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Wednesday, June 22, 2011

Complaint Has to be Served on Defendant or its Designated Agent: Thomas v. Monmouth Properties LLC

Complaint Has to be Served on Defendant or its Designated Agent

Thomas v. Monmouth Properties LLC



DOCKET NO. A-6159-09T3

Submitted May 4, 2011 – Decided June 15, 2011

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. DC-11325-10.


In this appeal, the trial court, following a bench trial, awarded plaintiff $3000 in damages after finding that defendant illegally locked plaintiff out of her apartment. Defendant sought reconsideration, arguing that the court proceeded to trial despite the fact that defendant had not been given notice of the proceeding, thereby depriving defendant of the opportunity to present witnesses on its behalf. We reverse.

On May 27, 2010, plaintiff filed a verified complaint and order to show cause (OTSC) seeking an order restoring her to possession of her apartment, which she leased from defendant. In her verification, plaintiff stated:

When I came to my residence that afternoon [May 24, 2010] I could not go into the apartment [due] to the top [and] bottom lock[]s were changed. I called the Long Branch Police - Mr. Shamrock! He called the landlord [and] then told me to remove the rest of my property in [twenty] minutes[.] [T]his was approximately 4:45 p.m. The landlord stated that I abandoned the property[,] which I did not.

The verified complaint was not served upon defendant or its designated agent. Rather, notice of the verified complaint and OTSC was given to defendant's property manager, Arlette Muss (Muss). Later that day, an individual identifying himself as a legal assistant to the Special Civil Part judge telephoned defendant's attorney requesting that counsel appear before the court the next morning.

Defense counsel advised the court's legal assistant that he had just been informed by Muss that plaintiff had agreed to vacate the premises in lieu of being evicted for non-payment of rent and that she had in fact vacated the premises but was now claiming that she had been locked out. Counsel also informed the legal assistant that he had not received any papers from plaintiff. Counsel inquired as to the purpose of the proceeding before the court and advised the legal assistant that if the court intended to conduct a hearing, defendant wanted the opportunity to subpoena witnesses. The legal assistant assured counsel that the proceeding was merely an initial appearance on the OTSC.

Counsel, along with Muss, appeared before the court the next day as directed. Counsel immediately placed on the record the fact that he had been contacted by the court to appear but had not been served with any papers. Counsel also informed the court that a summary dispossess action had previously been filed against plaintiff and that defendant was awaiting a hearing date from the court. Despite counsel's representations of no notice, the court proceeded to conduct a full hearing during which plaintiff and Muss testified.

Plaintiff testified that on May 24, when she came home, the locks had been changed. She called the police, who responded to the scene shortly thereafter and contacted Muss, who advised police that plaintiff had abandoned her apartment. Plaintiff indicated she told Muss that she was "supposed to be moving," but that she had not moved and "still had stuff there[.]"

Muss testified that earlier in the month, plaintiff agreed to voluntarily vacate the premises around May 22 in lieu of an eviction proceeding. Muss memorialized this arrangement in a May 10 letter. Muss told the court plaintiff had given defendant permission to enter the apartment to show it to prospective tenants and that plaintiff had removed ninety-five percent of her belongings, leaving behind what appeared to be garbage. Muss explained that the summary dispossess action was not withdrawn in order to protect defendant's interest.

At its conclusion, the court found that while plaintiff may have intended to move, she had not vacated the apartment and defendant had therefore engaged in an illegal lockout. The court noted that plaintiff had not surrendered her keys and indicated that it "sense[d] that maybe [plaintiff] received some pressure from Long Branch Police that . . . based on the representations made known to the Long Branch Police at the time was that . . . her stuff was out, she had to move." The court proposed three solutions: (1) permitting plaintiff's re-entry into her apartment; (2) providing another apartment to plaintiff in the Long Branch area; (3) awarding "a financial payment to accommodate her in a hotel."

Plaintiff and defendant conferred outside of the presence of the court. When it was determined that re-entry would not be possible, Muss offered to make an apartment, located in Keansburg, available to plaintiff and her children, rent-free, for a reasonable period. Plaintiff accepted the proposal. The agreement was put in writing and signed by both parties. The court reviewed the agreement but rejected it, stating, "this is not what I had in mind[.]" The court then awarded plaintiff $3000 in damages with $1500 representing the penalty for the illegal lockout and the remaining $1500 representing rent for thirty days.

Defendant moved for reconsideration. Defense counsel submitted a certification in support of the motion in which, among other points raised, he reiterated the circumstances surrounding his first notice of the OTSC on May 27, the telephone call from the court's legal assistant requesting that he appear in court the next day, and assurances from the court's legal assistant that the matter would not yet proceed to trial at that time. Defense counsel's certification also referenced plaintiff's post-hearing admission, in the presence of a court officer, that she filed the verified complaint because she would not qualify for financial assistance in the absence of an eviction. Additionally, defense counsel attached what he represented were "before" and "after" photographs of plaintiff's apartment as evidence that plaintiff had in fact vacated the apartment. The court denied the motion, finding that defendant failed to demonstrate that the court made its earlier decision "on a palpably incorrect or irrational basis or failed to consider competent relevant evidence."[1]

On appeal defendant contends it was denied the opportunity to present witnesses who would testify that plaintiff voluntarily vacated the apartment in accordance with their agreement. Further, defendant contends there was no basis for the court to have disregarded the agreement the parties reached. We agree.

The scope of our review of a judgment entered in a non-jury case is limited. We will not disturb the findings and legal conclusions upon which the judgment was based unless we are convinced they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (citation and internal quotation marks omitted). Here, it is not that the judge's decision is manifestly unsupported by the competent, relevant and reasonably credible evidence in the record. Rather, it is the undisputed fact that the court conducted a full hearing on an OTSC without affording defendant an opportunity to present witnesses and other proofs establishing that plaintiff had voluntarily entered into an agreement to vacate the premises in lieu of an eviction proceeding and future action for unpaid rent. Peterson v. Peterson, 374 N.J. Super. 116, 125 (App. Div. 2005) ("[A]s a matter of fundamental fairness, defendant had the right to present witnesses in his defense."). Although we recognize the urgency presented to the court by a lockout unaccompanied by any court order, the court, pursuant to Rule 4:52-1, could have entered an order providing for interim relief if it was satisfied "from specific facts shown by affidavit or verified complaint that immediate and irreparable damage will probably result to the plaintiff before notice can be served or informally given and a hearing had thereon."

Further, N.J.S.A. 2A:39-6 permits the court to proceed in a summary manner in lockout proceedings. Therefore, the provisions governing summary actions under Rule 4:67-2 may have been employed to provide interim relief to plaintiff while at the same time affording proper notice to defendant and a meaningful opportunity to be heard. Hyman v. Muller, 1 N.J. 124, 128-29 (1948). Given the procedural deficiencies evident here, reversal is warranted.

In light of our reversal, we need not address defendant's remaining argument other than to state that there is nothing under our anti-eviction laws that precluded the parties from resolving their differences through settlement, provided the court is satisfied the agreement was reached knowingly, voluntarily, and with a full understanding of the consequences of a settlement. "[P]arties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone." Dep't of Pub. Advocate v. N.J. Bd. of Pub. Util., 206 N.J. Super. 523, 528 (App. Div. 1985). Because the trial judge made certain factual findings relative to the merits of plaintiff's claim, in fairness to the judge, a different judge should preside over the remand proceedings.

Reversed and remanded for a new trial or further proceedings consistent with this opinion. We do not retain jurisdiction.

[1] The order mistakenly refers to "plaintiff" as not demonstrating that the court made its earlier decision "on a palpably incorrect or irrational basis or failed to consider competent relevant evidence."

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