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Dorrity v. Grandview Terrace

March 5, 2010


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. SC-2605-08.

Per curiam.


Submitted February 9, 2010

Before Judges Skillman and Gilroy.

Defendant, Grandview Terrace, Inc., appeals from the December 12, 2008 judgment entered in favor of plaintiff William Dorrity. We reverse.

Defendant is the owner of the Grandview Terrace Apartments in Jersey City. On March 1, 2007, plaintiff entered into a lease agreement with defendant to rent one of its apartments.

The lease agreement contained an addendum that addressed infestation treatment of bedbugs. The addendum provided in relevant part that upon noticing bedbugs in the apartment plaintiff would arrange for their treatment at the earliest possible time. The addendum further provided that, although defendant's managing agent was to provide plaintiff with a list of approved exterminators upon plaintiff's request, "[a]ll costs shall be borne by [plaintiff]."

In March 2008, plaintiff complained of bedbugs in his apartment to defendant's on-site building manager. After the manager advised plaintiff that he would have to bear the cost of extermination, she referred plaintiff to Ann Richardson in defendant's service department. Richardson immediately arranged for an inspection of plaintiff's apartment by D-Rite Pest Control Company. On April 30, 2008, the extermination company responded to Richardson's request, found bedbugs in plaintiff's apartment, and treated the infestation. On completion of the treatment, the extermination company presented plaintiff with a bill for its services in the amount of $299.60. Plaintiff paid the bill.

Plaintiff subsequently learned that the City Council of Jersey City had enacted an ordinance on September 24, 2008, requiring that owners of buildings with two or more apartment units pay the costs for extermination of insects, including bedbugs, and that the New Jersey Legislature had proposed legislation, which if enacted, would also impose upon building owners the responsibility for exterminating bedbugs. On October 31, 2008, plaintiff filed a complaint in the Special Civil Part, Small Claims Section, demanding judgment against defendant in the amount of $299. The complaint read: "State and City bedbug laws mandate that landlords spray apartments at his/her own expense and adjacent apartments to the infested apartment. Grandview Terrace, Inc., never paid for extermination. Therefore, I must be reimbursed."

At trial, plaintiff testified in accordance with the allegations contained in his complaint. Defendant contested the action on the basis that the Ordinance had been adopted after April 30, 2008, and plaintiff had paid D-Rite Pest Control pursuant to the lease agreement. Although the trial court determined that defendant was not obligated to indemnify plaintiff for the cost of the infestation treatment pursuant to either the City ordinance or the proposed State legislation, it found defendant liable, concluding that defendant had breached the lease agreement by not arranging for the pest control treatment until thirty days after plaintiff had made defendant aware of the infestation. Accordingly, the court entered judgment against defendant in the amount of $299, together with costs of $22.60.

On appeal defendant argues that the trial court denied it due process by deciding the matter on a cause of action of which it had not received prior notice. Defendant contends plaintiff had neither asserted a breach of contract claim in his complaint nor testified in support of that claim at trial. Alternatively, defendant contends that the court misconstrued the trial facts in determining that defendant had not arranged for the pest control treatment until thirty days after having received notice of the infestation.

In a trial proceeding, due process requires that parties be provided "a fair opportunity" to address issues "critical to their cases." R. Wilson Plumbing & Heating, Inc. v. Wademan, 246 N.J. Super 615, 618 (App. Div. 1991). Accordingly, a party defending against a claim must not only be informed of the nature of the claim but also be provided an opportunity to fully address it. Ibid. A trial court should not decide a case on an issue "which is conceived of by the judge only after submission of the case to [the judge] for decision, which comes as a complete surprise to all litigants, and whose post-trial interjection in the case obviously prejudices the litigant who is accorded no opportunity to offer a factual or legal defense."

Id. at 617; accord State, Office of Employee Relations v. Commc'ns Workers of Am., 154 N.J. 98, 108 (1998).

Here, the trial court improperly decided the matter on a claim that was neither alleged by plaintiff in his complaint nor pursued by plaintiff at trial. Rather, the court entered judgment in favor of plaintiff, determining defendant had breached the lease agreement, the court having raised the claim sua sponte for the first time after the parties had rested. Because the court failed to accord defendant due process by not affording defendant the opportunity to address the breach of contract ...

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