TAJWATIE BHAWANIDIN v. A.S. DHODI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TAJWATIE BHAWANIDIN,

Plaintiff-Respondent,

v.

A.S. DHODI,

Defendant-Appellant.

_______________________________________________________________

January 23, 2014

Submitted September 3, 2013 Decided

Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. SC-2414-12.

A. S. Dhodi, appellant pro se.

Tajwatie Bhawanidin, respondent pro se.

PER CURIAM

Following a bench trial in Special Civil Part, on August 20, 2012, Judge Keith A. Bachmann found defendant-landlord A.S. Dhodi wrongfully withheld monies from plaintiff-tenant Tajwatie Bhawanidin's security deposit. Specifically, the judge found defendant impermissibly charged plaintiff for the repair of the hardwood floors, a general cleaning fee, and a management fee for such cleaning.

The judge further denied defendant's counterclaim for payment of an additional month's rent for plaintiff's failure to give sufficient notice of non-renewal of the lease, as well as an "extra tenant" fee and the cost of repairing the range. Accordingly, the judge entered judgment in plaintiff's favor, and ordered defendant to pay damages in the amount of $2304.86, plus costs of suit. The judge also dismissed defendant's counterclaim. Defendant appeals and we affirm.

The facts as adduced at trial are as follows. The parties entered into an apartment lease agreement on June 12, 2010 for an initial one-year term from June 15, 2010 to June 14, 2011. The lease included an inventory rider, signed by both parties, acknowledging the condition of the apartment. The rent was $1350 per month and plaintiff paid a security deposit of $2025, which defendant held without accruing interest.1 After the first year, the parties extended the lease from July 1, 2011 to June 30, 2012, and rent increased to $1400 per month.

Plaintiff moved out of the apartment on June 26, 2012, and returned the keys to defendant on June 30, 2012. On July 24, 2012, defendant sent plaintiff a letter listing deductions made from the security deposit for repairs to the apartment totaling $1265.83, as well as a refund check in the amount of $834.17. Defendant listed the following itemized deductions:

a) Estimated cost per vendor estimate (lowest) to Repair the Liv RM/Din RM Hard Wood Floor =$ 768.75

Repair the broken electric switch in Bed Room =$ 100.00

Subtotal =$ 868.75

b) Misc. deduction for cleaning walls, paint marks, etc. =$ 100.00

c) Management fees @ 50% on sub total of $868.75 =$ 384.38

d) Paid to PSE&G =$ 12.70

Total Deduction =$ 1265.832

e) Balance of Sec. Deposit due Plaintiff =$ 834.17

On or about July 31, 2012, plaintiff filed a complaint alleging wrongful withholding of her security deposit, and seeking to recover $2531.66 from defendant, which represents twice the amount of the wrongfully withheld funds, plus filing fees. Defendant answered the complaint asserting that the deductions were to repair damage plaintiff caused. Defendant filed a counterclaim seeking the following costs in excess of the security deposit:

1) Defective Notice not to renew the lease =$ 1400.00

2) Excess Sec. Deposit reimbursed =$ 75.00

3) Repairs to Defective Gas Range Control Panel + 50% management fee ($290.55 plus 50% management fee) =$ 435.85

4) Misrepresentation in lease signing to claim $50.00 p.m. rent deduction ($50.00 p.m. x 12 = $600.00) =$ 600.00

5) Unauthorized additional occupancy lump sum = $ 450.00

6) Filing Fee =$ 15.00

Total =$ 2975.003

At trial, the judge heard testimony from both parties with respect to the disputed damage to the apartment, and the asserted matters in defendant's counterclaim. In her direct testimony, plaintiff testified that she received defendant's letter and check, but believed that only one item was justified and that another item was only partially justified.

Defendant testified and presented exhibits in support of his asserted deductions. The judge viewed a photograph of the broken light switch and receipt showing he paid an electrician $100 for its repair. The judge credited defendant's testimony that the switch plate was damaged during plaintiff's tenancy and granted him $100 for the repair of the broken light switch. Defendant also presented an electric bill in the amount of $12.70. Although plaintiff testified that she paid her electric bill through the day she vacated the apartment on June 26, the judge found that she remained legally obligated for the electric service until June 30, and allowed the deduction for $12.70. Thus, the judge allowed defendant a total of $112.70 to be deducted from the security deposit.

The judge rejected the remainder of the deductions. With respect to the hardwood floors, defendant argued that plaintiff damaged the floors and acknowledged her responsibility for the damage. Plaintiff agreed that the floors were scratched, but stated the scratches may have been there when she moved in. Defendant presented three estimates for the repair of the damaged floor, but had not yet completed the repairs. The judge ruled the estimates hearsay and therefore inadmissible.

