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Danny Diemerit and Melody Saiz v. Thomas Deloy and Donna Deloy


March 20, 2012


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket Nos. DC-028303-10 and DC-028307-10.

Per curiam.


Submitted February 28, 2012 -

Before Judge Messano and Espinosa.

The Township of Lyndhurst (Lyndhurst) appeals from the judgment entered against it in favor of plaintiffs Danny Diemerit and Melody Saiz in the amounts of $5243.20 and $6094.20, respectively, and the denial of Lyndhurst's subsequent motion for reconsideration. We reverse.

The matter has a tortured procedural history. In 2006, Lyndhurst cited defendants Thomas and Donna Deloy (the Deloys) for illegally using their two-family residences at 241 and 243 Newark Avenue as three-family dwellings. Lyndhurst and the Deloys settled the matter in July 2009.

Pursuant to its terms, the settlement required the Deloys to "remediate all violations," in return for which the summonses were conditionally dismissed. "[U]pon full and total remediation," the summonses would be dismissed with prejudice. However, if Lyndhurst or its construction code official determined the Deloys failed to comply, the summonses would be reinstated.

In May 2010, Lyndhurst apparently became aware that the Deloys leased the allegedly illegal apartments to plaintiffs.

Lyndhurst issued two new summonses. In August 2010, Lyndhurst issued another summons alleging an illegal apartment in property owned by the Deloys at 242A Orient Way. These three summonses, together with those issued in 2006 which were reinstated, were transferred to the Wood Ridge municipal court.*fn1

In September 2010, plaintiffs filed separate complaints against the Deloys alleging they were owed relocation costs, pursuant to N.J.S.A. 2A:18-61.1h, and further alleging the Deloys failed to return their security deposits.*fn2 Lyndhurst was not named as a defendant and was not served with the complaints. Since the housing violations were still pending in the municipal court, Lyndhurst moved on November 3 to consolidate and intervene in both actions as a plaintiff, with the right to prosecute the code violations against the Deloys.

In the interim, in late October 2010, the Deloys filed answers to plaintiffs' complaints and asserted third-party complaints against Lyndhurst. The relief sought by the Deloys against Lyndhurst was a "declaration as to the legality of the[] units." On November 18, the judge entered an order consolidating plaintiffs' complaints and permitting Lyndhurst to "intervene . . . as plaintiff." On the same day, Lyndhurst filed answers to the Deloys' third-party complaints.

The five summons complaints previously forwarded to the Superior Court were administratively returned to the municipal court. We are advised those matters were tried on March 7, 2011, although we have not been advised of the outcome.

Meanwhile, on February 17, 2011, plaintiffs' consolidated complaints were called to trial in the Special Civil Part. What transpired can only be characterized as confusing.

Counsel for Lyndhurst believed his client was "dismissed out of the case" because the summonses were returned to the municipal court, but he could produce no order to that effect. The Deloys' counsel believed Lyndhurst "ha[d] no affirmative claims, cross claims, counter claims, so [it is] here only . . . as a third party defendant." When the judge suggested that the Deloys dismiss their third-party complaint without prejudice, defense counsel objected. After advising Lyndhurst's counsel, "[T]here's no order [of dismissal]. You either get it or you're in[,]" the judge continued the matter for several hours.

When the proceedings re-convened, the judge noted his prior order permitted Lyndhurst to "intervene only as a plaintiff, moreover as a party in interest in this matter." Referencing an email from court staff that is in the record, the judge indicated that the municipal court would exercise jurisdiction over the code violation summonses which were not consolidated. The judge further noted that Lyndhurst had not filed any appearance in the consolidated matters, although he acknowledged its answers to the third-party complaints.

The judge then framed the case:

We are not concerned here with the quasi[-]criminal violations of the zoning law. We are only concerned here with the civil action for damages under the relocation assistance Act and under Miah versus Ahmed.*fn3 That's all we're concerned about. . . . I suppose an argument could be made then that the Township didn't do anything wrong, but that's down the road. That's got nothing to do with me or these proceedings.

When Lyndhurst's counsel sought clarification, the judge continued:

You are a de facto party. . . . [Y]ou've been acting all along . . . like you intervene[d]. I'm allowing you to stay even though a formal appearance wasn't filed . . . . Be my guest, leave. But understand that there may be, in your absence, a judgment entered against the Township without you being here.

Lyndhurst's counsel remained and participated in the proceedings, although he clearly evidenced confusion over the nature and extent of his involvement.

Plaintiffs' counsel then entered certain stipulated facts on the record, specifically: Saiz leased the apartment at 243 Newark Avenue at the monthly rent of $1175; on May 20, 2010, she received notice from the Lyndhurst construction code official, Mark Sadonis, that her apartment was illegal, and she would have to "start looking for other living arrangements"; Lyndhurst issued summonses against the Deloys "for creating and leasing an illegal apartment"; Saiz vacated on June 21; Lyndhurst paid $955.80 in relocation and moving expenses; and the Deloys returned her security deposit.

As to Diemerit, counsel stipulated that: he leased the apartment at 241 Newark Avenue from the Deloys; the monthly rent was $1350; on May 18, 2010, Sadonis sent a notice advising the apartment was illegal and Deimerit would have to leave; a summons for an illegal apartment was issued against the Deloys; Diemerit vacated on May 26; Lyndhurst paid relocation and moving expenses in the total of $2856.80; and the Deloys had not returned his $2025 security deposit. Various exhibits were marked into evidence.

Counsel for the Deloys refused to stipulate that "proper zoning approval was not rendered" as to the two apartments. The judge refused to "make a ruling on that because that [will] be the ultimate issue in the . . . [municipal court]." The Deloys' counsel argued that "the tenant[s] [were] displaced because of an action by the zoning officer," and his clients were not responsible for relocation expenses.

Reasoning "the only issue . . . is not whether the money is to be paid, but who is to pay it . . . now," the judge continued that he needed to decide "[w]hether it should be the Township paying it in the first instance, and then . . . having to pursue the Deloy[s] through tax lien, or should the Deloy[s] pay it . . . , or should I somehow fashion a remedy where they both pay it?"

Lyndhurst's counsel objected, noting his client had "no notice of that claim against it." The Deloys' counsel argued that "all of the statutes and all the administrative codes including [Lyndhurst's] ordinance . . . say[] that the township shall pay and then seek reimbursement . . . ." However, the judge noted the Deloys' third-party complaint sought only "a declaratory judgment . . . declaring . . . the dwelling units are legal units." He continued, "I'm not going to do that. That's what's pending before the [municipal court]." The judge further concluded, "[T]hat count [has got] to be dismissed just on it[s] face . . . ." Counsel for the Deloys "agree[d] with that," but argued that the municipal ordinance "trump[s]" the statute and required payment from Lyndhurst first and reimbursement from the Deloys thereafter if the apartments were adjudicated to be illegal.

After another recess, the judge placed his findings and conclusions on the record. Accepting the stipulated facts and citing relevant statutes, case law, and portion of the municipal ordinance furnished at trial, the judge noted "[t]he only issue now is how will [plaintiffs be] paid, by whom and when." He further observed that "no one," including plaintiffs, "completely complied with the ordinance." Reasoning that by paying some of plaintiffs' relocation costs, Lyndhurst "assumed the obligation . . . it would have [assumed] anyhow under the ordinance," the judge concluded "the Township has to pay these people." He entered the judgment under review.*fn4

Lyndhurst moved for reconsideration. It argued that no claim for monetary damages had been made in plaintiffs' complaints or the Deloys' third-party complaints. It further contended that the relocation ordinance furnished at trial was not enacted until July 2010, two months after the citations issued to the Deloys that prompted plaintiffs' vacation of the apartments, and that the ordinance in existence in May 2010 did not require Lyndhurst to pay relocation costs first and seek reimbursement from the Deloys. Lastly, Lyndhurst argued that entry of the judgment violated the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3.

On May 31, 2011, the judge entered an order denying the motion for reconsideration. The order indicated the motion was "unopposed." There was no statement of reasons provided. See R. 1:7-4(a) ("The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right . . . ."). This appeal followed.

Before us, Lyndhurst has reiterated the arguments made in its motion for reconsideration. We need not consider the merits of the claims that the judgment was improperly entered under the controlling municipal ordinance, or that it violated the Tort Claims Act. We reverse because we agree that neither plaintiffs nor the Deloys sought monetary relief from Lyndhurst in any of their pleadings. Therefore, the judge, who seemingly dismissed the Deloys' third-party complaint, lacked jurisdiction to enter the judgment awarding plaintiffs monetary relief against Lyndhurst.

It is axiomatic that every pleading must "contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement." R. 4:5-2 (emphasis added); see also R. 6:3-1 (specifically applying R. 4:5 to actions filed in the Special Civil Part). As the Court recently said, "A thoroughly deficient complaint -- a complaint that completely omits the underlying basis for relief -- cannot be sustained as a matter of fundamental fairness." Bauer v. Nesbitt, 198 N.J. 601, 610 (2009).

Plaintiffs never sought monetary relief from Lyndhurst. The Deloys only sought a declaration as to the legality of the apartments under Lyndhurst's zoning ordinance. The judge specifically decided not to consider that requested relief, and, when he dismissed the third-party complaint, counsel for the Deloys agreed that dismissal was appropriate because the issue was being litigated in the municipal court.

Reversed. The judgment against Lyndhurst is vacated.

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