May 17, 2010
HOUSING AUTHORITY OF THE TOWNSHIP OF FRANKLIN, PLAINTIFF-APPELLANT,
GEORGE ADAMS, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. LT-1845-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 26, 2010
Before Judges Lisa and Baxter.
The Franklin Township Housing Authority (FTHA) brought a summary dispossess action against its tenant, defendant George W. Adams. Attached to the verified complaint that it served on Adams was a three-page document entitled "NOTICE OF LEASE TERMINATION and NOTICE TO QUIT AND DEMAND FOR POSSESSION" (Notice). During the course of a four-day trial, at which both sides were represented by counsel, the FTHA placed in evidence a copy of the Notice. Apparently, however, the third page was missing from that copy. This was not an intentional deletion by the FTHA, and the absence of the third page was apparently not recognized by anyone during the course of the trial.
At the conclusion of the trial, the judge ordered written summations on certain issues. In those written summations, both parties quoted or paraphrased portions of the third page of the Notice. In his submission, defendant's counsel stated:
On or about June 5, 2008, the Defendant receive[d] a Notice of Lease Termination and Notice To Quit And Demand for Possession dated June 3, 2008. The Notice demanded that he vacate the premises by August 1, 2008. The Notice further indicated that this case was a "One Strike" case and that consequently Defendant would not be granted a hearing under the Housing Authority grievance hearing procedures.
Defendant did not dispute receiving the Notice, including the third page. In the above-quoted passage, he expressly admitted it. The "One Strike" grounds for eviction and the statement regarding the lack of a grievance hearing were contained only in the third page of the Notice. Defendant never argued that the Notice was deficient for failing to inform him of circumstances listed on the third page. Defendant did not assert lack of jurisdiction due to any deficiency in the Notice.
The court then issued a written decision. The court sua sponte raised the issue of jurisdiction. Relying on Housing Authority v. Raindrop, 287 N.J. Super. 222 (App. Div. 1996), the court held that, because the third page of the Notice was not attached to the copy of the Notice placed in evidence, and because critical aspects of the notice requirements were contained on that page, the evidence at trial was deficient and deprived the court of jurisdiction. In its decision, the court ruled in favor of the FTHA, but it nevertheless dismissed the complaint due to lack of jurisdiction.
When counsel for the FTHA received the judge's decision, she learned for the first time, to her surprise, that the copy of the Notice placed in evidence was missing the third page. She promptly moved for reconsideration, asking that the third page be considered as part of the trial record and that the court amend its decision and judgment taking into consideration the contents of the third page. Defendant filed no opposition. The judge nevertheless requested oral argument and directed both parties to appear. At oral argument, defense counsel expressed brief pro forma opposition to the motion. The judge denied the motion, finding that the omitted page "was available at the time of trial, it just wasn't submitted to the Court in its appropriate form." The "appropriate form" characterization presumably meant that it was attached to the complaint but not attached to the copy of the Notice placed in evidence. The court stated that "a motion for reconsideration is [not] the proper method to enlarge the record with a document that was available at the time of trial but was never presented."
The FTHA appeals from the denial of its reconsideration motion and asks us to remand to the trial court for reconsideration of its decision in light of the contents of the third page. Defendant has filed no opposition to the appeal.
Our review of the denial of a motion for reconsideration is under the "abuse of discretion" standard. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). The contents of the third page were not in dispute. Nor was the fact that the complete Notice, including the third page, was properly served on defendant. Indeed, the court file contained the complete three-page Notice attached to the verified complaint. See R. 6:3-4(d). Defendant did not raise the issue of lack of jurisdiction due to deficiency of the Notice because of omission of the third page. Obviously, both counsel believed the court would consider the complete Notice, including the third page, because they both referenced portions of the contents of the third page in their written summations.
This is not a situation in which a party, either for strategic reasons or because the party overlooked the significance of a document, withheld the document from evidence and then, after an unfavorable result, attempted to obtain further consideration by belatedly submitting it. We considered such a circumstance in connection with the denial of a summary judgment motion in Fusco v. Board of Education, 349 N.J. Super. 455 (App. Div.), certif. denied, 174 N.J. 544 (2002). In that case, the plaintiff's attorney withheld a document from his opposition to the defendant's summary judgment motion, and then moved for reconsideration, asking for consideration of the omitted document. Id. at 459. We affirmed the trial court's denial of the reconsideration motion, stating:
Fusco's counsel either made a tactical decision not to present the document the first time around or overlooked it in his initial argument. He cannot now seek to bring this document in under the guise of reconsideration after defendant prevailed on summary judgment. To validate such a practice would encourage attorneys to hold back evidence and move for reconsideration on a regular basis in order to get "a second bite of the apple" if their adversary prevailed on the initial motion. [Id. at 463 (citations omitted).]
No such circumstance existed in this case. This was not an effort by a party to enlarge the record with a document previously available to it but intentionally not presented prior to an adverse ruling. Nor is this a situation like Raindrop in which the notice, by its terms, was deficient.
In the circumstances presented, we conclude that the trial court mistakenly exercised its discretion in denying the FTHA's reconsideration motion. Accordingly, we reverse and remand, and direct the trial court to reconsider its decision, deeming the third page of the Notice as part of the trial record and taking into consideration its contents.
Reversed and remanded. We do not retain jurisdiction.
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