Opinion
DOCKET NO. A-6252-12T4
09-29-2014
GEORGE WUBSHET, Plaintiff-Respondent, v. CALIFORNIA APARTMENTS, Defendant-Appellant.
Miller, Gallagher & Grimley, attorneys for appellant (James P. Grimley, on the brief). George Wubshet, respondent, pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, Docket No. SC-331-13. Miller, Gallagher & Grimley, attorneys for appellant (James P. Grimley, on the brief). George Wubshet, respondent, pro se. PER CURIAM
In February 2013, plaintiff George Wubshet filed a pro se complaint in the Small Claims Section, Special Civil Part, against defendant California Apartments demanding $696 plus costs. Defendant answered and the case proceeded to trial on June 5, 2013, before Judge Allen J. Littlefield. Some of the facts adduced at trial were undisputed.
On the day of trial, the court permitted plaintiff to amend his complaint to add a count for "harassment." The judge dismissed the claim at the end of trial.
Beginning in 2009, plaintiff rented a one-bedroom apartment with his wife in a complex owned by defendant. The monthly rent was $850 and plaintiff deposited $1275 as security with defendant. Plaintiff moved out of the apartment on December 31, 2011. A day earlier, plaintiff contended that he and defendant's representative did a "walk through" of the apartment together. Plaintiff admitted that he had a large area carpet placed over the carpet that was already installed in the apartment, according to defendant, shortly before plaintiff's tenancy commenced.
Defendant timely returned some of plaintiff's security deposit, minus various deductions for late fees and damages to the premises that defendant alleged were beyond normal wear and tear. Judge Littlefield credited much of defendant's testimony with regard to these deductions.
However, the judge determined that defendant wrongfully withheld $380, alleging damage to the carpeting in the apartment. Specifically referencing photographs that plaintiff produced to support his claim that he did not damage the underlying carpet, the judge found the proofs were "in equipoise." As a result, he determined defendant failed to prove "why [it] kept the $380[] for the carpet." Judge Littlefield concluded that pursuant to N.J.S.A. 46:8-21.1 and our decision in Yi v. Re/Max Fortune Properties, Inc., 338 N.J. Super. 534 (App. Div.), certif. denied, 169 N.J. 610 (2001), defendant's alleged "good faith" in retaining that portion of the security deposit "[did] not matter." He doubled the $380 as provided by the statute and entered judgment for $760 in favor of plaintiff.
Judge Littlefield also addressed defendant's argument that there had been an "accord and satisfaction," since plaintiff had accepted and cashed defendant's check for $479, representing the return of the security amount minus deductions, including the $380 for the carpet. It was undisputed that when he received the check and statement of deductions, plaintiff advised defendant he was not accepting it. Nevertheless, he admitted at trial that he deposited the check. As noted, plaintiff did not file his complaint until February 2013.
It is unclear from the testimony when that occurred.
Citing relevant case law, the judge determined that the parties "did not in any way have any agreement that [the check] would satisfy the debt." Judge Littlefield concluded that defendant "chose the number based upon [its] proofs and plaintiff disputed that." As a result, the judge determined "accord and satisfaction does not apply."
Defendant moved for reconsideration. In a comprehensive written opinion, Judge Littlefield denied the motion by order dated July 19, 2013. In that opinion, the judge reiterated the findings of fact he had made orally at trial. Regarding the defense of accord and satisfaction, the judge specifically found defendant "ha[d] provided no new facts as to the intent of the [p]arties or that the Court [had] based its decision on 'plainly incorrect reasoning' or that it failed to properly consider evidence before it."
Defendant's motion and any supporting documentation is not in the appellate record.
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Noting defendant had offered no new facts in support of its motion, the court "decline[d] to vacate its finding of facts and conclusions of law" regarding the trial testimony as to the withholding of $380 of the security deposit. Judge Littlefield next addressed defendant's argument that the amount should not have been "doubled" because it withheld the disputed amount based upon a "good faith estimate" of repairs and replacement of the carpet. Once again citing Yi, supra, and other case law, the judge determined that his prior decision was correct.
Defendant's notice of appeal, filed on August 27, 2013, seeks review only of the court's July 19, 2013 order denying its motion for reconsideration, not the June 5, 2013 judgment. We could, therefore, limit our review to that order alone. See W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review."); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002). We choose to overlook that technical error and consider the merits of defendant's appeal because "the substantive issues in the case and the basis for the . . . judge's ruling [at trial] and [the] reconsideration motion[] [were] the same." Fusco, supra, 349 N.J. Super. at 461.
