Opinion
DOCKET NO. A-4771-14T2
10-07-2016
ANTHONY HARRIS, Plaintiff-Respondent, v. OFELIA JARAMILLO, Defendant-Appellant.
Roberta L. Tarkan, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. DC-15480-14. Roberta L. Tarkan, attorney for appellant. Respondent has not filed a brief. PER CURIAM
Defendant Ofelia Jaramillo appeals from the March 13, 2015 Special Civil Part judgment, after reconsideration, awarding plaintiff Anthony Harris $3841. Harris filed the action seeking a refund of rent he previously paid to Jaramillo, alleging the covenant of habitability was breached by conditions in the apartment. Harris did not participate in this appeal and was self-represented in the trial court. We affirm.
I.
Harris sought $6895, the total amount of rent he paid while living on the second floor of a four-unit building in Jersey City owned by Jaramillo, in which she also resides. The reasons he wrote into the form complaint he filed were:
Carbon monoxide
No gas no heat no hot water rat problems
[Da11]
The parties' agreement was memorialized in a pre-printed form lease signed on May 6, 2014. Rent was fixed at $985, payable on or before the first of the month. In paragraph 10, Harris agreed to be responsible to repair damage he caused, and to keep the premises in good condition. In paragraph 11(b), Jaramillo promised to "[m]ake any necessary repairs and replacements to the vital facilities serving the [a]partment within a reasonable time after notice by the [t]enant." Paragraph 18 required all notices to be in writing.
Harris failed to pay the rent in December, but claimed he vacated the premises before the January rent was due. Jaramillo claimed Harris was locked out of the apartment in January after she evicted him. She did not, however, file a counterclaim to Harris's complaint for any balances due. Jaramillo retained Harris's security deposit of $985.
Although during the trial the eviction proceedings were mentioned, since Jaramillo did not file a counterclaim seeking unpaid rent, the judge did not allow testimony on the issue. Nonetheless, contrary to Rule 2:5-4 and cases following, Jaramillo included a copy of the eviction complaint and warrant of removal in her appendix. See Townsend v. Pierre, 221 N.J. 36, 45 n.2 (2015) (on appeal, courts will not consider evidentiary material not included in the record below).
Harris testified that while he occupied the premises, he was often out as he worked full-time and attended school. He said he had a general equivalency diploma (GED) and had just graduated from the New York Real Estate Institute in Manhattan. The nature of this program was unclear. Harris was employed as an eyeglass lens cutter. He and his fiancé took possession of the premises on May 7, 2014.
Over Jaramillo's hearsay objection, Harris explained that when he moved into the apartment he contacted Public Service Electric and Gas (PSE&G) to obtain gas service, and was informed that he could not be connected because Jaramillo had not made repairs despite having been served with citations regarding a crack in the apartment's chimney and "carbon monoxide leaking[.]" When he slept in the apartment, Harris left a window cracked open, because he could smell gas being emitted from the kitchen area.
Harris claimed he promptly informed Jaramillo about his inability to connect, and that she responded that she would take care of the problem immediately. He was not able to be connected until October 2014, some six months later. To corroborate his testimony, he produced a PSE&G gas bill, dated October 21, 2014, which included a security deposit fee.
Harris also testified that there were rats in his apartment and produced a photograph he said depicted rat feces in his stove. He told Jaramillo about the problem, but she refused to clean it, and said he should take care of the problem. Harris was afraid he would "get sick" if he tried to clean it himself.
Jaramillo denied there was any rodent infestation in the apartment because she hired an exterminator in 2013, and she uses a "poison pump" to exterminate the premises herself. She also claimed Harris refused her entry into the apartment after she made repeated attempts.
Harris said he had no hot water until the gas was connected, after repairs were made, in October. He said this was not a problem in the warm months but it became problematic in October.
During the trial, the judge at times posed questions to Harris, including leading questions. Jaramillo objected to the practice, but the judge overruled the objection, observing that he was obliged to develop the testimony as Harris struggled to explain the relevant circumstances. Harris did not cross-examine Jaramillo, merely pointing out that Jaramillo had testified both that she entered his unit to look at the stove as well as that she had never been in his apartment.
The trial judge found Harris's testimony credible and Jaramillo's not credible. He found that Harris's testimony established "significant deficiencies and conditions affecting the habitability of the dwelling which directly affected the value of the apartment . . . and therefore entitles [] him to a rent recoupment because of the diminution in value."
In reaching his decision, the judge relied upon Berzito v. Gambino, 63 N.J. 460 (1973), and Bandler v. Maurice, 352 N.J. Super. 158 (App. Div. 2002). He therefore abated the rent for the six months it was paid, May through October, reducing it by thirty percent because of Harris's inability to use the stove because he could not connect to a gas source. The judge awarded an additional ten percent reduction because of the "carbon monoxide issue," which required Harris to sleep with an open window. Lastly, he reduced the rent by an additional twenty percent due to the rat infestation. The adjusted rent, after the sixty percent abatement, was $591 monthly. When the figure was multiplied by the six months of paid rent, Harris was entitled to a refund of $3546. In the colder months, the judge awarded an additional reduction of $295. Thus he granted Harris judgment for $3841. Immediately after the judge rendered his decision, counsel for Jaramillo objected, stating that the judge had abused his discretion and was "making faces" at her.
The original judgment also included double the unreimbursed security deposit totaling $1970. On reconsideration, the court agreed that Harris had not alleged that he was entitled to a refund of the monies and the judgment was reduced accordingly. --------
Jaramillo raises five points for our consideration:
POINT ONEWe address the issues in combination.
THE TRIAL JUDGE SUBSTANTIALLY PREJUDICED THE RIGHTS OF APPELLANT BY ACTING AS THE RESPONDENT'S ADVOCATE.
POINT TWO
THE TRIAL JUDGE'S USE OF LEADING QUESTIONS AND RELIANCE ON HEARSAY WAS HARMFUL ERROR.
POINT THREE
THE RESPONDENT FAILED TO COMPLY WITH THE NOTICE PROVISIONS OF THE LEASE.
POINT FOUR
THE RESPONDENT'S ALLEGATION OF CARBON MONOXIDE LEAKAGE LACKED CREDIBILITY AND PROPER PROOF.
POINT FIVE
THE RESPONDENT'S ALLEGATION OF NO GAS AND INFESTATION WAS NOT PROVEN WITH CREDIBLE EVIDENCE.
II.
The scope of review of the outcome of a bench trial is very limited. D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013). We do not disturb the factual findings of the trial judge unless "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 Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169 (2011).
The grant and extent of a rent abatement by a trial judge "is a factual finding and will be affirmed if supported by credible evidence in the record." See C.F. Seabrook Co. v. Beck, 174 N.J. Super. 577, 596 (App. Div. 1980).
A trial court's evidentiary rulings are reviewed employing the abuse of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We disregard any error we deem harmless. Higgins v. Owens-Corning Fiberglass Corp., 282 N.J. Super. 600, 609 (App. Div. 1995). Only those errors "clearly capable of producing an unjust result," will result in reversal of a verdict. R. 2:10-2.
III.
As a threshold matter, nothing in the record suggests to us that the trial judge was acting as an advocate for Harris. See L.M.F. v. J.A.F., 421 N.J. Super. 522, 537 (App. Div. 2011). He did not prejudice Jaramillo's rights by his questioning.
The New Jersey Rules of Evidence permit trial judges to interrogate witnesses. N.J.R.E. 614(b). This power must be exercised "in accordance with law and subject to the right of a party to make timely objection." State v. Medina, 349 N.J. Super. 108, 131 (App. Div. 2002). In fact, "the discretionary power of a judge to participate in the development of proof is of 'high value' because a fair trial is [the judge's] responsibility." Ibid. (citing State v. Guido, 40 N.J. 191, 207 (1963)). In short, "[t]rial judges are vested with the authority to propound questions to qualify a witness's testimony and to elicit facts on their own initiative and within their sound discretion." Ibid. Such questioning is most important and appropriate where necessary in order to "clarify issues and ascertain the truth," and in circumstances, like a bench trial, in which there was "no danger that undue emphasis would be placed . . . on the questions propounded by the judge." Id. at 132.
In Medina, the trial judge frequently interrupted witnesses with a series of questions. Here, the judge was presiding over a self-represented plaintiff who, despite his educational achievements, was having great difficulty in conveying his ideas. This is precisely the scenario in which a judge is permitted to question a witness in the interest of fairness. State v. O'Brien, 200 N.J. 520, 534 (2009).
The judge's questions were also intended to probe Harris's credibility, not just establish the elements of his cause of action. That the judge asked leading questions was not an abuse of discretion either. See State v. Scharf, 225 N.J. 547, 572 (2016) ("Trial courts are granted broad discretion in making decisions regarding evidentiary matters"); see also N.J.R.E. 611(c).
Trial judges have discretion to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." N.J.R.E. 611(a). We see no error, given these circumstances, in the judge asking Harris some leading questions.
In the main, the leading questions were preliminary, intended solely to elicit basic facts. For example, Harris said he paid Jaramillo "for the lease that I required in contract with her [sic]." This response was not intelligible. In order to clarify the statement, the judge then asked, "[s]o you paid her rent. You no longer live[] there. And now you're suing to get your rent back, correct?"
