HILTON APARTMENTS, LLC v. KATIE L. GOITEIN
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0796-18T2
HILTON APARTMENTS, LLC,
Plaintiff-Respondent
v.
KATIE L. GOITEIN,
Defendant-Appellant
and
KATIE L. GOITEIN, on behalf of
herself and all similarly situated
past and present tenants of
HILTON APARTMENTS, LLC,
Third-Party Plaintiff/
Cross-Respondent
v.
HILTON APARTMENTS, LLC,
Third-Party Defendant/
Cross-Appellant.
_____________________________
Argued October 13, 2020 – Decided November 10, 2020
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-1193-17.
Roger C. Martindell argued the cause for appellant/
cross-respondent (Roger C. Martindell, and Quainton
Law, PLLC, attorneys; Roger C. Martindell and Eden
P. Quainton, on the briefs).
Andrew J. Schragger argued the cause for
respondent/cross-appellant.
PER CURIAM
Defendant/third-party plaintiff Katie L. Goitein, on behalf of herself and
all similarly situated tenants of plaintiff/third-party defendant Hilton
Apartments, LLC, appeals from a September 26, 2018 order denying her motion
for reconsideration of a July 24, 2018 order and her cross-motion for attorney's
fees and costs. The July 24, 2018 order granted summary judgment to plaintiff
in the amount of $894.69, dismissed defendant's counterclaim and third-party
complaint, and denied defendant's request to compel and extend discovery.
Plaintiff cross-appeals from the same September 26, 2018 order denying its
motion for attorney's fees and costs. We affirm the entry of summary judgment
in favor of plaintiff on the issue of liability and dismissing defendant's
counterclaim and third-party complaint. However, we remand for the judge to
A-0796-18T2
2
enter an amended judgment as to the amount owed by defendant in accordance
with this opinion.1 We reverse and remand the order denying the parties'
requests for attorneys' fees and costs.
This matter arises from defendant's automatic renewal of a written lease
agreement (lease) on May 1, 2016 for rental of an apartment in a complex owned
by plaintiff. In accordance with the renewal, the lease term ran until April 30,
2017. However, on August 25, 2016, defendant gave written notice to plaintiff
that she was terminating the lease and vacating the apartment the next day.2
Pursuant to the lease, defendant was required to provide two months' written
notice to plaintiff of an intent to terminate the lease and vacate the apartment.
On August 25, 2016, plaintiff sent a letter to defendant describing two options
to resolve her early termination and breach of the lease. Defendant did not
respond to plaintiff's letter.
In August 2016, plaintiff sought a new tenant to rent defendant's
apartment. Plaintiff secured a new tenant, who entered into a written lease on
1
Defendant paid the judgment amount in full. However, her payment was
"subject to and conditioned upon the outcome of the pending appeal and/or any
proceeding that may take place on remand from [her] appeal."
2
According to plaintiff, defendant physically vacated the apartment on August
31, 2016.
A-0796-18T2
3 October 12, 2016, and took possession of defendant's former apartment on
October 26, 2016.
Plaintiff then pursued damages from defendant for breach of the lease,
including lost rent, 3 costs associated with re-renting the apartment, and
attorney's fees and costs. Plaintiff applied defendant's security deposit ,
$1,605.80, to the amount it claimed due and owing as a result of defendant's
early termination and breach of the lease.
In addition to lost rent, plaintiff demanded defendant pay damages
associated with her breach of the lease. Plaintiff's damages included the
following expenses: painting, cleaning, installing a new lockset and toilet seat;
labor costs associated with the work done to the apartment after defendant
vacated; and an administrative fee. Plaintiff stated these additional damages ,
when coupled with the lost rent, totaled $3,629.54.
When defendant failed to pay the amount demanded, plaintiff filed a
lawsuit in the Special Civil Part. 4 In response, defendant filed an answer,
3
Plaintiff calculated lost rent in the amount of $2,256 ($1,128 for the months
of September and October).
