NAILA FIRDAUS v. ILONA MASTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NAILA FIRDAUS and MUHAMMAD

ARIF,

Plaintiffs-Appellants,

v.

ILONA MASTER,

Defendant-Respondent.

_________________________________________________

October 3, 2014

Submitted September 23, 2014 Decided

Before Judges Fisher, Accurso and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. LT-3010-13.

Hub City Law Group, attorneys for appellants (Joseph A. Bahgat, on the brief).

Ilona Master, respondent pro se.

PER CURIAM

In this appeal, Naila Firdaus and Muhammed Arif chiefly contend that the trial judge erred in simultaneously hearing and deciding their summary dispossess action with a separate suit for damages filed earlier by their tenant, Ilona Masters. Because the judge properly preserved judicial resources by hearing these claims together without causing an undue delay in the summary dispossess action and because we find no merit in any of landlords' arguments regarding the damage awards and the denial of counsel fees, we affirm.

Because of its relevance to the landlords' main argument, we explain in some detail the procedural history and the judge's ordering of the proofs in these cases. Landlords served a notice to quit upon their tenant on or about January 29, 2013. Two weeks later, on February 12, 2013, the tenant commenced a small claims action for damages against the landlords, alleging interference with her right to quiet enjoyment. Trial was scheduled for and, in fact, began on March 19, 2013. That same day, the landlords filed their eviction action and participated pro se in the trial of the tenant's action. Without knowledge of the landlords' newly-filed action, the trial judge heard the tenant's testimony regarding her claim. When, later in the trial, the landlords advised of the filing of their eviction action, the judge immediately adjourned the tenant's matter, concluding he should not "decide one without the other."

On the adjourned date, April 24, 2013, the landlords appeared with counsel; the tenant remained unrepresented. The judge advised he would first hear the rest of the tenant's case before proceeding with the eviction action. The landlords' counsel objected, arguing the eviction action should be heard and completed first. The judge rejected this argument and the tenant's matter resumed. Before counsel's extensive cross-examination of the tenant could be completed, the judge interrupted, observing that it was "obvious we are not going to finish this matter today." He directed the parties to return two days later, April 26, 2013.

On April 25, 2013, the landlords discontented with the judge's ordering of the proofs and in disregard of the likelihood both matters would be completed the follow day filed a third-party complaint in the tenant's action and a motion to sever their eviction action from the tenant's suit. The next day, at the time scheduled for the resumption of the trial, the judge asked counsel to "pick up where [he] left off." Counsel then brought to the judge's attention that he had filed a third-party complaint, which would delay the tenant's action because time would be needed to serve the third-party,1 and that he had moved for a severance of these two actions. After hearing counsel's argument, and in apparent consideration of the unrepresented tenant having little or no notice of the motion to sever, the judge adjourned both matters until May 3, 2013, seven days later.

When the parties returned to court on May 3, 2013, the judge again considered the landlords' motion to sever and the impact of the third-party complaint on the tenant's action. As for the former, the judge recognized that both suits required the same witnesses, that the allegations overlapped and, therefore, that the interests of judicial economy were better served by hearing both matters at the same time. As for the third-party complaint, the judge correctly ruled that the landlords' pro se appearance on the March 19, 2013 trial date constituted an answer to the tenant's action, R. 6:3-1(5), and, consequently, the landlords' attempt to inject a third-party action at such a late date did not constitute a legitimate ground for delaying the trial. Following these rulings, the parties presented their proofs relevant to the landlords' eviction matter and what remained of the tenant's action, and the judge ruled on all issues by way of an oral decision that same day.

The judge found the tenant had rented the landlords' townhouse and, without notice, construction workers appeared in November and December 2012, forcing tenant to tolerate a "truly . . . miserable existence" "tantamount to a constructive eviction." He also found the landlords unintentionally violated the Security Deposit Act, N.J.S.A. 46:8-19 to -26, but does not appear to have awarded any relief as a result. The judge additionally determined the tenant wrongfully held over during April and part of May 2013, for which the landlords were seeking double the $2400 monthly rent.

In his oral decision, the judge held that the landlords were entitled to possession a matter no longer in doubt because the tenant leased other premises starting May 12, 2013. In assessing the other claims, the judge found the landlords were entitled to $2400 for the April rent and an additional $1100 for that part of May in which the tenant had and would remain in possession; he also found the landlords were entitled to double the rent due, N.J.S.A. 2A:24-6, which increased the landlords' award to $7000. After subtracting the tenant's $3600 security deposit, the judge concluded the landlords were entitled to $3400.