The judge also viewed a video of the apartment made the day plaintiff moved out, as well as pictures of the floor. He noted that "there are a bunch of scratches you could cover with a pizza box." The judge characterized the scratches as minor damage and "reasonable wear and tear" for which plaintiff was not responsible. In addition to finding that defendant had failed to establish that plaintiff caused the damage, the judge found defendant was not entitled to reimbursement because he had not yet made the repair. The judge therefore disallowed the repair cost totaling $768.75.

Defendant further argued that, pursuant to Paragraph J of the lease, he was entitled to a management fee in the amount of $384.38 for overseeing the floor repair. The judge disallowed the management fee since the repair costs were denied.

Defendant next claimed he was entitled to $100 as a general cleaning fee pursuant to Paragraph (bb) of the lease. The judge noted that the video of the apartment depicted the apartment as both "spotless" and "beautiful." He found that any smudges were "extremely, extremely minor," the worst of which was in a coat closet. The judge considered these smudges "reasonable wear and tear" and not damage. Based on his view of the evidence, the judge concluded the apartment did not need to be cleaned, as argued by defendant, and declined to impose an obligation on plaintiff to pay for unnecessary cleaning.

Next, the judge reviewed and rejected defendant's counterclaim. Defendant sought an additional month's rent, $1400, for plaintiff's failure to give appropriate notice of her intent not to renew the lease. Plaintiff testified that she informed defendant on April 20 that she would be moving at the end of the lease term, and also sent him written notice, which he received on May 6. Defendant did not dispute receiving the notice, but rather argued that notice on May 6 was not the two-month notice required by the lease. The judge reviewed both the original lease and the lease extension and determined plaintiff had to provide forty-five days' notice. Crediting her testimony, the judge found that plaintiff had provided notice on April 20, 2012, fifty-four days prior to the expiration of the lease term. As a result, the judge denied the request for $1400.

Additionally, defendant claimed he learned from the subsequent tenant that the range control panel was broken. Defendant paid $290.55 to have it repaired. Plaintiff denied any knowledge of the damage. The judge questioned whether the new tenant could have broken the range since he reported the damage. In the end, the judge found defendant failed to prove that plaintiff was responsible, and therefore, denied his request.

Defendant further asserted that plaintiff misrepresented the number of tenants in her apartment. He claimed he gave plaintiff a $50 per month discount from the $1400 rental fee believing that she was a "single lady." However, he later learned plaintiff had a baby and, he claimed, she allowed the child's father to live in the apartment. Plaintiff stated that only she and her child lived in the apartment. She explained that the child's father frequently cared for their child at the apartment but did not live there. She noted that her rent increased to $1400 per month with the lease extension. The judge found her testimony credible and found no legal basis entitling defendant to additional rent.

Lastly, defendant claimed he over refunded $75 in the initial check and sought reimbursement. The judge found he did not fully explain this request and thus, had not proven his entitlement to those funds. In all, the judge found no basis for the counterclaim, and awarded plaintiff $1152.43, which he doubled, as required by statute, to $2304.86 plus court costs.

The precise nature of defendant's appeal is not entirely clear from his brief, though it appears he generally seeks our review of the trial court's findings, and re-argues his claims for compensation from plaintiff. We have carefully considered defendant's arguments in light of the record and conclude that the issues presented are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(A) and (E). We add only a brief comment.

Defendant does not identify any particular errors in the order with respect to the trial judge's decision. Nor does the brief assert any legal basis for our review of that order. Without a specific claim of error as to the August 20, 2012 order, supported by record references and relevant law, we cannot properly consider an appeal. See State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). Any issues related thereto are deemed waived and abandoned. SeePressler & Verniero, Current N.J. Court Rules, comment 4 on R.2:6-2 (2014); see also Gormley v. Wood-El, 422 N.J. Super. 426, 437 n.3 (App. Div. 2011), leave to appeal granted, 210 N.J.25 (2012).

As to defendant's request for a review of the trial court's rulings, our review of the factual findings made by the trial judge in a non-jury trial is quite limited. Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007). "'[W]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Mountain Hill, L.L.C. v. Twp. 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., 65 N.J. 474, 483-84 (1974) (internal citation and quotation marks 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. Twp. Comm., 140 N.J. 366, 378, (1995).

We are satisfied the record amply supports Judge Bachmann's factual findings, based heavily upon his assessment of the parties' credibility, as well as his legal conclusions. Moreover, we discern no basis to second-guess the judge's rulings with respect to the complaint and counterclaim. Accordingly, we defer to his factual findings with respect to the appropriate deductions from plaintiff's security deposit.

Affirmed.

1 We note that this provision of the lease is contrary to state law, which requires landlords to hold security deposits in an interest-bearing account. See N.J.S.A. 46:8-19.

2 We note that defendant's calculations are incorrect. The deductions total $1365.83.

3 The correct total should read $2975.85.

A-0631-12T3