January 26, 2011
YVONNE BUDDINGTON, PLAINTIFF-RESPONDENT,
EMANUEL SHAMAM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. SC-1815-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 3, 2011 -- Decided: Before Judges Grall and C.L. Miniman.
Defendant Emanuel Shamam appeals from a final judgment of the Special Civil Part ordering the return of a portion of a security deposit and doubling the amount pursuant to the Security Deposit Act (the SDA), N.J.S.A. 46:8-19 to -26. We affirm.
Defendant contends that the judge's fact-findings were not supported by the evidence and urges that we reverse the judgment. We disagree.
The evidence at trial established that plaintiff and defendant entered into a series of leases, the last of which covered the period from May 1, 2008, to April 30, 2009. Thereafter, plaintiff held over on a month-to-month tenancy. She testified that she vacated the premises on July 1, 2009. Plaintiff gave defendant thirty days notice that she would be moving on July 1, 2009. She paid the rent for the month of June. Her security deposit was $1425. The security deposit was not returned.
On July 27, 2009, plaintiff received a letter from defendant by certified mail respecting the security deposit. In that letter, he advised that he performed a walk-through on July 12, 2009, and found the following conditions:
1. Holes and broken-spackle for 5 rooms, spackle and painting $175 labor & material each room = $875[.]
2. Kitchen floor torn and damaged $475[.]
3. Paragraph 33 of lease states that a new key and locks for front and back doors $150[.]
4. Clean and clear entire unit debris $150[.]
Total damage $1650.
Total owed to landlord = $139[.]50 Credit to tenant = $1510[.]50 Total due to Landlord = $65[.]
Defendant arrived at $1510.50 for the security deposit by computing interest at two percent for one year in the amount of $85.50, which, added to the security deposit of $1425, equaled the amount credited to the tenant.
In her testimony, plaintiff disputed the allegations made by defendant. Both parties had photographs of the apartment. Defendant has submitted only his photographs in the appendix. The Xerox copies of the photographs are so dark that it is impossible to discern what they display other than spots and splotches on the walls, a room with wrinkled wall-to-wall carpeting, and a room with split linoleum, presumably in the kitchen.
Plaintiff testified that she installed the carpeting with defendant's permission at her own expense. She did the same with the linoleum in the kitchen. As to the condition of the walls, she testified that before she left she spackled holes from pictures hung on the walls. She also testified that she did leave some things outside the apartment in the hallway on July 1, but the apartment was empty.
Defendant testified that plaintiff did not leave until July 14.*fn1 He disputed that plaintiff vacated on July 1, testifying that he called her on July 10 to tell her that she still had things in the apartment and to ask what she wanted to do with them. He testified that she said she did not want them. He met her at the apartment on July 14, and she took what was left in the apartment and put it out in the hallway.
Relying on the letter dated July 27, 2009, defendant testified that plaintiff owed him $65 after he deducted the damages and other items in his letter from the total security deposit. He admitted that plaintiff installed the linoleum in the kitchen but claimed that he paid her for it.*fn2 He testified that there were holes and broken spackle in all five rooms and that it cost $175 per room to spackle and paint each room.
Next, defendant testified that it would cost him $475 to replace the linoleum floor. He again claimed that he had paid for the linoleum floor that plaintiff put down. He further testified that plaintiff left the apartment with so much dirt that he had to clean it up and that the total damages came to $1650.
With respect to new keys and locks for the front and back doors, he testified that he always changed the keys and locks just in case a former tenant retained a key to the apartment. He asserted that paragraph 33 in the lease allowed him to recoup the costs of doing so. However, when the judge pointed out that paragraph 33 of the lease merely provided that the keys were to be returned to the landlord, defendant conceded the point. Then he claimed that plaintiff did not give him the keys when she left.
The judge questioned plaintiff, who insisted that she had receipts for the carpeting and linoleum and that defendant was lying. She did, however, admit that he gave her $100 toward the total cost of about $300 for the carpeting. As to the linoleum, she said the existing linoleum was "nasty old dried paint," and as a result, she put new linoleum down on top of the old linoleum at her own expense. She also testified that she gave defendant all three keys when she vacated the apartment.
When the judge examined defendant, he admitted that plaintiff paid for the carpeting and claimed that he only reimbursed her for the linoleum. He then complained that she did not even take the carpeting with her, although she had paid for it. He further admitted that the linoleum was placed on top of the pre-existing linoleum, which was in bad condition, although the plywood floor beneath was in good condition. He explained that the $150 charge was for taking out the linoleum and carpeting and cleaning the apartment.
On the judge's further examination of plaintiff, she testified that it was not true that defendant paid her for the linoleum. Instead, he gave her $100 for the carpets in her son's room and in the hallway. She said that throughout the apartment, including the kitchen, there was old "nasty" paint on the floor; she asked permission to get carpeting and linoleum; and he gave her permission. Plaintiff tendered copies of her moving receipts to prove that she moved out on July 1. She also produced a certified mail receipt for the notice that she was vacating, which was dated June 1, 2009. She admitted that the moving receipt was not dated. That concluded the proofs.
The judge immediately placed his fact-findings on the record. He found that the notice mailed on July 1, 2009, was an effective thirty-day notice under the lease. He compared the testimony of the plaintiff and defendant respecting the date on which plaintiff moved and found that plaintiff "did, in fact, remove all of her belongings on the first." As a result, no additional rent should have been charged to her.
The judge then compared the photographs provided by both parties, P-5a to P-5aa and D-1a through D-1ee.*fn3 The judge found that the spackling shown on both sets of photographs was not very well done and that there were "evident issues that would have needed to be addressed with respect to the spackling." It was not flush with the wall, was very uneven, and would have required some work before the rooms could be repainted. However, he found from the photographs that the need to repaint the entire apartment was not demonstrated; rather, only spackling should have been addressed and the spackled areas repainted. As a consequence, he allowed $250.
As to the linoleum, he found that the issues shown in the photographs did "not appear to be anything that would be unexpected from laying linoleum over old linoleum" or anything attributable to any wrongful conduct on the part of plaintiff. As a result, plaintiff was not liable for repair costs.
As to the charge for new keys and locks, he found that the lease did not provide the landlord with a right to change them and impose a charge of $150. As a consequence, the judge disallowed the $150 so charged.
As to the $150 for cleaning and clearing the unit, the judge noted that the lease provided for a charge of up to $500 to clean the apartment, "to the landlord's reasonable satisfaction." None of the photographs showed anything that was left to be cleaned. However, he found the need to clean the rug to support the $150 charge. As a consequence, he found that defendant had proven $400 in expenses in connection with respackling and painting holes and cleaning the carpeting. That left a balance of $1110, which he doubled under the SDA. This appeal followed.
The scope of our review of a trial judge's fact-findings is limited by well-settled, controlling principles. Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div.), certif. denied, 172 N.J. 355 (2002). "We are not to review the record from the point of view of how we would have decided the matter if we were the court of first instance." Ibid. (citation omitted). "Findings by the trial judge 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) (citation omitted); see also Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004).
"[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.) (citation omitted), certif. denied, 40 N.J. 221 (1963); see also Metuchen Sav. Bank v. Pierini, 377 N.J. Super. 154, 161 (App. Div. 2005) (stating same).
It is not our function to weigh the evidence. Cintrone v. Hertz Truck Leasing & Rental Serv., 45 N.J. 434, 440 (1965). Neither do we "determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein." Penpac, Inc. v. Passaic Cnty. Utils. Auth., 367 N.J. Super. 487, 507 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 180 N.J. 457 (2004). "Rather, our aim is to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Sebring Assocs., supra, 347 N.J. Super. at 424 (citations and internal quotation marks omitted).
Having reviewed the evidence submitted by the parties, we find no occasion in this case to disturb the judge's fact- findings.*fn4 It is clear that the judge credited the testimony of plaintiff, and there was more than sufficient credible evidence in the record to support each and every one of the judge's fact-findings. Additionally, the judge's legal conclusions are well-supported by the statute and case law. The SDA required the landlord to return the security deposit, "less any charges expended in accordance with the terms of a contract," within thirty days after the termination of the tenant's lease. N.J.S.A. 46:8-21.1; see Watson v. United Real Estate, Inc., 131 N.J. Super. 579, 582 (Cty. Ct. 1974) (holding that "the statutory mandate is clear" and that the landlord "may only retain so much of the damage deposit as he can demonstrate was expended in accordance with the terms of the lease"). The Act provides that "[i]n any action by a tenant . . . for the return of moneys due under this section, 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." N.J.S.A. 46:8-21.1.
We have recently observed that:
N.J.S.A. 46:8-21.1 was specifically "intended to protect tenants from overreaching landlords who seek to defraud tenants by diverting rent security deposits to their own use." Jaremback[ v. Butler Ridge Apartments], 166 N.J. Super. [84,] 87 [(App. Div. 1979)] (citing Watson v. Jaffe, 121 N.J. Super. 213, 214 (App. Div. 1972)).
"The 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)]. [Reilly v. Weiss, 406 N.J. Super. 71, 83 (App. Div. 2009).]
The penalty required to be imposed upon the landlord is double the amount of monies wrongfully withheld, Yi, supra, 338 N.J. Super. at 538-39, even if the landlord incorrectly believes he deducted the proper amount from the security deposit, Reilly, supra, 406 N.J. Super. at 84. The judge correctly applied the law to the facts. We find no basis for disturbing his judgment.