Opinion
DOCKET NO. A-2446-14T2
02-17-2016
MARCUS MACHADO, Plaintiff-Appellant, v. EVELYN MCKINNON, Defendant-Respondent.
Neal J. Berger, attorney for appellant. Koch, Koch, Bennett & Buono, LLC, attorneys for respondent (Paul V. Buono, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1980-13. Neal J. Berger, attorney for appellant. Koch, Koch, Bennett & Buono, LLC, attorneys for respondent (Paul V. Buono, on the brief). PER CURIAM
Plaintiff, former commercial tenant Marcus Machado, appeals from a no-cause bench verdict in a dispute where he sued defendant, his former landlord Evelyn McKinnon, for unlawfully disposing of his possessions. The trial judge found that plaintiff had not proved the value of the items removed by defendant, who subsequently died before trial. We affirm substantially for the reasons expressed in Judge Joseph A. Turula's thorough written opinion of December 16, 2014.
Plaintiff, a business owner and part-time construction worker, purchased a clothing store located in a building on Kearny Avenue, where defendant, prior to her death, was the landlord and a resident. According to plaintiff, when he bought the store, "the store was completely set up" and contained mirrors, sinks, shelves, decorative items, a cashier machine, beds, and child mannequins.
Pursuant to a May 7, 2007 commercial lease agreement, plaintiff rented space at the building for a three-year term with an option to renew. Paragraph 23 of the lease, "Violation, Eviction, Re-entry and Damages," reads in pertinent part:
The Landlord reserves a right of re-entry which allows the Landlord to end this Lease and re-enter the Rental Space if the Tenant violates any agreement in this Lease. This is done by eviction. Eviction is a court procedure to remove a tenant.Paragraph 27 of the lease, "End of Term," provides:
If the Tenant leaves any property in the Rental Space, the Landlord may (a) dispose of it and charge the Tenant for the cost of disposal, or (b) keep it as abandoned property.
From the beginning of the 2007 lease until approximately mid-2012, plaintiff used the Kearny Avenue store to sell merchandise directly to his customers. In mid-2012, plaintiff closed down his store and used the site primarily for storage purposes.
Plaintiff paid rent to defendant through February 2013. In February plaintiff discovered a less expensive storage facility in Newark and provided written notice to defendant that he was terminating the lease on or around March 1, 2013. Plaintiff testified that he later told defendant that he was unable to vacate the premises before March.
In the first half of March 2013, various individuals inspected the Kearny premises on behalf of defendant, finding some boxes and used furniture. Defendant hired a rubbish removal service that cleared the space and removed the items in a single trip on March 19.
According to the owner of the removal company, the place looked like it was deserted: "[I]t looked like a store that somebody came in, took their things and left behind a whole bunch of garbage. There were a lot of loose hangers, a lot of paper, a lot of just strict . . . you know, garbage -- boxes that were garbage."
Ultimately, the new storage facility was available to plaintiff on March 23, 2013. On that day, plaintiff went to the Kearny Avenue space to retrieve his possessions. Believing that a robbery had occurred, plaintiff called defendant. After talking to defendant, plaintiff called the police. Plaintiff then constructed an itemized list, based on his recollection, of the merchandise that was removed from the space. According to this list, the value of the removed items totaled $15,970.30.
Approximately two weeks later, plaintiff filed a criminal complaint against defendant, alleging that defendant stole "in excess of $10,000 in merchandise, including shoes, clothing and furniture."
Two days later plaintiff filed a civil complaint against defendant alleging that defendant removed property totaling $45,000 in value. On January 29, 2014, defendant died, before her deposition could be taken.
In his written opinion, Judge Turula made detailed findings of fact, concluding: "It is not contested that merchandise and other items were disposed of from [the Kearny Avenue location], but it is disputed as to the value of those items." The judge determined that "plaintiff did not pay the March rent," the judge found that defendant had a contractual duty to file an eviction action in landlord-tenant court, rather than engage in a self-help eviction. Further, the judge found that plaintiff, as evidenced from his possession of the keys to the premises, "had not paid the rent but had possession."
Although Judge Turula found that defendant would be liable for any damages resulting from the removal of plaintiff's possessions, he ultimately found that plaintiff failed to prove damages by a preponderance of the evidence. Based on the evidence presented, the judge was unable to determine the value of the items, or whether some of the items were fixtures or chattel. He noted that fixtures, included in the cost of the purchase of a store, become the property of the landlord pursuant to the lease. He also found that "plaintiff has not proven by a preponderance of the evidence the damages asserted" for lost profits due to the conflicting testimony of the witnesses. While plaintiff alleged that the store contained $45,000 worth of merchandise, the judge, in making his findings of fact, found that the credible defense witnesses' testimony proved the existence of "at best some piled furniture and [two] boxes." Lastly, the judge summarily dismissed plaintiff's claim for attorney's fees and punitive damages because plaintiff could not prove compensatory damages.
Plaintiff argues that we should reverse the judge's credibility and fact findings. "We accord substantial deference to the trial court's findings of fact provided that they are 'supported by adequate, substantial and credible evidence . . . .'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382-83 (App. Div. 2015) (quoting Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202-03 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998)). "[W]e are charged to accord substantial regard to the conclusions of trial judges and to discretionary determinations that flow from them." Cosme, supra, 304 N.J. Super. at 202-03. "Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Thus, in reviewing factual findings, "[w]e defer to the trial court's determination of a witness's credibility and demeanor." Riley v. Keenan, 406 N.J. Super. 281, 301-02 (App. Div.), certif. denied, 200 N.J. 207 (2009). Judge Turula heard sharply divergent testimony from plaintiff and the witnesses presented by the defense and found the defense witnesses more credible.
We will overrule the Law Division's factual findings only when "clearly erroneous." State v. Robertson, 438 N.J. Super. 47, 64 (App. Div. 2014), certif. granted, 221 N.J. 287 (2015). In non-jury cases, the trial judge's findings should be respected unless "they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)).
"Generally, plaintiffs have the burden of proving damages." Caldwell v. Haynes, 136 N.J. 422, 436 (1994); see also Model Jury Charge (Civil), 1.12(O), "Damages" (1998). Damages must exhibit "such certainty as the nature of the case may permit," which would provide the fact-finder "some evidentiary and logical basis for calculating or, at least, rationally estimating a compensatory award." Caldwell, supra, 136 N.J. at 436 (quoting Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987); and then quoting Huddell v. Levin, 537 F.2d 726, 743 (3d Cir. 1976)). Here, Judge Turula found that plaintiff failed to prove any damages. That finding is supported by the record.
To obtain punitive damages, the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17, requires that the plaintiff initially receive an award of compensatory damages. See N.J.S.A. 2A:15-5.13(c). Because plaintiff failed to prove compensatory damages, the judge did not err in his dismissal of plaintiff's punitive damages claim.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION