On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. DC-26028-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Hayden.
Defendant Jonathon Sandville appeals from the September 17, 2010 order, which granted plaintiff Ashley Poland's complaint for return of her security deposit and denied defendant's counterclaim for back rent, and from the October 1, 2010 order, which granted plaintiff's requested attorney's fees. Having considered the matter in light of the record and the applicable law, we affirm the order for return of the security deposit and the denial of back rent but remand for a hearing on the order for attorney's fees.
The record reveals that in March 2009, plaintiff signed a one-year lease to rent an apartment from defendant in Jersey City. On August 4, 2009, plaintiff vacated the apartment and later filed this action in the Special Civil Part for a return of her security deposit. Defendant counterclaimed for back rent for the period in which the apartment remained vacant.
At trial, plaintiff testified as follows. Her apartment was located on the ground floor but the back entrance was about four feet below the level of the backyard. In late July 2009, a torrential rain storm occurred that resulted in runoff from the backyard gushing under plaintiff's back door through the entire apartment, leaving several inches of water on the floor. The flood water contained dirt, grass and mud, and the carpet soon became saturated with filthy water. Plaintiff immediately contacted defendant, asking for assistance and telling him she could not remain in the apartment. When defendant came to the apartment the next day, plaintiff showed him the water mark along the molding on the floor as well as the dirt and mud all over the carpet. By the time defendant arrived, the apartment had a very foul odor.
According to plaintiff, that day defendant sent a person to clean up the floor with a spray bottle and paper towels; he did not use bleach or bring fans to dry the apartment. Plaintiff expressed her strong dissatisfaction with what she considered an inadequate clean up and asked defendant to get a professional company to assess the damage and clean the apartment. Defendant refused, because in his opinion the flooding was not severe. Soon, mold started to grow on the baseboard and along the wall of the apartment. The apartment smelled wet and musty, "like a swamp."
Due to the condition of the apartment, plaintiff had not stayed there since the flooding occurred. On August 4, 2011, she met with defendant and told him that she was moving out because she could not live there with the dirt, the smell and the mold. At the trial, plaintiff introduced several photos of the apartment, showing the water on the floor, the watermark on the molding, and mold growing on the wall.
In contrast, defendant testified that the flooding had been minor, and there was no need for professional cleaning. He also denied the presence of any bad odor or mold. Because plaintiff did not give the proper written notice to terminate the tenancy as required by the lease, defendant sought to collect the back rent due until he rented the apartment a few months later. He also testified that plaintiff had damaged the apartment and had not paid for utilities.
In her written opinion on September 17, 2010, the trial judge noted that she had assessed the credibility of the parties and found plaintiff to be extremely credible. She found that the flooding and defendant's refusal to clean the water damage and mold in the apartment rendered the premises uninhabitable, which resulted in plaintiff being constructively evicted from the time of the flood in July. Thus, she determined plaintiff did not owe any back rent on the unexpired lease. Further, the judge found that defendant had failed to return plaintiff's security deposit of $1,425. After deducting $500 for an unpaid utility bill, the judge doubled the remaining $925, resulting in $1,850 due to plaintiff.
The judge also determined plaintiff was entitled to reasonable attorney's fees and ordered plaintiff's counsel to submit an affidavit of services to the court and opposing counsel. She instructed defendant's counsel to submit any opposition to the court and opposing counsel. Meanwhile, that day the court issued an order for defendant to pay plaintiff $1850 for the security deposit and $72 in attorney's fees.
Apparently, shortly thereafter,*fn1 plaintiff's counsel submitted an affidavit for services totaling $9,849 and defendant's counsel submitted no opposition. On October 1, 2010, the trial judge issued an additional order, requiring defendant to pay the full amount of the attorney's fees requested by plaintiff's attorney. This appeal followed.
On appeal, defendant contends that he did not constructively evict plaintiff as she did not give him time to correct the problem and that the judge calculated the security deposit refund incorrectly because when plaintiff vacated the premises on ...