Opinion
DOCKET NO. A-3317-13T1
08-27-2015
GEORGE B. SHRIER, Plaintiff-Appellant, v. LISABETH KLEIN, Defendant-Respondent, v. ESTATE OF RUNA SHRIER, Third-Party Defendant.
George B. Shrier, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. DC-14500-12. George B. Shrier, appellant pro se. Respondent has not filed a brief. PER CURIAM
Plaintiff George B. Shrier appeals from the entry of a judgment in his favor against defendant Lisabeth Klein. Plaintiff asserts that the trial judge erred in awarding the quantum of damages. He asserts the court erred in finding he did not mitigate his damages and he was not entitled to late fees. He also argues the judge erred in not awarding compensation for damage to the apartment.
I.
The record discloses the following facts and procedural history. On May 25, 2011, plaintiff and defendant executed a written lease for a fourteen-month term from June 1, 2011 through July 31, 2012. On September 2, 2011, defendant emailed plaintiff stating she would be vacating the apartment the following month, alleging various habitability issues, chiefly mold. Plaintiff attempted to dissuade defendant from leaving, but began advertising the apartment on a website for students seeking rental properties.
Defendant vacated the premises by the end of the month after filing a complaint with the local Public Health Department (Health Department) regarding the mold and plaintiff's re-rental efforts. She expected her security deposit would be returned and, upon not receiving it, gave plaintiff a two-day ultimatum to deposit a check for double-security in her mailbox.
On October 28, 2011, plaintiff sent an interim accounting of expenses to defendant by certified mail that included an enumeration of physical damages to the apartment and an explanation of deductions from the deposit related to her breach of the lease. On July 2, 2012, plaintiff sent a demand letter by certified mail providing a final accounting, updating the October 2011 letter and providing a July 31 deadline for a response. Having received no response, plaintiff filed a complaint in court on August 1, 2012. On August 6, defendant filed a second mold complaint with the Health Department. Defendant filed an answer and counterclaim for her security deposit on September 13, 2012. The answer and counterclaim also named the Estate of Runa Shrier (the Estate) as a third-party defendant.
Trial commenced on January 28, 2013, but did not conclude. Trial was scheduled to resume on April 10, 2013. On April 4, 2013, defendant and her attorney executed a substitution of attorney form providing that defendant would proceed pro se. However, defendant did not appear at trial, and a default judgment was entered against her.
After plaintiff proceeded to enforce the default judgment, defendant moved to vacate it. On November 21, 2013, the parties appeared for a hearing, and the court vacated the default judgment.
On January 2, 2014, a one-day bench trial was held in the Special Civil Part. The court determined defendant did not meet her burden of proof in asserting a habitability defense. It further held that plaintiff and the Estate prevailed on their breach of contract claim while defendant's counterclaims were dismissed. However, the court granted only a portion of the relief sought by plaintiff, and dismissed other counts.
As to the plaintiff's obligation to mitigate damages, the judge determined, "the landlord must take reasonable efforts to re-rent the property." The judge found plaintiff's efforts consisted of listing the apartment with a website "called placesforstudents.com," which was "ultimately based in Canada." Plaintiff testified that the apartment had three, very small bedrooms and that his primary market was faculty and graduate students, and if he was unable to rent the apartment by August or September prior to the beginning of the school year, finding a renter would be unlikely. The judge determined, "based on the circumstances, based on the description of the apartment by the plaintiff, and the market, [and] the limited market to which it could be rented . . . merely listing it on one website does not seem sufficient under the circumstances." The judge awarded plaintiff unpaid rent for the months of October, November and December. The court also awarded other costs to plaintiff.
However, the court denied plaintiff's request for compensation related to physical damage to the apartment, finding that the physical damages asserted were the result of "things just weren't clean, dirt is not damage."
Plaintiff filed a motion for reconsideration, contending he was entitled to late fees for unpaid rent after the defendant left the apartment, the award of three months' rent was in error, and the exclusion from evidence of a document submitted by defendant to the Health Department was in error. On February 28, the court rejected plaintiff's arguments and denied his motion for reconsideration. This appeal followed.
II.
In a pro se brief, plaintiff raises the following arguments on appeal:
SECTION ONE
THE COURT SHOULD HAVE GRANTED PLAINTIFF LATE FEES.
Point
THE LATE FEES ARE NOT UNREASONABLE AS LIQUIDATED DAMAGES.
SECTION TWO
THE COURT SHOULD HAVE GRANTED COMPENSATION FOR PHYSICAL DAMAGES.
PointSECTION THREE
THE COURT OVERLOOKED THE ABUNDANT EVIDENTIARY RECORD OF PHYSICAL DAMAGE WHEN DETERMINING COMPENSATION.
THE COURT SHOULD HAVE GRANTED PLAINTIFF ALL TEN MONTHS OF UNPAID RENT.
Point
THE COURT'S DENIAL OF ONLY SEVEN MONTHS' UNPAID RENT IS BASED ON SURMISE AND SPECULATION.
