May 7, 2008
VANGUARD ASSOCIATES, PLAINTIFF-RESPONDENT,
HERMAN FERNANDEZ AND MARIA FERNANDEZ, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. LT-5637-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges A. A. Rodríguez and C. L. Miniman.
Herman Fernandez and Maria Fernandez (Tenants) appeal from the October 13, 2006 order directing them to sign and return a renewal lease to Vanguard Associates (Landlord), and, if the lease is not signed within ten days, a judgment of possession will be entered. The judge stayed this order pending disposition of this appeal. We reverse and remand for a new trial.
The Tenants have lived at a mobile home park in Moonachie since 1997. They first occupied the space by virtue of a one-year written lease. At the expiration of that lease they remained in possession and became month-to-month tenants by virtue of N.J.S.A. 46:8-10. They then moved to two different locations within the mobile home park. No lease was signed with respect to these new locations.
Tenants received from Landlord a notice to quit dated January 30, 2006. The notice informed Tenants that they must sign an attached lease or vacate the property "33 days from the date of this letter." The notice also stated that Tenants must sign the lease or move out by March 5, 2006. The proposed lease contained eighty-seven paragraphs.
Tenants refused to sign the lease, objecting to many of the clauses as being unreasonable. They also rejected other conditions, alleging they violated the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, or local ordinances protecting mobile home owners. Landlord continued to accept rent from Tenants.
On May 24, 2006, Landlord served another notice to quit upon Tenants. This notice indicated that: (1) Tenants were in violation of the terms of the notice to quit; and (2) ordered them "30 days from the date of this letter to quit and move out."
Tenants remained on the premises. Landlord filed a summary dispossess proceeding, alleging that Tenants had failed to pay rent from May through July, 2006, and "refused to sign a lease." According to Tenants, they tendered the May through July rents, but Landlord refused them.
At trial, the judge heard no testimony. Instead, the judge held an in-chambers conference with attorneys only. Landlord's attorney argued that Tenants were barred from presenting any defenses regarding the unreasonableness of the proposed lease changes pursuant to the doctrine of res judicata because a similar lease was reviewed and approved by a different judge. In that matter, the plaintiff was the same landlord as in this case. The tenant was different. The case was decided by an unpublished opinion.
The matter was adjourned. The judge asked the parties to brief the res judicata issue. On the return date, the judge took no testimony. Instead, relying on the unpublished opinion by the fellow judge, he granted judgment for Landlord. The judge concluded that the lease, viewed in a vacuum, was reasonable as a matter of law. The judge discussed concepts of "law of the case" and res judicata.
On appeal, Tenants contend that the judge: (1) committed error in applying the doctrine of res judicata to the prior summary dispossess proceeding; (2) violated R. 1:36-3 in citing an unpublished opinion and relying exclusively on that opinion as the basis for its decision; (3) erred in adopting the doctrine of the law of the case as a basis for its opinion; and (4) erred in determining that the notices to quit were in substantial compliance with the specificity requirements of N.J.S.A. 2A:18-61.2. We agree.
There are several procedural due process mishaps and a substantial flaw that requires reversal. Neither the doctrine of res judicata nor law of the case apply to the decision reached here. The other case, which was resolved by an unpublished opinion, did not involve the same parties. Therefore, as between Landlord and Tenants, the issues were not previously litigated. Moreover, the dispute the judge had to resolve was factual, not legal. Therefore, Tenants were not given an opportunity to defend the action. This is a denial of procedural due process.
N.J.S.A. 2A:18-61.1(i) provides, in pertinent part, that a residential tenant may be evicted where:
The landlord or owner proposes, at the termination of the lease, reasonable changes of substance in the terms and conditions of the lease, . . . which the tenant after written notice refuses to accept . . . .
We held in Hanover Mobile Homeowner's Ass'n v. Hanover Village Associates, that:
Under N.J.S.A. 2A:18-61.1(i), a landlord may evict a tenant for a tenant's refusal to accept "reasonable changes of substance in the terms and conditions of the lease." Again, however, plaintiffs had a legal right pursuant to statute to contest the reasonableness of the lease terms. Therefore, the trial court could not have granted a judgment of possession to the landlord because of the tenants' failure to sign the lease. [316 N.J. Super. 256, 270-71 (App. Div. 1998).]
Thus, the judge has to make findings of fact regarding the reasonableness of the changes. It is axiomatic that one judge cannot merely adopt the findings of another judge in a different case. Moreover, R. 1:36-3 provides that an unpublished opinion is not "precedent" nor "binding upon any court."
In addition, we note that in a summary disposition action there are no provisions for proceeding by way of motion. The judge has to find the facts that grant the court jurisdiction to proceed summarily. One of those jurisdictional facts is that the proposed changes to the tenancy are reasonable. The judge made no such findings.
Therefore, the disposes judgment is vacated. Given this decision, we need not address whether the notices to quit met the requirements of N.J.S.A. 2A:18-61.2. It is clear that, if Landlord wishes to pursue this matter, it must start the summary dispossess process anew by giving new notice pursuant to the Anti-Eviction Act.
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