4
In the Special Civil Part complaint, plaintiff demanded the sum of $3,945.25,
excluding attorney's fees, filing fee, and service fee.
A-0796-18T2
4
counterclaim, and third-party complaint. In her pleadings, defendant focused
on plaintiff's enforcement of Paragraph 13 of the lease, which she claimed was
an illegal liquidated damages clause. Defendant requested the matter be
transferred to the Law Division because her pleadings included claims for
violations of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to
-224, the New Jersey Truth-in-Renting Act, N.J.S.A. 46:8-43 to -50, and the
New Jersey Security Deposit Law, N.J.S.A. 46:8-19 to -26, and other relief. In
her third-party complaint, defendant sought class certification on behalf of
current and former tenants of plaintiff's apartment complex, asserting the same
causes of action set forth in her counterclaim. By way of the third-party
pleading, defendant sought to enjoin plaintiff and affiliated apartment
complexes5 from enforcing Paragraph 13 of the lease as an improper penalty
clause.
The matter was transfer to the Law Division and defendant was allowed
to conduct discovery in support of class certification. After the close of
discovery, plaintiff moved for summary judgment. In opposing summary
5
The affiliated apartment complexes operated under different corporate
designations and were located in other municipalities.
A-0796-18T2
5
judgment, defendant argued Paragraph 13 was illegal and plaintiff improperly
sought liquidated damages as a penalty for her early termination of the lease.
In a July 24, 2018 order, incorporating reasons placed on the record on
June 22, 2018, the motion judge granted summary judgment to plaintiff and
dismissed defendant's counterclaim and third-party class action complaint. The
judge found plaintiff sought to recover actual damages rather than damages
pursuant to Paragraph 13 of the lease.6
Regarding the third-party class action complaint, the judge held there was
"no class, discovery [was] over, and bare conclusions without factual support
[could not] defeat a motion for summary judgment." The judge deemed
defendant's class action suit moot because in "the interest of justice and in
preserving judicial resources, courts such as this one do not attempt to resolve
legal issues in the abstract." Because Paragraph 13 was modified before
6 While Paragraph 13 was included in defendant's May 2016 lease renewal,
plaintiff's counsel notified defense counsel that plaintiff stopped enforcing
Paragraph 13 in November 2015. As of 2015, plaintiff used a new lease form
that modified Paragraph 13, clarifying the rights of the tenant and the landlord
in accordance with statutory law and allowing the tenant to select one of two
payment options in the event of the tenant's breach of the lease agreement.
Plaintiff informed the motion judge that Paragraph 13 in defendant's original
lease was not the basis for its calculation of damages. Rather, plaintiff
confirmed it was seeking actual damages attributable to defendant's breach of
the lease.
A-0796-18T2
6
defendant's lease renewal, the judge held the original provision was no longer
effective. Therefore, the judge concluded Paragraph 13 could not support the
allegations in defendant's counterclaim and third-party class action complaint.
She also stated Paragraph 13 had no bearing on her decision to grant summary
judgment and, therefore, held defendant liable for actual damages resulting from
defendant's breach of the lease. As to defendant's CFA claim, the judge found
"no legal support to suggest that the CFA permits recovery of costs of the
defendant, the party who, in effect, is alleged to have breached a contract." In
addition, the judge rejected extending discovery to identify additional tenants
for the putative class because such action was "not sufficient to defeat [plaintiff's]
motion for summary judgment."
After determining defendant was liable for damages as a result of her
breach of the lease, the judge postponed deciding the amount of damages to be
awarded. She allowed both parties to file supplemental papers and present
additional argument on the issue of actual damages. In a written supplement
attached to the July 24, 2018 order, the judge set forth her calculation of the
damages awarded to plaintiff. She explained only damages "which actually
flowed from the breach of the lease" were recoverable. The judge precluded
plaintiff's recovery of the following damages: unit prep; painting and supplies;
A-0796-18T2
7
carpet cleaning; unit cleaning; materials; installation of a new lock and new
toilet seat; obtaining a certificate of occupancy; labor costs associated with the
services of an accountant, leasing agent, and property manager; and
administrative fees. The judge concluded these costs were general overhead
associated with the re-renting of an apartment regardless of any lease breach by
a tenant. She also found plaintiff mitigated its damages by placing a new tenant
in defendant's former apartment effective October 26, 2016 "well in advance of
the end of [d]efendant's lease term."
Therefore, in calculating actual damages, the judge allowed recovery of
two months lost rent for September and October 2016, in addition to "the
associated costs of re-renting, including advertising, marketing, and maintaining
the utilities." The judge determined plaintiff incurred the following costs
associated with re-renting defendant's apartment: $68.09 for advertising, $16.75
for marketing, and $159.65 for utilities. In arriving at the judgment amount of
$894.69, the judge multiplied defendant's monthly rent of $1,128 per month
times two months for a lost rent total of $2,256. She added the allowed costs
associated with re-renting defendant's apartment in the amount of $244.49,
bringing the total owed to $2,500.49. The judge then deducted the amount of
defendant's security deposit, $1,605.80, and determined defendant "must pay
A-0796-18T2
8
[p]laintiff . . . $894.69." However, the judge forgot to accord defendant credit
for the six days in October when plaintiff received rent from the new tenant. On
the issue of plaintiff's request for attorney's fees and costs as part of actual
damages, the judge allowed counsel to re-submit a supporting certification
complying with the requirements of Rule 4:49-8(b), and allowed defendant an
opportunity to object to plaintiff's requested fees and costs.
Defendant filed a motion for reconsideration and a cross-motion for
attorney's fees and costs. In an oral opinion on September 26, 2018, the judge
denied the reconsideration motion, denied defendant's request for attorney's fees
and costs as untimely and procedurally defective, and denied plaintiff's request
for attorney's fees.
In denying reconsideration, the judge found no genuine issues of material
fact concerning defendant's claims related to former Paragraph 13 because that
provision was no longer enforced or included in plaintiff's leases as of November
2015. The judge further explained defendant failed to produce any evidence
raising a genuine issue of material fact as to the amount of damages awarded.
In reviewing dismissal of defendant's CFA claim, the judge held defendant
could not demonstrate an ascertainable loss. She also distinguished the cases
relied upon by defendant in support of her CFA claim, noting "[i]llegal charges
A-0796-18T2
9
that are or were never paid are not ascertainable losses because there was no
actual loss."
The judge rejected defendant's argument that plaintiff failed to mitigate
damages. She held plaintiff found a new tenant for defendant's former apartment
within two months, well before the expiration of defendant's lease term.
Regarding defendant's other claims, the judge held defendant was not
"denied the benefit of the bargain," to sustain a claim for breach of the covenant
of good faith because defendant breached the lease by vacating the apartment
prior to the end of the lease term. She also concluded defendant's legal and
equitable fraud claims were meritless. In denying defendant's request for
declaratory judgment relief, the judge held plaintiff was not seeking damages
pursuant to Paragraph 13 of the lease, and therefore, the Declaratory Judgment
Act was inapplicable. Further, the judge found no basis for the unjust
enrichment claim as defendant was responsible for paying actual damages to
plaintiff resulting from defendant's breach of the lease.
Regarding dismissal of the third-party class action complaint, the judge
concluded sustainability of a class action depended upon the sustainability of
defendant's counterclaim. Because defendant was unable to prevail on her
A-0796-18T2
10
individual claims, the class action claims, which were premised on the same
theories as defendant's counterclaim, failed as well.
Defendant's request for attorney's fees was denied by the judge as
untimely and improper. She also denied plaintiff's request for attorney's fees.
In denying plaintiff's fee request, the judge "considered . . . defendant's inability
to pay as referenced by the defense . . . . The defendant [was] a student . . . and
ha[d] limited ability to pay such an award." She concluded it would have been
"prejudicial to [] defendant to make her pay a [counsel fee] judgment that was
many times the amount of the [c]ourt's July 24th order" and "considered and
placed great significance on the American rule that the prevailing litigant is not
ordinarily entitled to collect a reasonable attorney's fee from the non-prevailing
party."
On appeal, defendant argues the judge improperly resolved disputed
issues of material fact. She also claims the judge erred in deeming the claims in
the third-party class action complaint moot based on the dismissal of her
individual claims for the same relief. Further, defendant contends she was
entitled to additional discovery to support her class action claims. She also
asserts the judge erred in dismissing her CFA claim and common law claims.
Finally, defendant argues the judge erred in denying her cross-motion for
A-0796-18T2
11
attorney's fees and costs. We disagree with defendant's arguments except for
one. The judge should have decided defendant's request for attorney's fees and
costs on the merits rather than denying the motion as procedurally defective .
We set forth the standard of review governing the issues on the appeal and
cross-appeal. We review de novo orders granting summary judgment and apply
the same standard that governed the trial court's ruling. Lee v. Brown, 232 N.J.
114, 126 (2018). "[A] trial court's reconsideration decision will be left
undisturbed unless it represents a clear abuse of discretion." Pitney Bowes Bank
v. ABC Caging, 440 N.J. Super. 378, 382 (App. Div. 2015). The award of
attorney's fees is also reviewed under this standard. Litton Indus. v. IMO Indus.,
Inc., 200 N.J. 372, 386 (2009) (quoting Packard-Bamberger & Co. v. Collier,
167 N.J. 427, 444 (2001)) ("[A] reviewing court will disturb a trial court's award
of counsel fees 'only on the rarest of occasions, and then only because of a clear
abuse of discretion.'"). Similarly, we review a determination regarding a request
for class certification for abuse of discretion. Dugan v. TGI Fridays, Inc., 231 N.J. 24, 50 (2017).
We first consider defendant's argument that summary judgment was
prematurely granted because there were genuine issues of material facts.
Summary judgment will be granted if, viewing the evidence in the light most
A-0796-18T2
12
favorable to the non-moving party, "there is no genuine issue of material fact
and 'the moving party is entitled to a judgment or order as a matter of law.'"
Conley v. Guerrero, 228 N.J. 339, 346 (2017) (quoting Templo Fuente De Vida
Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)); R.
4:46-2(c). An opposing party who offers no substantial or material facts in
opposition to the motion cannot complain if the court takes as true the
uncontradicted facts in the movant's papers. Judson v. Peoples Bank & Tr. Co.
of Westfield, 17 N.J. 67, 75 (1954).
Defendant submits there were three issues of material fact that the judge
improperly decided in granting summary judgment to plaintiff: (1) whether
plaintiff was enforcing Paragraph 13 in the original lease to recover damages
from defendant; (2) whether plaintiff acted reasonably in mitigating its damages ;
and (3) whether plaintiff's claimed damages were substantiated.
Here, defendant produced no countervailing evidence creating a genuinely
disputed issue of material fact. Defendant proffered nothing to contradict
plaintiff's assertion that, as of November 2015, it no longer enforced Paragraph
13 as written in defendant's original lease. Defendant's contentions regarding
plaintiff's enforcement of Paragraph 13 as part of the May 2016 lease renewal
A-0796-18T2
13
are without evidentiary support and thus insufficient to defeat a motion for
summary judgment.
Defendant's argument related to the mitigation of damages is more aptly
framed as a challenge to the judge's calculation of the amount of actual
damages.7 Defendant argues the awarded amount failed to account for rent
plaintiff received from the replacement tenant during defendant's lease term.
While a certification from plaintiff's Director of Residential Properties indicated
"lost rent" in the amount of $2,038.00, the judge calculated lost rent in the
amount of $2,256. The judge's calculation of lost rent was greater than the
amount of lost rent claimed in plaintiff's certification quantifying its damages
and there was nothing in the record reconciling the difference between the dollar
amounts.