The judge then found, because of the landlords' breach of the right to quiet enjoyment during November and part of December 2012, that the tenant was entitled to $3700; he based that award on the rent paid for that period with a minor reduction.2

After setting one award off against the other, the judge concluded the tenant was entitled to a $300 judgment, together with costs of $31. The landlords orally sought an award of counsel fees that the judge denied because the landlords had first breached the lease.

Landlords appeal, arguing

I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY CONSOLIDATING THE EVICTION CASE WITH THE SMALL CLAIMS CASE, AND CAUSED THE LANDLORDS ADDITIONAL DAMAGES BY ALLOWING THE TENANT TO REMAIN IN THE PREMISES, WITHOUT POSTING SECURITY, WHEN THE ELEMENTS FOR EVICTION WERE READILY APPARENT.

II. THE RECORD DOES NOT DEMONSTRATE THAT THE TENANT MADE A PRIMA FACIE CASE FOR CONSTRUCTIVE EVICTION, NOR IS THERE EVIDENCE THAT SHE WAS ENTITLED TO ABATEMENT OF RENT FROM THE LANDLORDS.

A. Even if the tenant should have been entitled to some abatement of rent, the trial court did not make any findings to support its decision awarding the tenant 100% abatement.

B. The tenant was not entitled to rental abatement or other compensation from the landlords because she failed to mitigate her damages.

C. There was no evidence in the record to support the trial court's finding that the landlords were negligent.

III. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE LANDLORDS' APPLICATION FOR COUNSEL FEES.[3]

We find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments concerning Point I.

In arguing that the judge erred in trying both actions at the same time, the landlords primarily rely on Rule 6:3-4(a), which states in part that "[s]ummary actions between landlord and tenant for the recovery of premises . . . shall not be joined with any other cause of action, nor shall a defendant in such proceedings file a counterclaim or third-party complaint." To be sure, as the landlords argue, this rule was intended to prohibit interference with a landlord's right to a speedy and expeditious resolution of a claim for repossession of leased premises. See, e.g., Spruce Park Apartments v. Beckett, 230 N.J. Super. 311, 315 (Law Div. 1988).

Accordingly, we agree with landlords that Rule 6:3-4(a) prohibits consolidation of other actions with an eviction action. Nevertheless, that is not exactly what occurred here. Although the word "consolidation" may have been uttered, the judge did not actually consolidate the two actions. Instead, the judge conducted the trials of both matters at the same time due to his accurate recognition that the relevant proofs would come from the same witnesses and largely encompass the same subject matter. This was an entirely appropriate exercise of the judge's discretion to avoid repetition and the expenditure of scarce judicial resources. The judge acted consistently with his broad discretion to sensibly order the proofs in the matters pending before him. See, e.g., N.J.R.E. 611(a). The tenant's action was as simple and uncomplicated as the eviction action, and the trial of the two cases in the manner described, which served the interests of judicial economy, caused no injury to either party.

As can be seen from the procedural history, no appreciable delay in the eviction action was caused by its informal joinder with the tenant's action. In fact, the tenant's action would undoubtedly have been completed the day it started but for steps taken by the landlords. The landlords prevented the completion of the tenant's action by filing their eviction action on the former's trial date. Notwithstanding the interruption that circumstance caused, both matters still would likely have been completed when the parties next returned to court on April 24, 2013, approximately one month later, but for extended colloquy between counsel and the judge regarding the order of the trials. Nevertheless, the judge directed the parties to return in two days hardly a significant delay. And, again, it was the landlords who caused a delay by filing a motion for a severance and by attempting to incorporate a third-party action into the tenant's action. Even then, the restart and completion of both matters was only delayed seven days.

In short, we agree that consolidation is barred by Rule 6:3-4(a) and that, in some instances, even an informal joinder such as occurred here would not be appropriate if it were to have a tendency to delay the eviction proceeding. But no such delay occurred here. Instead, the judge appropriately determined that the best use of judicial resources was to hear both matters simultaneously. Implicit in his rejection of the landlords' objections to the ordering of the proofs was the judge's recognition that the landlords were simply jockeying to have their action heard first. We conclude the judge prudently and fairly exercised his discretion in the manner in which these cases were processed.

1It is not clear, but it appears the third-party defendant was either the condominium association or an entity engaged to perform the construction work that formed the basis for the tenant's quiet-enjoyment claim.

2That is, the judge did not award damages for the period of time Superstorm Sandy interfered with tenant's use of the premises because, as the judge said, "everybody is in the same boat."

3We have renumbered these points.