LATOYA THOMPSON VS. BOARD OF REVIEWÂ (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1049-15T1
LIZA ANNE HEIDT,
Plaintiff-Respondent,
v.
NANCY CASTELINO,
Defendant-Appellant,
and
LLOYD M. FERNANDES and ASTUTE
MANAGEMENT, INC.,
Defendants.
—————————————————————————————————
Submitted November 10, 2016 – Decided March 8, 2017
Before Judges Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Docket No.
DC-2690-15.
Nancy Castelino, appellant pro se.
McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys for respondent (James M. Mulvaney,
on the brief).
PER CURIAM
Pro se defendant-landlord Nancy Castelino appeals from the
September 29, 2015 order of the Special Civil Part, entering
final judgment in favor of plaintiff-tenant Liza Anne Heidt for
$2,962.76. Following a bench trial, the judge awarded plaintiff
rent abatement and ordered defendant to credit plaintiff's
security deposit towards future rent payments. The judge also
awarded plaintiff attorney's fees. After reviewing the record
and applicable law, we affirm.
I.
We derive the facts from the trial record. Defendant owns
a five-bedroom, single-family rental home in Princeton. In May
2015, plaintiff and defendant signed a two-year lease agreement
for the home beginning on May 15, 2015. The lease set the rent
at $4,000 per month and required plaintiff to pay a $6,000
security deposit with the June 2015 rent. Plaintiff moved into
the premises in May with her three children, one of whom has
asthma.
Plaintiff testified that on June 12, 2015, during a heat
wave, the thermostat in the home "wasn't working," fluctuating
between temperatures of eighty-eight to ninety degrees
Fahrenheit. Plaintiff emailed defendant at 5:36 p.m. to inform
her of the extreme heat and that the air conditioner was not
cooling the home. Plaintiff also contacted the energy and
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thermostat companies, but they were unable to remedy the
situation. Receiving no response from defendant, plaintiff sent
an additional email at 1:07 p.m. the next day, informing
defendant that she scheduled a service appointment and planned
to deduct the fee from her rent. Michael J. Messick Plumbing &
Heating, Inc., (Messick) then repaired the air conditioning
system at a cost of $512.30 to plaintiff.
Defendant finally responded to plaintiff's email at 3:52
p.m., stating she would not pay for the service call. When
plaintiff informed her the plumbing company already made the
repairs, defendant threatened legal action.
Plaintiff testified she knew defendant's phone number and
had previously contacted her by phone. However, she stated
defendant told her not to contact her by text or phone, and "the
best correspondence from me to her . . . would be e-mail and I
did just that." Plaintiff said she never discussed with
defendant how to contact her in the case of an emergency.
Conversely, defendant testified she never told plaintiff that
she could not call her.
On June 17, 2015, defendant entered the premises with a
technician to fix one of the toilets. According to plaintiff,
defendant described this as a "temporary fix." However, on July
8, 2015, the toilet became clogged and overflowed. Plaintiff's
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attorney emailed defendant on this date1 and attached a letter
requesting repairs to the toilet, which he described as
"completely inoperable." When defendant did not respond,
plaintiff hired Messick to repair the toilet on July 10, 2015,
at a cost of $335.75.
Plaintiff further testified she paid the required $6,000
security deposit. Plaintiff said she never received notice of
the interest rate or the address of the bank holding the
deposit. On July 10, 2015, defendant sent plaintiff's counsel a
letter, stating she provided the location of the security
deposit on the first page of the lease, that plaintiff could
verify the deposit from a cancelled check, and that she sent a
notice of deposit status on June 5, 2015. Defendant attached a
reproduction of the June 5 notice, which contained the interest
rate and bank address.
Plaintiff filed her initial complaint on or about July 10,
2015. On July 20, 2015, plaintiff filed an amended complaint
against defendant, defendant's husband, and Astute Management,
Inc., a corporation defendant organized to collect rent. In
count one of her amended complaint, plaintiff asserted claims
for breach of the implied warranty of habitability and breach of
1
Plaintiff's complaint incorrectly states her attorney
informed defendant of the toilet issue on July 9, 2015.
However, the record shows plaintiff's counsel sent the email
containing this notice on July 8.
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contract, seeking, in part, rent abatement of $848.05 for
repairs to the air conditioner and the toilet. In count two,
plaintiff sought a declaratory judgment crediting the $6,000
security deposit, plus interest, towards her rent payments.
Plaintiff claimed defendant violated N.J.S.A. 46:8-19 by failing
to provide her with the security deposit's interest rate and the
address of the bank holding the deposit. Plaintiff also
asserted trespass and breach of contract (count three); unjust
enrichment (count four); and consumer fraud, in violation of
N.J.S.A. 56:8-1 to -204 (count five).
Defendant's husband filed an answer to the initial
complaint but did not answer the amended complaint; both
defendant and the corporation failed to answer either complaint.
On July 30, 2015, defendant sent plaintiff a notice to quit. 2
This notice terminated the lease and demanded plaintiff vacate
the premises by August 31, 2015.
Despite defendants' failure to answer the complaint, the
parties agreed to proceed to trial. On September 9, 2015, the
court heard testimony from plaintiff, her realtor, a plumber
from Messick, and defendant. The next day, the trial judge made
findings of fact and issued an oral decision from the bench.
2
Defendant had previously sent plaintiff a notice to cease on
July 5, 2015.
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Addressing plaintiff's claims of habitability and breach of
contract, the judge found section nine of the lease required
defendant to make repairs to the plumbing, heating, and
electrical systems, and therefore, plaintiff was entitled to a
rent abatement for the repairs to the air conditioning. The
judge further noted the home "would have been uninhabitable
without the repair," finding plaintiff acted reasonably by
making necessary repairs after defendant did not respond for
three-quarters of a day. The judge therefore awarded plaintiff
$512.30 for the cost of repairs and an additional $133.33,
equivalent to one day's rent, for the "one day that the premises
were effectively uninhabitable."
The judge also awarded plaintiff the $335.75 cost of
repairs for the toilet. The judge noted, "[W]ith this kind of
rental you would expect that the plumbing systems, the toilets
are functioning and working." He described "the repair and the
amount" as "fair and reasonable and necessary."
Regarding count two of plaintiff's amended complaint, the
judge rejected defendant's argument that she appropriately
notified plaintiff of the interest rate and location of her
security deposit. The judge found inadequate notice on the
first page of the lease, which only stated the deposit was in
the care of a Chase Bank in Hillsborough and did not list the
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interest rate. The judge also determined plaintiff was not
obligated to do "investigatory work" by looking for the bank
location on the security deposit check. Last, the judge found
there was no evidence defendant mailed plaintiff the notice of
deposit on June 5, 2015, finding defendant's purported evidence
was an "afterthought to cover the fact" that she failed to
provide adequate notice.
The judge declined to enter judgment against defendant's
husband, concluding he was not a responsible party because he
was not on the lease. The judge also dismissed the count
against the corporation and dismissed counts three and five of
the amended complaint.
Following trial, plaintiff filed an application for
attorney's fees. Defendant opposed the application and raised
new issues challenging the court's decision. On September 29,
2015, the court issued a written opinion explaining its
$1,981.38 award for attorney's fees and rejecting defendant's
additional arguments. The court also entered an order granting
final judgment in favor of plaintiff for $981.38 on counts one
and four of her amended complaint. The order further required
defendant to credit plaintiff $6,117.60 from her security
deposit towards her future rent payments, and precluded
defendant from requiring any additional security deposit for the
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remainder of the tenancy. Last, the order awarded plaintiff
attorney's fees. This appeal followed.
II.
The scope of our review of a non-jury case is limited.
Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011).
The findings on which a trial court bases its decision will "not
be disturbed unless they are so wholly insupportable as to
result in a denial of justice." Rova Farms Resort, Inc. v.
Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (citations
omitted). On the other hand, although a trial court's factual
findings will not be overturned absent an abuse of discretion,
questions of law are subject to de novo review. Balsamides v.
Protameen Chems., Inc., 160 N.J. 352, 372 (1999).
Defendant raises sixteen overlapping arguments in her
briefs on appeal, several of which she failed to raise before
the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973). However, we discern three main contentions
that merit brief discussion, specifically, defendant's
challenges of the trial court's findings on (1) habitability and
breach of contract, (2) the security deposit, and (3) attorney's
fees. Defendant also raises additional arguments that merit
brief discussion. We address these issues in turn.
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The seminal case on the issue of rent abatement is Berzito
v. Gambino, 63 N.J. 460 (1973). Our Supreme Court held all
residential leases contain an "implied covenant or warranty of
habitability." Id. at 467. Accordingly, a tenant may initiate
an action to recover part or all of the rent paid to his
landlord "where he alleges the [landlord] has broken his [or
her] covenant to maintain the premises in a habitable
condition." Id. at 469. In order to succeed on the claim,
"[t]he condition complained of must be such as truly to render
the premises uninhabitable in the eyes of a reasonable person."
Ibid. "At a minimum, the necessities of a habitable residence
include sufficient heat and ventilation, adequate light,
plumbing and sanitation and proper security and maintenance."
Trentacost v. Brussel, 82 N.J. 214, 225 (1980). However, a
tenant must also provide his landlord with notice and sufficient
time to effectuate repairs. Berzito, supra, 63 N.J. at 469.
Defendant provides several arguments challenging the
judge's determinations on habitability. In essence, defendant
asserts the broken air conditioner did not create an urgent
situation and that plaintiff did not prove the premises were
uninhabitable. Defendant also argues plaintiff should have
called or texted her, she responded to plaintiff's emails within
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the appropriate amount of time, and plaintiff did not give her
sufficient time to inspect and repair the malfunctions.
We reject these arguments. The trial judge's determination
on rent abatement "is a factual finding and will be affirmed if
supported by credible evidence in the record." C.F. Seabrook
Co. v. Beck, 174 N.J. Super. 577, 596 (App. Div. 1980). In the
instant matter, the judge determined the air conditioner
malfunction — during temperatures of up to ninety degrees —
rendered the premises "uninhabitable" and that plaintiff acted
reasonably by hiring a repair company after she did not receive
a prompt response from defendant. The asthma of plaintiff's son
further exacerbated the situation. Moreover, plaintiff
testified defendant preferred she contact her by email. Given
these circumstances, we decline to disturb the trial judge's
finding that the premises were uninhabitable and that plaintiff
provided defendant with adequate notice.
Defendant further argues the court erred by "considering
bills that were not presented to [the] landlord," alleging
plaintiff failed to present her with the actual bills for the
repairs until trial. However, plaintiff set forth these amounts
in her amended complaint; therefore, the court properly
considered these bills during trial.
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Next, defendant asserts the trial court erred in its
interpretation of plaintiff's right to repair under sections
nine, ten, and eleven of the lease. We disagree. Section nine
requires defendant to repair the plumbing, heating, and
electrical systems, and only makes plaintiff responsible for
repairs resulting from her own negligence. Section ten
similarly requires plaintiff to "pay" for all repairs made
necessary by her negligence. Section eleven bars plaintiff from
making "changes or additions" without defendant's consent,
including "renovation[s] to the plumbing . . . [or] air-
conditioning." Here, the trial court determined plaintiff did
not cause the need for the repairs. Moreover, plaintiff did not
"renovat[e]" these appliances, but made necessary repairs to
render the property habitable. We will not disturb the trial
court's findings on this basis.
Defendant also argues the court erred by failing to
consider the loss and notice provisions in the lease. Defendant
did not raise these arguments before the trial court. See
Neider, supra, 62 N.J. at 234. Nevertheless, we find they lack
merit. The loss provision states that if only part of the house
is uninhabitable, the tenant shall pay the landlord "on a
proportional basis." Here, because the trial judge found the
broken air conditioner rendered the entire premises
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uninhabitable, he appropriately ordered abatement for a full
day's rent. Similarly, the notice provision required plaintiff
to send "[a]ll notices given under this Lease" to defendant's
address by personal delivery or certified mail. As noted, the
parties agreed to communicate by email; parties may modify a
contract by their actions or conduct. See, e.g., DeAngelis v.
Rose, 320 N.J. Super. 263, 280 (App. Div. 1999). We discern no
error here.
We turn next to the court's findings regarding plaintiff's
security deposit. Defendant argues the trial court assumed
"facts not in evidence" when it determined defendant did not
provide adequate notice pursuant to N.J.S.A. 46:8-19. The
statute provides:
The person investing the security deposit
. . . shall notify in writing each of the
persons making such security deposit or
advance, giving the name and address of the
. . . bank . . . in which the deposit . . .
is made, the type of account in which the
security deposit is deposited or invested,
the current rate of interest for that
account, and the amount of such deposit or
investment, in accordance with the
following:
(1) within 30 days of the receipt of the
security deposit from the tenant; . . . .
[N.J.S.A. 46:8-19(c).]
Here, the lease only stated the deposit was held by a Chase
Bank in Hillsborough; it did not list the bank's address or the
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deposit's interest rate. Moreover, plaintiff testified she
never received notice of the deposit by mail. The trial court
reviewed the testimony of both parties and found plaintiff
credible. Therefore, the trial court ordered the appropriate
remedy under N.J.S.A. 46:8-19(c).
Defendant also argues plaintiff did not establish the exact
date she paid the security deposit, and therefore, the court had
no basis to determine defendant failed to comply with the
statute's thirty-day requirement. See N.J.S.A. 46:8-19(c)(1).
However, defendant claimed she sent plaintiff the notice of
deposit on June 5, 2015, meaning defendant received the deposit
on or before this date. Therefore, the court did not err by
determining defendant did not meet the thirty-day requirement.
Last, defendant argues she was not required to notify
plaintiff because plaintiff's fiancé actually issued the check
containing the security deposit. Although defendant noted that
plaintiff's fiancé paid the deposit in her notice to quit, she
maintained that she provided adequate notice to plaintiff.
Under the "doctrine of invited error," we will "bar a
disappointed litigant from arguing on appeal that an adverse
decision below was the product of error, when that party urged
the lower court to adopt the proposition now alleged to be
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error." Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503
(1996). We decline to reverse on this basis.
Next, we turn to the issue of attorney's fees. The court
awarded plaintiff $1,981.38 in attorney's fees pursuant to
N.J.S.A. 2A:18-61.66, which states:
If a residential lease agreement
provides that the landlord is or may be
entitled to recover either attorney's fees
or expenses, or both, incurred as a result
of the failure of the tenant to perform any
covenant or agreement in the lease . . . the
court shall read an additional parallel
implied covenant into the lease. This
implied covenant shall require the landlord
to pay the tenant either the reasonable
attorney's fees or the reasonable expenses,
or both, incurred by that tenant . . . as
the result of any successful action or
summary proceeding commenced by the tenant
against the landlord, arising out of the
failure of the landlord to perform any
covenant or agreement in the lease.
The court shall order the landlord to
pay such attorney's fees . . . to the same
extent the landlord is entitled to recover
attorney's fees . . . as provided in the
lease. . . .
In its written opinion, the court found an implied parallel
covenant based on section five of the lease, which provides:
The Tenant is liable for any and all damages
which Tenant causes by violating any
terms/agreement or moves prior to the end of
the lease period. Penalty includes one
month's rent for breach of contract, plus
loss of rent, the cost of preparing the
property for re-renting, brokerage
commission in finding a new tenant include
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reasonable attorney's fees and costs of
collection. . . .
The court determined, because plaintiff "commence[d] and
successfully prosecuted such an action" against defendant,
plaintiff was entitled to reasonable attorney's fees.
We discern no error regarding the award of attorney's fees
to plaintiff. The statute provides for attorney's fees if a
tenant successfully pursues an action arising from a landlord's
failure to "perform any covenant or agreement in the lease" and
permits recovery "to the same extent" as the landlord. N.J.S.A.
2A:18-61.66. Here, defendant breached the warranty of
habitability and failed to perform the required repairs under
the lease. The lease permitted defendant to recover attorney's
fees where plaintiff violated any terms or agreements in the
lease. Therefore, plaintiff's motion for fees satisfied the
statutory criteria.
Finally, we address defendant's miscellaneous arguments.
Defendant first contends plaintiff perjured herself by
testifying she did not own a second residence at the time the
air conditioner malfunctioned. Defendant premised this
allegation upon a deed and insurance application, showing
plaintiff and her ex-husband transferred their former home to
new owners on June 22, 2015, several days after the air
conditioner incident. Defendant is apparently suggesting
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plaintiff could have gone to this other home when the air
conditioner malfunctioned, and therefore, she had no valid
reason to make immediate repairs.
This argument lacks merit. Although plaintiff apparently
still held legal title to this other property, she testified she
was "clearly no longer residing" there. Indeed, her entire
purpose in renting defendant's property was because she could no
longer reside in her former marital home. Moreover, the
availability of other lodging provides no defense to a breach of
the warranty of habitability.
Defendant next argues the trial court erred by placing an
"[u]ndue burden of proof" on her to rebut plaintiff's
allegations of other damaged appliances, including the
dishwasher, lights, and sliding door. However, because the
trial court did not render judgment on these issues, we decline
to consider them here.
Next, defendant argues the trial court erred by failing to
consider the answer filed by defendant's husband. This argument
lacks merit. Defendant's husband did not answer plaintiff's
amended complaint; nevertheless, the parties agreed to proceed
to trial, where both defendant and her husband had the full
opportunity to cross-examine plaintiff's witnesses. Following
the testimony, the court dismissed the complaint against
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defendant's husband. We find the trial court fully considered
the arguments of both defendants.
Last, defendant lists several alleged improprieties by
plaintiff's counsel, which she argues amounted to "fraud on the
court." These arguments lack sufficient merit to warrant
discussion in a written opinion. See R. 2:11-3(e)(1)(E). We
discern no evidence of unethical behavior by plaintiff's counsel
or the trial court.
Similarly, any remaining arguments we did not specifically
address lack sufficient merit to warrant discussion in a written
opinion. See R. 2:11-3(e)(1)(E).
Affirmed.
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