ERIC D. COGEN v. EMILY ROSARIO VELAZQUEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2625-04T52625-04T5

ERIC D. COGEN,

Plaintiff-Appellant,

v.

EMILY ROSARIO VELAZQUEZ,

Defendant-Respondent.

____________________________________________________________

 

Argued November 30, 2005 - Decided

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Warren County, C-16028-03.

Peter R. Bray argued the cause for appellant

(Bray, Chiocca & Miller, attorneys; Mr. Bray,

on the brief).

Respondent did not file a brief.

PER CURIAM

In a verified complaint for partition, plaintiff Eric D. Cogen claimed that the parties "are fee simple owners as tenants in common of premises commonly known as 2 Oakland Avenue," in the Township of Hope. After defendant Emily Rosario Velazquez was served with the complaint and she failed to answer, plaintiff's attorney scheduled a court date for a proof hearing. But plaintiff's attorney failed to give notice of the proof hearing to defendant as required by R. 4:43-2(b).

At the proof hearing on August 17, 2004, plaintiff testified that the parties had purchased the home in 1998 for $112,000, with a down payment of $4,300 and a mortgage in the amount of $107,700. According to plaintiff, it was defendant's responsibility to make the monthly mortgage payments. He requested that the property be sold because defendant had failed to make all of the mortgage payments on a timely basis, and the late payments had affected his credit rating. Plaintiff also acknowledged, however, that the last time he checked the status of the mortgage, "she was almost current."

During the proof hearing, plaintiff failed to present any evidence concerning the fair market value of the property, its fair market rental value, or the amount of money plaintiff actually paid to purchase or maintain the home. Nevertheless, the trial court found as follows:

The uncontested proofs are that there was joint ownership of this particular piece of property, which is more particularly described in the complaint. Obviously, there has been a default entered.

I know the old rules called for default and default judgment to be entered simultaneously. There have been some movement afoot to allow the person to at least know there is a default. I will allow for notice of this.

. . . [T]hey shared the down payment in common. Apparently the defendant made some of the payments, but then at some point discontinued making payments.

I think a fair resolution of this -- so it doesn't go any further and impact on the plaintiff's credit rating and since I'm sure he would like to get back the money he invested in it -- is to allow for the property to be sold.

The profits of the sale of the property will be split 50-50. I will allow for the plaintiff to pay for legal fees and costs of having to come to court.

Out of that -- they no longer seek an accounting, but the defendant should be reimbursed -- and it seems as though your client has records -- in addition to 50 percent for any payment that she made exclusively without your client's assistance.

. . . .

What I'll do is allow for the . . . judgment to take effect within 30 days after you mail it to her. So if you mail it to her, if she doesn't object to it within 30 days, it will automatically become final.

In a letter dated August 24, 2004, plaintiff's attorney asked the trial judge to reconsider plaintiff's obligation to reimburse defendant for one-half of all the mortgage payments she made on the mortgage encumbering the property. In the final paragraph of his letter, plaintiff's attorney candidly acknowledged: "[M]y client wants nothing more than [what] the parties agreed to -- that the defendant be responsible for any payments on the property and that she reap any benefit or loss on her house."

In a subsequent letter to the trial court dated September 13, 2004, plaintiff's attorney wrote: "My client requests permission to dismiss this case without prejudice. As the defendant did not receive notice of the hearing date, the defendant would not be prejudiced by the dismissal." The record does not contain a response to this request, however, the record does contain a copy of an order of disposition signed by the trial court on September 9, 2004.

In November 2004, plaintiff obtained a new attorney, who filed a notice of motion to "either permit the re-opening of this matter for supplementary proofs or, in the alternative, an [o]rder for reconsideration." Plaintiff's certification in support of his motion states that defendant resided in the subject premises rent free since it was acquired, and that the monthly mortgage payments of $1,069 were less than the fair rental value of the property which "was no less than $1,215 per month as of the date of purchase (1998) and is currently $1,350 per month." Plaintiff also certified that although he lent his name and credit to the purchase, it was "always intended that the [d]efendant would live in the premises and she would pay all carrying charges." Plaintiff's motion was denied.

Given the nature of the relief requested by plaintiff and the lack of notice to defendant, we view the decision to proceed with the proof hearing on August 17, 2004, and the subsequent refusal to grant plaintiff's request for dismissal without prejudice as an abuse of discretion. Neither party should reap an unfair windfall, merely because plaintiff failed to present evidence at the proof hearing from which to determine the market value of defendant's possessory interest. Under these circumstances, it is incumbent upon a court of equity to look beyond a mechanical application of the rules, in order to fulfill the basic intent of the parties' agreement. See James v. Francesco, 61 N.J. 480, 484 (1972) (emphasizing that "the first objective of the rules of practice [is] the accomplishment of substantial justice on the merits"); Melone v. Jersey Cent. Power & Light Co., 18 N.J. 163, 174 (1955) (noting that the "aim of [our court] rules is substantial justice"); Handelman v. Handelman, 17 N.J. 1, 11 (1954) (describing general purpose of rules as an effort to "broaden the procedural powers of our courts to the end that just dispositions on the merits may be facilitated and determinations on the basis of procedural niceties may be avoided").

 
We reverse and remand for further proceedings consistent with this opinion.

(continued)

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A-2625-04T5

December 14, 2005