Defendant argues that Judge Littlefield's determination that it was not entitled to a deduction for the damaged carpet was unsupported by the evidence at trial. It also argues that the amount should not have been doubled because it did not violate the Security Deposit Act, N.J.S.A. 46:8-19 to -26 ("the SDA"), since it withheld $380 in good faith. Lastly, defendant argues there was an accord and satisfaction between the parties, and, therefore, plaintiff was not entitled to any relief. We have considered these arguments in light of the record and applicable legal standards. We affirm.
Defendant's first argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). It suffices to say that our review of the findings made by the judge in a non-jury trial is limited.
Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review: "we do not disturb the factual findings and legal conclusions of the trial judge unless we are 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[.]"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) (quotation omitted).
[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) (internal quotation marks omitted)).]
Judge Littlefield observed the testimony of the witnesses. His findings were based upon credibility determinations he made after hearing that testimony and carefully considering the documentary evidence and other evidence adduced by both sides. Those findings are amply supported by the record and we will not set them aside.
Defendant's second argument is that it returned plaintiff's security, minus deductions it made in good faith, in a timely fashion and therefore it did not "wrongfully withhold" plaintiff's security. Defendant contends that the judge should not have doubled the amount in dispute, $380, when entering judgment in plaintiff's favor. We disagree.
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, 4 06 N.J. Super. 71, 83 (App. Div. 2009) (quoting Jaremback v. Butler Ridge Apartments, 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)).
N.J.S.A. 46:8-21.1 requires the landlord to return the tenant's security deposit and interest accrued "[w]ithin 30 days after the termination of the [ ] lease . . . less any charges expended in accordance with the terms of [the] lease." Ibid. Any deductions the landlord makes must be "itemized," and notice must be forwarded to the tenant. Ibid. If the landlord 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. (emphasis added).
"However, even violations of these provisions of the SDA do not accord the 'doubling' remedy provided . . . if in fact the tenant has violated his obligations under the lease." Reilly, supra, 406 N.J. Super. at 80. 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. 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 Yi, supra, 338 N.J. Super. at 539 (citing Jaremback, supra, 166 N.J. Super. at 89 n.1)). When there is a dispute over whether the tenant violated his obligations under the lease, "the judge [is] required to 'determine the amount of th[e] offsets and, if they [we]re greater than the security deposit withheld, there [wa]s no deposit to return to the tenant.'" Reilly, supra, 406 N.J. Super. at 81 (quoting Penbara, supra, 347 N.J. Super. at 160-61 (citations omitted)).
Defendant contends that Yi is limited to those situations where a landlord refuses to return the deposit in a timely fashion. According to defendant, if a landlord refuses to return all or some of the security deposit in good faith, the statutory doubling penalty should not apply.
This is a crabbed interpretation of our prior holdings and essentially runs contrary to the public policy of the SDA. If defendant's construction was accepted, tenants would be required to file suit for the return of their funds unnecessarily, simply because their landlord disagreed, albeit in good faith, whether alleged damages were the result of their tenancy. Landlords could easily withhold all or some of the monies in hope that tenants, no longer in the premises, would not bother to seek the return of their own money.
We think that our prior precedent, the express language of the SDA and the salutary policy it embodies require that, if the tenant prevails at trial, the landlord bears the burden of the double payment remedy because it has been proven that the security deposit monies have been "wrongfully withheld." We affirm the judgment amount awarded plaintiff.
Lastly, we agree with Judge Littlefield that defendant failed to prove plaintiff's deposit of its check was an accord and satisfaction of the disputed amount, such that plaintiff was barred from filing suit. "The traditional elements of an accord and satisfaction are the following: (1) a dispute as to the amount of money owed; (2) a clear manifestation of intent by the debtor to the creditor that payment is in satisfaction of the disputed amount; (3) acceptance of satisfaction by the creditor." A. G. King Tree Surgeons v. Deeb, 140 N.J. Super. 346, 348-49 (Cty. Dist. Ct. 1976); accord Loizeaux Builders Supply Co. v. Donald B. Ludwig Co., 144 N.J. Super. 556, 564-65 (Law Div. 1976). "[A]n accord and satisfaction requires a clear manifestation that both the debtor and the creditor intend the payment to be in full satisfaction of the entire indebtedness." Zeller v. Markson Rosenthal & Co., 299 N.J. Super. 461, 463 (App. Div. 1997).
In this case, plaintiff immediately disputed the deductions defendant made. While he subsequently deposited defendant's check, there was no manifestation of his intent that acceptance was in full satisfaction of his claim against defendant for the return of his security deposit. Instead, plaintiff commenced suit. We find no principled reason to disturb Judge Littlefield's sound legal conclusion drawn from the facts he found at trial.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION