FAIRLYNN BARNES v. DONNA DELAURA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FAIRLYNN BARNES,

Plaintiff-Appellant,

v.

DONNA DELAURA,

Defendant-Respondent,

 

and

VINCENT TRUZZILINO,

Defendant.

_______________________________

December 23, 2013

 

Submitted December 17, 2013 - Decided

 

Before Judges Messano and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. DC-020804-11.

 

Payton & Payton, LLP, attorneys for appellant (Queen E. Payton, on the brief).

 

Lawrence S. Reynolds, attorney for respondent.

PER CURIAM

This appeal involves a claim by a tenant that her landlord wrongfully failed to return her security deposit, and a counterclaim by the landlord contending that the tenant had caused damage to the apartment to an extent exceeding the security deposit. After a two-day trial in the Special Civil Part, the judge found that the landlord's testimony was more credible than the tenant's on most of the issues, and awarded the landlord a net judgment of $3858. The tenant now appeals. For the reasons that follow, we affirm the trial court's decision in favor of the landlord, but modify the judgment amount to $1036.40.

The record shows that the tenant, plaintiff Fairlynn Barnes, had to locate temporary housing when her family home in Elizabeth was damaged in a fire. She found a rental unit about eight houses away in a recently constructed two-family home owned by the landlord, defendant-counterclaimant Donna DeLaura.

The parties entered into a six-month written lease, which ran from April 1, 2011 through September 30, 2011. The lease was later extended an additional month to October 31, 2011. The tenant agreed to pay $2300 per month in rent. The security deposit was 1 times the monthly rent, or $3450. The parties stipulated at trial that the tenant did pay the $3450 security deposit.

The landlord claimed that the premises were in clean and "brand new" condition when the tenant arrived in April 2011. The landlord had received a certificate of occupancy that same month from the City of Elizabeth. The tenant, on the other hand, contended that the apartment was in poor condition when she moved in. For example, she contended that the baseboards were not properly finished, certain doors were warped and would not close, there was no grout in the bathroom tiles, the bathroom sink was not connected to the wall, and there were problems with the dishwasher. The tenant did not demand any action by the landlord to rectify these initial problems, allegedly because she was only considering this to be a short-term tenancy until her prior home became ready for re-occupancy.

When the tenant notified the landlord in late October 2011 that she was moving out, she requested a walk-through of the premises. At that point, the landlord and the tenant started having disputes about the condition of the premises. The dispute became so heated that the tenant filed a report about the landlord with the police, although no criminal complaint was issued.

The landlord retained the full $3450 security deposit, based on her contention that the tenant had caused damage to the apartment in a sum greater than the deposit amount. The landlord mainly contended that the tenant had caused extensive damage to the carpet, which had been newly installed that spring. According to the landlord's carpet installer, Isam Ghanim, the carpet damage was too great to repair or patch and the carpeting throughout the entire unit would have to be replaced. Ghanim estimated that the carpet replacement, including materials and labor, would cost $4708. In addition, the landlord claimed damages in the amount of $156.25 for replacement of two sets of locks, kitchen cabinet repair totaling $900, and paint and wall repairs totaling $1700.

Both parties1 were represented by counsel2 at the trial. The tenant testified on her own behalf, along with her husband. The landlord similarly took the stand on her own behalf. The landlord also presented testimony from Ghanim. During the course of his expert3 testimony, Ghanim described in detail the damage he encountered upon inspecting the carpet after the tenant's departure:

[t]here seems to be patchwork involved in a numerous amount of areas; one in the middle of the living room, which is attached to the hallway. And there was patchwork in one of the master rooms right at the doorway, rectangular shaped. There was what seems to be some sort of fused carpet. It could have been burn holes or some it was . . . melted; the fiber itself was melted. So I really can't say exactly what caused it in some of the rooms. And typically if you do have a square patched . . . in the middle of the room, in order to alleviate that, you would essentially have to replace everything that's connected to it.

Ghanim further explained that the damage could not be repaired simply by fixing the patched areas alone, because the repair carpeting would come from a different dye lot than the original carpet, and thus "essentially it would be night and day, you know, two different colors." He stated that "you would have to replace everything so it looks like it matched[.]" Therefore, Ghanim testified that the only way to properly fix the damaged carpet would be to replace all 200 square yards of carpet that he had originally installed. The tenant did not call an opposing carpet expert or present a lower cost estimate.

After considering the proofs and written summations from both parties, the trial judge issued a letter opinion on August 23, 2012 generally agreeing with the landlord's contentions. In particular, the judge awarded the landlord on her counterclaim $4708 for replacement of the carpet, $1700 for repairing and repainting the walls, and $900 for repairing the kitchen cabinet, yielding a total of $7308. The judge offset that sum against the amount of the $3450 security deposit. Hence, the judge ruled that the landlord was entitled to a net judgment of $3858. The judge did not, however, award the landlord the $156.25 for the new set of locks.

On appeal, the tenant contends that the trial court erred in several respects. In particular, she argues that the ruling was against the weight of the credible evidence, that the landlord's proof of offsetting damages was inadequately substantiated, and that she should have been granted relief because of the landlord's alleged violation of the Security Deposit Act, N.J.S.A.46:8-19 to -26. The landlord has not cross-appealed.

Our scope of review is circumscribed. An appellate court shall "'not disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting In re Trust Created by Agreement Dated December 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J 474, 484 (1974). Review on appeal "does not consist of weighing evidence anew and making independent factual findings; rather, our function is to determine whether there is adequate evidence to support the judgment rendered at trial." Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 1999) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). If the trial court's findings meet this benchmark, our "task is complete and [we] should not disturb the result," even if we "might have reached a different conclusion were [we] the trial tribunal." Ibid. (internal citations and quotation marks omitted).

Applying these review standards, it is readily apparent that the judge's decision in favor of the landlord is sufficiently consistent with the evidence adduced at this bench trial. We accord particular deference to the judge's observation that "this case comes down to a question of credibility between [p]laintiff and [d]efendant, and in that regard the [c]ourt finds the testimony and evidence in favor of [d]efendant to be the more credible." We similarly defer to the judge's finding that the testimony of Ghanim, whom he described as "an independent witness," was "particular[ly] credible as to the condition of the carpet prior to [p]laintiff's tenancy, the extent of the damage and the cost of repairing the same." We also will not second-guess the judge's explicit rejection of the tenant's assertion that the damage to the premises had occurred either before or after her occupancy.

Contrary to the tenant's argument, we are satisfied that the landlord's contentions of damage to her unit were adequately substantiated. The damage to the carpet was corroborated not only by Ghanim's testimony but also by the landlord's own credible observations. Ghanim's estimate of the costs to restore the carpeting to a proper condition was admitted into evidence without objection and was unrebutted.4 Likewise, the damage to the cabinets was amply supported by the landlord's testimony and by a separate unrebutted repair estimate. Although the tenant contends that photographs marked into evidence by the landlord to further corroborate the damage were not probative, we need not reach that contention.5 Even without the photographs, the landlord's witnesses and her documentary proofs were ample to support her counterclaim.

That said, there are two adjustments that should be made to the trial judge's calculations. First, the $1700 portion of the counterclaim award for paint and wall repairs should be eliminated because during the trial the judge unequivocally announced that he was not going to award any recovery for those particular items. The court's written opinion makes no mention of that mid-trial ruling, and does not state that the judge changed his mind on the subject.

Second, the approved expenses should be reduced by twenty percent, or $1121.60, consistent with the twenty percent reduction for "wear and tear" set forth in the landlord's written "Security Deposit Itemization" form, a form that she claims to have served upon the tenant.6 The inclusion of this discount within the landlord's itemization of her damages comprises a statement against interest, see N.J.R.E. 803(c)(25), as well as an admission by a party-opponent, see N.J.R.E. 803(b).7

Consequently, the judgment must be reduced by $2821.60 ($1121.60 for the wear and tear to the carpet and cabinet, plus $1700 for the paint and walls), resulting in a modified net award of $1036.40.

Finally, we reject the tenant's argument that the landlord violated the Security Deposit Act and wrongfully withheld her money. The tenant is not entitled to a refund of any portion of her deposit, nor to statutory doubled damages or counsel fees, because the landlord proved at trial that the amount of damages to the apartment exceeded the amount of the deposit. See Penbara v. Straczynski, 347 N.J. Super.155, 160-61 (App. Div. 2002) (holding that where "a case involves offsetting amounts . . . the trial judge must determine the amount of those offsets and, if they are greater than the security deposit withheld, there is no deposit to return to the tenant and no valid basis for enforcing the notification requirement of the statute.") (citing Jaremback v. Butler Ridge Apartments, 166 N.J. Super. 84, 87-88 (App. Div. 1979)).

"Thus, in the absence of an affirmative recovery for the tenant after the deduction of moneys due to the landlord from the amount of security deposit plus interest, there is no warrant for the imposition of the statutory penalty." Jaremback, supra, 166 N.J. Super. at 87-88 (emphasis in original). See also Reilly v. Weiss, 406 N.J. Super. 71, 81 (App. Div. 2009) (finding that where tenants had unlawfully held over and the amount of their remaining rent obligation exceeded the security deposit, "nothing was unlawfully withheld and nothing remained of the deposit to be doubled.") (citations omitted).

The tenant's related argument that the landlord failed under N.J.S.A. 46:8-21.1 to give her timely written notice of damages to the apartment is likewise unavailing under these circumstances. The tenant did not raise claims of any statutory violations before the trial judge, not even in her written summation. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting the general preference to refrain from granting relief on appeal on issues that were not raised below). Any factual dispute over whether the itemized statement had been timely served on the tenant should have been litigated during the two-day trial in the Special Civil Part, and it was not.

The remainder of the arguments the tenant raises on appeal lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed, as modified. Within thirty days, the trial court shall issue an amended judgment for $1036.40, plus post-judgment interest calculated from the original judgment date. Counsel for the landlord shall provide the trial court forthwith with a proposed form of order reflecting the amended award and the interest calculation.

1 A codefendant named in the tenant's complaint was dismissed before trial. That dismissal is not contested.

2 The tenant's counsel on appeal was not her trial attorney.

3 The appellate briefs of both parties refer to Ghanim as an "expert," although the landlord's attorney did not formally proffer Ghanim at trial as an expert. In any event, the tenant's trial counsel did not object to the admissibility of Ghanim's opinions as he testified.

4 See N.J.R.E. 803(c)(6) (the hearsay exception for records of regularly conducted business activity); see also State ex rel. L.R., 382 N.J. Super. 605, 622 (App. Div. 2006) (finding that an estimate of damages was admissible "under the business records exception").

5 The black and white photocopies of the photographs contained in the appendix are of too poor quality to be helpful to our review. Counsel were unable to furnish us on request with better photos.

6 The form appears in both the tenant's appendix and the landlord's appendix.

7 Although the tenant does not specifically point to the discount in her appellate briefs, its significance is logically subsumed within her overall argument that the counterclaim award lacked sufficient documentary support.