Regarding defendant's argument that plaintiff's "actual damages" were
disputed, defendant submits the judge ignored her counterstatement of facts.
However, the judge thoroughly reviewed the costs plaintiff attributed to
defendant's early breach of the lease and specifically limited plaintiff's recovery
to costs she deemed attributable to defendant's breach of the lease. In reviewing
7
To the extent defendant was challenging plaintiff's failure to re-rent the
apartment sooner than October 26, 2016, defendant again proffered no evidence
the apartment could have been re-rented earlier.
A-0796-18T2
14
plaintiff's requested damages, the judge rejected over $3,600 in "actual
damages" sought by plaintiff, deeming those costs represented routine expenses
whenever a new tenant took occupancy of an apartment. The judge awarded
only $244.49, representing the costs for advertising, marketing, and maintaining
the utilities in defendant's apartment while it was vacant for a total sum of
$244.49. Having reviewed the record, the judge did not abuse her discretion in
calculating actual damages based on the evidence presented by plaintiff given
the absence of any contrary evidence from defendant.
We next consider defendant's arguments related to the judge's dismissal
of the third-party class action complaint. Class actions are governed by Rule
4:32:
One or more members of a class may sue or be sued as
representative parties on behalf of all only if (1) the
class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact
common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or
defenses of the class, and (4) the representative parties
will fairly and adequately protect the interests of the
class.
[R. 4:32-1(a).]
"When an order granting or denying class certification is reviewed on appeal,
the 'appellate court must ascertain whether the trial court has followed' the class
A-0796-18T2
15
action standard set forth in Rule 4:32-1." Dugan, 231 N.J. at 50 (quoting Lee v.
Carter-Reed Co., 203 N.J. 496, 506 (2010)).
We have held that the grant of summary judgment on an individual's claim
for failure to establish an ascertainable loss under the CFA will render a request
for class certification moot. See Dabush v. Mercedes-Benz USA, LLC, 378 N.J.
Super. 105 (App. Div. 2005). "Mootness is a threshold justiciability
determination rooted in the notion that judicial power is to be exercised only
when a party is immediately threatened with harm." Betancourt v. Trinitas
Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010) (citing Jackson v. Dep't of
Corr., 335 N.J. Super. 227, 231 (App. Div. 2000)). "An issue is 'moot when our
decision sought in a matter, when rendered, can have no practical effect on the
existing controversy.'" Redd v. Bowman, 223 N.J. 87, 104 (2015) (quoting
Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J Super. 214, 221-22 (App. Div.
2011)).
We are satisfied dismissal of the third-party class action complaint was
proper because defendant did not satisfy the requirements of Rule 4:32-1.
Defendant's counterclaim was dismissed on summary judgment, and therefore,
she no longer had a question of law or fact common to the class, nor did she
A-0796-18T2
16
have valid claims or defenses typical of the claims or defenses of the putative
class. R. 4:32-1(a).
The exceptions cited by defendant in support of pursuing the claims in
third-party class action complaint, despite dismissal of her individual claims,
are inapplicable. The "picking off" exception, recognized in Richardson v.
Bledsoe, permits a party to continue representing the class even if his or her
individual claims have been rendered moot by actions of the opposing party if
the individual's claim for relief is "acutely susceptible to mootness." 829 F.3d 273, 279 (3d Cir. 2016) (first citing Wilson v. Gordon, 822 F.3d 934, 946-47
(6th Cir. 2016); and then quoting Weiss v. Regal Collections, 385 F.3d 337, 347-
48 (3d Cir. 2004)). This exception permits courts to "relate a claim for relief
back to the date the would-be class representative filed his class action
complaint . . . ." Id. at 281 (citing Weiss, 385 F.3d at 348). The exception
"should apply when defendants are able 'effectively to prevent any plaintiff in
the class from procuring a decision on class certification.'" Id. at 285 (quoting
Stein v. Buccaneers Ltd. P'ship, 772 F.3d 698, 706 (11th Cir. 2014)).
