                                NOT FOR PUBLICATION WITHOUT THE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-1917-17T2

INGRID VALDIVIA and
DINO VALDIVIA,

          Plaintiffs-Respondents,

v.

JOHN DERAFFELE,

     Defendant-Appellant.
______________________________

                    Submitted October 18, 2018 – Decided March 28, 2019

                    Before Judges O'Connor and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket DC-011047-16.

                    John DeRaffele, appellant pro se.

                    Respondents have not filed briefs.

PER CURIAM

          Defendant John DeRaffele appeals from the September 12, 2017 judgment

of the Special Civil Part awarding plaintiffs Ingrid Valdivia and Dino Valdivia
double a portion of their security deposit on a residential lease, damages

associated with having to vacate their home temporarily, attorney's fees, and

costs. We affirm in part, reverse in part, and remand for entry of a revised

judgment.

                                       I.

      The following facts are derived from the record. DeRaffele owns a one-

family house in Bergen County. Plaintiffs began a month-to-month tenancy at

the house on April 1, 2015. The parties' lease set rent at $1500 a month, to be

paid on the first of the month, and required a $1500 security deposit. The lease

required thirty-days' notice to terminate and subjected plaintiffs to a $1500 re-

rent levy in the event they vacated the premises without providing notice.

      According to DeRaffele, in early January 2016, plaintiffs expressed their

desire to vacate the house for financial reasons. However, they did not provide

notice of termination of the lease, did not vacate the premises, and did not pay

rent on January 1, 2016. DeRaffele served a notice to cure and a three-day rent

demand on plaintiffs, ultimately resulting in their paying the January 2016 rent.

      Plaintiffs also did not pay the rent due on February 1, 2016. As a result,

on February 12, 2016, DeRaffele served a notice to cure and a three-day rent

demand on plaintiffs. Two days later, on February 14, 2016, the heating system


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                                       2
in the home stopped working. Ingrid 1 testified that she awoke that morning to a

frigid home and contacted the police department. She left the apartment with

her daughters when instructed to do so by municipal officials. Dino was not

home at the time. Because of the cold temperature outside, the municipality

paid for plaintiffs to stay at a hotel that night.

        DeRaffele had the heater replaced by a contractor the next day, February

15, 2016. According to Francisco Martinez, a handyman present in the home on

February 15, 2016, the heater could not be repaired because someone had

tampered with a valve, causing damage. Following DeRaffele's instructions,

Martinez purchased a new heater and brought it to the home, where Dino let him

and the contractor enter the house. The contractor installed the new heater.

Martinez testified that once the replacement heater was installed and operating,

he and Dino walked through each room of the house to ensure that the heat was

on. Martinez used a thermometer to record a temperature of sixty-eight degrees.

        Ingrid testified that she returned to the home on February 15, 2016, to

retrieve clothing and discovered an activated carbon monoxide alarm and black

smoke pouring from the new heater. She testified that she called the fire

department, which, in turn, contacted the gas utility company, and shut down


1
    As plaintiffs share a surname, we use first names. No disrespect is intended.
                                                                          A-1917-17T2
                                          3
the street on which the house is located. However, moments later, Ingrid

testified that she arrived at the home to find the street closed and the fire

department on scene, but was let into the home to retrieve clothing. When

pressed on cross-examination, Ingrid admitted that she could not produce

evidence that the fire department responded to the house on February 15, 2016.

      Plaintiffs produced no evidence that the house was declared uninhabitable

or that they were instructed to vacate the home after the heater was replaced.

Plaintiffs, however, stayed in a hotel at the municipality's expense for two

weeks. DeRaffele testified that he was unaware plaintiffs refused to return to

the house or that they were staying at a hotel. The municipality did not seek

reimbursement for the hotel stay. Ingrid testified that she returned to the home

a few times "each week" after February 15, 2016, to retrieve clothing and that

on each occasion the house was cold because the heater was off. She did not

testify that she attempted to turn the heater on to warm the house.

