PETER W. PHILIPS, SR. v. JOSEPH C. FREZZA, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6476-04T16476-04T1

PETER W. PHILIPS, SR.,

Plaintiff-Appellant,

v.

JOSEPH C. FREZZA, CAROL H.

FREZZA, JOSEPH C. FREZZA, L.L.C,

JOANN E. DELLECHIAIE and

HAROLD A. COHEN,

Defendants-Respondents.

____________________________________

 

Argued May 2, 2006 - Decided May 15, 2006

Before Judges Skillman and Axelrad.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4438-02.

Peter W. Philips, Sr. argued the cause pro se.

Lauren D. Bercik argued the cause for respondents (Hanlon & Niemann, attorneys; Christopher J. Hanlon, on the brief).

PER CURIAM

Plaintiff appeals from an order granting defendants' motion for summary judgment dismissing his complaint and entering final judgment on defendants' counterclaim for $2,343.30 for unpaid rent and $4,500 for storage fees. The order also declares that the mobile home previously owned by Peter W. Philips, II, is abandoned and that defendant Joseph C. Frezza, L.L.C., may process a request with the State Motor Vehicle Commission to put title to the mobile home in its name.

Plaintiff Peter W. Philips, Sr. is the administrator of the estate of his son, Peter W. Philips, II, who died in January 2001. At the time of his death, Peter Philips, II, was a lot tenant and owner of a mobile home in a mobile home park owned and operated by defendant Joseph C. Frezza, L.L.C. The individual defendants are principals and managers of Joseph C. Frezza, L.L.C.

After Peter Philips, Jr.'s death, his step-brother, Ronald Malloy, who also allegedly resided in the mobile home, succeeded to the lot tenancy and at some point signed a lease. However, he paid rent on the lot only sporadically.

In October 2001, plaintiff advised defendant that he had become the owner of the mobile home by intestate succession from his son and that he wanted to remove Malloy and sell the mobile home.

In December 2001, defendant brought a summary dispossess action against both Malloy and plaintiff. On January 28, 2002, a default judgment for possession based on non-payment of rent was entered, and on February 5, 2002, a warrant was executed and the mobile home padlocked.

Thereafter, plaintiff filed this action alleging conversion, tortious interference with contract, bad faith breach of contract and abuse of process. Defendant filed a counterclaim seeking damages for unpaid rent and storage charges and a declaration that plaintiff had abandoned the mobile home.

After expiration of the discovery, defendants moved for summary judgment. The trial court granted the motion, stating in an oral opinion:

The plaintiff's late son had a lease agreement with the defendant. The defendant owned a mobile home property that he leased to mobile home owners, and there was a lease with the late Mr. Phillips, the plaintiff's son. When he died, his stepbrother signed a lease with the defendant.

Eventually, the plaintiff contacted the defendant, and the defendant, I find, tried to work with the plaintiff to sell the mobile home. But I find as a fact that the defendant could not properly sell the home with the plaintiff, until the plaintiff established he was indeed the sole heir of the late Mr. Phillips, which he didn't do for quite a while.

I find as a fact that on February 11th, '04, the plaintiff was served with a notice of abandoned mobile home, which pursuant to the statute, which is 2A:18-72, the defendant served upon the plaintiff. And it's appropriate where the landlord believes, under all of the circumstances, that the defendant has left the property upon the premises with no intention of asserting any further claim to the premises or the property.

And [a]) a warrant of removal has been executed, and b) the tenant was given written notice that he or she is voluntarily relinquishing possession of the premises. The notice provided pursuant to 2A:18-74 that the property is considered abandoned, and must be removed from the premise within 75 days, or the property would be sold.

Plaintiff concedes that he got the notice, and had no intention of taking possession of the property. He just wanted it sold, which is what the defendant was trying to do for quite some time. All the plaintiff had to do when he got this notice, was to let the defendant know that in fact he wanted the property sold, and cooperate with the defendant in doing so.

Plaintiff did not do that. Plaintiff instead started a lawsuit contending conversion, tortuous interference with a contract, which he didn't have with the defendant, bad faith and breach of contract, he didn't have a contract, and abuse of process. I find that there are no questions of fact for a jury to resolve in this case, that indeed the defendant complied with the appropriate provisions of the law, including 2A:18-74, 2A:18-75, and 2A:18-76.

And 2A:18-76 provides that based upon the notice given, that since the plaintiff did not respond to that, the property shall be conclusively presumed to be abandoned, which gave the defendant the right to indeed sell the property, which he hasn't done. He's continued to try and work it out with the plaintiff, who does not seem to want to cooperate with the defendant to do what's best by disposing of the property on the site.

I find indeed that it would be more beneficial to sell the home on the site. Therefore, I find there is no basis in fact to support the plaintiff's complaint, and I am granting the motion to dismiss the plaintiff's complaint. I also find as a fact that the defendant has indeed proven his counterclaim. He's entitled to the rent, he's entitled to the storage, pursuant to the statutes.

. . . .

I'm declaring, in view of the statutes I have cited, that indeed this was abandoned, that it is abandoned property, and therefore the defendant may process a request for title in its name with the State Motor Vehicle Commissioner.

I'm entering a judgment against the Estate of Peter Phillips, II, for unpaid rent in the amount of $2,343.30. . . . [T]here's no doubt in my mind the defendant is entitled to storage. However, I'm going to use my equitable discretion, and instead of awarding the defendant the full $14,000 for the . . . approximately three years, I'm going to use my discretion and award the defendant roughly for the three years, it runs form February '02 to '03 to '04 to '-05, which is three years and a couple of months, I'm going to award roughly $1,500 per year, for a total of $4,500 for storage.

Plaintiff appealed from the summary judgment. Defendants did not cross-appeal from the part of the judgment that awarded them less than the full amount they sought for storage fees.

On appeal, plaintiff presents the following arguments:

I. DEFENDANTS SHOULD HAVE BEEN DENIED SUMMARY JUDGMENT, AS A MATTER OF LAW.

II. GENUINE ISSUES OF MATERIAL FACTS WERE IN DISPUTE, SO AS TO PRECLUDE SUMMARY JUDGMENT UNDER THE BRILL STANDARD.

III. THE RIGHTS AND OBLIGATIONS UNDER BOTH DCA CONTRACTS SHOULD BE UPEHLD, AS THEY ARE OF PUBLIC POLICY.

We reject these arguments and affirm substantially for the reasons set forth in the April 29, 2005 oral opinion of Judge Locascio. Plaintiff's arguments do not warrant any additional discussion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-6476-04T1

May 15, 2006