KATHLEEN GARNER VS. PACIFIC LANDING, LLC (SC-000126-20, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 10, 2021
• Docket: A-3467-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3467-19

KATHLEEN GARNER,

Plaintiff-Respondent,

v.

PACIFIC LANDING, LLC,

Defendant-Appellant. _________________________

Submitted July 6, 2021 – Decided December 10, 2021

Before Judges Messano and Smith.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. SC-000126-20.

Vincent J. D'Elia, attorney for appellant.

Respondent has not filed a brief.

The opinion of the court was delivered by

SMITH, J.A.D. After a non-jury trial, the court entered judgment in the amount of

$4,590.78 against defendant Pacific Landing, LLC, a non-profit housing

corporation. Defendant appeals, and we affirm in part. However, because the

trial judge incorrectly applied the law under N.J.S.A. 46:8-21.1, we vacate the

judgment and remand the matter to the trial court to enter an amended judgment

in the amount of $3,224.52.

Plaintiff, Kathleen Garner, was defendant's tenant from March 1, 2016, to

May 31, 2019, when she was evicted. Plaintiff did not appeal the eviction. On

January 30, 2020, plaintiff filed a pro se complaint against defendant to recover

her security deposit, seeking $1,591.26 plus costs. The trial court took

testimony from Garner as well as June Jones, defendant's executive director, and

made findings. Defendant testified that it did not correspond with plaintiff after

lease termination to return all or part of her security deposit, nor did it produce

receipts or other competent evidence to support any set-off for property damage

caused by plaintiff. The court found defendant violated N.J.S.A. 46:8-21.1, the

Security Deposit Act (SDA), in failing to return the security deposit, adjusted

for lease related expenses, within thirty days of lease termination. The trial court

ordered judgment for plaintiff in amount of $4,590.78, which represented three

times plaintiff's original security deposit, plus costs.

A-3467-19 2 Defendant appeals, arguing the trial court miscalculated the amount due

plaintiff by awarding treble damages, and that the court also failed to set-off the

value of property damage allegedly caused by plaintiff against the award under

the SDA.

"The scope of appellate review of a trial court's fact-finding function is

limited." Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)

(quoting Cesare v. Cesare, 154 N.J. 394, 411 (1998)). Ordinarily, the trial

court's findings "are binding on appeal when supported by adequate, substantial,

credible evidence." Ibid. (quoting Cesare, 154 N.J. at 411-12). Such deference

"is especially appropriate when the evidence is largely testimonial and involves

questions of credibility." Ibid. (quoting Cesare, 154 N.J. at 412). "The trial

court's legal determinations, in contrast, are reviewed de novo." Sipko v. Koger,

Inc., 214 N.J. 364, 379 (2013).

The SDA requires a landlord to return a tenant's security deposit along

with accrued interest "[w]ithin [thirty] days after the termination of the tenant's

lease . . . less any charges expended in accordance with the terms of [the] . . .

lease . . . ." N.J.S.A. 46:8-21.1. "Any deductions the landlord makes must be

'itemized,' and notice must be forwarded to the tenant." Reilly v. Weiss, 406

N.J. Super. 71, 80 (App. Div. 2009) (quoting N.J.S.A. 46:8-21.1). "If the

A-3467-19 3 landlord violates this section . . . the tenant may bring suit, and '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.'" Ibid. (second alteration in original)

(quoting N.J.S.A. 46:8-21.1).

We see no reason to disturb the trial court's factual findings. There is no

dispute that defendant terminated plaintiff's lease effective May 31, 2019, nor is

there any dispute that defendant failed to return the security deposit, "less any

charges expended in accordance with the terms of [the] . . . lease . . ." within

thirty days of the lease termination, as required by the SDA. We are required,

however, to review legal determinations of the trial court, and we are

constrained to vacate the trial court's treble damages order. The penalty

language in the SDA reads as follows:

In any action by a tenant, licensee, executor, administrator or surviving spouse, or other person acting on behalf of a tenant, licensee, executor, administrator or surviving spouse, for the return of moneys due under this section, the court upon finding for the tenant, licensee, executor, administrator or surviving spouse 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 (emphasis added).]

A-3467-19 4 Here, plaintiff's original security deposit of $1,591.26 should have been

doubled to $3182.52. While the SDA contemplates the offset of " any charges

expended in accordance with the terms of [the] . . . lease . . ." when calculating

the amount of security deposit to be returned to the former tenant, no such proofs

were presented by defendant at trial. Costs of forty-two dollars were awarded

to plaintiff by the trial court, and we add those costs to the modified award.

While not raised as an appeal issue, the record shows defendant's

executive director requested a trial adjournment due to the unavailability of

counsel. The trial court denied the request and proceeded with trial. "[A]ny

authorized officer or employee may prosecute and defend on behalf of a party

which is a business entity, whether formally incorporated or not, claims

originating with and not held by transfer or assignment to that business ent ity

. . . ." R. 6:11. Defendant was not required to be represented by counsel in this

Small Claims matter. Any remaining arguments by defendant lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part. The judgment of the trial court in the amount of

$4,590.78 is vacated, and the matter is remanded for the court to enter an

amended judgment for plaintiff in the amount of $3,224.52.

A-3467-19 5