On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1862-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2009
Before Judges Sapp-Peterson and Alvarez.
Defendant William Lackey appeals from the January 28, 2008 order granting plaintiff Township of Howell (Township) temporary possession of defendant's property. On appeal, defendant claims the trial court abused its discretion when it denied the request of his attorney to adjourn the matter or, alternatively, to continue the matter because defendant was out of the country. Defendant also contends the court abused its discretion in vacating the stay of the January 28 order. We reverse.
The present action originally stems from an order entered on March 8, 2002, finding that defendant was operating a commercial enterprise on his property in violation of a Township zoning ordinance. The order restrained and enjoined defendant from engaging in such activities. Subsequent to the entry of this order, the parties continued to have disagreements over defendant's compliance with the order, resulting in further judicial proceedings.
In May 2004, the Township obtained a court order permitting it to enter onto defendant's premises and to remove "the illegal items which are the subject matter of this litigation[.]" In October 2004, the parties entered into a Consent Order that, among other terms, provided that "several items of trash remaining on the property will be placed in a dumpster and removed from the property within 30 days. . . . [and] Defendant agrees to keep the property clean and free of equipment and debris consistent with the current zoning of the property." Eighteen months later, in March 2006, the Township filed a motion seeking an order permitting it "to remove all items stored on the property in violation of the various Court rulings in this case." The court denied the motion.
The next action initiated by the Township occurred in September 2007, when it filed yet another motion seeking to enforce litigant's rights. The Township sought an order that permitted it to "remove all items stored on the property in violation of the various Court rulings in this case." In support of the motion, the Township's Code Enforcement Official, Christian Jackson, submitted a certification in which he detailed what he described as the "long and tortured" efforts by the Township to have defendant enjoined "from continuing any non-agricultural use of his property[.]" The court, in a letter dated October 25, 2007, notified counsel that it was scheduling "a three[-]hour hearing concerning the Enforcement of Litigants Rights . . . for November 8, 2007 at 9:00 a.m." That date was subsequently adjourned to November 29 and later rescheduled to January 3, 2008.*fn1
Defendant did not appear at the January 3 hearing. His attorney did appear and represented to the court that he believed he notified his client of the January 3 date but could not be sure until he returned to his office. He indicated to the court, however, that he may have been in error in failing to notify defendant. Additionally, counsel indicated that he had corresponded with defendant via e-mail the previous week to remind defendant about the hearing date and did not receive a response from defendant until the very day of the hearing. Defense counsel explained that he received an e-mail from defendant that morning stating "I didn't know about this date and I am in Central America, I have no telephone access and I have sporadic e-mail access." The court's response to defense counsel's explanation was as follows:
Well, I don't think we can look at this in a vacuum. We have to look at this, you know, with the history of this case, which is constant agreement on his part to do things and then just complete failure to do them, based on the . . . plaintiff's allegations. And if we were to put the case off every time he came up with a story, obviously, this case would never get done.
And I think at this point, it's time to just sit down, take some testimony, and . . . go forward with it. To me, he's been given more than enough opportunity to know that the proceeding was on today, and this is a very serious proceeding. It's been going on for a long while. It's six, almost seven years old, and the Borough still hasn't gotten -- or the Township still hasn't gotten compliance with the Court's orders. And to say that, well, now he's in Central America, you know, I really don't think I'd be doing justice if I allowed the matter to be put off at this point.
The court proceeded with the hearing and declined to continue the matter for a later date to allow defendant to appear. At the conclusion of the hearing, the court entered judgment in favor of the Township and directed that it submit an order, for the court's signature, granting temporary possession of the property to the Township, issuing a writ of possession to the Sheriff, giving the Township forty-five days to tag items that it designated should be removed from the property, and affording defendant, under escort, forty-five days to remove the tagged property.
One week later, on January 10, defense counsel wrote to the court advising that he was responsible for his client's non-appearance because he mistakenly believed that his secretary had informed defendant of the new date when she in fact had not done so. He indicated that his client had returned from Central America, had livestock on the property that required care, and requested that the court reopen the hearing. Defense counsel also sought a stay of the court's order if it was not inclined to reopen the hearing. Defense counsel received no response to this correspondence from the court.
The court signed the order memorializing its January 3 oral decision on January 28. Defendant moved for a stay and, in support of the motion, submitted a certification along with ...