Point
THE COURT IMPROPERLY SECOND GUESSED PLAINTIFF'S BUSINESS JUDGMENT.
Point
THE COURT IMPROPERLY ADVOCATED FOR DEFENDANT.
Point
THE COURT IS MAKING NEW LAW.
SECTION FOUR
PLAINTIFF AND THE ESTATE ARE SEPARATE PARTIES.
SECTION FIVE
EXHIBIT P15 SHOULD HAVE BEEN FULLY ADMITTED INTO EVIDENCE.
Point
THE CONTENTS OF EXHIBIT P15 ARE NOT [HEARSAY].
Point
THE CONTENTS OF P15 ARE TRUSTWORTHY.
Point
THE CONTENTS OF P15 ARE RELEVANT.
SECTION SIX
THE COURT'S DISMISSAL OF PLAINTIFF'S THIRD COUNT FOR WILLFUL AND MALICIOUS INJURY SHOULD BE VACATED, AND EITHER REVERSED OR A FURTHER HEARING ON IT GRANTED.
Point
PLAINTIFF HAS A PRIMA FACIE CASE FOR WILLFUL AND MALICIOUS INJURY.
In this appeal from a non-jury trial, we give deference to the trial court that heard the witnesses, sifted the competing evidence, and made reasoned conclusions. See Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Reviewing appellate courts should "not disturb the factual findings and legal conclusions of the trial judge" unless convinced that those findings and conclusions were "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 484 (citation and internal quotation marks omitted); see, e.g., Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). Conclusions of law are subject to de novo review on appeal. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Reversal is reserved only for those circumstances when we determine the factual findings and legal conclusions of the trial judge went "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation and internal quotation marks omitted). It is when we are convinced the trial court's determinations "are so manifestly unsupported . . . as to offend the interests of justice," that we intervene. Rova Farms, supra, 65 N.J. at 484 (citation and internal quotation marks omitted).
Plaintiff argues the court erred by not awarding him late fees. In doing so, he relies on Mitchell v. First Real Estate Equities, 287 N.J. Super. 546 (App. Div. 1996), to stand for the premise that his fifty dollar late fee was not "unreasonable." We disagree that Mitchell has application to his right to late fees in this matter. As we have held in affirming the denial of late fees, "the trial judge was not presented with a situation concerning lack of timeliness in those payments, but an outright failure to pay rent. We agree with his decision. In our view timeliness of payment was not the issue here." Fanarjian v. Moskowitz, 237 N.J. Super. 395, 401 (1989). We therefore conclude that the trial judge did not err in declining to award late fees.
Additionally, we agree as a matter of law with the judge's determination that plaintiff's minimal efforts to re-let the property did not suffice to meet his burden to mitigate damages. Landlords have a duty to mitigate damages caused by tenants that breach residential and commercial leases. See McGuire v. City of Jersey City, 125 N.J. 310, 320 (1991); Sommer v. Kridel, 74 N.J. 446, 458-59 (1977); Fanarjian, supra, 237 N.J. Super. at 406. The landlord has the burden of proving the reasonableness of his or her mitigation efforts. Sommer, supra, 74 N.J. at 458-59.
In assessing whether the landlord has satisfactorily carried this burden, the factfinder should weigh "whether the landlord, either personally or through an agency, offered or showed the [premises] to any prospective tenants, or advertised it in local newspapers." Ibid. The issue is fact-sensitive and "there is no standard formula for measuring whether the landlord has utilized satisfactory efforts in attempting to mitigate damages, and each case must be judged upon its own facts." Id. at 459.
A landlord's duty of mitigation is supported by public policy considerations including "denying the injured party the opportunity to sit idly by and exacerbate damages; discouraging economic and physical waste; and society's interest in encouraging that vacant property be put to a practical use as soon as possible." Fanarjian, supra, 237 N.J. Super. at 404.
We agree with the trial judge that plaintiff did not meet his burden of demonstrating satisfactory efforts in attempting to mitigate damages.
Plaintiff challenges the trial judge's findings of fact. Specifically, he argues the court's finding that the damage to the apartment constituted reasonable dirtiness was erroneous. Plaintiff presented photographic evidence that there was damage to the walls where nail holes had been spackled over and, allegedly, sliding closet doors were not fully functioning. However, the judge's decision was based on observations of various photographs, testimony and documentary evidence, and from this evidence, he made factual findings. We note a landlord cannot expect the property to be returned in mint condition, and a tenant may only be responsible for damages beyond normal wear and tear. See Liqui-Box Corp. v. Estate of Elkman, 238 N.J. Super. 588, 602 (App. Div.), certif. denied, 122 N.J. 142 (1990). We determine the judge's factual findings and legal conclusions, in not awarding the damages sought by the plaintiff, are supported by competent, relevant and reasonably credible evidence. See Seidman, supra, 205 N.J. at 169.
We find plaintiff's remaining contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION