                        NOT FOR PUBLICATION WITHOUT THE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-0502-16T4

KIM'S INTERNATIONAL, INC.,

        Plaintiff-Respondent/
        Cross-Appellant,

v.

HYUN HEE KIM a/k/a HYUN HEE
HAM KIM,

        Defendant-Appellant/
        Cross-Respondent.

___________________________________

              Submitted January 10, 2018 – Decided July 10, 2018

              Before Judges Nugent and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-10049-14.

              Kimm Law Firm, attorneys for appellant/cross-
              respondent (Michael S. Kimm and Adam Garcia,
              on the briefs).

              Matthew J. Jeon, attorney for respondent/cross-
              appellant.

PER CURIAM
         Following a bench trial, the court entered judgment for

plaintiff, Kim's International, Inc. (Landlord), for the balance

due under a commercial lease, but denied Landlord's claim for

counsel fees and costs.          Defendant, Hyun Hee Kim (Tenant), had

terminated the lease before its term's end, claiming constructive

eviction.     Tenant appeals the judgment for rent.            Landlord cross-

appeals the denial of its claim for fees and costs.                     Because

competent     evidence   in    the   record   supports   the    trial   court's

decision concerning rent, we affirm it. Because the parties agreed

in the lease Landlord would be entitled to reasonable counsel fees

and costs in an action for rent, and because this provision is

neither unconscionable nor otherwise unenforceable, we reverse

that part of the judgment denying Landlord fees and costs and

remand for further proceedings.

         Landlord managed a building with an address of 421-425 Broad

Avenue, Palisades Park.          The building's first floor contained

three rental units, 421, 423, and 425.             In September 2010, the

parties entered into an agreement in which tenant agreed to lease

the rear portion of 421 Broad Avenue ("421"), where she intended

to operate a skin care facility. The lease term began on September

15, 2010, and ended on "April 31, 2016 [sic]". The ninth paragraph

of   a    "Rider"   to   the   lease   provided   Landlord      could   recover

attorney's fees and other expenses "[i]n the event of any legal

                                        2                               A-0502-16T4
proceedings . . . against Tenant."           When the parties signed the

lease for 421, Tenant was already leasing 425 Broad Avenue ("425"),

where she had operated a hair salon successfully for many years.

      Tenant vacated the premises at 421 on August 14, 2014, twenty

months before the lease expired.           Two months later, in October

2014, Landlord filed a complaint alleging breach of contract,

conversion,    and   unjust    enrichment.     In    addition     to   damages,

Landlord sought attorney's fees and costs.           Tenant filed an answer

and   five-count     counterclaim     alleging      breach   of    the     lease

agreement, breach of the covenant of quiet enjoyment, breach of

the implied covenant of good faith and fair dealing, failure to

submit insurance claims, and failure to maintain property.

      The court tried the matter over three days.               On the first

day, Tenant filed three in limine motions.            The court denied the

first — to dismiss the complaint because Landlord had failed to

mitigate damages — as a dispositive motion improperly filed as an

in limine motion rather than a summary judgment motion.                The court

reserved decision on the second and third — to exclude evidence

concerning the space tenant leased at 425 for the hair salon, and

repair bills for the third first-floor unit, 423 — until the

context became clear at trial.

      Following the close of the proofs, the parties requested, and

the   court   permitted,      post-trial   briefs.     Landlord        requested

                                      3                                  A-0502-16T4
attorney's fees and costs in its brief.           Before the court rendered

a decision, Tenant filed a motion to reopen her case.           She sought

to present evidence Landlord had listed the building for sale

prior to the expiration of her lease.             She claimed the evidence

was relevant to Landlord's obligation to mitigate damages.               The

court denied the motion.

