October 9, 2012
HUDSON TROY TOWERS APARTMENT CORPORATION, PLAINTIFF-RESPONDENT,
THEADORA MALFETTI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-13-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 2, 2011 -
Before Judges Fuentes, Graves and Harris.
In January 2010, plaintiff Hudson Troy Towers Apartment Corporation (HTT), a cooperative apartment complex in Union City, New Jersey, filed a complaint to enjoin and restrain defendant Theadora Malfetti, a resident shareholder of HTT, from keeping a dog in her apartment. During a three-day bench trial, defendant claimed HTT violated the Fair Housing Amendments Act, 42 U.S.C.A. §§ 3601-3631, and the Americans with Disabilities Act, 42 U.S.C.A. §§ 12101-12213, when it denied her request to waive its "no dog policy." Defendant appeals from a July 26, 2010 judgment prohibiting her from "housing or harboring" a dog in her apartment and a subsequent order dated October 29, 2010, awarding attorneys' fees and costs to plaintiff. We affirm the judgment but reverse the award of fees and costs and remand for further proceedings consistent with this opinion.
Defendant purchased her apartment and obtained shares of stock in HTT on January 9, 2001. At that time, defendant signed a Proprietary Lease and agreed to be bound by HTT's Bylaws and its "House Rules and Regulations," which prohibit dogs.*fn1
After moving into her apartment, defendant was subjected to offensive verbal comments by HTT's property manager, and she began therapy sessions with James Niederland, a licensed clinical social worker. In 2003, defendant filed a lawsuit against HTT and C&R Realty, the management company that employed the property manager. While that matter was pending, Niederland prepared a report in support of defendant's claims. Defendant's sexual harassment case settled in 2004. Pursuant to the terms of the settlement, the property manager was permanently removed from HTT, and C&R Realty paid defendant a sum of money for the release of her claims against both the company and HTT. Defendant attended therapy sessions with Niederland in 2002 and 2003, but she stopped seeing him in January 2004.
In June 2005, defendant moved from her apartment at HTT and rented an apartment with a friend in Brooklyn. About a year later, in the summer of 2006, defendant purchased a Havanese puppy from a pet store and had the dog trained as an "emotional support animal."
Defendant was employed by UBS for approximately ten years, but her employment ended in April 2009, due to downsizing. Defendant testified she did not seek other employment because she wanted to start her own holistic health business. Niederland testified that defendant began to see him again in 2009 because "she intended to expand into a new area of work and wanted to remove whatever lingering blocks she might have towards her expansion."
According to Niederland, in August or September 2009, defendant told him she was going to move back to her apartment in New Jersey and needed a letter from him "to keep the dog there." Niederland testified that defendant prepared the letter, and he signed it after he "made changes."
In September 2009, defendant advised HTT that she was planning to return to her apartment with her dog, and she submitted Niederland's letter in support of her request for a waiver of the no dog policy. Eileen Markenstein, the President of HTT's Board of Directors (Board), testified the Board wanted more information because Niederland was not a medical doctor and his letter failed to adequately explain defendant's condition and the service her dog would provide. Therefore, the Board requested additional documentation, including a statement from a licensed treating physician indicating that defendant was suffering from a disability and her requested accommodation would ameliorate the effects of the disability.
A few days later, the Board received a letter from Mario Miglietta, D.O., dated October 8, 2009, which was almost identical to the letter signed by Niederland. During the trial, defendant admitted she prepared the letters signed by both Niederland and Miglietta. On October 16, 2009, HTT notified defendant that her "request for an emotional support animal" had not been approved. Nevertheless, defendant moved back into her apartment with her dog. Thereafter, in a letter dated November 9, 2009, HTT's property manager advised defendant that her "unauthorized dog" was a violation of the House Rules and Regulations and a "default under the Proprietary Lease."*fn2 The letter also stated that HTT would take legal action if the dog was not removed from the premises within seven days. Defendant did not remove the dog, and this action ensued.
During the trial, there was conflicting testimony from plaintiff's expert, Dr. Mark Siegert, a psychologist who evaluated defendant, and defendant's expert, James Niederland. In an oral decision on July 1, 2010, the trial judge carefully reviewed the evidence and concluded that Siegert was a credible witness. On the other hand, the court found that Niederland did not "stand up well to the cross-examination by plaintiff's counsel." The court also found "Niederland was non-responsive to a number of questions" and, at times, "[i]t was very difficult to get an answer" from him. Thus, the court accepted Siegert's findings and conclusions and determined defendant failed to establish "a disability under the Americans with Disabilities Act or the Fair Housing Amendments Act."
Our scope of review of a judgment entered in a non-jury trial is narrow. "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). "'[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.'" Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).
In this case, defendant argues the judgment entered on July 26, 2010, should be reversed because Dr. Siegert's testimony was entitled to "substantially less weight than [defendant's] treating therapist." We do not agree. Based on our review of the record, we are satisfied the court's findings----including its credibility assessments----are supported by substantial credible evidence, and the court's conclusions are legally sound. Accordingly, the July 26, 2010 judgment is affirmed.
Defendant also argues the fees of $78,312.50 and costs of $18,570.02 awarded to plaintiff are unreasonable. "Obviously, a lawyer's bill for services must be reasonable both as to the hourly rate and as to the services performed." Gruhin & Gruhin, P.A. v. Brown, 338 N.J. Super. 276, 280 (App. Div. 2001); see also RPC 1.5(a) (setting forth the factors to be considered in determining the reasonableness of a fee). A court must determine the reasonableness of the rate charged by comparing it to the rate "'for similar services by lawyers of reasonably comparable skill, experience, and reputation' in the community." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 22 (2004) (quoting Rendine v. Pantzer, 141 N.J. 292, 337 (1995)). A court must also determine whether the time expended by counsel is equivalent to the time "'competent counsel reasonably would have expended to achieve a comparable result.'" Ibid. (quoting Rendine, supra, 141 N.J. at 336).
Unfortunately, we are unable to review the reasonableness of the fees and costs in this case because the trial court failed to make any factual findings, and it failed to state its reasons for awarding fees and costs in the total amount of $96,882.52. Accordingly, the order entered on October 29, 2010, is reversed and remanded for further review of the relevant factors and an explanation for the amount of the fees and costs awarded to plaintiff.
Affirmed in part, reversed in part, and remanded. Jurisdiction is not retained.