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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...