                        NOT FOR PUBLICATION WITHOUT THE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-1049-15T1

LIZA ANNE HEIDT,

        Plaintiff-Respondent,

v.

NANCY CASTELINO,

        Defendant-Appellant,

and

LLOYD M. FERNANDES and ASTUTE
MANAGEMENT, INC.,

     Defendants.
—————————————————————————————————

              Submitted November 10, 2016 – Decided            March 8, 2017

              Before Judges Hoffman and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Docket No.
              DC-2690-15.

              Nancy Castelino, appellant pro se.

              McElroy, Deutsch, Mulvaney & Carpenter, LLP,
              attorneys for respondent (James M. Mulvaney,
              on the brief).

PER CURIAM
       Pro se defendant-landlord Nancy Castelino appeals from the

September 29, 2015 order of the Special Civil Part, entering

final judgment in favor of plaintiff-tenant Liza Anne Heidt for

$2,962.76.      Following a bench trial, the judge awarded plaintiff

rent   abatement     and     ordered     defendant     to    credit      plaintiff's

security deposit towards future rent payments.                        The judge also

awarded plaintiff attorney's fees.                After reviewing the record

and applicable law, we affirm.

                                            I.

       We derive the facts from the trial record.                     Defendant owns

a five-bedroom, single-family rental home in Princeton.                            In May

2015, plaintiff and defendant signed a two-year lease agreement

for the home beginning on May 15, 2015.                The lease set the rent

at   $4,000    per   month   and    required      plaintiff      to    pay   a     $6,000

security deposit with the June 2015 rent.                   Plaintiff moved into

the premises in May with her three children, one of whom has

asthma.

       Plaintiff testified that on June 12, 2015, during a heat

wave, the thermostat in the home "wasn't working," fluctuating

between       temperatures     of       eighty-eight        to    ninety         degrees

Fahrenheit.      Plaintiff emailed defendant at 5:36 p.m. to inform

her of the extreme heat and that the air conditioner was not

cooling   the    home.       Plaintiff     also    contacted      the    energy        and

                                    2                                            A-1049-15T1
thermostat     companies,     but        they       were    unable      to      remedy    the

situation.     Receiving no response from defendant, plaintiff sent

an    additional     email   at     1:07      p.m.     the    next      day,      informing

defendant that she scheduled a service appointment and planned

to deduct the fee from her rent.                    Michael J. Messick Plumbing &

Heating,     Inc.,    (Messick)     then        repaired     the     air     conditioning

system at a cost of $512.30 to plaintiff.

       Defendant finally responded to plaintiff's email at 3:52

p.m., stating she would not pay for the service call.                                    When

plaintiff informed her the plumbing company already made the

repairs, defendant threatened legal action.

       Plaintiff testified she knew defendant's phone number and

had previously contacted her by phone.                         However, she stated

defendant told her not to contact her by text or phone, and "the

best correspondence from me to her . . . would be e-mail and I

did   just    that."       Plaintiff          said    she    never      discussed        with

defendant    how     to   contact       her    in    the    case   of      an    emergency.

Conversely, defendant testified she never told plaintiff that

she could not call her.

       On June 17, 2015, defendant entered the premises with a

technician to fix one of the toilets.                       According to plaintiff,

defendant described this as a "temporary fix."                       However, on July

8, 2015, the toilet became clogged and overflowed.                              Plaintiff's

                                    3                                              A-1049-15T1
attorney emailed defendant on this date1 and attached a letter

requesting     repairs     to    the    toilet,    which     he     described    as

"completely      inoperable."          When   defendant      did    not   respond,

plaintiff hired Messick to repair the toilet on July 10, 2015,

at a cost of $335.75.

      Plaintiff further testified she paid the required $6,000

security deposit.        Plaintiff said she never received notice of

the   interest    rate   or     the    address    of   the   bank    holding    the

deposit.     On July 10, 2015, defendant sent plaintiff's counsel a

letter,    stating   she      provided    the    location     of    the   security

deposit on the first page of the lease, that plaintiff could

verify the deposit from a cancelled check, and that she sent a

notice of deposit status on June 5, 2015.                Defendant attached a

reproduction of the June 5 notice, which contained the interest

rate and bank address.