      On or about February 19, 2016, DeRaffele initiated eviction proceedings

against plaintiffs for failure to pay the February 2016 rent. Ingrid testified that

on that day, she sent DeRaffele a text demanding the return of the security

deposit, and told him that the family was vacating the house. The text was not

admitted as evidence. DeRaffele denies receiving any communications from


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                                        4
plaintiffs notifying him of their intention to terminate the lease. Ingrid testified

that in response to her text DeRaffele told her to find a new place to live.

      Ingrid claimed that once the two-week hotel stay ended, plaintiffs moved

to a hotel they paid for, then to the home of a family member, and ultimately

slept in a car. She produced no evidence supporting her claim that plaintiffs

paid for a hotel room or for any other expense after they left the house. Nor did

Ingrid testify as to a specific or estimated amount plaintiffs spent on the hotel

room or for other expenses.

      Plaintiffs failed to pay the rent due on March 1, 2016, and rented an

apartment on March 15, 2016. According to DeRaffele, plaintiffs did not vacate

his property until March 22 or 23, 2016. Other than Ingrid's testimony that she

removed some of her clothing during weekly visits to the house, plaintiffs

produced no evidence with respect to when they removed their belongings,

furniture, and clothing from the house.

      On March 22, 2016, the parties appeared in court for a hearing on eviction

proceedings relating to the unpaid February 2016 rent. Ultimately, plaintiffs

agreed to pay the entire rent for February 2016.         Although plaintiffs were

represented by counsel, they did not claim that they were constructively evicted

on February 14, 2016.


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                                          5
      At the March 22, 2016 hearing, DeRaffele attempted to collect the unpaid

March 2016 rent. His demand was denied because he did not include the amount

of rent due for March 2016 in his pleadings. Plaintiffs never paid the March

2016 rent and DeRaffele did not return the $1500 security deposit to plaintiffs.

      On August 16, 2016, plaintiffs filed a complaint in the Special Civil Part

alleging they were constructively evicted from the home on February 14, 2016.

They sought $9000 in relocation damages under the Anti-Eviction Act, N.J.S.A.

2A:18-61.1h(a), double their security deposit under the Security Deposit Act

(SDA), N.J.S.A. 46:8-21.1, rent abatement for half of February 2016, $4500 in

attorney's fees, interest, and court costs.

      DeRaffele filed an answer denying plaintiffs' claims, and a counterclaim

alleging plaintiffs did not vacate the house until March 22 or 23, 2016, allowing

him to retain their security deposit to cover the March 2016 rent, and that he was

entitled to a monetary award to repair damage done to the property by plaintiffs.

DeRaffele also alleged that plaintiffs did not give him notice of their intent to

vacate the premises, subjecting them to a penalty of $1500.

      After a bench trial, the court issued an oral opinion concluding that

plaintiffs did not establish they were constructively evicted from the house on

February 14, 2016. The court found that plaintiffs moved out of the home for


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                                          6
two days because of a short-term heating problem that was resolved on February

15, 2016. In addition, the court found no evidence in the record that plaintiffs'

lease was illegal or the home uninhabitable. Thus, the court concluded plaintiffs

were not entitled to an abatement of rent for February 2016 or relocation

expenses under N.J.S.A. 2A:18-61.1h(a).

      The court awarded plaintiffs $500 for expenses associated with having

temporarily moved from the house.          Although acknowledging plaintiffs

produced no evidence that they paid for any expenses, and recognizing the

municipality paid for their hotel room for the two days in question, the court

awarded plaintiffs $500 for "gasoline and travel." This finding was made despite

the fact that there is no testimony or other evidence in the record regarding the

distance from the house to the hotel, how plaintiffs traveled to the hotel, or

whether they purchased or used gasoline to get to the hotel in excess of what

they would have used had the heater been working.

      The court made no finding with respect to when plaintiffs terminated their

tenancy. As a result, the court did not address DeRaffele's claim that plaintiffs

owed rent for March 2016, and that they failed to provide timely notice of their

intention to terminate the lease.




