BERKELEY ACQUISITIONS LLC v. SHAQUEENA EWINGS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BERKELEY ACQUISITIONS, LLC,

Plaintiff-Appellant,

v.

SHAQUEENA EWINGS,

Defendant-Respondent.

______________________________________________________

December 12, 2013

Submitted November 13, 2013 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-027488-12.

Law Offices of Sam D. Han, attorneys for appellant (Sam D. Han, on the brief).

Essex-Newark Legal Services, attorneys for respondent (Abbott Gorin and Felipe Chavana, on the brief).

PER CURIAM

It is undisputed that defendant, Shaqueena Ewings, is a tenant at property owned by plaintiff, Berkeley Acquisitions, LLC, and the property is subject to regulations imposed by the federal Department of Housing and Urban Development (HUD). On or about July 13, 2012, plaintiff served defendant with a "30-Day HUD Notice to Quit" purporting to terminate her tenancy effective August 13, 2012. The stated reason for the termination was defendant's violation of her lease and "[s]tate law," specifically that she had violated N.J.S.A. 2A:18-61.1p, by committing an assault, N.J.S.A. 2C:12-1, and terroristic threat, N.J.S.A. 2C:12-3, against one of plaintiff's employees.

On September 4, 2012, plaintiff filed a complaint in the Special Civil Part seeking defendant's eviction, attaching to the complaint a copy of the notice to quit. A default judgment for possession was entered on October 23, 2012, but that was subsequently vacated on defendant's motion, and the matter proceeded to trial.

Plaintiff produced its security guard, Alieu Kamara, who testified that on July 11, defendant approached the security booth and engaged in a profanity-laced tirade about security measures at the premises. According to Kamara, defendant grabbed the open security gate and permitted certain individuals who were there to see another tenant, and an individual there to see defendant, to enter in violation of identification protocols. When Kamara objected, defendant allegedly threatened to "pay somebody to come and shoot [him] . . . ." Kamara tried to explain, but defendant allegedly spit on him through the booth's window. Kamara called police, who responded, but did not arrest defendant, noting without attribution in their report that they were advised that the events resulted from a "misunderstanding." Kamara testified that he had seen defendant many times since the incident without any problem.

Plaintiff also called its property manager, Aaron Hirsch, as a witness. Hirsch acknowledged that he had not witnessed the incident. However, he claimed that defendant later apologized for her actions, and stated she "shouldn't have spit at [Kamara]."

Defendant also testified. On the day in question, she arrived at the booth having been notified that she had a visitor. She admitted becoming frustrated as Kamara dealt first with the visitors for another tenant, but, she denied ever threatening Kamara or spitting on him. Defendant contended Kamara actually had spit on her.

The judge rendered an oral decision on the record. Noting that plaintiff bore the burden of proving a violation of the statute by a preponderance of the evidence, the judge found the "overall" testimony to be "truthful." However, he rejected any claim that defendant threatened to kill Kamara. The judge also stated that "based on the different testimony of the witnesses and an assessment of credibility," he could not conclude plaintiff had proven a violation of N.J.S.A. 2A:61.1p by a preponderance of the evidence.

The judge also stated that he was "less than convinced . . . that there was an intentional . . . discharging [of] spit . . . from [defendant] onto . . . Kamara." The judge noted defendant's "spotless record" and concluded that, although defendant was "not controlling herself in an adequate way" and engaged in unbecoming conduct, plaintiff had failed to prove a violation of the statute. The judge dismissed the complaint, and this appeal ensued.

Plaintiff contends that the judge failed to determine which version of events was more credible, ignoring several alleged inconsistencies in defendant's testimony. Plaintiff also argues that the judge found defendant spit upon Kamara, thereby committing an assault. However, it takes issue with another finding made by the judge, i.e., defendant's action was unintentional, asserting that was unsupported by the record. Lastly, plaintiff argues the judge improperly considered "mitigating circumstance," specifically defendant's "spotless record" and the "importance of the apartment to [defendant]" in reaching his conclusions.

We have considered these contentions in light of the record and applicable legal standards. We conclude the arguments lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm and add only these brief comments.

Our review is limited.

Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review: 'we do not disturb the factual findings and legal conclusions of the trial judge unless we are 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) (internal quotation marks omitted)).]

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., 65 N.J. 474, 483-84 (1974) (quotation omitted).

However, the judge'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. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). As a result, we review the judge's legal conclusions de novo. Little v. KIA Motors America, Inc., 425 N.J. Super. 82, 90 (App. Div. 2012) (citing Manalapan Realty, supra, 140 N.J. at 378).

N.J.S.A. 2A:18-61.1p provides that "good cause" permitting the eviction of certain residential tenants is established if:

The [tenant] has been found, by a preponderance of the evidence, liable in a civil action for removal commenced under this act for an offense under . . . [N.J.S.A.] 2C:12-1 or [N.J.S.A.] 2C:12-3 involving assault or terroristic threats against the landlord, a member of the landlord's family or an employee of the landlord . . . .

[Ibid.]

Here, the judge specifically concluded defendant did not commit a terroristic threat. In so doing, he implicitly credited defendant's testimony that she made no such threat. We find no reason to disturb the judge's finding in this regard, since it was based upon his ability to judge the demeanor of the witnesses and assess their overall credibility. See Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (noting that on review "we do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence") (quoting State v. Barone, 147 N.J. 599, 615 (1997)).

Defendant contends that the judge concluded spitting upon another was an assault, pursuant to N.J.S.A. 2C:12-1. In this regard, defendant cites to our decision in Kelly v. County of Monmouth, 380 N.J. Super. 552, 559 (App. Div. 2005) (noting that a civil cause of action for common law assault or battery exists based upon any non-consensual touching or placing the victim in apprehension of such) (citations omitted).

However, N.J.S.A. 2A:18-61.1p requires proof of an assault as defined by N.J.S.A. 2C:12-1, not proof of the common law tort of assault or battery. As we have noted:

Simple assault is committed when a person "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1a(1). "Bodily injury" is "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a.

[State v. Stull, 403 N.J. Super. 501, 505 (App. Div. 2008).]

Spitting upon a person does not satisfy the essential elements of the offense. To the extent the judge reached a different conclusion, we must respectfully disagree.1

More importantly, the judge found that if defendant spit on Kamara, she acted without the requisite mental state. See N.J.S.A. 2C:2-2b. For the reasons already stated, that determination, based firmly upon the judge's credibility assessments, is entitled to our deference.

Lastly, although the judge made reference to defendant's particular circumstances as a tenant in subsidized housing, and her history as plaintiff's tenant, our reading of the entire transcript leads to the inescapable conclusion that the judge made his determination based solely upon the evidence, or lack of evidence, regarding the events in question.

1 Nor could defendant have prevailed under N.J.S.A. 2C:12-1a(3), which defines a simple assault as an attempt "by physical menace to put another in fear of imminent serious bodily injury." "'Serious bodily injury' means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b (emphasis added).