                        NOT FOR PUBLICATION WITHOUT THE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-5373-15T4

JOY SYSTEMS, INC.,

        Plaintiff-Respondent/
        Cross-Appellant,

v.

FIN ASSOCIATES LIMITED
PARTNERSHIP, a New Jersey
Limited Partnership,

        Defendant-Appellant/
        Cross-Respondent,

and

UNITED STATES LAND
RESOURCES, LP, a New
Jersey Limited Partnership,

        Defendant.


              Argued May 22, 2018 – Decided June 7, 2018

              Before Judges Yannotti, Mawla, and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Morris County, Docket No. L-
              1565-14.

              Lawrence S. Berger argued             the cause      for
              appellant/cross-respondent              (Berger        &
              Bornstein, LLC, attorneys; Robert A. Bornstein
              and Gregory J. Cannon, on the briefs).

              Marshall T. Kizner argued the cause for
              respondent/cross-appellant (Stark & Stark,
              attorneys; Marshall T. Kizner, of counsel and
              on the briefs).

PER CURIAM

     In this commercial landlord-tenant dispute, defendant FIN

Associates, LP (FIN) appeals from judgments entered in favor of

plaintiff Joy Systems, Inc (Joy) on June 29 and August 19, 2016,

following a bench trial.        Joy cross-appeals from the judgments.

We   affirm     for   the   reasons   expressed   in    the   thorough     and

comprehensive opinion of Judge Rosemary E. Ramsay.

     The following facts are taken from the record.                On May 18,

2006,   Joy    entered   into   a   lease   agreement   for   an   industrial

warehouse building located on Finderne Avenue in Bridgewater with

defendants FIN and United States Land Resources, LP (USLR).                The

lease was prepared by defendants.            Pursuant to the lease, Joy

agreed to pay monthly rent of $31,875, and $82,262 as a security

deposit.      In April 2009, the parties entered into an amendment

extending the lease term for two years to May 31, 2011.

     Joy's tenancy lasted from May 18, 2006 to May 31, 2011, during

which it paid FIN all of the rents due.            Pursuant to the lease

terms, Joy agreed to "take good care of the . . . [p]remises . . .

and . . . keep and maintain the same in good order and condition

                                       2                              A-5373-15T4
subject to normal wear and tear."                    The lease also provided FIN

would     "perform     the      work    set       forth     in     [e]xhibit    B    hereto

('[l]andlord's [w]ork')."              Exhibit B enumerated eleven items FIN

was required to complete or substantially complete before the

commencement of the lease.             Pertinent to this dispute, FIN agreed

the existing overhead doors and dock levelers would "be put in

good working order."            FIN also agreed to build a 500 square foot

lunch room.      Upon termination of the lease, Joy was required to

"yield . . . the . . . [p]remises 'broom clean' and in the condition

in which [Joy] is required to maintain the same during the term

pursuant to the provision of this [l]ease and . . . return the

. . . [p]remises to [FIN] in the condition it was in as of the

date [FIN] complete[d] [l]andlord's [w]ork[.]"

     To      fulfill     its     obligations,         Joy        employed   a   full-time

maintenance worker to maintain the property in accordance with the

terms   of    the    lease.        Additionally,            Joy     contracted      with    a

maintenance services company, which performed general maintenance,

including on the overhead doors and dock levelers located on the

premises.       In     total,    Joy    incurred      approximately          $280,000      to

maintain the premises during the term of the lease.                         This included

regularly maintaining the dock levelers and overhead doors, and

replacing a dock leveler that failed during the term of the lease.



                                              3                                     A-5373-15T4
     On December 13, 2010, Joy provided a letter to FIN advising

it was vacating the premises.       On August 5, 2011, three months

after Joy vacated the premises, FIN advised Joy it "was [Joy's]

responsibility to put the dock levelers, etc. back into good

condition before [Joy] left the building."         FIN represented it

would return "whatever remains" of the security deposit after Joy

performed the work.    Four days later, Joy advised FIN it hired a

third party contractor who had returned the doors and dock levelers

to good working condition. Joy provided a receipt, which evidenced

its payment for completion of the work.