                                                                         A-1917-17T2
                                       7
      With respect to plaintiffs' security deposit, the court disallowed all offsets

claimed by DeRaffele for damages, except for $225 for "general cleanup,"

clearing the yard, and shampooing the rugs. The court awarded plaintiffs $2550,

representing twice the remaining $1275 of the security deposit. Finally, the

court awarded plaintiffs $850 in attorney's fees, plus court costs. The court

entered a judgment in favor of plaintiffs for $3800, plus costs.2

      This appeal followed. DeRaffele argues that the trial court erred by not

addressing plaintiffs' obligation to pay the March 2016 rent, and their failure to

provide notice of termination of the lease. In addition, he argues that the court

erred by awarding $500 for expenses not supported by evidence, and by denying

further offsets to the security deposit, and in awarding attorney's fees. Finally,

DeRaffele argues that the trial court did not devote sufficient time to considering

the evidence prior to issuing its decision.

                                        II.

      Our scope of review of the judge's findings in this nonjury trial is limited.

We must defer to the judge's factual determinations, so long as they are

supported by substantial credible evidence in the record. Rova Farms Resort,



2
   The court erred in its calculation of damages. The damages awarded to
plaintiffs, $500, $2550, and $850, equals $3900, not $3800.
                                                                            A-1917-17T2
                                         8
Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).             This court's

"[a]ppellate review does not consist of weighing evidence anew and making

independent factual findings; rather, [this court's] function is to determine

whether there is adequate evidence to support the judgment rendered at trial."

Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div.

1999).   However, "[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).

      We begin our analysis with a review of the trial court's conclusion that

plaintiffs were not constructively evicted from the house on February 14, 2016.

The record contains ample evidence supporting the court's finding that

DeRaffele had the heater replaced on February 15, 2016. We therefore affirm

the trial court's conclusion that plaintiffs are not entitled to an abatement of their

February 2016 rent. See Chess v. Muhammad, 179 N.J. Super. 75, 80 (App.

Div. 1981) ("[T]enants are not entitled to an abatement when the landlord repairs

the defective condition within a reasonable time after learning of its existence").

      In addition, we affirm the trial court's conclusion that plaintiffs are not

entitled to relocation expenses under N.J.S.A. 2A:18-61.1h(a). That statute

allows for the award of six times the monthly rent to a tenant "displaced because


                                                                              A-1917-17T2
                                          9
of an illegal occupancy in a residential rental premises[.]" The record contains

no evidence that plaintiffs' rental of DeRaffele's house was illegal.

      We do not reach the same conclusion with respect to the trial court's award

of $500 in damages to plaintiffs for having been displaced from the home for

two nights. It is undisputed that on the two nights in question plaintiffs stayed

at a hotel, the cost of which was paid by the municipality. Plaintiffs produced

no evidence that the municipality requested reimbursement or that they incurred

any expense as a result of having to stay in the hotel. This is true with respect

to travel and gasoline expenses, which were awarded by the trial court. The

record contains no specific evidence regarding the distance between the house

and the hotel, how plaintiffs traveled to the hotel, and whether they used more

gasoline than they otherwise would have had they stayed at the house those two

nights. The award of $500 in damages is, therefore, not based on substantial

credible evidence and is reversed.

      With respect to the trial court's award of double a portion of plaintiffs'

security deposit, a finding of when plaintiffs vacated DeRaffele's house is

essential to determine whether they are entitled to relief under the SDA. "It is

only the portion of the security deposit that is unlawfully held that can be

doubled under N.J.S.A. 46:8-21.1." Lorril Co. v. La Corte, 352 N.J. Super. 433,


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                                       10
442 (App. Div. 2002). "[T]he tenant's damages under the statute are to be

calculated based upon the total due him, not the amount of the initial deposit."

Yi v. Re/Max Fortune Props., Inc., 338 N.J. Super. 534, 539 (App. Div. 2001).

      As noted above, the trial court made no specific finding with respect to

when plaintiffs vacated the house. Rather than remand the matter for a finding

of fact on this issue, we elect to exercise our original jurisdiction to determine

when plaintiffs vacated the house. We "may exercise such original jurisdiction

as is necessary to the complete determination of any matter on review." R. 2:10-

5; see also Farmingdale Realty Co. v. Borough of Farmingdale, 55 N.J. 103, 106

(1969) (finding that appellate courts may engage in findings of fact pursuant to

the "constitutional grant of necessary original jurisdiction to appellate courts").

      There is considerable evidence in the record that plaintiffs remained at the

property after March 1, 2016. DeRaffele testified plaintiffs did not vacate the

premises until March 22 or 23, 2016. At a hearing on March 22, 2016, plaintiffs,

who were represented by counsel, paid the entire February 2016 rent and

DeRaffele's attempt to collect the March 2016 rent was denied only because he

did not write the amount of rent due for that month on his complaint. During

her testimony, Ingrid acknowledged attending the March 22, 2016 hearing , at

which she did not argue that plaintiffs had vacated the house before March 1,


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                                       11
2016. She testified that it was her understanding that DeRaffele's demand for

the March 2016 rent was denied because he appeared at the hearing without

counsel.

      More importantly, Ingrid testified that she returned to the house several

times "each week" after February 14, 2016 to retrieve her clothing. She did not

expressly deny having moved out on March 22 or 23, 2016, and did not state

when she, Dino, and their children removed all of their clothing, possessions,

and furniture from the house.

      We find that plaintiffs occupied the house after March 1, 2016.

DeRaffele's testimony on this point was essentially undisputed. In addition, we

conclude that had plaintiffs moved out of the house prior to March 1, 2016, they

would not have paid all of the February 2016 rent at the March 22, 2016 hearing.

In addition, we find Ingrid's failure to identify at trial the date she and her family

moved out probative of the fact plaintiffs did not vacate the home until after

March 1, 2016.

      Because we conclude that plaintiffs vacated the house after March 1, 2016,

we reverse the trial court's award of $2550 to plaintiffs under the SDA.

Plaintiffs owed DeRaffele $1500 in rent for March 2016. He was, therefore,

entitled to use plaintiffs' security deposit to cover that amount.           Because


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                                        12
plaintiffs were not entitled to recovery under the SDA, we also reverse the trial

court's award of $850 in attorney's fees to plaintiffs. See N.J.S.A. 46:8-21.1

(permitting the award of attorney's fees only "upon finding for the tenant").

      We turn to DeRaffele's argument that the trial court erred by not allowing

additional amounts to cure damages at the house after plaintiffs moved out.

Having carefully reviewed the record, we conclude that the trial court's findings

of fact on this point are supported by the record. We therefore affirm the award

of $225 to DeRaffele for repairs at the house.

      Finally, we address DeRaffele's argument that the trial court erred when

it failed to make a finding with respect to whether plaintiffs provided the

contractually required thirty-days' notice of their intention to terminate the lease.

We think it implicit in the trial court's findings of fact that DeRaffele was on

notice as of his February 19, 2016 exchange with Ingrid that plaintiffs intended

to terminate the lease. Ingrid testified that on that date she demanded the return

of plaintiffs' security deposit and that DeRaffele told her to vacate the home and

find a new place to live. Plaintiffs left the house slightly more than thirty days

later. We affirm the trial court's implicit rejection of DeRaffele's claim for

$1500 in damages for plaintiffs' violation of the notice provision of the lease.




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                                        13
      To the extent we have not specifically addressed any of DeRaffele's

remaining arguments, we conclude they lack sufficient merit to warrant

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

      Affirmed in part, reversed in part, and remanded for entry of a judgment

in favor of DeRaffele in the amount of $225, plus costs. We do not retain

jurisdiction.




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                                      14
