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Denise Lacerte v. Alan Sussman


July 31, 2012


On appeal from Superior Court of New Jersey, Law Division, Small Claims, Burlington County, Docket No. SC-514-11.

Per curiam.


Submitted July 24, 2012

Before Judges Graves and Yannotti.

Defendant Alan Sussman appeals from a March 24, 2011 order awarding plaintiff Denise Lacerte $250. We affirm.

On November 30, 2010, plaintiff visited Marlton Colonial Apartments in search of a new apartment. After seeing one she was interested in renting, plaintiff "asked [defendant] what [she] needed to do" and "what the process was" to rent the apartment. Defendant told plaintiff she needed to fill out an application and pay "$30 for the application fee and $250 for a deposit to hold the apartment." Plaintiff then asked defendant, "[W]hat happens if I give you the $250 and, for some reason, I can't move there?" Defendant responded that "he would refund the $250." Plaintiff paid the $30 application fee that day and sent her application to defendant the following day.

On December 3, 2010, plaintiff sent a fax to defendant stating she had to "decline the apartment" because she could not afford to pay the security deposit and the first month's rent for the new apartment in addition to the rent for her current apartment. Defendant called plaintiff and said, "You don't need to worry about that. [You] can bring certified funds -- give me the $250. We'll hold the apartment. Bring me the certified funds."

On December 18, 2010, plaintiff personally delivered to defendant a check for $250. Defendant deposited the check on December 21, 2010. On December 24, 2010, defendant sent an email to plaintiff stating he would "hold the apartment until January 15th with the $250 as a holding fee." The email also stated that plaintiff had to "sign the lease and fund the entire security deposit for [defendant] to continue to hold the apartment for February 1st." Attached to the email was a "lease signing advisement," which stated that the $250 was nonrefundable.

Because of the holiday, plaintiff did not see defendant's email until December 27, 2010. In response, plaintiff sent an email to defendant "reminding him of [their] conversation that [they] had on December 3rd." Plaintiff told defendant she could not rent the apartment, and she requested the return of her $250. Defendant refused to return the money, and he told plaintiff he was keeping it for "damages." After a failed attempt to settle the dispute, plaintiff filed a complaint.

During the trial, plaintiff testified she "would never have given [defendant] the $250" if she had known it was nonrefundable. However, defendant testified plaintiff "was given this information . . . from the minute she walked in." Defendant also argued that plaintiff incorrectly sued him because it was the "apartment complex business that she should have been suing."

The trial court rejected defendant's procedural argument that he was the wrong defendant based on his own admission that he personally "had contact" with plaintiff and discussed with her the terms of the apartment rental. The court stated that the dispositive issue in the case was whether plaintiff was "aware of the non-refundable holding fee prior to submitting to [defendant] the check for $250." Based on the parties' testimony, the court found there was "no question" that when plaintiff delivered the check to defendant, she had not been told that it was a non-refundable holding fee. Thus, the court concluded plaintiff's deposit was refundable, and judgment was entered against defendant for $250.

On appeal, defendant argues the trial court incorrectly found him personally liable to plaintiff for the return of the $250 holding fee. He argues plaintiff's lawsuit should have been brought against Marlton Colonial Apartments, LLC, the owner of the apartment complex. We affirm the trial court's decision because it was based on findings of fact that were adequately supported by the evidence. R. 2:11-3(e)(1)(A). We add only the following comments.

The record before us clearly supports the trial court's findings that defendant told plaintiff the $250 holding fee was refundable; plaintiff gave defendant a check for $250; plaintiff was then informed by email that the holding fee was nonrefundable; plaintiff demanded a refund of the holding fee; and defendant refused to return the $250. Because these findings are "supported by adequate, substantial and credible evidence," they are binding on appeal. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Based on these findings, the trial court correctly determined that the terms of the verbal agreement between the parties were enforceable, and the $250 holding fee was refundable.



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