Here, defendant filed a third-party class action complaint in April 2017.
However, Paragraph 13 had not been enforced as written in defendant's lease
since November 2015. Relating defendant's claimed invalidity and
A-0796-18T2
17
unenforceability of Paragraph 13 to the filing date of the third-party class action
complaint, the claims were moot because Paragraph 13 was amended in
November 2015, more than a year and a half prior to plaintiff's lawsuit alleging
defendant's breach of the lease. There is no evidence on this record that plaintiff
moved for summary judgment or revised Paragraph 13 of its lease document for
the purpose of preventing a class action lawsuit. Therefore, the "picking off"
exception does not support continuation of the third-party class action
complaint.
Similarly, the "capable of recurrence but evading review" exception does
not save defendant's third-party class action complaint. A court may resolve an
issue, notwithstanding mootness, "where the underlying issue is one of
substantial importance, likely to reoccur but capable of evading review." Zirger
v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996) (citing N.J. Div. of Youth
& Family Servs. v. J.B., 120 N.J. 112, 118-19 (1990)).
Based on our review of the record, this is not a matter of "substantial
importance," warranting continuation of a class action lawsuit. This matter
involves a single landlord and a single tenant, where the landlord sought to
recover actual damages based on the tenant's breach of a written lease
agreement. According to plaintiff's counsel, Paragraph 13 was revised in
A-0796-18T2
18 November 2015. Therefore, enforcement of former Paragraph 13 is unlikely to
recur. Further, although this is a matter of importance to defendant, it is not a
matter of substantial importance to the public.
Nor does the "voluntary cessation" exception prevent dismissal of
defendant's third-party class action complaint. This exception provides:
"Voluntary cessation of allegedly illegal conduct does not deprive the tribunal
of power to hear and determine the case, i.e., does not make the case moot."
Galloway Twp. Bd. of Educ. v. Galloway Twp. Educ. Ass'n, 78 N.J. 25, 42
(1978) (quoting U.S. v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953)).
Here, defendant claims plaintiff "withdrew the demand for [Paragraph] 13
penalties . . . in an effort to avoid judicial review of its illegal practice[s] . . . ."
However, in November 2015, plaintiff ceased enforcing former Paragraph 13
and began using revised Paragraph 13 to recover damages for a tenant's breach
of the lease. When defendant breached the lease in August 2016, revised
Paragraph 13 was in effect. Consequently, in its February 2017 complaint,
plaintiff sought to recover actual damages as a result of defendant's breach of
the lease. Defendant proffered no evidence that plaintiff sought liquidated
damages pursuant to the original language in Paragraph 13. We are satisfied on
A-0796-18T2
19
this record that the voluntary cessation of any illegal conduct exception is
inapplicable to preserve the third-party class action complaint.
We also reject defendant's argument that plaintiff prevented her from
obtaining discovery necessary to certify the class. Defendant never filed a
motion for class certification despite being afforded an opportunity pursue
discovery in support of such an application.
We are satisfied the judge did not abuse her discretion in dismissing the
third-party class action complaint. Defendant cannot act as a class
representative because her claims were dismissed on summary judgment and
none of the claims in the third-party class action complaint met the exceptions
to allow a class to proceed absent viable claims on behalf of the class
representative.
We next review the judge's dismissal of defendant's CFA claims. "To
state a claim under the CFA, a private 'plaintiff must allege each of three
elements: (1) unlawful conduct by the defendants; (2) an ascertainable loss on
the part of the plaintiff; and (3) a causal relationship between the defendant's
unlawful conduct and the plaintiff's ascertainable loss.'" Dabush, 378 N.J.
Super. at 114 (quoting New Jersey Citizen Action v. Schering-Plough Corp.,
367 N.J. Super. 8, 12-13 (App. Div. 2003)). A party must satisfy all three
A-0796-18T2
20
elements to prevail on a CFA claim, including establishing a quantifiable
ascertainable loss. Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234,
248 (2005).
To demonstrate an ascertainable loss, a party must provide specific proofs,
subjective assertions are insufficient to sustain a CFA claim. Id. 183 N.J. at 252.
"Even though a plaintiff need not actually expend a sum of money as a result of
defendant's unlawful consumer practice in order to demonstrate a loss, the
amount of the loss must be ascertainable and must be established with
reasonable certainty." Dabush, 378 N.J. Super. at 116 (citing Cox v. Sears
Roebuck & Co., 138 N.J. 2, 22 (1994)). In addition, the plaintiff "bear[s] the
ultimate burden of showing a causal link between the offending practice and the
claimed loss . . . ." Ibid. (alteration in original) (quoting Cannon v. Cherry Hill
Toyota, Inc., 161 F. Supp. 2d 362, 374 (D.N.J. 2001)).
Here, defendant alleges the judge erroneously concluded she suffered no
ascertainable loss. According to defendant, the ascertainable loss was the
miscalculation of plaintiff's damages. However, any loss suffered by defendant
was the direct result of her breach of the lease. The judge's mathematical
miscalculation of the rent owed is not an ascertainable loss as a result of any
conduct by plaintiff to support a CFA claim.
A-0796-18T2
21
We next address defendant's claim that the judge erroneously dismissed
her common law claims without setting forth facts and conclusions of law.
Defendant's contention is belied by the record. The judge addressed each of
defendant's common law claims in her oral opinion regarding defendant’s
motion for reconsideration and therefore complied with the requirements of Rule
1:7-4(a). Having reviewed the reasons placed on the record by the judge in
denying reconsideration, we are satisfied the judge's dismissal of defendant 's
counterclaims of her common law claims was appropriate based on the evidence
presented.
Although we affirm the judge's summary judgment determination on
liability, we are satisfied there was a mathematical miscalculation as to the
judgment amount. While the judge recognized defendant was entitled to credit
for the rent plaintiff received from the new tenant for October 26 through
October 31, 2016, she did not include that credit amount in her calculation. It
is undisputed that the new tenant paid monthly rent greater than the monthly rent
paid by defendant. Defendant was entitled to credit for the six days in October
2016 when plaintiff received rent from the new tenant. Prorating the monthly
rent charged to the new tenant on a per diem basis, defendant was entitled to
A-0796-18T2
22
credit in the amount of $232. Therefore, we remand to the trial court to enter an
amended judgment in favor of plaintiff in the corrected amount of $662.69.
We next address the parties' argument that the judge erred in denying their
motions for attorney's fees and costs in accordance with Paragraph 11 of the
lease. According to Paragraph 11, the landlord or the tenant may recover
attorney's fees and costs. Paragraph 11 provides:
If [l]andlord institutes legal proceedings to . . . collect
[r]ent, . . . or any other charges due and owing under
the lease, . . . [t]enant shall pay to [l]andlord as
[a]dditional [r]ent all court costs and attorney fees.
....
IF THE TENANT IS SUCCESSFUL IN ANY ACTION
OF SUMMARY PROCEEDING ARISING OUT OF
THIS LEASE, THE TENANT SHALL RECOVER
ATTORNEY'S FEES OR EXPENSES, OR BOTH
FROM THE LANDLORD TO THE SAME EXTENT
THAT [THE] LANDLORD IS ENTITLED TO
RECOVER ATTORNEY'S FEES OR EXPENSES, OR
BOTH AS PROVIDED IN THIS LEASE.
Pursuant to Paragraph 11 of the lease, the judge should have considered
both motions for attorney's fees and costs and reviewed the certifications
submitted in support of the requested amounts. On remand, we take no position
whether either or both parties should be awarded costs and fees, or the amount
of any sums that might be awarded.
A-0796-18T2
23
Affirmed in part and reversed and remanded in part. We do not retain
jurisdiction.
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24
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