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Hensyn, Inc. v. McCrae

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 4, 2010

HENSYN, INC., PLAINTIFF-RESPONDENT,
v.
ALICE MCCRAE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, LT-2610-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 13, 2010

Before Judges Rodríguez and Grall.

Alice McCrae (Tenant) appeals from the October 3, 2008 judgment of possession in favor of Hensyn, Inc. (Landlord). We affirm.

In March 2007, Tenant signed a one-year lease to reside at Hensyn Village, an apartment complex owned by Landlord.

Tenant's daughter, Elizabeth McCrae (Elizabeth), resided in the apartment with her mother. She also acted as "attorney in fact" for Tenant, and as a fact witness.*fn1

In September 2008, Landlord filed an action for summary disposition based on non-payment of rents. Trial was held before Judge Michael P. Wright. Landlord's property manager, Allan D'Arienzo, testified that Tenant owed rent for August, September, and October 2008, as well as $99 in legal fees and $30 in court costs, which are permitted by the lease.

Elizabeth testified that she sent two $814 checks by certified mail to Landlord on August 29, 2008, as rent for August and September. Photocopies of both checks were entered into evidence, along with copies of the certified mail slip and delivery confirmation receipt. According to her, the checks were never cashed. D'Arienzo testified that the envelope contained only documents, but no checks.

Judge Wright found credible D'Arienzo's testimony that no checks were enclosed in the certified mail envelope. The judge also found credible Elizabeth's testimony that she had mailed the envelope. Judge Wright found that:

I believe [Elizabeth] when [she] told me that [she] put some checks in a parcel[,] that [she] paid $6.92 to send that parcel to the [Landlord] and that, in fact, [she] did just that. However, I... just don't think that [Landlord] has these checks hidden in his back pocket somewhere and is lying to me about receiving them. What I think is that [Elizabeth] sent them, but for some reason they don't have them.

The judge granted a judgment of possession based on the non-payment of $2,571 (three months rent, plus $99 in legal fees and $30 in costs in accordance with the terms of the lease). However, the judgment was conditional. It provided that if Tenant paid the $2,571 together with costs of suit by 1:00 p.m. on Friday, October 10, 2008, then "this matter [will be] dismissed and the Judgment of Possession [would be] vacated." Landlord requested the sum be paid via certified check. The judge so ordered.

Tenant did not comply with the October 3, 2008 judgment. Instead, she filed an ex parte order to show cause to amend the October 3, 2008 judgment so that the funds could be deposited with the court. Judge Wright denied the application. The October 10 deadline for payment of the $2,571 passed without any payment having been made. Tenant filed this appeal on October 14, 2008, challenging the October 3, 2008 judgment of possession.

On October 17, 2008, Judge Wright issued a warrant of removal, ordering Tenant to vacate the apartment within three business days. Tenant then filed an order to show cause seeking a stay, arguing that Landlord was not in compliance with N.J.S.A. 46:8-28, sometimes referred to as the landlord registration act. Judge Wright denied the application, noting that the court had confirmed with the Clerk's Office of the Township of Mount Olive that Landlord was properly registered and in compliance with N.J.S.A. 46:8-28.

Tenant then sought emergent relief from the Appellate Division. We denied her application on October 22, 2008. Tenant vacated the premises on October 23, 2008.

Tenant appeals contending:

AS A MATTER OF FACT, THE TENANT'S APPEAL OF A WRONGFUL EVICTION IS NOT MOOT WHERE THE TENANT CONTINUES TO SUFFER ADVERSE CONSEQUENCES FROM THE EVICTION AND THE APPELLATE COURT CAN REMOVE SUCH HARM BY VACATING THE JUDGMENT OF POSSESSION AND WARRANT OF REMOVAL AND DISMISSING THE LANDLORD'S COMPLAINT; AND AS A MATTER OF LAW, APPELLATE REVIEW IS WARRANTED PURSUANT TO THE COURT'S SUPERVISORY AUTHORITY OVER THE ADMINISTRATION OF JUSTICE IN THE TRIAL COURTS WHERE WRONGFUL EVICTIONS ARE LIKELY TO RECUR YET EVADE REVIEW AND ENSURING TENANTS ARE NOT EVICTED UNLAWFULLY IS OF GREAT PUBLIC IMPORTANCE.

A. The Trial Court Exceeded Its Authority To Enter A Judgment For Possession Against A Residential Tenant In A Summary Proceeding On The Ground Of Failure To Pay Rent Due And Owing Where The Tenant Sent The Landlord Negotiable Checks For Disputed Rents By Certified Mail And Such Certified Mail Was Received And Signed For By The Landlord Because The Landlord Failed To Establish Good Cause To Evict And A Landlord's Purported Loss Of Rent Checks Is Not One Of The Grounds Authorized By The Anti-Eviction Statute.

B. The Trial Court Erred As A Matter Of Law By Requiring The Tenant To Pay The Landlord Directly And In Certifying Funds; And The Trial Court Exceeded Its Jurisdictional Authority To Enter A Judgment For Possession After The Tenant Tendered All Disputed Rents And Court Costs To The Landlord Before The Conclusion Of The Trial In Violation Of The Press Provisions Of N.J.S.A. 2A:42-9.

C. Where The Trial Court Erred As A Matter Of Law By Refusing The Tenant's Tender, In Certified Funds, Of All Rent Claimed To Be In Default Together With The Costs Of The Proceedings, To The Clerk Of The Court, Prior To Entry Of Final Judgment, In Violation Of The Express Provisions Of N.J.S.A. 2A:18-55, And This Statute Removed Jurisdiction From The Trial Court To Proceed Any Further After The Tenant Tendered Such Rents And The Court Costs To The Court, The Trial Court Exceeded Its Authority To Enter A Judgment For Possession Or Warrant Of Removal.

D. The Trial Court Lacked Jurisdiction To Enter A Judgment For Possession In This Matter Pursuant To The Express Terms Of The Landlord Registration Act Because The Landlord Failed To Comply With The Act By Providing Both The Tenant And The Municipality Where The Property Is Located With The Information Required By The Statute.

E. The Morris County Special Civil Part Exceeded Its Authority To Either Issue A Warrant Of Removal Or Order The Execution Of The Warrant Of Removal After The Tenant Tendered All Rents And Court Costs To Both The Landlord And The Trial Court And Before The Final Determination Of The Tenant's Appeal And Motion For A New Trial, In Violation Of The Express Statutory Prohibition Of N.J.S.A. 2A:18-42.

We are not persuaded by these contentions.

At the outset, we point out that Tenant appeals only from the judgment of possession. The Tenant vacated the premises in October 2008. This appeal is moot. See Daoud v. Mohammad, 402 N.J. Super. 57, 61 (App. Div. 2008) ("Because the court's jurisdiction is limited to determining the issue of the landlord's right to possession of the premises; and, as previously noted, the tenant vacated the premises and the premises have been re-rented, the issue can no longer be determined."); Sudersan v. Royal, 386 N.J. Super. 246, 251 (App. Div. 2005) ("Ordinarily, where a tenant no longer resides in the property, an appeal challenging the propriety of an eviction is moot."). This does not leave tenant without any means of relief, because "if [Tenant] feels aggrieved by the disposition, [s]he may still pursue a remedy in the Law Division." Daoud, supra, 402 N.J. Super. at 61. Thus, the appeal is dismissed as moot.

Moreover, Tenant contends that the appeal is not moot because other landlords are hesitant to rent to one who has been evicted. However, she does not point to any adverse "residual legal consequences." Such a showing is what led us to conclude the controversy in Sudersen was not moot. 386 N.J. Super. at 251.

However, even if we were to address the merits, the judgment would be affirmed. Tenant argues that the judge erred in entering the October 3, 2008 judgment of possession because she sent rent checks via certified mail, and thus, Landlord did not prove that she failed to pay rent. We disagree.

The judge found that the Landlord was not timely paid the rent that was due and owing. It is settled that "findings by the trial judge are considered binding... when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974); R. 2:11-3(e)(1)(A). We will not disturb the trial court's factual findings and legal conclusions "unless we are convinced that 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, supra, 65 N.J. at 484 (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). Deference is "especially appropriate" where "the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).

Applying that standard here, we conclude that the judge's specific findings are supported by the evidence. Moreover, the judge gave Tenant a reasonable opportunity, even at a late date, to pay the rent. Tenant did not take advantage of this opportunity. Thus, we would affirm on the merits.

To the extent that Tenant argues that the registration statement does not substantively comply with the requirements of the statute, we note that the registration statement on its face includes all of the information required by N.J.S.A. 46:8-28. There is no record before us to determine the accuracy of the information. Rather, this issue should have been raised in the trial court, where a proper record could have been developed and Landlord would have had the opportunity to rebut Tenant's allegations. We will not decide matters outside the record. See State v. Sidoti, 120 N.J. Super. 208, 211 (App. Div. 1972).

Tenant also contends:

THE TRIAL COURT DENIED THE TENANT A MEANINGFUL OPPORTUNITY TO BE HEARD AT A MEANINGFUL TIME WHERE THE TRIAL JUDGE ERRONEOUSLY EXCLUDED EVIDENCE SUPPORTING COGNIZABLE DEFENSES, THE TENANT'S PRESENTATION OF HER DEFENSE WAS SUSPENDED REPEATEDLY EVERY FEW MINUTES SO OTHER UNRELATED MATTERS COULD BE HEARD, AND THE TRIAL JUDGE FAILED TO CONSIDER THE LEGAL CONSEQUENCES OF FACTS ESTABLISHED BY THE TENANT.

This argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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