HUI LING DENG v. ALBERT TAHMOUSH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0924-09T30924-09T3

HUI LING DENG,

Plaintiff-Respondent,

v.

ALBERT TAHMOUSH,

Defendant-Appellant.

_____________________________________________________________

 

Submitted August 3, 2010 - Decided

Before Judges Graves and Yannotti.

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Camden

County, Docket No. SC-2586-09.

Albert Tahmoush, appellant pro se.

Hui Ling Deng, respondent pro se.

PER CURIAM

After a bench trial in the Special Civil Part, Small Claims Section, judgment was entered in favor of plaintiff, Hui Ling Deng, against defendant, Albert Tahmoush, in the amount of $3000. The dispute arose in connection with plaintiff's purchase of defendant's home located in Haddon Township, New Jersey. For the reasons that follow, we reverse.

At the closing of title on July 31, 2009, defendant agreed to repair an "air conditioning unit" located in the basement of the home, and it was further agreed that the sum of $2000 would be held in escrow pending completion of "any necessary repairs" to the air conditioner. Plaintiff acknowledged the air conditioning repairs were completed "in mid-August," and at that point the escrow funds were released to defendant. Nevertheless, in her small claims complaint dated August 28, 2009, plaintiff stated she was seeking the sum of $3000 from defendant for the following reasons: "The reasons include but [are] not limited to the repairs of the house items the defendant signed to do and did not do, and the compensations related to the damages due to the flooded basement caused by the unrepaired air conditioning leakage the defendant signed to repair."

At trial, plaintiff testified that even though the air conditioner repairs were "not an issue anymore," she was seeking damages from defendant because the basement flooded on July 31 and August 31, 2009. According to one of plaintiff's witnesses, the water in the basement resulted from "hydrostatic pressure forcing water up from below." Based on plaintiff's proofs, the court entered judgment in favor of plaintiff for the sum of $3000 on September 23, 2009.

On appeal, defendant claims the court should have dismissed plaintiff's complaint after she "agreed that the air conditioning repairs were completed and not an issue anymore." In addition, defendant contends "he was denied the opportunity to prepare arguments against his accuser" because he was misled by plaintiff's complaint; and he was never informed of plaintiff's "new complaint prior to trial."

Due process is a flexible concept. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18, 33 (1976). "Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner." Doe v. Poritz, 142 N.J. 1, 106 (1995). Therefore, the minimum requirements of due process are "notice and the opportunity to be heard." Ibid.

"At a minimum, due process requires that a party in a judicial hearing receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)). As the Supreme Court has stated, "'[t]here can be no adequate preparation where the notice does not reasonably apprise the party of the charges, or where the issues litigated at the hearing differ substantially from those outlined in the notice.'" Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 162 (1978) (quoting Dep't of Law & Pub. Safety v. Miller, 115 N.J. Super. 122, 126 (App. Div. 1971)).

Based upon these standards and our review of the record, we conclude that defendant did not have adequate notice or a meaningful opportunity to defend against plaintiff's claim that he failed to disclose an ongoing water problem in the basement of the house. Accordingly, the judgment in the amount of $3000 is vacated and the matter is remanded for a new trial.

Reversed and remanded for a new trial. Jurisdiction is not retained.

 

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A-0924-09T3

August 24, 2010