NOT FOR PUBLICATION WITHOUT THE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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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