Jaramillo objects to the judge's reliance on Harris's testimony regarding the information he obtained from PSE&G, arguing that it was impermissible hearsay. In our view, however, although the judge referenced the testimony in his findings, he did not actually rely upon it. Rather, he used the information to place in context Harris's inability to connect the hot water or stove in his apartment, and his habit of sleeping with a window open to avoid the smell of gas fumes.
Obviously, regardless of Harris's mention of PSE&G's response, the judge could have, at his discretion, found Harris's statements incredible. Because the judge relied on the witness's testimony, we see no abuse of discretion in the judge's admission of hearsay and mention of it when rendering his decision.
IV.
The seminal case on the issue of abatement is Berzito v. Gambino, 63 N.J. 460 (1973). There the Court held that "in any residential lease . . . there will be an implied covenant or warranty of habitability . . . ." Supra, 63 N.J. at 467. Accordingly, a tenant may initiate an action to recover part or all of the rent paid to his landlord "where he alleges the [landlord] has broken his covenant to maintain the premises in a habitable condition." Id. at 469. In order to succeed on the claim, "[t]he condition complained of must be such as truly to render the premises uninhabitable in the eyes of a reasonable person." Ibid. "At a minimum, the necessities of a habitable residence include sufficient heat and ventilation, adequate light, plumbing and sanitation and proper security and maintenance." Trentacost v. Brussel, 82 N.J. 214, 225 (1980). A tenant must also provide his landlord with notice and sufficient time to effectuate repairs. Berzito, supra, 63 N.J. at 469.
Although not challenging Harris's legal right to press a claim, Jaramillo urges that his failure to comply with the lease's requirement of written notice denies him any recovery. We disagree. The intent of that provision in the lease is to provide the landlord adequate notice in order to allow for an opportunity to remediate. Here, the judge found that Jaramillo had actual notice of the defects in the apartment in that Harris advised her personally. As such, the judge found Jaramillo had actual knowledge; a factual finding we are not inclined to disturb as it is not manifestly inconsistent with the credible evidence, and it does not offend "the interests of justice." D'Agostino, supra, 216 N.J. at 182. The only evidence the landlord offered to refute Harris's testimony was her own denial, which the court found incredible. As well, the judge's lack of credibility findings were buttressed by Jaramillo's apparently contradictory statements that she never entered Harris's apartment and that she did.
V.
Jaramillo also contends that the allegation of "carbon monoxide" leakage lacked credibility. Although not in the record, she claims that carbon monoxide is odorless and therefore it was impossible for Harris to have smelled anything in the apartment that posed a hazard. Harris's testimony included references to "carbom monoxide[,]" "carbon dioxide[,]" "carbon monoxide[,]" and "carbon denoxide[.]"
We agree with the judge's finding that Harris smelled some noxious odor emanating from the chimney above the stove, which concerned him enough to cause him to sleep with the window open. In light of the judge's conclusion that Harris was credible, it follows that he would find the odor to be a significant problem and to award a reduction in the rent as a result.
The point is not, as Jaramillo asserts, that Harris should have presented an expert on the subject of the true nature of the emissions, if any. Rather, the important point is that Harris's day-to-day use and peaceful enjoyment of his home was impeded by an odor that affected habitability. Therefore, as we noted regarding the findings of notice, the judge's determination that the apartment had some form of noxious leak was not "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." See D'Agostino, supra, 216 N.J. at 182. Whether the gas was carbon monoxide or not is irrelevant.
VI.
Finally, Jaramillo contends that Harris did not demonstrate "with credible evidence" that he was unable to connect to a gas source for his apartment, and that the apartment was infested by rats. Once having found Harris credible, the judge could, in his discretion, deem his testimony sufficient. If a witness is found credible, his word suffices as proof under these circumstances. With regard to the inability to connect, Harris produced a bill from PSE&G that he claimed corroborated his statement because it showed a deposit for gas made in October. The gas bill was proffered as corroboration, but the judge relied on Harris's statements.
The judge believed Harris's testimony regarding the claim that his stove had rat feces and did not believe Jaramillo's statements that she had the apartment building exterminated the prior year, and exterminates infestations herself using a "poison pump." It was no more an abuse of discretion for the judge to have accepted Harris's testimony on this point than it was for him to have accepted his testimony on his inability to connect to a gas source because PSE&G refused until repairs were made. Despite Jaramillo's argument that Harris did not prove that the rodents in question were rats is not relevant. The covenant of habitability includes premises free of any rodent infestation, regardless of the type of rodent. The presence of feces in the stove, whatever the source, made the stove useless to Harris.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION