On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-8194-98.
Before Judges King, Newman and Holston, Jr.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal involves a landlord/tenant relationship in which the landlord charged rents beyond that permitted by the City of Clifton's Rent Control Ordinance*fn1. As a consequence, plaintiffs George and Jacqueline Wozniak, tenants, sued defendant, Samuel Pennella, landlord, for a refund of the excessive rent charges, and sought treble damages and attorney fees under the Consumer Fraud Act (CFA). After the suit was filed, defendant filed a criminal complaint against George Wozniak charging him with false swearing before the Rent Leveling Board. The matter was referred to the Passaic County Grand Jury who declined to indict. While the charge was pending Grand Jury action, defendant attempted to use the criminal complaint as leverage to coerce the dismissal of the civil action and communicated as much to plaintiff's attorney who was handling the criminal representation and was associated with the law firm representing plaintiffs in the civil suit. Plaintiffs thereafter amended their complaint to include claims for malicious prosecution and abuse of process based on defendant's malicious action in filing a criminal complaint.
On a summary judgment motion the court found that defendant committed an unconscionable commercial practice within the intendment of the CFA by charging rents beyond those authorized by the Clifton Rent Leveling Ordinance and awarded treble damages and attorney fees. Tried by a jury, a verdict in the amount of $50,000 was awarded to plaintiff for defendant's malicious prosecution and/or abuse of process conduct. Defendant appeals from the final judgment entered on April 2, 2003, raising the following arguments on appeal.
POINT I THE JUDGMENT THAT PENNELLA VIOLATED THE CONSUMER FRAUD ACT SHOULD NOT STAND BECAUSE A LANDLORD'S VIOLATION OF A MUNICIPAL RENT CONTROL ORDINANCE IS NOT IN ITSELF A VIOLATION OF THE CONSUMER FRAUD ACT.
POINT II THE JUDGMENT FOR MALICIOUS PROSECUTION SHOULD NOT STAND BECAUSE (1) PENNELLA HAD PROBABLE CAUSE TO FILE A CRIMINAL COMPLAINT, (2) THE TRIAL JUDGE IMPROPERLY EXCLUDED ONE OF THE TWO DOCUMENTS UPON WHICH PROBABLE CAUSE WAS BASED, AND (3) NO SPECIAL GRIEVANCE RESULTED.
POINT III THE JUDGMENT FOR ABUSE OF PROCESS SHOULD NOT STAND BECAUSE PENNELLA DID NOTHING IN CONNECTION WITH THE CRIMINAL COMPLAINT BEYOND FILING IT WHICH COULD AMOUNT TO AN ABUSE OF PROCESS.
POINT IV THE TRIAL JUDGE UNFAIRLY DENIED AN ADJOURNMENT OF THE TRIAL FOR A MEDICAL EMERGENCY WITH THE RESULT THAT PENNELLA COULD NOT COMPLETE HIS TESTIMONY OR FURTHER PARTICIPATE IN THE TRIAL.
POINT V THE WOZNIAK'S ATTORNEY MADE IMPROPER REMARKS DURING SUMMATION WHICH CREATED A SERIOUS LIKELIHOOD THAT THE JURY WAS IMPROPERLY INFLUENCED.
On June 10, 1994, plaintiffs entered into a two-year lease for one unit in a four-unit building in Clifton owned by defendant, a dentist who practices in Upper Montclair. Defendant lived in one of the units until 1996 when he moved out, but commenced renting the units when he purchased the building in 1981. Initially, defendant cancelled the lease when he discovered through a credit report that plaintiffs had undergone a bankruptcy. Plaintiff had suffered a business reversal, but, however, was employed. Plaintiff's wife was a teacher in the Passaic School System. After further negotiation, defendant reconsidered and leased the unit to plaintiffs.
The lease provided for monthly rent payable in the amount of $1855, a security deposit in the amount of $2782.50, and two months of pre-paid rent totaling $3710. The record contains a notice dated May 30, 1996 which states that the monthly rent on a month-to-month basis would be increased to $2055. On July 1, 1996, plaintiffs entered into another two-year lease with defendant providing for monthly rent payable in the amount of $1955 with a cost of living increase for property taxes after one year. The 1996 lease provided for a security deposit in the amount of $3910.
Plaintiffs, who were planning on purchasing a home, sent defendant a letter on April 1, 1998 requesting a month to month tenancy after the expiration of the 1996 lease. Although defendant initially refused the request, he eventually acquiesced, charging monthly rent of $2055.
On June 29, 1998, plaintiffs filed a complaint with the Clifton Rent Leveling Board (the Board) alleging that the rent increases imposed at the end of the 1996 and the 1998 terms exceeded the amount permitted by the Clifton Rent Control Ordinance. The ordinance, in effect since October 1, 1974, was applicable to multiple dwellings, which are defined as"any building containing housing space consisting of four (4) or more dwelling units." It provides a formula for establishing appropriate rent increases utilizing the Consumer Price IndeX for Urban Wage Earners in Northeastern New Jersey (CPI), published by the United States Department of Labor. The ordinance also required that landlords must provide 30-day notice by certified mail of the rent increase, and the notice must include the mathematical calculations used in formulating the increase.
On October 8, 1998, a hearing was held before the Board. Although notified by certified mail, defendant did not appear for the hearing. Plaintiffs testified as to the rent increases they incurred. In response to questioning by his attorney, plaintiff responded that he had not received notice of the rent increases. When plaintiff was questioned further by the Board, it was clarified that some form of notice had been hand delivered, but it did not contain the required calculations detailing how the increase was formulated. The Board determined that the rent increases exceeded the maximum legal amount. The Board also found that since defendant had violated the ordinance by providing legally insufficient notice, he was not entitled to the CPI increases, overcharging plaintiffs $3780 in rent.
On October 23, 1998, defendant requested an additional two weeks to respond to the Boards' determination. The Board granted his request, and scheduled another hearing for November 12, 1998. Defendant failed to appear at the November 12 hearing. The Board, acknowledging that they had no authority to award a monetary judgment, passed a resolution affirming their earlier decision. Plaintiffs later instituted this action to obtain a refund of the excessive rent charges and treble damages and attorney fees under the CFA.
Defendant was upset that he was sued. When plaintiffs moved out on October 27, 1998, defendant spoke to plaintiff's wife and threatened that if the lawsuit was not dropped, they would be in for a"dirty fight." Defendant boasted that he would use his financial superiority to his advantage.
On December 6, 1998, plaintiffs sent written notice to defendant requesting the return of their $3910 security deposit. Defendant claimed that the unit had damages in excess of their security deposit and refused to refund the deposit. On January 27, 1999, plaintiffs amended their complaint, adding the following counts by seeking $8056.36 (the $3910 security deposit doubled with interest pursuant to N.J.S.A. 46:8-21); and a return of $199.80 for a utility maintenance plan they had purchased at defendant's request. On April 14, 1999, defendant filed an answer and counterclaim in which he contended that he was appealing the Board's determination by complaint in lieu of prerogative writs filed ...