KAREN HOOPER v. PARKWOOD PLACE APARTMENTS
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1362-16T1
KAREN HOOPER,
Plaintiff-Respondent,
v.
PARKWOOD PLACE APARTMENTS,
Defendant-Appellant.
_____________________________
Submitted December 13, 2017 – Decided January 24, 2018
Before Judges Currier and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Essex
County, Docket No. SC-2199-16.
Kivelevitz Law Firm, PC, attorneys for
appellant (Justin Marcus Smith and Jaim
Kivelevitz, of counsel and on the brief).
Karen Hooper respondent pro se.
PER CURIAM
This matter involves a claim under the Security Deposit Act
(the SDA),
N.J.S.A. 46:8-19 to -26. Plaintiff Karen Hooper claimed
that defendant Parkwood Place Apartments, her landlord, wrongfully
failed to return a portion of her rent security deposit. Defendant
asserted plaintiff had caused damage to the apartment, owed rent,
and owed legal costs. After a one-day trial in the Special Civil
part, the judge found the security deposit was wrongfully withheld
and subject to the doubling provisions of
N.J.S.A. 46:8-21.1,
added prejudgment interest pursuant to
N.J.S.A. 46:8-19(c), and
awarded plaintiff a judgment of $2827.48. Defendant appeals from
the September 27, 2016 judgment and November 4, 2016 order denying
its motion for a new trial or reconsideration. For the reasons
that follow, we affirm in part and modify in part.
I.
We summarize the facts adduced from the record. Plaintiff
commenced leasing a residential apartment at Parkwood Place
Apartments in Newark on January 1, 2014. The lease was subsidized
through the Newark Housing Authority's Housing Choice Voucher
Program. Plaintiff posted a $1300 security deposit. Defendant
was not the original landlord when plaintiff posted the security
deposit; it subsequently became the landlord for the rental unit.
The lease was most recently renewed for the one-year period from
September 1, 2015 to August 31, 2016. Rent accrued at the rate
of $1300 per month, of which plaintiff paid $28 per month with the
balance paid through a Section 8 housing subsidy.
After receiving a notice to cease based on noise complaints,
plaintiff decided to vacate the apartment before the August 31,
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2016 expiration date of the lease and advised defendant in an
April 14, 2016 letter that she would be moving out on June 30,
2016. Plaintiff testified she was told by Jenny Rodriguez, the
manager of the property, that if she wanted to move out early,
that would be fine and she would not be in violation of the lease.
Rodriguez testified she told plaintiff "if she wanted to move, she
could definitely do that, but because she [was] on Section 8, she
would have to provide [her] documentation through the Section 8."
Rodriguez admitted she signed a Section 8 lease termination form
setting forth a June 30, 2016 move out date, claiming she "had no
choice but to sign that form." Rodrigues stated, however, that
she was not authorized to advise tenants or sign documents that
would release them from their rental obligations. Rodriguez
further testified that when a tenant moves out before the
expiration of the lease, management charges them rent for the
remainder of the lease.
Plaintiff vacated the apartment on June 30, 2016. She
admitted she owed defendant $28 for her portion of the June 2016
rent and $50 for a late fee.
Defendant failed to return plaintiff's security deposit and
on August 4, 2016 she filed this small claims action, pro se,
against defendant demanding damages of $1222. According to the
3 A-1362-16T1
complaint, plaintiff deducted $78 from the security deposit to
cover $28 in unpaid rent and $50 in late fees she owed defendant.
Defendant subsequently prepared an August 22, 2016 security
deposit refund letter advising plaintiff that, from the $1250
security deposit on hand, defendant was deducting $600 for
unspecified repair costs, $117 for unpaid rent, and $250 for
unspecified legal costs, yielding a net refund amount of $283.
The case proceeded to a one-day bench trial on September 27,
2016. Plaintiff testified on her own behalf. Jenny Rodriguez
testified on behalf of defendant. Eight exhibits were admitted
into evidence.
During the trial, defendant asserted that it was entitled to
recover lost rental income for the months of July and August 2016.
Defendant did not present any evidence of attempts to find a new
tenant to replace plaintiff or any evidence regarding the legal
costs it deducted from the security deposit. Defendant also
contended that plaintiff was not entitled to any relief under the
SDA since she vacated the apartment because she was in violation
of the lease.
At the conclusion of the trial, the judge issued an oral
decision in favor of plaintiff, awarding her damages in the amount
of $2827.48, comprised of double the $1300 security deposit and
$227.48 in interest calculated at the rate of seven percent per
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annum from January 1, 2014 to June 30, 2016 in accordance with
N.J.S.A. 46:8-21.1.
Neither party produced a copy of the lease. The judge found
that: (1) defendant served plaintiff with a notice to cease dated
March 23, 2016, based on inappropriate conduct directed at a fellow
tenant; (2) plaintiff gave adequate written notice to defendant
on April 14, 2016, that she would be vacating on June 30, 2016;
(3) plaintiff wanted to leave and defendant wanted plaintiff to
leave; (4) plaintiff vacated the apartment on June 30, 2016, in
accordance with her notice; (5) defendant provided no testimony
with respect to mitigation of damages, despite its duty to mitigate
its loss by attempting to procure a new tenant.
With regard to defendant's claim that plaintiff had damaged
the floors, resulting in repair costs of $600, the judge found
defendant did not prove the condition of the floor before plaintiff
moved in. The judge noted the property manager, who was
defendant's only witness, did not personally inspect the floors.
Defendant did not produce an estimate for the floor repairs. The
judge determined the documents provided by defendant in support
of the repair charges were insufficient and not adequately
explained. The judge concluded that plaintiff did not owe
defendant for any property damage beyond normal wear and tear.
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The judge found defendant failed to comply with the SDA in
several respects. Defendant never notified plaintiff where her
security deposit was held or the rate of interest earned on the
deposit, and defendant had not provided notice to plaintiff
regarding the disposition of the security deposit within thirty
days after her departure from the unit.
On October 17, 2016, defendant filed a motion for a new trial
"to introduce evidence that was not considered in the original
trial, which would alter the outcome of the trial." Defendant
claimed it "was unable to produce additional witnesses and
documentation in time for [the] original court date." Defendant
did not file an affidavit or certification in support of the
motion. Instead, defendant submitted a two-page brief1 in which
it argued:
The [c]ourt based its ruling in part on the
lack of [a] written lease, as well as lack of
testimony on the issue of damage mitigation,
and non-testimony as to the condition of a
rental unit at the time of rental. In
addition, many other items of evidence were
mentioned that [d]efendant did not present.
Defendant believes that if it had the
opportunity to present this evidence, the
court would alter its decision.
1
The statement of facts was one sentence long, stating: "On
September 27, 2016, a judgment was entered against [d]efendant."
6 A-1362-16T1
The above testimony and evidence would
substantially alter the outcome of the trial,
and [d]efendant has the evidence to present.
Defendant did not identify the additional witnesses it would
produce or proffer what their testimony would be if a new trial
were granted. Defendant also did not identify, describe, or
produce any additional evidence it would introduce at a new trial.
On November 4, 2016, the trial judge denied defendant's motion.
In her handwritten statement of reasons, the judge stated:
"Pursuant to R. 4:49-2, [d]efendant has failed to meet their burden
of presenting sufficient evidence to warrant a new trial. See
Dolson v. Anastasia,
55 N.J. 2 (1969)." This appeal followed.
On appeal, defendant raises the following issues: (1) the
trial court erred by doubling the security deposit award where the
tenant vacated as a direct result of the tenant's violation of the
lease; (2) the trial court erroneously doubled a credit the
landlord admitted, promoting an inequitable outcome; (3) the trial
court abused its discretion where the landlord had no reasonable
opportunity to mitigate its damages; (4) the trial court overlooked
that housing authorities ordinarily require landlords to fix
scratched floors before move-in; (5) the trial court should have
granted reconsideration in light of the relatively sparse record;
and (6) the trial court over-stepped its role by interposing itself
as plaintiff's de facto counsel.
7 A-1362-16T1
II.
Our scope of review is limited. 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)). Instead, "[a]n appellate court 'should
give deference to those findings of the trial judge which are
substantially influenced by his opportunity to hear and see the
witnesses and to have the feel of the case, which a reviewing
court cannot enjoy.'" State v. Nunez-Valdez,
200 N.J. 129, 141
(2009) (quoting State v. Elders,
192 N.J. 224, 244 (2007)).
However, we owe no deference to the "trial court's interpretation
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of the law and the legal consequences that flow from established
facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995). We review such decisions de novo. 30 River
Court E. Urban Renewal Co. v. Capograsso,
383 N.J. Super. 470, 476
(App. Div. 2006) (citing Rova Farms,
65 N.J. at 483-84).
III.
The SDA governs security deposits for residential tenants.
We have said that "
N.J.S.A. 46:8-21.1 was specifically 'intended
to protect tenants from overreaching landlords who seek to defraud
tenants by diverting rent security deposits to their own use.'"
Reilly v. Weiss,
406 N.J. Super. 71, 83 (App. Div. 2009) (quoting
Jaremback v. Butler Ridge Apts.,
166 N.J. Super. 84, 87 (App. Div.
1979)). The SDA "recognizes that the security deposit remains the
tenant's money, although it is designed to provide some protection
from loss to the landlord." Hale v. Farrakhan,
390 N.J. Super.
335, 342 (App. Div. 2007) (quoting MD Assocs. v. Alvarado,
302 N.J. Super. 583, 586 (App. Div. 1997)).
The SDA requires the landlord to return the tenant's security
deposit and interest accrued "[w]ithin [thirty] 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. Ibid. If the landlord
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violates this section of the SDA, 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.
Defendant argues plaintiff is not entitled to any remedies
under the SDA because she was in violation of the lease. We
disagree. As we have previously explained:
A tenant is not deprived of the benefits of
the Security Deposit Act merely because of a
default on the lease. Even in a default
situation, upon termination, the landlord is
obligated by the statute to return the
security deposit or notify the tenant in
writing, by registered or certified mail as
to the reason for retaining it. Breach of
this duty warrants imposition of double
damages.
[Veliz v. Meehan,
258 N.J. Super. 1, 4 (App.
Div. 1992) (citations omitted).]
However, violations of the SDA by the landlord do not entitle
the tenant to the doubling remedy of the entire security deposit
"if in fact the tenant has violated his obligations under the
lease." Reilly,
406 N.J. Super. at 80. Rather, the tenant is
only entitled to recover double the net security deposit after
deducting actual damages, unpaid rent, and other appropriate
charges. See, e.g., Penbara v. Straczynski,
347 N.J. Super. 155,
160 (App. Div. 2002) (noting that, as to any violation of N.J.S.A.
10 A-1362-16T1
46:8-21.1, the tenant was limited to recovery of double "the net
amount 'wrongfully withheld,' not double the amount of the initial
deposit") (quoting Kang in Yi v. Re/Max Fortune Properties, Inc.,
338 N.J. Super. 534, 539 (App. Div. 2001); Jaremback,
166 N.J.
Super. at 89 n.1 (providing that "[w]here the penalty is
appropriate under the statute, the only item which should be
doubled is the net amount due to the tenant on the security deposit
and interest, after deduction of the charges due to the landlord").
When there is a dispute over whether the tenant violated her
obligations under the lease by either vacating before the
expiration of the lease or causing damages to the unit beyond
normal wear and tear, "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."
Penbara,
347 N.J. Super. at 160-61(citing Jaremback,
166 N.J.
Super. at 87-88).
The burden of proof is not on the tenant to prove the landlord
had no reason to retain the security deposit or some portion
thereof. Veliz,
258 N.J. Super. at 5. Rather, it is the landlord
who must prove it suffered damages and attempted to mitigate those
damages, or prove the tenant owed contractual amounts, warranting
retention of the security deposit. Ibid. Any retention by the
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landlord is limited to such actual damages or charges. Watson v.
United Real Estate, Inc.,
131 N.J. Super. 579, 582 (App. Div.
1974). Any additional amount retained by the landlord is wrongful,
entitling the tenant to double recovery under the SDA. Id. at
582-83; MD Assocs.,
302 N.J. Super. at 586 (citing London v.
Rothman Realty Corp.,
176 N.J. Super. 288, 291 (Cty. Ct. 1980)).
The award of a doubled recovery to the prevailing tenant is
mandatory.
N.J.S.A. 46:8-21.1.
Here, plaintiff gave defendant two and one-half months notice
that she was vacating the apartment on June 30, 2016. The record
establishes that plaintiff wanted to move out and defendant wanted
her to vacate the apartment, and that the proposed move-out date
was acceptable to both parties. Moreover, defendant provided no
evidence that it attempted to mitigate its damages by attempting
to procure a new tenant to replace defendant. Absent such
evidence, defendant cannot recover for lost rent. See Sommer v.
Kridel,
74 N.J. 446, 457 (1977) (holding a landlord has the burden
of proving he met his duty to mitigate damages by using "reasonable
diligence in attempting to re-let the premises" where he seeks to
recover rents from a defaulting tenant). Therefore, defendant's
claim that plaintiff is liable for rent for the months of July and
August 2016 is without merit.
12 A-1362-16T1
The trial judge's credibility determinations and factual
findings with regard to the deductions applied by defendant for
repair costs, rent still owed, lost rent, and legal costs are
supported by substantial credible evidence in the record. We find
no basis to disturb them.
The judge awarded plaintiff damages totaling $2827.48,
comprised of $2600 for the doubled security deposit and $227.48
in prejudgment interest calculated at the rate of seven percent
per annum. Plaintiff sought damages totaling $1222, conceding
that she owed defendant rent of $28 and a late fee of $50, which
she deducted from the $1300 security deposit. Thus, plaintiff's
damages were $1222 before doubling, not $1300. Only the net
security deposit, after deducting unpaid rent and late charges,
is doubled. Lorril Co. v. La Corte,
352 N.J. Super. 433, 441-42
(App. Div. 2002); Kang in Yi,
338 N.J. Super. 538-39. Accordingly,
the judgment should have been in the amount of $2444 plus pre-
judgment statutory interest. We modify the judgment to that extent
and remand to the Special Civil Part to enter an amended judgment
in accordance with this opinion after recalculating the amount of
prejudgment statutory interest.
IV.
We next address defendant's motion for a new trial or
reconsideration. Motions for a new trial "are addressed to the
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sound discretion of the trial court and will not be disturbed
unless that discretion has been clearly abused." Quick Chek Food
Stores v. Springfield Twp.,
83 N.J. 438, 446 (1980)); see also
Baumann v. Marinaro,
95 N.J. 380, 389 (1984). If a motion for a
new trial is granted following a bench trial, "the trial judge may
open the judgment if one has been entered, take additional
testimony, amend findings of fact and conclusions of law or make
new findings and conclusions, and direct the entry of a new
judgment." Ibid.
Defendant has not demonstrated a factual or legal basis for
granting a new trial. Defendant offers no explanation why it was
unable to obtain additional witnesses or documentary evidence for
the scheduled trial date. Nor has defendant identified any
proposed additional witnesses or made a proffer as to their
expected testimony. Similarly, defendant has not identified or
described the contents or import of any additional documents it
would introduce at a new trial. On this record, the denial of a
new trial was not an abuse of discretion.
A motion for reconsideration "shall state with specificity
the basis on which it is made, including a statement of the matters
or controlling decisions which counsel believes the court has
overlooked or as to which it has erred." R. 4:49-2. "Motions for
reconsideration are granted only under very narrow
14 A-1362-16T1
circumstances[.]" Fusco v. Bd. of Educ. of Newark,
349 N.J. Super.
455, 462 (App. Div. 2002).
Reconsideration should be utilized only for
those cases which fall into that narrow
corridor in which either 1) the [c]ourt has
expressed its decision based upon a palpably
incorrect or irrational basis, or 2) it is
obvious that the [c]ourt either did not
consider, or failed to appreciate the
significance of probative, competent
evidence.
[D'Atria v. D'Atria,
242 N.J. Super. 392, 401
(Ch. Div. 1990).]
The basis for the motion for reconsideration "focuses upon
what was before the court in the first instance." Lahue v. Pio
Costa,
263 N.J. Super. 575, 598 (App. Div. 1993). The motion "is
properly denied if based on unraised facts known to the movant
prior to entry of judgment." Pressler & Verniero, Current N.J.
Court Rules, cmt. 2 on R. 4:49-2 (2018) (citing Palombi v. Palombi,
414 N.J. Super. 274, 289 (App. Div. 2010); Del Vecchio v.
Hemberger,
388 N.J. Super. 179, 188-89 (App. Div. 2006)). "A
motion based on new legal arguments that were not presented to the
court in the underlying motion is also properly denied." Ibid.
(citing Medina v. Pitta,
442 N.J. Super. 1, 18 (App. Div. 2015)).
The trial judge held that defendant failed to meet those
standards. By any measure, defendant's scant moving papers fell
far short of satisfying the rule. In particular, defendant has
15 A-1362-16T1
not shown that the additional witnesses and documents were not
known or available at the time of the trial. We discern no abuse
of discretion in denying the motion to the extent it sought
reconsideration.
V.
Defendant further contends the trial court engaged in
inappropriate questioning of plaintiff. A trial judge "may
interrogate any witness." N.J.R.E. 614. "Trial judges are vested
with the authority to propound questions to qualify a witness's
testimony and to elicit facts on their own initiative and within
their sound discretion." State v. Medina,
349 N.J. Super. 108,
131 (App. Div. 2002) (citing State v. Ross,
80 N.J. 239, 248-49
(1979)). "The intervention of a trial judge is a 'desirable
procedure,' but it must be exercised with restraint." Ibid.
(quoting Village of Ridgewood v. Sreel Inv. Corp.,
28 N.J. 121,
132 (1958)).
This was a non-jury small claims action in which plaintiff
was self-represented. Because this was a bench trial, there was
no danger that a jury would place undue emphasis on the questions
asked by the judge. See id. at 132. Defendant was not prejudiced
in any way by the judge's questioning. We find no error in the
manner in which the trial was conducted.
16 A-1362-16T1
Defendant's remaining arguments are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, modified in part, and remanded. We do not
retain jurisdiction.
17 A-1362-16T1
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