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Tentsoglides v. Jefferson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 14, 2008

RUTH TENTSOGLIDES, PLAINTIFF-RESPONDENT,
v.
DENNIS JEFFERSON, DEFENDANT-APPELLANT, AND HELEN HAMPTON, THIRD-PARTY DEFENDANT.

On appeal from the Superior Court of New Jersey, Special Civil Part, Gloucester County, DC-7168-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 14, 2008

Before Judges A.A. Rodríguez and C.L. Miniman.

Defendant Dennis Jefferson, the landlord, appeals from a judgment in favor of plaintiff Ruth Tentsoglides, the tenant, for double the amount of the security deposit he retained without good cause. We affirm.

Around February 2004 defendant told plaintiff about a house he owned in Linwood that needed repairs. Defendant was familiar with recent improvements plaintiff made to the place where she lived. They agreed that plaintiff would repair the Linwood house in exchange for a reduced rent because defendant did not consider the house otherwise habitable.

Plaintiff began working on defendant's house in August 2004. She and her sister, Helen Hampton, worked on the house on their days off and took some vacation time as well to do the repairs and renovations. The work consisted of installing flooring and kitchen tiles, repairing ceilings, cabinets and drywall, as well as wallpaper removal.

About two months later plaintiff approached defendant about putting their agreement into writing. The agreement, a month-to-month lease written by defendant, provided that plaintiff would repair the house in exchange for rent of $475. The agreement further provided that the discounted-rent provision would only be in effect until the end of December 2004.

In January 2005 defendant and plaintiff, along with Hampton, signed a new lease, which increased the rent to $950. Plaintiff testified that leading up to this time, the parties were not getting along well. Plaintiff felt that she was working excessively and being under-compensated but felt she had "nowhere to go but forward." Therefore, she elected to stay at the house and continue with the repairs. Defendant disagreed with plaintiff's characterization of the repairs that still needed to be done, and testified that no major repairs were left. Defendant always compensated plaintiff and Hampton on a monthly basis for all out-of-pocket expenses.

Plaintiff testified that defendant agreed to make certain repairs to the house while she was living there but he did not do so. These included electrical work and installation of ceiling fans, a new sink, new locks and a garbage disposal. Plaintiff also complained that defendant never removed a number of his belongings from the house before she began occupancy.

In the spring of 2005, while doing landscaping work on the property, plaintiff chopped down a crape myrtle tree. Plaintiff testified that she did so accidentally and admitted that she did not reimburse defendant for it.

At one point during the tenancy, the parties agreed to split the cost of a new hot water heater. The cost was $500 and plaintiff paid $200 of her share over the course of a few months following installation.

Plaintiff gave written notice on August 30, 2005, of her intent to vacate and she moved out on September 30. She admitted that she left some of her belongings in the house until October, yet no rent was paid after September. According to defendant, these items included a television and stand, exercise equipment, a bowling ball, clothing, yard furniture, a grill, concrete and volleyball nets. In the middle of October plaintiff returned to remove the majority of this property, but left behind yard chairs and volleyball posts.

Defendant inspected the house after plaintiff and her sister moved out and found damage to the floors. Just prior to plaintiff occupying the house, defendant spent $1790 to repair the hardwood floors. The new floors were damaged and defendant obtained an estimate of $650 to repair them. Defendant obtained other estimates for wallpaper removal ($79.50) and replacement of the crape myrtle tree ($446). Defendant spent $1300 to repair cracks and holes in the walls. He also observed other damages, such as stray paint marks and marks on the kitchen floor, but he did not obtain estimates for these repairs. Other than these damages, defendant testified that he was "very content" with plaintiff's work on the house.

Plaintiff did not return the keys until the middle of October when she left them on a step. After he received the keys defendant refunded $189.50 of plaintiff's security deposit but plaintiff never cashed this check and instead filed suit seeking the full amount of her security deposit plus interest ($970) and costs as well as compensation for certain repairs.

At the end of a one-day trial on April 9, 2007, the Special Civil Part judge placed oral decision on the record. She found that the parties created a tenancy and that plaintiff agreed to perform repairs and renovations to the property. Based on the lease, plaintiff would only be compensated if defendant agreed in writing. Therefore, defendant was not liable for any claims made by plaintiff that were not in writing.

