April 21, 2008
TERRENCE KEIGHLEY, PLAINTIFF-RESPONDENT,
KAREN L. STALEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Cape May County, Docket No. DC-2374-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2008
Before Judges Lisa and Lihotz.
After a Special Civil Part bench trial in this dispute between a landlord and tenant, Judge Visalli entered judgment in favor of plaintiff, Terrence Keighley, the tenant, against defendant, Karen L. Staley, the landlord, in the amount $6068.69. This sum consisted of $2005 for a wrongfully withheld security deposit, $375 in reimbursement for repairs plaintiff was required to make to the premises, and $3688.69 in counsel fees (including taxed costs). Defendant argues that the judgment should be reversed because she was prejudiced by the improper and unauthorized actions of her trial counsel, the judge erred in refusing to adjourn the scheduled trial date, the court erred in awarding attorney's fees, and the judgment was not supported by the evidence. We reject these arguments and affirm.
Plaintiff leased an apartment from defendant in Ocean City at a monthly rate of $750 from October 1, 2005 to September 30, 2006. Plaintiff paid a $1000 security deposit. Defendant provided a window air conditioner, but when it stopped functioning, plaintiff purchased a replacement unit in late June 2006. One of defendant's handymen installed the replacement unit.
In August 2006, the roof of the building was under repair, and a tarp was placed over the work area, which was located directly above plaintiff's apartment. Plaintiff took a trip during the month of August 2006, leaving the apartment vacant during that time. Upon his return, plaintiff determined that because of significant water seepage into the wall where the air conditioner was installed, the conditions in the apartment became unhealthy. On notice to defendant, plaintiff engaged the services of a contractor, Russ Pagano, to perform repairs. Pagano opened up the wall and determined that ongoing water seepage problems had occurred repeatedly over an extended period of time. His opinion was based upon the rotted condition of the wooden structural components of the wall. Pagano also observed that previous repairs had been made to the wall.
Plaintiff hired a certified indoor environmentalist, Christopher Macri, who inspected the property on September 6, 2006. He found elevated airborne fungal concentrations. In his view, anyone allergic to mold would be made uncomfortable or ill from the exposure. And, some of the molds identified in the apartment were of a toxic variety. He opined that exposure to "fungal spores by dermal contact or inhalation can cause allergic and toxic reactions." Macri was also of the opinion that the mold condition was caused by prolonged water exposure and that remediation was necessary to provide a safer environment.
On September 2, 2006, plaintiff sent a letter to defendant informing her that because the apartment was unsafe due to mold, he would not pay the September rent and would remove his belongings shortly. He also requested a full refund of his security deposit. Plaintiff vacated the premises, but did not immediately remove all of his possessions. Although defendant changed the locks, plaintiff was eventually able to remove most of his belongings.
Defendant wrote to plaintiff on October 5, 2006. She itemized damages totaling $2345, including the September rent of $750. The remaining items were for repairs of damage allegedly caused by plaintiff and clean-up of the apartment. From the total alleged damages, defendant deducted the $1000 security deposit, plus $2.50 interest, and demanded a net balance of $1342.50. Defendant contended that any mold problem in the wall was caused by moisture emanating from plaintiff's air conditioner, which defendant claimed was improperly installed and maintained, and which dripped condensation.
Acting pro se, plaintiff filed this action on October 30, 2006, alleging that defendant "performed an unlawful eviction" and that the premises were "uninhabitable" due to defendant's failure to repair. Defendant filed a pro se answer on December 5, 2006. Eventually, both sides engaged the services of counsel. In an amended complaint, plaintiff asserted claims for return of his security deposit and damage to his personal possessions, as well as other claims. The matter was submitted to mediation, which proved unsuccessful. After case management, the case was scheduled for trial on March 27, 2007. On March 6, 2007, upon entering the case for defendant, defendant's attorney requested a postponement of the trial, which was denied.
The case was tried to a conclusion on March 27, 2007. Both parties testified. Plaintiff called Pagano and Macri as expert witnesses, as well as two other lay witnesses. Defendant called Ocean City building code enforcement officer Robert Hart and two other witnesses. Hart inspected the apartment on September 1, 2006, and testified that the wood, which Macri believed was completely rotted, was only stained. Hart was of the opinion that discharge of condensation from the air conditioner caused the damage to the wall. He directed defendant to correct the problem, and said that after a follow up visit on December 12, 2006, he found no further evidence of "ongoing leakage" in the apartment.
