July 12, 2013
COUNTRY CLUB TOWERS, Plaintiff-Respondent,
DAVID BRANTLEY and SHERRY BRANTLEY, Defendants-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 20, 2013
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. LT-1672-12.
David Brantley, appellant pro se, and attorney for Sherry Brantley.
Ehrlich, Petriello, Gudin & Plaza, attorneys for respondent (Erin R. Ehrlich, on the brief).
Before Judges Simonelli and Accurso.
Defendants in this long-running landlord/tenant dispute appeal from the entry of a judgment of possession and the denial of their motion to dismiss the complaint. Defendants contend the judge erred in allowing plaintiff to amend its complaint on the trial date to reduce the amount of rent plaintiff claimed was due and owing. Because we agree that the trial judge did not abuse his discretion under the circumstances, we affirm largely for the reasons expressed by Judge Mongiardo in his written opinions of April 2 and May 10, 2012.
Defendants are long-term tenants in a residential high-rise apartment building owned by plaintiff. The parties have litigated several disputes over rent and habitability issues on different occasions over the last six years. The primary issue has been condensation from the HVAC unit above their apartment, which has periodically stained the ceiling and walls in their unit and occasionally resulted in leaks and more serious damage to the ceilings and interior. Following a trial, Judge Rothstadt in 2008 ordered a ten percent abatement in the rent until the leaks were repaired, thereby reducing the rent to $1948.50 per month. Plaintiff attempted to raise the rent to $2265 beginning in January 2011,  but a new leak appearing in November 2010 resulted in a new round of litigation. Judge Suarez presided over the trial of that matter in December 2011. On the record at the conclusion of the last day of hearings, plaintiff's counsel advised the court that plaintiff had recently served a new notice of rent increase on defendants effective January 1, 2012. Judge Suarez acknowledged the information but advised the parties that issue was not before her and would not be addressed in her opinion. The judge established a post-trial briefing schedule and ordered defendants to post January 2012 rent of $1948.50.
In her subsequent opinion, Judge Suarez determined that the new leak was caused by the same HVAC problem as before. Finding that plaintiff had not permanently repaired the prior leak, which had resulted in Judge Rothstadt having abated ten percent of the rent, and that Judge Mongiardo had already determined that plaintiff had failed to effect a valid rent increase for 2011, Judge Suarez determined the rent to be $1948.50. The judge entered an order memorializing her ruling on February 6, 2012.
Approximately three weeks later, plaintiff filed its complaint in this matter alleging that defendants had failed to pay rent of $2333 due February 1, 2012. When the parties appeared before Judge Mongiardo for trial on Monday March 19, 2012, defendants advised that they had filed a motion to dismiss and for sanctions for filing a frivolous complaint on the previous Friday afternoon. Defendants represented that they had served the motion by fax and dropped a copy in chambers after close of business. As plaintiff's counsel had not seen the motion, the court directed defendants to hand a copy to counsel for his review.
As the court began to discuss a briefing schedule, plaintiff's counsel advised that the parties had come to an agreement in mediation on the amount of rent due. The court cautioned plaintiff's counsel against revealing matters discussed in mediation. Plaintiff's counsel advised that he was not referring to a settlement but only advising the court that while plaintiff had demanded rent of $2333 in the complaint, plaintiff would concede that the amount should be only $1948.50, the amount defendants contended was owed. He asserted that there was thus no dispute and no case to try.
As defendants began to object and assert that there was a dispute, plaintiff's counsel broke in. "It's a nonpayment of rent case. Let [defendants] tell us what the amount of the rent is, let them pay it, and we'll leave. Let's not make this any more complicated than it has to be."
The judge then turned to defendants and said
[m]y understanding from the motion . . . is that while the complaint is alleging $2333 of rent that's due for February and March, based upon Judge Suarez's order, it would appear that the rent should be $1948.50. The landlord is agreeing with that. So what is there left other than to find out if the rent's been paid for February or March in the amount of $1948.50?
In response, defendants asserted that they were challenging the $2333 as an illegal rent increase. The judge again pointed out that the landlord was no longer demanding that figure, and said "I'm not going to have a trial when there's agreement. I have a court order that says that's the rent, and I have now the plaintiff saying, yes, that's the rent for the two months in question." Defendants asserted that they could not agree on $1948.50, "because the issue is not the amount of rent. The issue is whether or not the plaintiff can meet its burden consistent with the pleadings filed in the amount of $2333."
The judge then stated his determination to resolve the nonpayment issue on the record that day, allow plaintiff's counsel time to respond to defendants' request for counsel fees on their frivolous litigation motion, and set a date for argument on the counsel fee issue. Defendants then advised the judge that they would not pay plaintiff the $1948.50 for February and March and were demanding a Marini hearing. The court determined to reserve on all issues and allow plaintiff time to respond to the motion.
The parties appeared again before Judge Mongiardo on April 2, 2012. The judge entered judgment for possession for plaintiff in the amount of $3897 and denied defendants' motion to dismiss the complaint and for attorneys' fees. In an accompanying statement of reasons, the court acknowledged that the complaint, which alleged that rent was due and owing for February and March 2012, stated that the monthly rent was $2333. The judge noted, however, that on February 6, 2012 Judge Suarez, following a lengthy rent abatement hearing, determined the rent to be $1948.50. On the trial date, plaintiff's counsel conceded that $1948.50 was the monthly amount due. The court treated that concession as an attempt to amend the complaint, which is to be freely allowed in the interest of justice. R. 4:9-1; R. 6:3-1.
The judge rejected defendants' arguments that the court lacked jurisdiction to hear the case, relying on Levine v. Seidel, 128 N.J.Super. 225 (App. Div.), certif. denied, 65 N.J. 570 (1974). The court found that plaintiff's allegation that some rent was due and owing for the months in question conferred jurisdiction on it to hear the case. The judge also rejected defendants' claims that the complaint was frivolous because defendant Sherry Brantley admitted that no rent for the months in question had been paid. The judge reasoned that if rent is due and remains unpaid, the complaint seeking same cannot be termed frivolous. The judge also rejected defendants' claim for fees as the complaint was not frivolous and the defendants, both attorneys, had represented themselves in the action. Finally, Judge Mongiardo rejected defendants' request for a Marini hearing, which he termed "suspect and disingenuous" in light of the timing of the request and that Judge Suarez had just "concluded a lengthy Marini hearing involving these parties."
The judge denied defendants' request for reconsideration on May 10, 2012. He found that
[d]espite receiving a favorable ruling from Judge Esther Suarez on February 6, 2012 after a lengthy Marini hearing, the defendants did not pay the abated rent. When plaintiff filed its summary dispossess action for non-payment of rent, defendants challenged the legality of the complaint and the jurisdiction of the court. When plaintiff moved to amend the complaint to reflect the rent due and owing to be consistent with Judge Suarez's ruling, defendants objected to the attempt to amend. Only when it was apparent that the Court would grant the motion to amend did defendant Sherry Brantley proclaim that she would not pay any rent without another Marini hearing.
The court concluded its opinion on reconsideration by noting that in light of the long history of court battles between these parties, "the last minute desperate attempt to prolong this matter by requesting a Marini hearing on the heels of the last Marini hearing without any payment of rent and without any notice to the landlord of such an intention simply cannot lie."
On appeal, defendants contend that the court erred in allowing plaintiff to amend its complaint on the trial date and that it lacked jurisdiction to hear the matter. We disagree.
It is well-settled that the jurisdiction of the court in a summary dispossess action under the Anti-Eviction Act (Act), N.J.S.A. 2A:18-61.1 to -61.12, is entirely statutory. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 281 (1994). "N.J.S.A. 2A:18-61.1 limits the grounds for which residential tenants may be evicted in a summary proceeding, and jurisdiction to grant the remedy requires a showing that one of the statutory grounds for eviction exists." Ibid. (citing Levine, supra, 128 N.J.Super. at 229). Non-payment of rent as occurred in this case, however, is one of the statutorily authorized bases for removal of a tenant. N.J.S.A. 2A:18-61.1(a). Plaintiff's complaint states expressly that it is for non-payment of rent. Accordingly, we see no error in the trial court's conclusion that it had jurisdiction to hear this summary dispossess action.
We likewise find no error under the circumstances of this case in the court treating the complaint as if amended to demand the abated rent Judge Suarez had just determined was due. The parties had just spent the better part of a year litigating a habitability case before Judge Suarez. While plaintiff attempted to raise the rent near the end of that case and thereafter filed a complaint for non-payment of rent seeking the increased sum, on the trial date it conceded to defendants' position that it was only entitled to the abated rent Judge Suarez had determined was due.
It is undisputed that defendants had paid no rent for the months of February and March. While we are certainly aware of cases requiring dismissal of a complaint where the plaintiff has failed to prove that the amount claimed was legally due, see, e.g., Hous. Auth. of Passaic v. Torres, 143 N.J.Super. 231, 236 (App. Div. 1976), defendants have cited no case to support their argument that a plaintiff may not amend its complaint to reduce its demand to what is legally due. Defendants have also failed to offer a reason why such a policy might further the purposes of the Act and none is readily apparent to us. A landlord need not give a tenant who has failed to pay rent any notice before seeking eviction under the Act. N.J.S.A. 2A:18-61.2; Scugoza v. Stockton, 166 N.J.Super. 122, 123 (App. Div. 1979). Accordingly, lack of notice as to the precise amount claimed, where defendants have appeared to contest the action, would not appear a valid ground for objection.
Moreover, as Judge Mongiardo noted, Rule 4:9, Amended and Supplemental Pleadings, is made applicable to landlord/tenant actions by Rule 6:3-1. Amendments to the pleadings are liberally allowed and "should be allowed as of course if the litigation has just commenced and the complaint would otherwise be subject to dismissal for failure to state a claim." Pressler and Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:9-1 (2013) (citing Muniz v. United Hosps. Med. Ctr. Presbyterian Hosp., 153 N.J.Super. 79 (App. Div. 1977)). Defendants have failed to articulate any undue prejudice to them by the course adopted by the trial judge. We are convinced that Judge Mongiardo, who was obviously fully familiar with the history of this protracted landlord/tenant dispute, exercised his discretion in a manner fair to both parties and in furtherance of the Act's goals of providing an expedited procedure to resolve landlord/tenant disputes
Defendants' remaining arguments are without sufficient merit to warrant discussion in a written opinion R 2:11-3(e)(1)(E)