     The court entered judgment for Landlord for $95,828.47.             The

judgment did not include attorney's fees.           Landlord filed a motion

for reconsideration, seeking attorney's fees as provided for in

the lease.    Although Landlord had not presented specific proofs

at trial as to attorney's fees, as previously mentioned, it had

demanded fees in the complaint and requested fees in its post-

trial    submission.   The   court       denied    Landlord's   motion   for

reconsideration on the ground the court no longer had jurisdiction,

because Tenant had filed a notice of appeal from the judgment.

     The parties did not dispute at trial either the lease terms

or that Tenant vacated 421 in August 2014 before the lease term

ended.    Their primary dispute was whether Tenant vacated because

421 had become uninhabitable due to water penetration and bugs or

because her skin care business had failed.              They also disputed

whether Landlord had attempted to mitigate its damages.

     Landlord presented two witnesses:        its principal and its real

estate broker.    The principal denied Tenant vacated due to water

                                     4                              A-0502-16T4
leaks   originating   from   the   second   floor,   as   she   claimed.

Explaining the background of issues involving water backup in 421,

he cited the following provision in the 421 lease:

               The Landlord will not be liable for any
          damage or injury which may be sustained by the
          Tenant or any other person, as a consequence
          of   the   failure,   breakage,   leakage   or
          obstruction of the water, plumbing, steam,
          sewer . . . resulting from the carelessness,
          negligence or improper conduct on the part of
          any other tenant or of the Landlord or the
          Landlord's or the Tenant's or any other
          tenant's     agents,    employees,     guests,
          licensees, invitees, subtenants, assignees or
          successors . . . .

According to Landlord's principal, the reason for this provision

was Tenant had misused the plumbing in 425 and caused "backing up

of the toilet and sewage."         For that reason, the lease also

contained a rider with the provision that "Landlord shall be

responsible for the structural repair items only.         Tenant shall

. . . make all repairs . . . and shall maintain in good order and

condition, the mechanical systems, including the plumbing. . . ."

     Landlord's principal claimed with one exception, the only

time water penetrated 421 from above occurred during summer months,

when condensation from air conditioning pipes caused "little drips

of water" to spot the ceiling tiles, which were "exactly [the]

same tile[s] [as] in this [c]ourtroom."       The exception occurred

in July 2014, when a pipe leaked and a contractor had to open the


                                   5                             A-0502-16T4
wall to repair it.     Landlord's principal acknowledged there was

mold in the wall around the leaking pipe and he never called a

mold remediation service to address it, but he said he had a

contractor repair the pipe the day after it leaked and there was

never a reoccurrence.       He also testified he inspected the piping

on the second floor and made repairs and updates to ensure there

were no leaks.

     When confronted on cross-examination with photographs of

buckets allegedly placed to catch dripping water, and one bucket

containing water near its bottom, the principal denied ever seeing

them.   He insisted most of the water damage Tenant experienced

resulted from her toilets and sewage backing up from her misuse

of the utilities, as "bundles of paper towel[s] came out . . . of

the toilet."

     Questioned about his attempts to mitigate damages, Landlord's

principal confirmed at most he was only looking for a tenant for

one and one-half years.       He stated he initially got a permit to

renovate   his   building   in   2013,   but   had   to   resubmit   another

application on December 3, 2014, because of objections from the

neighbors.

     Landlord's real estate broker testified he began working for

Landlord in November 2014 after Tenant vacated 421.             The broker

uploaded an advertisement on November 24, 2014, to the multiple

                                    6                                A-0502-16T4
listing site (MLS), which targets agents looking for a commercial

space to rent.     In addition to the MLS, the broker advertised in

Korea Times, Central Daily, and Monthly Real Estate Information

Magazine, all of which are publications in Korean.          He also sent

the information directly to the headquarters of Hanmi Bank.            For

the listings, an architect's rendering of the façade for the

renovations was used, rather than a picture of the actual "old and

. . . run down" building.      Asked why he did not advertise in the

English press, the broker explained "the space . . . in Palisades

Park . . . [is] usually for the Korean customers."          Landlord had

not told the broker of any leaks in the ceiling or walls.

      Although the broker had received some inquiries, as of the

time of trial, he had been unable to find new tenants.            Due to

Landlord's plan to renovate, the listing was "for about two years,"

with priority given to renew the lease after renovations were

complete.

      Tenant testified she leased 421 to open a skin care business

where customers would come to rest and "do [their] face to get

prettier."     The setting of such a business must be pristine as

customers expect to be able to relax in a clean, comforting

environment.     In order to open this business, Tenant claimed she

had   to   renovate   the   premises,   which   involved   cleaning   them

thoroughly because they had previously been raided by the FBI.           In

                                    7                             A-0502-16T4
addition, Tenant claimed she built new rooms in the rental space

and ultimately spent seven months and more than $100,000 making

renovations.    However, Tenant could not produce any receipts for

the renovations or cleaning work.

     Tenant testified the water intrusions at 421 had occurred

since 2010, and gradually increased in severity until they occurred

almost daily.    She claimed that complaints to the landlord only

resulted in him yelling and screaming and saying she was not acting

properly.   She stated, "[w]hen he scream[ed] and yelled, [she]

heard that he wanted [her] to leave."    She felt the Landlord did

not want her there, so she vacated the premises.

     Tenant identified a series of photographs and testified they

depicted water that came from many different places, created a

terrible smell, and had to be cleaned up daily.   Some of the photos

depicted receptacles Tenant and her employees used to scoop up the

water.   According to Tenant, the water on the floor came from the

wall and sometimes from the ceiling.      The photographs depicted

white towels Tenant used to impede the flow of water, scoop the

water, and put it in buckets.    Tenant testified the photographs

were taken in June, July, and early August 2014.

     Tenant also identified photographs of the opening in the wall

when Landlord fixed the leaking pipe.   Tenant testified the photos



                                 8                           A-0502-16T4
depicted rotting wood and "rotten mold."         She also testified the

wall continued to leak after Landlord supposedly fixed the pipe.

     In addition to the leaks, bugs infested 421.          Tenant and her

employees   sprayed    bug   spray    every   day.     Tenant   identified

photographs of what she claimed were the bugs.

     Tenant also showed a video depicting, according to her, "water

continuously like seeping — coming out and the little things there

and that — that's all bugs."         She told the court a lot of "black

stuff" "around the edge" was "all mold" and "[t]owards the wall

it's the worst."      She thought the video was taken in July 2014.

     Tenant wrote two letters to Landlord complaining about the

situation, and her attorney wrote a third.           She explained that a

letter dated August 26 was written because she "was going through

[a] very hard time and [the skincare] business was closing."            She

testified she had vacated the premises because the water continued

to leak and there were no customers due to the smell and bugs.

She also testified there were rumors in the community about her

store, and she had "borrowed a lot of money to make rental

payment[s] . . . [she had done her] best, but [she] could not

continue anymore."     Therefore, she vacated the premises at the end

of August and returned the keys to Landlord sometime in September.

     During cross-examination, Landlord asked Tenant to produce

the cellular phone with the photographs and video she had taken.

                                      9                            A-0502-16T4
After verifying Tenant still had the phone, the court told defense

counsel to have Tenant produce it the next court day.    Tenant did

not produce it.   Tenant also told the court she had taken pictures

of the leaks that occurred before 2014, but the camera had broken

and everything had been lost.

     Landlord's counsel cross-examined Tenant about Landlord's

2014 suit to evict her for non-payment of rent.      Tenant claimed

she did not remember.    When asked if she recalled Landlord had

agreed to reduce her rent in exchange for her payment of the late

rent, she responded, "I mean, I don't really remember the — the

detail of it, but I remember — I remember that the — because of

the leak and the — the landlord, you know, would give us a reduction

on the rent.   That I remember a little."    When further asked if

she remembered asking for a reduction in the rent because business

was difficult, she responded "I mean, I don't remember the exact

detail, but, I mean, then that leak was really bad and compared

to other stores around that area, the rent – my rent was high and

— and I do remember — yes.      There was a reduction in the rent.

But I don't remember exactly."    When asked whether she had put up

a defense and raised the issue of habitability in the previous

action, she said "No, I don't really remember exactly."

     Based on the foregoing evidence and testimony, the court

entered judgment for Landlord against Tenant for $95,828.47 on

                                 10                         A-0502-16T4
Landlord's claim for Tenant's breach of the commercial lease.                          The

order    dismissed    Tenant's      counterclaims           with     prejudice         and

provided, "[a]ny claims pleaded and not addressed herein are deemed

abandoned."

      In its opinion, the court found Tenant failed to sustain her

burden of proving her affirmative defenses, specifically, her

claims for breach of the covenants of habitability and quiet

enjoyment.        After   recounting          the     considerable         conflicting

testimony as to the cause of water on the premises — either leaking

or   backed-up    plumbing    —    the    court       resolved     the     conflicting

testimony and credibility issues in favor of Landlord.                          The court

cited    Tenant's    testimony     that       she     had   taken        much    of    the

photographic evidence on a cell phone she still possessed and

Tenant's failure to produce the cell phone to verify the date the

photos   were    taken.      The   court      noted    tenant      did    not    present

witnesses who allegedly participated in the water cleanup.                             The

court also found significant Tenant's non-mention of any of her

habitability complaints when defending the eviction action three

months before she vacated the tenancy.

      The court observed Tenant had not produced "any documentation

of any complaints made by [Tenant] to the [L]andlord prior to July

2014."    As to the issue of bug infestation, the court noted "the

lease made clear that [Tenant] was obligated to use the services

                                         11                                       A-0502-16T4
of an exterminator and she never did so throughout the entire

period of the lease from September 2010."    For that reason, the

court concluded Tenant could not "establish that any pest problem

that might have existed on the premises was the responsibility of

. . . [L]andlord or due to any negligence or action of the

[L]andlord."

     Addressing the issue of mitigation, the court was persuaded

by the testimony of both Landlord's principal and its real estate

broker. The court rejected Tenant's argument that because Landlord

intended to renovate the building and was therefore unwilling to

accept a lease beyond the term of the one with tenant, Landlord

had failed to mitigate its damages.

     Considering all of the evidence, the court concluded it was:

          [M]ore probable than not that [Tenant] was not
          able to make a financial success of the
          business, [and] that this caused her to fall
          behind in the rent earlier in 2014, and then
          when the incident occurred in July 2014 she
          made a decision to attempt to get out of her
          obligations under the lease.

     On appeal, Tenant argues:

          I.   BECAUSE     THE    LANDLORD     COMMITTED
               ANTECEDENT BREACHES OF THE LEASE, WITH
               EXTENSIVE WATER LEAKAGE DAMAGE CAUSED TO
               HYUN HEE KIM'S BUSINESS OPERATIONS, HYUN
               HEE KIM WAS RELIEVED OF ANY OBLIGATION
               TO CONTINUE UNILATERAL PERFORMANCE OF THE
               LEASE



                                 12                        A-0502-16T4
          II.    BECAUSE THE LANDLORD BREACHED THE MOST
                 IMPORTANT COVENANT FOR A TENANT — THE
                 ABILITY TO USE THE PREMISES FOR THE
                 TENANT'S BUSINESS — THE LANDLORD SHOULD
                 BE ORDERED TO DISGORGE ALL RENT PAID BY
                 HYUN HEE KIM UNDER SETTLED EQUITABLE
                 PRINCIPLES

          III. BECAUSE THE "APRIL 2014 TENANCY SUIT
               STIPULATION" DOES NOT FORECLOSE THE
               CLAIMS OF HYUN HEE KIM, AND THOSE RECORDS
               WERE NEVER PRODUCED IN DISCOVERY, THE
               COURT SHOULD REJECT THE LANDLORD'S
               INNUENDO THAT THE APRIL 2014 STIPULATION
               SOMEHOW PRECLUDES HER CLAIMS THROUGH
               APRIL 2014

          IV.    BECAUSE THE LANDLORD FAILED TO PRESENT
                 ANY PROFESSIONAL OR EXPERT TESTIMONY ON
                 THE ALLEGED "REPAIRS," THE PURPORTED
                 INVOICES ADMITTED AS THE LANDLORD'S
                 BUSINESS RECORDS, I.E., "AS RECEIVED,"
                 WITHOUT THE UNDERLYING SERVICE EXPERTS,
                 IS NOT PROBATIVE OF ANY FACT OTHER THAN
                 THE LANDLORD PAID NOMINAL SUMS FOR
                 PLUMBING SERVICES

          V.     BECAUSE THE LANDLORD FAILED TO MITIGATE
                 DAMAGES, AND FAILS TO PRESENT A PRIMA
                 FACIE CASE, THE COMPLAINT SHOULD BE
                 DISMISSED

          VI.    THE TRIAL COURT'S FAILURE TO GRANT HYUN
                 HEE KIM'S MOTIONS IN LIMINE SHOULD BE
                 REVERSED

     Having considered Tenant's arguments in light of the record

and controlling legal principles, we find them without sufficient

merit to warrant discussion in a written opinion.          R. 2:11-

3(e)(1)(E).     We add the following brief comments.



                                 13                         A-0502-16T4
     Tenant's Points I, II and V represent her disagreement with

the trial court's factual and credibility determinations.            When

we review a judgment entered in a non-jury case, we will not

disturb the trial court's findings of fact unless "they are so

wholly [u]nsupportable as to result in a denial of justice."         Rova

Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-

84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436,

444 (App. Div. 1960)).     Here, the trial court's factual and

credibility   determinations    are    amply   supported   by   credible

evidence on the record.

     In Points III and IV, Tenant misapprehends the purpose for

which the evidence of the previous suit and the repair bills were

introduced, and in any event, we discern no abuse of discretion

in the trial court's decision to admit the evidence.        See Griffin

v. City of E. Orange, 225 N.J. 400, 413 (2016).

     Last, we discern no abuse of discretion in the trial court's

disposition of Tenant's motions in limine.       One of the in limine

motions was in reality a dispositive motion labelled "in limine"

and filed on the day trial was to begin.        The trial court would

have violated Landlord's right to due process had it disposed of

the motion and the case.       Cho v. Trinitas Reg'l Med. Ctr., 443

N.J. Super. 461, 464 (App. Div. 2015), certif. denied, 224 N.J.

529 (2016).   As to the other two in limine motions, we note a

                                  14                             A-0502-16T4
trial court's ruling on a motion in limine is by its nature

preliminary.    It is difficult to discern a situation in which a

judge presiding over a bench trial could commit error by deferring

a ruling on a motion in limine until the issue crystallizes during

the trial.

     Landlord contends on his cross-appeal the trial court erred

by denying its claim for counsel fees and costs.    The 421 lease

provided for counsel fees and costs.   Landlord demanded fees and

costs in its complaint, and Landlord reiterated that demand in its

post-trial submission.   Perhaps it would have been more prudent

to raise the issue during preliminary discussions at the trial's

inception, but we can discern nothing in the record that suggests

Landlord either waived or abandoned its right to seek counsel

fees.   Rather, it appears the trial court overlooked the issue.

For that reason, to the extent the final judgment is construed as

a denial of Landlord's claim for fees and costs, we reverse and

remand for consideration of the issue.    Our decision should not

be construed as suggesting how the matter should be decided.

     Affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.      We do not retain

jurisdiction.




                                15                         A-0502-16T4