Judge Visalli credited the testimony of plaintiff and his witnesses and did not credit the testimony of defendant and her witnesses. The judge made these findings:
This Court is satisfied from having heard all of the testimony, I listened very carefully to all of the witnesses, that there obviously was a written lease agreement which was to terminate, or culminate, or end September 30th, 2006. At or about the beginning of September a problem was noticed that the plaintiff decided to vacate the premises beforehand based upon the damages that he had noticed in the premises; namely, mold and water or a leakage and the like in and around the air conditioning unit -- where the air conditioning unit was until it was removed to another window sometime in late July or early August of 2006.
Based upon that information, he submitted, and the defendant Staley received a letter . . . which says in so many words as is been repeated throughout this testimony that I'm leaving. There's an uninhabitable premises . . . . I expect my full security deposit returned and forward my mail, and I'll come back and let you know when everything else is moved out. I take that letter as notice that he's vacating because of the condition therein, that he can't live there any longer and a surrender of the premises, which was accepted by the plaintiff. The conduct thereafter was certainly not acceptable. . . . The defendant thereafter says that there's a whole world of damages related to this air conditioning unit, which I do not accept. I am satisfied that none of the damages that she attempts to profess to this Court or show to this Court are attributable directly to this air conditioning unit. The photographs . . . clearly indicate to me and- it's been acknowledged I guess to some degree that the water is higher than the level of where the air conditioner would leak and it's an attempt to convince the Court that water goes uphill and it doesn't.
I accept Mr. Pagano's description of the damage to the premises that it has been long-standing and long before this particular tenant got into the premises. Maybe the air conditioner did leak, but the damage is not going to be left at his doorstep. Accordingly, I am satisfied that all of the security deposit should have been refunded and it wasn't.
Based upon those findings, the judge found that defendant wrongfully withheld plaintiff's security deposit and awarded plaintiff damages for double that amount. The judge also awarded $375 as "additional damages for the work that was done by Mr. Pagano," an expense that should not have been incurred by plaintiff, but by defendant. The judge also awarded counsel fees. There was no objection to the $150 hourly rate charged, and there was no contention by defendant that the hours expended were misstated or unreasonable.
We reject out-of-hand defendant's contention that she is entitled to a new trial because of missteps by her trial counsel. In essence, defendant is asserting an ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). However, there is no constitutional right to counsel in ordinary civil cases such as this one, and thus no right to a new trial based upon alleged ineffective assistance of retained counsel. See Hauck v. Danclar, 262 N.J. Super. 225, 228 (Law Div. 1993). Cf. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007) (providing ineffective assistance of counsel remedy in termination of parental rights case). A litigant's remedy in an ordinary civil case for any asserted malfeasance by counsel is against that counsel.
We find unpersuasive defendant's argument that the judgment should be reversed because Judge Visalli denied her adjournment request. This was a routine Special Civil Part case that had gone through several pretrial court proceedings and attempted mediation. The granting of trial adjournments rests in the sound discretion of the trial court, which we will not disturb in the absence of a mistaken exercise of discretion. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). And, the mistaken exercise of discretion must cause a "manifest wrong or injury." State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985). That standard is plainly not met here. We find no mistaken exercise of discretion, let alone one that would result in a manifest wrong or injury.
We next address the counsel fee award. Wrongful refusal to return a security deposit requires an award in favor of the tenant of double the amount of the deposit, together with costs of an action required for the recovery and, "in the court's discretion, reasonable attorney's fees." N.J.S.A. 46:8-21.1. Trial courts may award attorney's fee "[i]n all cases where counsel fees are permitted by statute." R. 4:42-9(a)(8). Thus, the judge had discretion to make an attorney's fee award in this case.
Fee determinations by trial judges "will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). The amount of the award here was eminently reasonable, and we discern no mistaken exercise of discretion in rendering a counsel fee award in plaintiff's favor in the circumstances of this case.
Finally, factual findings by a trial judge sitting without a jury are considered binding on appeal when supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). This is particularly so when the findings are based upon credibility determinations by the trial judge, who is in the best position to evaluate the credibility of witnesses. Ibid. From our review of the record, we are satisfied that there was sufficient, credible evidence to support the judge's conclusion that plaintiff was justified in vacating the premises without paying the final month's rent because of the mold condition, which rendered the apartment uninhabitable, that plaintiff was not responsible for any damage to the apartment, and that he was entitled to recover double the amount of the security deposit, together with other reasonable damages he incurred. Likewise, the record supports the judge's rejection of defendant's claim for damages for clean-up, furniture removal and repairs. Because the judge's findings are amply supported by the record, we have no occasion to interfere with them.
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