     The lease required FIN to return the security deposit at the

conclusion of the lease, provided Joy had met its obligations

under the lease terms.    FIN did not return the security deposit.

As a result, Joy filed a six-count complaint against FIN and USLR

seeking monetary damages for the failure to return the security

deposit.    The complaint pled the following counts: breach of

contract;   unjust   enrichment;   fraud;   promissory   estoppel;   and

equitable estoppel.     Monetary damages were sought against USLR

based on the theory of piercing the corporate veil.1

     FIN filed an answer and counterclaim.       In the counterclaim,

FIN alleged Joy breached the lease by failing to surrender the


1
  The judge dismissed the claims against USLR without prejudice.
This aspect of the judgment has not been appealed.

                                   4                            A-5373-15T4
premises in broom-clean condition, failing to remove its property

from the premises, and causing damage to the premises. FIN further

alleged it "suffered damages in excess of [Joy's] security deposit,

and   therefore,   was   entitled   to    recover   all   costs   of    the

aforementioned repairs, replacements, and debris removal that

exceed [Joy's] security deposit."

      Joy filed an initial summary judgment motion, which was

denied. Prior to trial, Joy filed a second summary judgment motion

seeking summary judgment on various grounds, including the New

Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20.               FIN's

opposition did not address Joy's CFA argument.             This summary

judgment motion was denied as well.

      At the start of trial, Joy's counsel argued his client would

prove a violation of the CFA.           FIN's counsel did not object.

During the trial, Joy offered evidence it believed demonstrated

FIN's unconscionable commercial practices in violation of the CFA.

Following summations, FIN's counsel objected to the assertion of

the CFA claim, and moved for a directed verdict to dismiss the CFA

claim for lack of notice and evidence supporting the claim.               In

response, Joy's counsel argued the judge should invoke Rule 4:9-2

to amend Joy's complaint to conform to the evidence adduced at

trial.



                                    5                             A-5373-15T4
     Judge    Ramsay   filed   a     comprehensive     written    opinion      and

entered judgment finding as follows: (1) FIN had breached the

lease   by   failing   to   return    the   security    deposit;    (2)     Joy's

complaint was amended to conform to the evidence adduced at trial

to include a CFA claim; (3) as a result, Joy was entitled to

recover damages resulting from the CFA violation in the amount of

$52,196.04, plus prejudgment interest on the security deposit from

August 15, 2011, to the date of the judgment, in the amount of

$9305.90, for a total of $61,501.94; (4) Joy was entitled to treble

damages under the CFA totaling $184,505.84.               The total amount

awarded Joy was $266,767.84.         This appeal followed.

                                       I.

     "Trial court findings are ordinarily not disturbed unless

'they are so wholly unsupportable as to result in a denial of

justice,' and are upheld wherever they are 'supported by adequate,

substantial and credible evidence.'"          Meshinsky v. Nichols Yacht

Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort

v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974)).                 "Deference is

especially appropriate when the evidence is largely testimonial

and involves questions of credibility.               Because a trial court

hears the case, sees and observes the witnesses, and hears them

testify, it has a better perspective than a reviewing court in

evaluating the veracity of witnesses."           Seidman v. Clifton Sav.

                                       6                                  A-5373-15T4
Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting Cesare v. Cesare,

154 N.J. 394, 411-12 (1998)).       "A trial court's interpretation of

the law and the legal consequences that flow from established

facts are not entitled to any special deference."                  Manalapan

Realty, LP v. Twp. Comm., 140 N.J. 366, 378 (1995).

     "The decision to grant or deny . . . a motion [to amend a

pleading]   lies   within   the   [trial]   court's    sound    discretion."

Balthazar v. Atlantic City Med. Ctr., 358 N.J. Super. 13, 27 (App.

Div. 2003).    "While motions for leave to amend pleadings are to

be liberally granted, they nonetheless are best left to the sound

discretion of the trial court in light of the factual situation

existing at the time each motion is made."            Fisher v. Yates, 270

N.J. Super. 458, 467 (App. Div. 1994).

     "The exercise of this discretion will be interfered with by

an appellate tribunal only when the action of the trial court

constitutes a clear abuse of that discretion."          Salitan v. Magnus,

28 N.J. 20, 26 (1958). A trial court decision will only constitute

an abuse of discretion where "the 'decision [was] made without a

rational    explanation,    inexplicably    departed     from    established

policies, or rested on an impermissible basis.'"               United States

v. Scurry, 193 N.J. 492, 504 (2008) (alterations in original)

(quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).



                                     7                               A-5373-15T4
     On appeal, FIN argues it was deprived of due process when the

judge permitted Joy to amend its pleadings pursuant to Rule 4:9-

2, and adjudicated Joy's CFA claim.   FIN asserts the CFA claim was

not pled and it had no notice Joy would pursue it.      FIN argues

there was no opportunity to contest application of the CFA before

or after trial.      FIN further argues the judge should not have

awarded treble damages where Joy suffered no ascertainable losses

as defined by the CFA.      FIN also asserts the judge's award of

interest was error because the lease forbade it.    FIN argues the

damage award was erroneous because it was calculated utilizing the

damages FIN asserted in its counterclaim.        We address these

arguments in turn.

                                II.

     Rule 4:9-2 states:

          When issues not raised by the pleadings and
          pretrial order are tried . . . without the
          objection of the parties, they shall be
          treated in all respects as if they had been
          raised in the pleadings . . . . Such amendment
          of the pleadings . . . as may be necessary to
          cause them to conform to the evidence and to
          raise these issues may be made upon motion of
          any party at any time, even after judgment;
          but failure so to amend shall not affect the
          result of the trial of these issues.        If
          evidence is objected to at the trial on the
          ground that it is not within the issues made
          by the pleadings and pretrial order, the court
          may allow the pleadings and pretrial order to
          be amended and shall do so freely when the
          presentation of the merits of the action will

                                 8                          A-5373-15T4
           be thereby subserved and the objecting party
           fails to satisfy the court that the admission
           of such evidence would be prejudicial in
           maintaining the action or defense upon the
           merits.

           [(emphasis added.)]

     The Supreme Court has stated the "broad power of amendment

should be liberally exercised at any stage of the proceedings,

including on remand after appeal, unless undue prejudice would

result."   Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J.

437, 457 (1998) (quoting Pressler & Verniero, Current N.J. Court

Rules, cmt. on R. 4:9-1 (1998)).      The opposing party is deemed to

be on notice of a claim that has not been formally pled if the

issue has been raised in the case prior to trial, even if in a

technically deficient manner.    See Cuesta v. Classic Wheels, Inc.,

358 N.J. Super. 512, 517-18 (App. Div. 2003); see also Winslow v.

Corp. Express, Inc., 364 N.J. Super. 128, 140 (App. Div. 2003).

The rule should be followed when a legal theory not advanced in

the pleadings was fully aired at trial and in post-trial briefs.

68th Street Apts., Inc. v. Lauricella, 142 N.J. Super. 546, 561

(Law Div. 1976).

     Judge Ramsay stated:

           Here, neither party identified the CFA in
           their pretrial submissions.    Nor did either
           party raise any issue regarding the pleading
           requirements of the CFA or the absence of a
           claim under the CFA at the commencement of the

                                  9                           A-5373-15T4
trial.   Instead, [FIN] waited until the end
of the trial to seek dismissal of the claim
under the CFA for failure to assert the claim
in a pleading and/or failure to present
evidence demonstrating a consumer fraud.

Although [FIN] objected to the CFA claim, it
did not do so in a timely fashion.        The
objection was raised at the close of the
trial, not in advance of the trial. Thus, the
issue was tried without objection because
[FIN] did not object to the introduction of
evidence   or   testimony   bearing  on   the
issue. . . .

[Joy] asserts that [FIN] w[as] not prejudiced
because this case had been litigated as a
consumer fraud action from its inception.
Prior to trial, the parties moved and/or cross
moved for summary judgment. The briefs filed
in connection with those motions explicitly
presented arguments referring to [Joy's] claim
as a consumer fraud claim.      The judge who
decided the motion stated, the claims included
a claim under the [CFA.]       Although [FIN]
denied any basis for [Joy's CFA] claim, [FIN]
did not object to [Joy's] pursuit of the claim
based on the failure to plead the claim
specifically in the complaint. [FIN] simply
asserted that the claim had no merit.

Under these circumstances, [FIN] will not be
prejudiced as a result of any amendment of the
pleadings to conform to the evidence. [FIN]
knew that [Joy] purported to seek relief under
the [CFA] when the summary judgment motions
were filed, if not earlier.     [FIN] did not
seek dismissal of the claim at that time or
identify any prejudice arising from the late
identification of the claim. [FIN] determined
that [Joy] would be unable to satisfy its
burden of proof on a [CFA] claim and defended
the claim on the merits. Therefore, [Joy's]
motion to amend the pleadings to conform to
the evidence is granted.

                     10                          A-5373-15T4
       We agree FIN had adequate notice of the CFA claim.         As the

judge noted, FIN failed to object to the CFA claim in a timely

fashion.     Moreover, FIN was not deprived of due process because

it could contest the facts Joy adduced to prove its claim before,

during, and after the trial.      Thus, FIN was not prejudiced as a

result of the judge's amendment of the pleadings to conform to the

evidence, and the judge did not abuse her discretion under Rule

4:9-2.

                                  III.

       FIN contends the judge erred in finding a violation of the

CFA.     Specifically, FIN contends it was an error to conclude the

filing     of   FIN's   counterclaim     against   Joy   constituted    an

unconscionable commercial practice under the CFA.

       The CFA prohibits:

            The act, use or employment by any person of
            any   unconscionable   commercial    practice,
            deception, fraud, false pretense, false
            promise, misrepresentation, or the knowing,
            concealment, suppression, or omission of any
            material fact with intent that others rely
            upon   such   concealment,    suppression   or
            omission, in connection with the sale or
            advertisement of any merchandise or real
            estate, or with the subsequent performance of
            such person as aforesaid, whether or not any
            person has in fact been misled, deceived or
            damaged thereby, is declared to be an unlawful
            practice[.]

            [N.J.S.A. 56:8-2.]


                                  11                             A-5373-15T4
     "The   standard      of   conduct   that   the   term   'unconscionable'

implies is lack of 'good faith, honesty in fact and observance of

fair dealing.'"    Cox v. Sears Roebuck & Co., 138 N.J. 2, 18 (1994)

(quoting Kugler v. Romain, 58 N.J. 522, 544 (1971)).               Omissions

consist of "concealment, suppression, or omission of any material

fact . . . ."      Id. at 19 (quoting N.J.S.A. 56:8-2).              Consumer

fraud by omission necessarily includes that a defendant's act must

be "knowing."     Ibid.    "[T]he [CFA] is remedial legislation, which

'should be construed liberally in favor of consumers.'"              Allen v.

V & A Bros., Inc., 208 N.J. 114, 128 (2011) (quoting Cox, 138 N.J.

at 15).

     As Judge Ramsay noted:

            There   are    three    possible    bases   for
            responsibility under the [CFA.]       The [CFA]
            itself declares two general categories of
            conduct as unlawful.     The first relates to
            that part of the Act which states that "any
            unconscionable       commercial       practice,
            deception, fraud, false pretense, false
            promise or misrepresentation" is an unlawful
            practice.   These are considered affirmative
            acts. The second general category of unlawful
            conduct is referred to as acts of omission.
            Such    conduct    involves     the    "knowing
            concealment, suppression or omission of any
            material fact."        The third basis for
            responsibility under the [CFA] is found in
            either    specific-situation     statutes    or
            administrative    regulations     enacted    to
            interpret the [CFA] itself. Such statutes and
            regulations define specific conduct that is
            prohibited by law.


                                     12                               A-5373-15T4
Judge Ramsay concluded:

    Here, [FIN] drafted the [l]ease, which
    provided the security deposit "shall be
    returned . . . provided [Joy] . . . carried
    out all of the terms, covenants, and
    conditions, on its part to be performed,"
    including returning the premises "in good
    order and condition subject to normal wear and
    tear." [FIN] also expressly agreed to put the
    existing overhead doors and dock-levelers "in
    good working order." . . .

    [FIN's] subsequent performance or lack thereof
    relating to its obligations under the [l]ease
    . . . reflected unconscionable commercial
    practices. [FIN] failed to respond to [Joy's]
    request to satisfy [FIN's] obligations to put
    the existing overhead doors and dock-levelers
    in good working order.      Nonetheless, even
    though [FIN] did not possess any evidence
    supporting   the   position  that   [it]   had
    satisfied that obligation, i.e., no witnesses
    possessed first-hand knowledge of the work
    done on the doors and dock-levelers to satisfy
    the requirements of [the lease] and no
    documents were produced to demonstrate the
    work had been done during [Joy's] occupancy
    or for its benefit, [FIN] withheld the
    security deposit at the expiration of the term
    of the [l]ease.

    When [Joy] requested return of the security
    deposit, [FIN] misrepresented that the reason
    for the delay related to [FIN's] cash flow
    issues.    When pressed, [FIN] stated the
    security deposit was not returned because
    [Joy] allegedly failed to "put the dock-
    levelers back into good condition."      After
    [Joy] provided documents establishing that
    Martin Overhead Door had performed work on the
    doors and dock-levelers, [FIN] still failed
    to return the security deposit.



                          13                         A-5373-15T4
At or about the same time, [FIN] leased the
premises to Brook, which had insisted on the
repair and/or replacement of the existing
overhead doors and dock-levelers.        Brook
referred [FIN] to New Jersey Door Works, which
was hired to do the work for Brook's benefit.
Although [FIN] knew [it] could not establish
the condition of the premises that had been
provided to [Joy], [FIN] demanded by way of
counterclaim the costs and expenses of the
repairs made to satisfy the demands of the
subsequent tenant. The demand, however, was
not limited to the cost of repair of the
overhead doors and dock-levelers. [FIN] also
demanded payment of demolition and repair
costs to remove the lunch room and offices
even though the [l]ease did not impose the
obligation for removal of those improvements
on [Joy].    [FIN] did not simply breach the
terms of the [l]ease.     [FIN's] evasive and
self-serving    conduct  relating   to   their
performance under the lease evidenced a
complete lack of fair dealing and bad faith.

Given these aggravating circumstances, [Joy]
has proven by a preponderance of the evidence
that    [FIN]   engaged   in    unconscionable
commercial practices in violation of the CFA.
To recover, however, [Joy] must establish more
than the unlawful conduct of [FIN].      [Joy]
must also demonstrate an ascertainable loss
on   the   part  of   [Joy];   and  a   causal
relationship between [FIN'S] unlawful conduct
and [Joy's] ascertainable loss. N.J. Citizen
Action v. Schering-Plough Corp., 367 N.J.
Super. 8, 12-13 (App. Div. 2003).

[Joy's] ascertainable loss includes the amount
of the interest on the security deposit from
August 15, 2011, through the present.       In
addition, in Cox, the New Jersey Supreme Court
concluded that "an improper debt or lien
against   a   consumer-fraud   plaintiff   may
constitute a loss under the [CFA], because the
consumer   is   not  obligated    to  pay   an

                     14                          A-5373-15T4
          indebtedness arising out of conduct that
          violates the [CFA]." Cox, 138 N.J. at 23.

          Here, [FIN] asserted an improper debt against
          [Joy] when [FIN] sought as damages the costs
          and expenses associated with repairing and/or
          improving the premises to satisfy [FIN's]
          obligation to a subsequent tenant.      Unlike
          Cox, in this action, these losses occurred
          after [FIN] had engaged in the conduct that
          violated the [CFA]. [FIN] already had failed
          to perform their obligations under the [l]ease
          with respect to putting the existing overhead
          doors and dock-levelers in good working order,
          had failed to communicate effectively the work
          that [Joy] needed to complete at the
          expiration of the [l]ease, had agreed to
          repair and/or replace doors and dock-levelers
          and demolish the lunch room and offices for
          the benefit of a subsequent tenant, and had
          misled [Joy] regarding the reason for not
          returning   the   security   deposit.     When
          plaintiff refused to succumb to [FIN's]
          evasive tactics, [FIN] asserted a debt arising
          out   of   their   unconscionable   commercial
          practices, i.e., the amounts incurred to
          satisfy [FIN's] obligations to a subsequent
          tenant.

     We agree with Judge Ramsay's determination FIN asserted an

improper debt when it pursued its counterclaim, which constituted

an unconscionable commercial practice in violation of the CFA.

Additionally, we agree with the judge that Joy's ascertainable

loss derived from FIN's unconscionable commercial practice of

fraudulently retaining the security deposit and asserting a debt

against Joy for a sum greater than the security deposit.




                               15                          A-5373-15T4
                                  IV.

     FIN contends the judge's award of interest as part of the

judgment violated the lease, which expressly excluded interest

payable on the security deposit.        Thus, FIN contends there could

not have been an ascertainable loss based on interest on the

security deposit.

     "In general, we review awards of interest and the calculation

of those awards under an abuse of discretion standard."          Belmont

Condo. Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 91 (App. Div.

2013) (citing Baker v. Nat'l State Bank, 353 N.J. Super. 145, 177

(App. Div. 2002)).     "A reviewing court must not disturb an award

of   prejudgment    interest   unless   the   trial   judge's   decision

represents 'a manifest denial of justice.'"      Id. at 91-92 (quoting

Musto v. Vidas, 333 N.J. Super. 52, 74 (App. Div. 2000)).

     Judge Ramsay concluded:

          [FIN] asserted that [Joy] owed (1) $36,020.74
          for services relating to the repair and
          replacement of the overhead doors and dock-
          levelers,   and   (2)  $16,175.30   for   the
          demolition/renovation of the lunch room and
          offices, for a total of $52,196.04.

          Thus, [Joy] is entitled to recover return of
          the security deposit in the amount of
          $82,262.00 as damages for [FIN's] breach of
          the [l]ease. In addition, [Joy] is entitled
          to recover damages resulting from [FIN's]
          violation of the [CFA] in the amount of
          $52,196.04 plus the interest on the security
          deposit from August 15, 2011, to the present,

                                  16                             A-5373-15T4
           i.e., $9,305.90, for a total of $61,501.94.
           Although both the breach of contract and [CFA]
           claim justify recovery of the interest on the
           security deposit, [Joy] is limited to a single
           recovery for that loss.

           With respect to the losses arising from the
           violation of the [CFA], N.J.S.A. 56:8-19
           requires that the amount of those losses must
           be trebled. Thus, damages for the violation
           of the [CFA] total $184,505.84. In addition,
           [Joy] is entitled to recover reasonable
           attorneys' fees. . . .

                . . . .

           For [FIN's] breach of contract, [Joy] is
           entitled to recover the security deposit in
           the   amount  of   $82,262.00;  for   [FIN's]
           violation of the [CFA], [Joy] is entitled to
           recover $184,505.84, for a total judgment in
           the amount of $266,767.84, subject to [Joy's]
           application for attorneys' fees and costs.

           [(emphasis added).]

    As we noted, the lease stated "[t]he [s]ecurity [d]eposit

shall be returned to [Joy] without interest, after the time fixed

as the expiration of the term herein, . . . provided [Joy] has

fully,   faithfully   and   timely    carried   out   all   of   the    terms,

covenants and conditions on its part to be performed."                     This

provision of the lease contemplated the return of the security

deposit without interest in the normal course at the conclusion

of the lease.   We do not read this provision as depriving Joy of

interest as part of a CFA damage award where the security deposit

was wrongfully withheld.      For these reasons, it was not an abuse

                                     17                                A-5373-15T4
of   discretion   for   the   trial   judge   to   award   interest   on   the

wrongfully withheld security deposit as an ascertainable loss, and

treble the amount pursuant to the CFA.

                                      V.

      Finally, in its cross-appeal Joy argues if we reverse the CFA

award, we should address Joy's claim for punitive damages, which

the judge denied because she determined treble damages under the

CFA were a form of punitive damages. We do not reach this argument

because we have upheld Judge Ramsay's determination.

      Affirmed.




                                      18                              A-5373-15T4