      Plaintiff filed her initial complaint on or about July 10,

2015.     On July 20, 2015, plaintiff filed an amended complaint

against defendant, defendant's husband, and Astute Management,

Inc., a corporation defendant organized to collect rent.                        In

count one of her amended complaint, plaintiff asserted claims

for breach of the implied warranty of habitability and breach of

1
       Plaintiff's complaint incorrectly states her attorney
informed defendant of the toilet issue on July 9, 2015.
However, the record shows plaintiff's counsel sent the email
containing this notice on July 8.
                           4                         A-1049-15T1
contract,    seeking,         in     part,    rent     abatement      of    $848.05      for

repairs to the air conditioner and the toilet.                             In count two,

plaintiff   sought       a    declaratory       judgment       crediting       the   $6,000

security    deposit,         plus    interest,       towards    her     rent      payments.

Plaintiff claimed defendant violated N.J.S.A. 46:8-19 by failing

to provide her with the security deposit's interest rate and the

address    of    the    bank        holding    the     deposit.        Plaintiff        also

asserted trespass and breach of contract (count three); unjust

enrichment (count four); and consumer fraud, in violation of

N.J.S.A. 56:8-1 to -204 (count five).

     Defendant's         husband       filed     an     answer     to       the      initial

complaint       but    did    not     answer     the    amended       complaint;        both

defendant and the corporation failed to answer either complaint.

On July 30, 2015, defendant sent plaintiff a notice to quit. 2

This notice terminated the lease and demanded plaintiff vacate

the premises by August 31, 2015.

     Despite defendants' failure to answer the complaint, the

parties agreed to proceed to trial.                    On September 9, 2015, the

court heard testimony from plaintiff, her realtor, a plumber

from Messick, and defendant.                 The next day, the trial judge made

findings of fact and issued an oral decision from the bench.



2
    Defendant had previously sent plaintiff a notice to cease on
July 5, 2015.
                           5                             A-1049-15T1
    Addressing plaintiff's claims of habitability and breach of

contract, the judge found section nine of the lease required

defendant     to     make       repairs       to     the    plumbing,       heating,     and

electrical systems, and therefore, plaintiff was entitled to a

rent abatement for the repairs to the air conditioning.                                  The

judge   further      noted       the   home    "would       have     been   uninhabitable

without    the     repair,"       finding          plaintiff     acted      reasonably    by

making necessary repairs after defendant did not respond for

three-quarters of a day.               The judge therefore awarded plaintiff

$512.30    for     the    cost    of    repairs       and   an     additional    $133.33,

equivalent to one day's rent, for the "one day that the premises

were effectively uninhabitable."

    The     judge        also    awarded      plaintiff        the    $335.75    cost     of

repairs for the toilet.                The judge noted, "[W]ith this kind of

rental you would expect that the plumbing systems, the toilets

are functioning and working."                  He described "the repair and the

amount" as "fair and reasonable and necessary."

    Regarding count two of plaintiff's amended complaint, the

judge     rejected       defendant's       argument         that     she    appropriately

notified plaintiff of the interest rate and location of her

security deposit.               The judge found inadequate notice                  on the

first page of the lease, which only stated the deposit was in

the care of a Chase Bank in Hillsborough and did not list the

                                       6                                          A-1049-15T1
interest rate.               The judge also determined plaintiff was not

obligated to do "investigatory work" by looking for the bank

location on the security deposit check.                          Last, the judge found

there was no evidence defendant mailed plaintiff the notice of

deposit on June 5, 2015, finding defendant's purported evidence

was   an    "afterthought            to   cover    the    fact"   that    she    failed    to

provide adequate notice.

      The judge declined to enter judgment against defendant's

husband, concluding he was not a responsible party because he

was   not    on       the    lease.       The     judge   also    dismissed      the   count

against the corporation and dismissed counts three and five of

the amended complaint.

      Following             trial,    plaintiff       filed       an   application        for

attorney's fees.              Defendant opposed the application and raised

new issues challenging the court's decision.                           On September 29,

2015,      the    court        issued      a    written     opinion      explaining       its

$1,981.38 award for attorney's fees and rejecting defendant's

additional arguments.                The court also entered an order granting

final judgment in favor of plaintiff for $981.38 on counts one

and four of her amended complaint.                        The order further required

defendant        to     credit       plaintiff      $6,117.60      from    her    security

deposit      towards          her     future      rent    payments,       and    precluded

defendant from requiring any additional security deposit for the

                                          7                                        A-1049-15T1
remainder of the tenancy.               Last, the order awarded plaintiff

attorney's fees.      This appeal followed.

                                           II.

       The scope of our review of a non-jury case is limited.

Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011).

The findings on which a trial court bases its decision will "not

be   disturbed     unless    they   are   so     wholly   insupportable    as   to

result in a denial of justice."                  Rova Farms Resort, Inc. v.

Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (citations

omitted).    On the other hand, although a trial court's factual

findings will not be overturned absent an abuse of discretion,

questions of law are subject to de novo review.                   Balsamides v.

Protameen Chems., Inc., 160 N.J. 352, 372 (1999).

       Defendant    raises    sixteen      overlapping      arguments     in    her

briefs on appeal, several of which she failed to raise before

the trial court.       See Nieder v. Royal Indem. Ins. Co., 62 N.J.

229, 234 (1973).        However, we discern three main contentions

that     merit     brief      discussion,         specifically,     defendant's

challenges of the trial court's findings on (1) habitability and

breach of contract, (2) the security deposit, and (3) attorney's

fees.     Defendant also raises additional arguments that merit

brief discussion.      We address these issues in turn.



                                    8                                   A-1049-15T1
       The seminal case on the issue of rent abatement is Berzito

v. Gambino, 63 N.J. 460 (1973).                    Our Supreme Court held all

residential leases contain an "implied covenant or warranty of

habitability."       Id. 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 [or

her]    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).                           However, a

tenant must also provide his landlord with notice and sufficient

time to effectuate repairs.           Berzito, supra, 63 N.J. at 469.

       Defendant     provides     several          arguments    challenging        the

judge's determinations on habitability.                   In essence, defendant

asserts the broken air conditioner did not create an urgent

situation and that plaintiff did not prove the premises were

uninhabitable.        Defendant       also    argues     plaintiff    should       have

called or texted her, she responded to plaintiff's emails within



                                  9                                          A-1049-15T1
the appropriate amount of time, and plaintiff did not give her

sufficient time to inspect and repair the malfunctions.

     We reject these arguments.          The trial judge's determination

on rent abatement "is a factual finding and will be affirmed if

supported by credible evidence in the record."                 C.F. Seabrook

Co. v. Beck, 174 N.J. Super. 577, 596 (App. Div. 1980).                 In the

instant    matter,    the    judge     determined      the   air   conditioner

malfunction — during temperatures of up to ninety degrees                      —

rendered the premises "uninhabitable" and that plaintiff acted

reasonably by hiring a repair company after she did not receive

a prompt response from defendant.          The asthma of plaintiff's son

further    exacerbated      the      situation.        Moreover,     plaintiff

testified defendant preferred she contact her by email.                  Given

these circumstances, we decline to disturb the trial judge's

finding that the premises were uninhabitable and that plaintiff

provided defendant with adequate notice.

     Defendant further argues the court erred by "considering

bills   that   were   not    presented    to   [the]    landlord,"    alleging

plaintiff failed to present her with the actual bills for the

repairs until trial.        However, plaintiff set forth these amounts

in   her   amended    complaint;       therefore,      the   court   properly

considered these bills during trial.



                                  10                                  A-1049-15T1
       Next,    defendant        asserts        the    trial       court          erred     in    its

interpretation       of    plaintiff's          right      to     repair          under   sections

nine, ten, and eleven of the lease.                        We disagree.             Section nine

requires       defendant        to     repair        the     plumbing,             heating,       and

electrical      systems,        and    only    makes       plaintiff          responsible         for

repairs      resulting         from     her     own     negligence.                 Section       ten

similarly      requires        plaintiff       to     "pay"       for       all    repairs       made

necessary by her negligence.                  Section eleven bars plaintiff from

making      "changes      or     additions"          without       defendant's             consent,

including      "renovation[s]           to     the    plumbing          .    .     .    [or]     air-

conditioning."         Here, the trial court determined plaintiff did

not cause the need for the repairs.                     Moreover, plaintiff did not

"renovat[e]"       these       appliances,       but       made    necessary           repairs       to

render the property habitable.                      We will not disturb the trial

court's findings on this basis.

       Defendant     also       argues        the     court       erred       by       failing       to

consider the loss and notice provisions in the lease.                                     Defendant

did   not    raise   these       arguments          before      the     trial       court.        See

Neider, supra, 62 N.J. at 234.                   Nevertheless, we find they lack

merit.      The loss provision states that if only part of the house

is    uninhabitable,       the        tenant    shall       pay       the    landlord          "on    a

proportional basis."                 Here, because the trial judge found the

broken       air     conditioner              rendered          the         entire        premises

                                        11                                                 A-1049-15T1
uninhabitable,   he   appropriately   ordered        abatement   for   a   full

day's rent.    Similarly, the notice provision required plaintiff

to send "[a]ll notices given under this Lease" to defendant's

address by personal delivery or certified mail.                As noted, the

parties agreed to communicate by email; parties may modify a

contract by their actions or conduct.           See, e.g., DeAngelis v.

Rose, 320 N.J. Super. 263, 280 (App. Div. 1999).               We discern no

error here.

     We turn next to the court's findings regarding plaintiff's

security   deposit.     Defendant   argues     the    trial   court    assumed

"facts not in evidence" when it determined defendant did not

provide    adequate   notice   pursuant   to   N.J.S.A.       46:8-19.      The

statute provides:

            The person investing the security deposit
            . . . shall notify in writing each of the
            persons making such security deposit or
            advance, giving the name and address of the
            . . . bank . . . in which the deposit . . .
            is made, the type of account in which the
            security deposit is deposited or invested,
            the current rate of interest for that
            account, and the amount of such deposit or
            investment,   in    accordance   with   the
            following:

            (1)   within 30 days of the receipt of the
            security deposit from the tenant; . . . .

            [N.J.S.A. 46:8-19(c).]

     Here, the lease only stated the deposit was held by a Chase

Bank in Hillsborough; it did not list the bank's address or the
                          12                            A-1049-15T1
deposit's      interest     rate.         Moreover,     plaintiff         testified         she

never received notice of the deposit by mail.                           The trial court

reviewed      the   testimony    of       both    parties     and       found    plaintiff

credible.       Therefore, the trial court ordered the appropriate

remedy under N.J.S.A. 46:8-19(c).

       Defendant also argues plaintiff did not establish the exact

date she paid the security deposit, and therefore, the court had

no    basis    to   determine    defendant         failed     to    comply       with       the

statute's thirty-day requirement.                  See N.J.S.A. 46:8-19(c)(1).

However,      defendant     claimed       she    sent   plaintiff        the    notice       of

deposit on June 5, 2015, meaning defendant received the deposit

on or before this date.              Therefore, the court did not err by

determining defendant did not meet the thirty-day requirement.

       Last,    defendant     argues       she    was   not    required         to     notify

plaintiff because plaintiff's fiancé actually issued the check

containing the security deposit.                  Although defendant noted that

plaintiff's fiancé paid the deposit in her notice to quit, she

maintained      that   she    provided          adequate    notice       to     plaintiff.

Under    the    "doctrine       of    invited       error,"        we     will       "bar     a

disappointed litigant from arguing on appeal that an adverse

decision below was the product of error, when that party urged

the   lower    court   to    adopt    the       proposition    now       alleged       to    be



                                     13                                              A-1049-15T1
error."   Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503

(1996).   We decline to reverse on this basis.

    Next, we turn to the issue of attorney's fees.           The court

awarded   plaintiff   $1,981.38   in   attorney's   fees   pursuant    to

N.J.S.A. 2A:18-61.66, which states:

                If   a   residential   lease   agreement
           provides that the landlord is or may be
           entitled to recover either attorney's fees
           or expenses, or both, incurred as a result
           of the failure of the tenant to perform any
           covenant or agreement in the lease . . . the
           court shall read an additional parallel
           implied covenant into the lease.         This
           implied covenant shall require the landlord
           to pay the tenant either the reasonable
           attorney's fees or the reasonable expenses,
           or both, incurred by that tenant . . . as
           the result of any successful action or
           summary proceeding commenced by the tenant
           against the landlord, arising out of the
           failure of the landlord to perform any
           covenant or agreement in the lease.

                The court shall order the landlord to
           pay such attorney's fees . . . to the same
           extent the landlord is entitled to recover
           attorney's fees . . . as provided in the
           lease. . . .

    In its written opinion, the court found an implied parallel

covenant based on section five of the lease, which provides:

           The Tenant is liable for any and all damages
           which   Tenant   causes   by   violating   any
           terms/agreement or moves prior to the end of
           the lease period.       Penalty includes one
           month's rent for breach of contract, plus
           loss of rent, the cost of preparing the
           property     for     re-renting,     brokerage
           commission in finding a new tenant include
                            14                                 A-1049-15T1
            reasonable attorney's              fees       and    costs     of
            collection. . . .

The   court     determined,          because      plaintiff        "commence[d]        and

successfully     prosecuted          such    an    action"       against     defendant,

plaintiff was entitled to reasonable attorney's fees.

      We discern no error regarding the award of attorney's fees

to plaintiff.         The statute provides for attorney's fees if a

tenant successfully pursues an action arising from a landlord's

failure to "perform any covenant or agreement in the lease" and

permits recovery "to the same extent" as the landlord.                           N.J.S.A.

2A:18-61.66.           Here,     defendant         breached        the     warranty      of

habitability and failed to perform the required repairs under

the lease.     The lease permitted defendant to recover attorney's

fees where plaintiff violated any terms or agreements in the

lease.      Therefore, plaintiff's motion for fees satisfied the

statutory criteria.

      Finally,    we    address       defendant's       miscellaneous        arguments.

Defendant      first        contends        plaintiff       perjured        herself      by

testifying she did not own a second residence at the time the

air   conditioner           malfunctioned.            Defendant          premised      this

allegation     upon     a     deed    and     insurance         application,      showing

plaintiff and her ex-husband transferred their former home to

new   owners    on     June    22,     2015,      several       days     after   the    air

conditioner      incident.           Defendant       is     apparently       suggesting
                                     15                                          A-1049-15T1
plaintiff   could     have       gone       to    this    other     home    when    the   air

conditioner    malfunctioned,            and          therefore,    she    had     no   valid

reason to make immediate repairs.

      This argument lacks merit.                       Although plaintiff apparently

still held legal title to this other property, she testified she

was "clearly no longer residing" there.                             Indeed, her entire

purpose in renting defendant's property was because she could no

longer   reside      in    her       former      marital      home.        Moreover,      the

availability of other lodging provides no defense to a breach of

the warranty of habitability.

      Defendant next argues the trial court erred by placing an

"[u]ndue    burden        of     proof"          on     her   to    rebut     plaintiff's

allegations     of        other       damaged           appliances,        including      the

dishwasher,    lights,         and    sliding         door.     However,      because     the

trial court did not render judgment on these issues, we decline

to consider them here.

      Next, defendant argues the trial court erred by failing to

consider the answer filed by defendant's husband.                           This argument

lacks merit.        Defendant's husband did not answer plaintiff's

amended complaint; nevertheless, the parties agreed to proceed

to trial, where both defendant and her husband had the full

opportunity to cross-examine plaintiff's witnesses.                                Following

the   testimony,      the       court       dismissed         the    complaint      against

                                       16                                           A-1049-15T1
defendant's husband.     We find the trial court fully considered

the arguments of both defendants.

    Last,    defendant   lists       several   alleged   improprieties        by

plaintiff's counsel, which she argues amounted to "fraud on the

court."     These   arguments    lack    sufficient      merit   to   warrant

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

discern no evidence of unethical behavior by plaintiff's counsel

or the trial court.

    Similarly, any remaining arguments we did not specifically

address lack sufficient merit to warrant discussion in a written

opinion.    See R. 2:11-3(e)(1)(E).

    Affirmed.




                                17                                    A-1049-15T1
