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Foxworth v. Atlantis Apartments

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 9, 2009

TYRONE FOXWORTH, PLAINTIFF-APPELLANT,
v.
ATLANTIS APARTMENTS D/B/A WWW.ASSOCIATES, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, Docket No. SC-0032-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued September 2, 2009

Before Judges Messano and Alvarez.

Plaintiff Tyrone Foxworth was a tenant of defendant, Atlantis Apartments d/b/a www.associates. He provided defendant with notice of his intention to vacate the apartment, effective November 30, 2008, and demanded return of his security deposit in the amount of $915. Defendant responded on December 22 with an itemized list of damages to the apartment allegedly caused by plaintiff in the amount of $3772. After crediting plaintiff with $926.06, i.e., his security deposit plus accrued interest, defendant claimed plaintiff still owed a balance of $2845.94, and refused to tender plaintiff's security deposit.

Plaintiff filed his complaint pro se, seeking $1830, double the security deposit as provided by N.J.S.A. 46:8-21.1, plus court costs. He and defendant appeared pro se at trial. After considering all the evidence, the trial judge concluded that plaintiff was responsible for only $555 of the damages, and awarded him judgment for the balance of the security deposit, $360. Plaintiff appealed.

After the appeal was filed, defendant, through counsel, tendered the judgment amount, plus an additional $382, thus doubling the trial court's judgment and including $22 in court costs that plaintiff sought.

Before us, plaintiff argues that he is entitled to twice the "wrongfully withheld security deposit" plus interest. He further contends that defendant violated the Consumer Fraud Act, N.J.S.A. 56:8-1 to -167 (the CFA). Lastly, he argues that he is entitled to counsel fees under the "catalyst theory" because defendant paid $382 dollars only after his appeal was filed.

Defendant contends the appeal should be dismissed as "moot," since plaintiff has now received twice the amount of security wrongfully withheld under N.J.S.A. 46:8-21.1. It further argues that plaintiff's CFA claim was never presented below, and therefore should not be considered for the first time on appeal.

We have considered these arguments in light of the record and applicable legal standards. We reverse the judgment of the trial court and remand for the entry of a modified judgment in plaintiff's favor. We dismiss plaintiff's appeal regarding any alleged violation of the CFA. As to plaintiff's request for counsel fees, we decline the opportunity to address the issue at this time, though plaintiff is free to apply for an award of fees pursuant to Rule 2:11-4.

N.J.S.A. 46:8-19 requires a landlord to place a tenant's security deposit in an interest bearing account, notify the tenant where that account is located, and annually pay over to the tenant, or credit his rent account, with any interest earned on the deposit. Defendant acknowledged that when plaintiff vacated the unit, it held $926.06 as a security deposit and accrued interest. The judge concluded that plaintiff should only be assessed $555 for damages he caused, leaving a balance of $371.06 returnable to plaintiff.*fn1

N.J.S.A. 46:8-21.1 requires the landlord to return the tenant's security deposit and interest accrued "[w]ithin 30 days after the termination of the [] lease... less any charges expended in accordance with the terms of [the] [ ] lease[.]" Any deductions the landlord makes must be "itemized," and notice must be forwarded to the tenant. Ibid. If the landlord violates this section, the tenant may bring suit, and "the court upon finding for the tenant... shall award recovery of double the amount of said moneys, together with full costs of any action and, in the court's discretion, reasonable attorney's fees." Ibid. We have held that "[t]he statute establishes the landlord's obligations in unmistakable and definite terms, and clearly provides a mandatory remedy for default." Yi v. Re/Max Fortune Props., Inc., 338 N.J. Super. 534, 538 (App. Div.), certif. denied, 169 N.J. 610 (2001).

Therefore, plaintiff was entitled to judgment in the amount of $371.06 doubled, or $742.12, plus $22 in court costs, for a total of $764.12. The parties agree that defendant, post-trial, tendered $742.00. Having not tendered the full amount of the judgment, we reject defendant's claim that the appeal is moot. See Yi, supra, 338 N.J. Super. at 536-537. We therefore remand the matter to the trial judge for entry of judgment in plaintiff's favor for $22.12.

We agree with defendant, however, that plaintiff's CFA claim seeking treble damages and counsel fees was never raised below and should not be considered by us for the first time on appeal. "It is a well-settled principle that [we] will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). We do not view plaintiff's CFA claim to be of such urgent public interest and, therefore, we decline to consider it.

We also refuse to consider plaintiff's request for counsel fees at this time. Plaintiff is free to apply for them pursuant to Rule 2:11-4, which provides in relevant part, [a]n application for a fee for legal services rendered on appeal shall be made by motion supported by affidavits as prescribed by R. 4:42-9(b) and (c), which shall be served and filed within 10 days after the determination of the appeal. The application shall state how much has been previously paid to or received by the attorney for legal services both in the trial and appellate courts or otherwise, including any amount received by way of pendente lite allowances, and what arrangements, if any, have been made for the payment of a fee in the future.

Plaintiff has not complied with the Rule, and we therefore refuse to consider the issue at this time.

Reversed and remanded. We do not retain jurisdiction.


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