The judge found that it was proper for defendant to deduct $50 from plaintiff's security deposit to cover the balance due on the hot water heater. The judge also ordered that the parties should share the cost of the hardwood-floor repair ($325 each) and that plaintiff should contribute $100 to the cost of repairing the linoleum floor.

The judge rejected defendant's claim that he was entitled to any rent for October or November 2005, finding that defendant was not denied any use of the property. Because no effort was made to rent the house, the judge would not award rent to defendant because he did not suffer any loss of rent. The judge also found that plaintiff accidentally chopped down the crape myrtle tree and defendant was not entitled to the cost of replacement.

The judge then computed the judgment as follows:

Security deposit plus interest earned$970.00 Shared cost of hardwood floor repairs-325.00 Cost of linoleum floor repairs-100.00 Hot water heater balance due- 50.00 Attempted return, not subject to doubling-189.50 Sub-total $305.50 Statutory penalty$305.50 Attempted return$189.50 Total judgment for plaintiff$800.50

The court added costs of suit to the judgment, making the final amount owed by defendant to plaintiff $856.50.

Defendant timely appealed and raises the following issues:

(1) plaintiff lied when she stated that she was a friend of defendant, (2) plaintiff committed perjury and submitted false evidence to the court, (3) plaintiff surrendered the property two months late, (4) the judge decided in favor of defendant but awarded damages to plaintiff and (5) the judge never considered the legal fee demand of defendant.

We may only disturb the fact-findings of the trial court when "they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. of Am. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (cited in Alba v. Sopher, 296 N.J. Super. 501, 504 (App. Div. 1997)). When "the trial court's conclusion could have been reached on the evidence presented . . . we will not disturb that conclusion." Lanzi v. North, 295 N.J. Super. 80, 84 (App. Div. 1996).

Throughout his brief, defendant accuses both plaintiff and Hampton of perjury and giving false and misleading testimony during both direct and cross-examination. He also claims the testimony given was "subjective" and states many times in his brief that the judge believed the less credible witness. Credibility determinations are best left to the trier of fact, who had the opportunity to observe the testimony of the witnesses first hand, thereby getting "the 'feel' of the case," a luxury "that we, as an appellate court, cannot enjoy." Sebring Assoc. v. Coyle, 347 N.J. Super. 414, 424 (App. Div.) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)), certif. denied, 172 N.J. 355 (2002). Such issues of credibility go to the sufficiency of the evidence, discussed in the next section, and cannot provide defendant a basis for relief from the judgment.

After carefully reviewing the record in the light of the written arguments advanced by the defendant, we conclude that the remaining issues presented by him are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in her oral opinion delivered on April 9, 2007. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms, supra, 65 N.J. at 483-84.

In addition, we note that N.J.S.A. 46:8-21.1 provides that in any action for the return of a security deposit, upon finding for the plaintiff, the court shall order double the amount of money owed, along with full costs of the action. In some cases, the court may also award reasonable attorney's fees to the plaintiff. N.J.S.A. 46:8-21.1.

In this case, the judge found that the final amount owed from the security deposit was $305.50 after deducting amounts owed to the defendant and the amount defendant tried to return to plaintiff. She added the amount defendant attempted to return ($189.50) along with double the remaining amount of the security deposit ($305.50 x 2 = $611) and added costs ($56) for a total award of $856.50.

With respect to defendant's claim for an award of $4,544.49 in counsel fees and $997.17 for estimated costs of this appeal, the January 2005 lease provides:

The successful party in a legal action or proceeding between Landlord and Tenant relating to the non-payment of rent, enforcement of the provisions of this Agreement or recovery of possession of the Premises, may if legally available recover reasonable legal fees and costs from the unsuccessful party. (Emphasis added.)

Clearly, defendant was not successful in the Special Civil Part because plaintiff recovered a judgment against him. He was, therefore, not entitled to recover reasonable legal fees and costs from plaintiff.

Affirmed.

20080214

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