence, the court rendered its findings of fact and conclusions of law. With respect to the parties' credibility, the judge found defendant's testimony was "truthful, logical and consistent," while plaintiff was

contradictory, evasive, and elusive in respect to his testimony. For example, he failed to tell the [c]ourt about the 500-dollar bail money given to him by the defendant. He failed to mention the defendant reduced the [ ] rent to $225 per month and for what reason. He failed to tell the [c]ourt that he applied for Section 8 housing and failed to produce any documentation. He failed to tell the [c]ourt he was evicted from the apartment through the judicial process.

. . . .

He [ ] admits that there was back due rent owed to the defendant in the amount of $2,850 by his own handwriting which was on the document admitted into evidence. He never told the [c]ourt about the locks that had to be changed [or] the damage to the apartment, and he led the [c]ourt to believe it was left in broom clean condition.

. . . .

The [c]ourt finds the plaintiff not credible and in fact deceptive . . . . [he] has not sustained his burden of proof by either his faulty, misleading and deceptive testimony or by his very questionable proofs and his lack of proofs.

Accordingly, the court denied plaintiff's claim for offsets to any unpaid rent because his proofs were insufficient. On the other hand, the judge found that notwithstanding defendant's retention of the security deposit, he remained "out of pocket approximately $2,500, directly as a result of his dealings with the plaintiff." Accordingly, the court dismissed plaintiff's complaint with prejudice.

On appeal, plaintiff argues the Act requires he need prove only the existence and termination of a landlord-tenant relationship, the tenant's tender of a security deposit, and the landlord's failure to return the monies or give written notice of claims against the fund. Plaintiff asserts that because defendant failed to comply with the Act, N.J.S.A. 46:8-21.1 mandates he receive double the amount he paid as security. Further, plaintiff suggests the court wrongly switched the burden of proof, requiring him "to prove [] there was no damage to the apartment[.]"

"'[W]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Mountain Hill, L.L.C. v. Tp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). In general, the judge's factual "findings . . . should not be disturbed unless they are so wholly insupportable as to result in a denial of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (quotation omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

The Act requires a landlord to return a tenant's security deposit along with accrued interest "[w]ithin 30 days after the termination of the [ ] lease . . . less any charges expended in accordance with the terms of [the] lease[.]" N.J.S.A. 46:8-21.1 "Any deductions the landlord makes must be 'itemized,' and notice must be forwarded to the tenant." Reilly v. Weiss, 406 N.J. Super. 71, 80 (App. Div. 2009) (quoting N.J.S.A. 46:8-21.1). "If the landlord violates this section . . . the tenant may bring suit, and '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 attorney's fees.'" Ibid. (quoting N.J.S.A. 46:8-21.1).

We reject plaintiff's interpretation of the requisites, which trigger imposition of the penalty provisions of N.J.S.A. 46:8-21.1. When a tenant has violated his obligations under a lease, the Act does not automatically impose the 'doubling' remedy provided by N.J.S.A. 46:8-21.1. Ibid.; see also Penbara v. Straczynski, 347 N.J. Super. 155, 157-60 (App. Div. 2002) (granting the landlord's request to retain the tenant's security deposit because of damage to the premises although the landlord had not placed the tenant's security in an interest-bearing account, N.J.S.A. 46:8-19, or send the tenant an itemized statement of deductions).

In Reilly, we affirmed the procedure previously set forth in Penbara, that is, "despite the landlord's admitted statutory violations, the judge was required to 'determine the amount of th[e] offsets and, if they [we]re greater than the security deposit withheld, there [wa]s no deposit to return to the tenant and no valid basis for enforcing the notification requirement of the statute.'" Reilly, supra, 406 N.J. Super. at 81 (quoting Penbara, supra, 347 N.J. Super. at 160-61); see also Lorril Co. v. La Corte, 352 N.J. Super. 433, 441 (App. Div. 2002) (concluding tenant was not entitled to double the amount of the security deposit as an offset to monies otherwise due the landlord because of the tenant's unlawful holding over after the expiration of their lease, which created a rent obligation).

In this matter, the trial court made specific findings of fact with respect to the offered proofs regarding the amount of unpaid rent and the extent of the apartment's damage after plaintiff's occupancy. The court determined plaintiff's rental obligation was $2,850, a sum which was more than twice the $1,075 security deposit provided. Additionally, findings supported by unassailable credibility determinations rejected plaintiff's unbelievable contention of the "broom clean" condition of the apartment and favored the landlord's testimony detailing the nature of repairs and costs incurred to restore its condition.

We do not condone the landlord's failure to comply with his clear responsibilities under the Act. However, deferring to the trial court's findings of fact, we too conclude "nothing was unlawfully withheld and nothing remained of the [tenant's security] deposit to be [returned or] doubled." Lorril Co., supra, 352 N.J. Super. at 442.

Briefly, we address plaintiff's suggestion the court improperly shifted the burden of proof, requiring him to show the apartment was not damaged. The argument is without merit.

The burden of proving damage rests with defendant-landlord. Reilly, supra, 406 N.J. Super. at 76. Here defendant's documentary evidence included a statement of unpaid rent written by plaintiff; the eviction proceeding orders; the receipt regarding the cost to change the locks; and the bail receipt. Additionally, the court credited defendant's testimony regarding the Lowe's receipt and the cost of repairs to the premises. Ample evidence supported defendant's position and "perhaps most importantly, [the judge] had the opportunity to assess the demeanor of the witnesses and judge their credibility as to the critical issue in the case, i.e., did plaintiffs cause the damage as alleged by [the] defendant[.]" Id. at 77.

 
Affirmed.

(continued)

(continued)

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A-1828-08T3

April 26, 2010