December 20, 2006
SUMMA CAPITAL/SUMMIT FOODS, PLAINTIFF-RESPONDENT,
EGBUCHULAM, DONALD, ESQ., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. LT-36304-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2006
Before Judges Stern and Lyons.
In this landlord-tenant case, defendant, Donald Egbuchulam (Egbuchulam), a commercial tenant, appeals the denial of a motion for reconsideration entered against him on February 10, 2006. We affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On October 31, 2005, the plaintiff, Summa Capital/Summit Foods (Summit), filed a complaint in the Landlord-Tenant Division of the Superior Court, Special Civil Part, in Essex County. On the return date, December 12, 2005, the defendant failed to appear and a judgment by default was entered. The defendant claims he was appearing in another court at that time, but there is nothing in the record to indicate he informed the court of his whereabouts at that time. The defendant then obtained an order to show cause on December 23, 2005 staying execution on the judgment and warrant, requiring the defendant to post the sum of $2400 as a deposit and setting January 5, 2006 as the return date. Defendant claims he advised the landlord-tenant master that he would be out of the country on the return date and would prefer a different return date. According to the defendant, the landlord-tenant master informed the defendant that he would have to make an application to the court for an adjournment since that was beyond his authority.
Accordingly, on December 26, 2005, the defendant wrote to the landlord-tenant clerk seeking an adjournment. He advised the clerk that he would be beginning an overseas trip on December 27, 2005 and would appreciate the matter being rescheduled sometime after January 14, 2006. The letter does not indicate that a copy was sent to plaintiff's counsel or the plaintiff. The defendant left on his out of the country, pre-paid vacation on December 27, 2005 and did not return until January 13, 2006. However, plaintiff's counsel did appear on the January 5, 2006 return date of the order to show cause. At that time, the trial judge dismissed the order to show cause and released $1000 of the deposit to the plaintiff's attorney and returned the balance of $1400 to the defendant. The court's order stated, "Tenant exercised bad faith in not advising at the time of OSC application that he would be out of the country on return date. OSC dismissed - LL will store tenant's belongings until end of month."
On January 27, 2006, the defendant filed a motion for reconsideration. On January 30, 2006, the plaintiff cross-moved seeking a denial of defendant's application and legal fees. On February 10, 2006, the trial court denied the motion for reconsideration as well as the cross-motions and this appeal followed.
On appeal, the defendant raises the following points:
(1) THE TRIAL JUDGE VIOLATED THE DEFENDANT'S PROCEDURAL DUE PROCESS RIGHTS BY RULING AGAINST HIM IN ABSENTIA DESPITE HIS PRIOR NOTICE OF HIS INABILITY TO APPEAR.
(2) THE LANDLORD/TENANT COURT LACKED JURISDICTION TO ADJUDICATE GIVEN THE EXISTENCE OF DEFENDANT - APPELLANT'S CLAIMS AGAINST LANDLORD UNDER R. 6:4-1(A), N.J.S.A. 2A:18-60.
While not set forth as specific appeal points, the defendant argues that the court erred in denying his application for reconsideration and in assessing fees against him.
"The minimum requirements of 'due process of law' include reasonable notice of the nature of the proceedings and a fair opportunity to be heard therein." Fantony v. Fantony, 36 N.J. Super. 375, 378 (Ch. Div. 1955), modified, 21 N.J. 525 (1956). Defendant clearly had notice of the nature of the proceedings and a fair opportunity to be heard therein. He himself obtained the order to show cause and knew of its return date. Rather than confirming that his adjournment had been granted, defendant left the country. There is no indication the defendant made any effort to have a fellow attorney either cover for him or obtain an adjournment. Moreover, the defendant provided no notice of his application for an adjournment to his adversary.
In essence, the defendant is appealing the denial of his request for an adjournment. "The granting of adjournments rests within the sound discretion of the trial court." State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div. 1971), certif. denied, 58 N.J. 335 (1971). Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error. In this case, the defendant failed to appear on the trial date and default judgment was entered. He then obtained an order to show cause with a return date for which he knew he would be unavailable. Moreover, defendant left the country without ascertaining whether his application for an adjournment was in fact granted; hence, he assumed the risk of the court denying his application and proceeding in his absence. The court's implicit denial of his adjournment was not an abuse of discretion.
The defendant's jurisdictional application was not raised below. He argues, however, that under N.J.S.A. 2A:18-60, the matter should have been referred to the Law Division. N.J.S.A. 2A:18-60 permits a removal to the Law Division but an application by either the landlord or the person in possession must make that application. That was not done, and hence, the landlord-tenant court was not precluded from exercising its jurisdiction. R. 6:4-1(a) is also permissive and not mandatory in allowing a transfer from the Special Civil Part to another Court. Again, no application had been made; hence, that point must be rejected.
With respect to defendant's argument that the trial court should have granted his application for reconsideration, the decision whether to deny a motion for reconsideration is addressed to a judge's discretion. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002); Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997); Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1966).
The trial judge's exercise of discretion not to reconsider the matter, given the defendant's failure to appear not only at the January 5, 2006 return date, but also at the initial trial call on December 12, 2005, as well as the failure of defendant in the first instance to obtain a return date for which he knew he would be present, is clearly not an abuse of discretion.
Lastly, with respect to the assessment of attorney's fees against defendant, R. 1:2-4(a) provides that, if without just excuse or because of failure to give reasonable attention to a matter, no appearance is made on behalf of a party at a scheduled proceeding, the court may order the delinquent party to pay the reasonable expenses, including the attorney's fees of the aggrieved party. The decision of the trial court to award such attorney's fees rests within the court's discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-45 (2001). See State v. Audette, 201 N.J. Super. 410, 414 (App. Div. 1985) (which notes the appropriateness of an order requiring the delinquent party, even the State in a criminal action, to pay the adversary's actual expenses incurred in an abortive appearance). Given the factual background in this matter, the trial court did not abuse its discretion in awarding fees. Consequently, the order entered by the trial court denying the motion for reconsideration is affirmed.
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