NEW COMMUNITY MANOR v. SAMUEL LABEEB

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1259-11T3

NEW COMMUNITY MANOR,

Plaintiff-Respondent,

vs.

SAMUEL LABEEB,

Defendant-Appellant.

________________________________

November 16, 2012

Argued September 19, 2012 - Decided

Before Judges Messano and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. LT-23917-11.

Jose Ortiz argued the cause for appellant (Essex-Newark Legal Services, attorneys; Mr. Ortiz, on the brief).

Jeffrey R. Kuschner argued the cause for the respondent (Mr. Kuschner, attorney; Steven J. Zweig, on the brief).

PER CURIAM

Defendant appeals from the Special Civil Part's denial of his application to vacate a default judgment removing him from his apartment at plaintiff's federally subsidized premises in Newark. For reasons set forth hereinafter, we reverse the court's order denying his application to vacate, and we remand this matter to the trial court for a hearing on the application.

We discern the facts from the record provided to us. Defendant had been a tenant in plaintiff's apartment building since July 1, 2005, under a written lease. On August 1, 2011, plaintiff filed a complaint to evict defendant for non-payment of rent in the amount of $881 due on July 1, 2011. The summons was apparently served on defendant on August 23, 2011, and the summons explicitly stated that the matter would be heard by the court on September 1, 2011.

Defendant failed to appear on September 1, 2011, and a default was entered against him. Plaintiff thereafter filed a certification, and a judgment for possession and a warrant of removal were issued on September 8, 2011. On September 30, 2011, defendant, acting pro se, made application to vacate the default judgment and the court issued an "order to show cause" returnable October 12, 2011. No copy or description of the terms of this order have been provided by the parties and no transcript of any hearing, which may have preceded the issuance of the order, has been provided.

The parties appeared in court on October 12, 2011, and the judge, at that time, expressed concern about plaintiff's calculation of the rent allegedly due.1 The judge then adjourned the matter to October 20, 2011, at 9:00 a.m., and gave defendant a written notice of the time, date and place of the continued hearing.

Plaintiff appeared with counsel and witnesses on October 20, 2011, at 9:00 a.m. Defendant failed to appear and, at 11:30 a.m., the judge vacated the order to show cause, which allowed plaintiff to proceed with the warrant for removal. However, at 4:00 p.m., defendant appeared before the judge and stated he "was sick" due to his kidney disease and "just came from hospital." The judge then called plaintiff's counsel and advised him of defendant's presence in court.

The judge thereafter allowed defendant and plaintiff's counsel to put their positions on the record, with plaintiff's counsel on speaker phone. Defendant reiterated that he had been ill with a "medical condition", and that he had tried "last week" to speak with plaintiff's agent to explain why he did not owe the claimed rent, but the agent "doesn't want to help."

Plaintiff's counsel stated that he had been in court earlier that day with two of plaintiff's representatives, and that plaintiff "denied that there was ever such a meeting [with defendant]." He further represented that his witnesses "would have explained" to the court that defendant's rent was $881 per month because defendant's father was an "ineligible alien" living in the apartment and federal regulations required payment of a "pro rata rent" in such a circumstance.

The judge then declared that, "I think at this time, at this posture of the case . . . I simply have to go with the eight eighty-one [.]" When defendant stated that he did not have money to pay that sum, and that, in any event, his father had left the apartment in May, the judge denied defendant's application. The judge added that defendant had not appeared that morning and "I'm not going to let you come in several hours later."

Defendant thereafter appeared before the court on several occasions through November 4, 2011, but was unable to secure any relief except for an order for "orderly removal" allowing plaintiff to remain on the property through November 14, 2011, and to remove his belongings by that time. This appeal followed.

Motions to vacate default judgments "should be viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd 43 N.J. 508 (1964); see also Prof'l Stone, Stucco & Siding Applicators, Inc. v. Carter, 409 N.J. Super. 64, 68 (App. Div. 2009). The court "should be guided by equitable principles in determining whether relief should be granted or denied." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994).

The trial court's decision to grant or deny an application to open a judgment will be left undisturbed unless it represents a clear abuse of discretion. F.B. v. A.L.G., 176 N.J. 201, 207-208 (2003); Little, supra, 135 N.J. at 283. Moreover, the motion judge's failure to identify the specific subsections of Rule 4:50-1 relied upon does not compel a conclusion that the motion judge's determination constituted a clear abuse of discretion. See Little, supra, 135 N.J. at 283.

R. 4:50-1(a), made applicable to the Special Civil Part by Rule 6:6-1, provides that the court may relieve a party from a final judgment for, among other things, "excusable neglect." In addition, the party seeking relief from a default judgment must also demonstrate a meritorious defense. Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super. 280, 285 (App. Div. 2005). Although, as noted, the judge did not cite any section of the Rule in denying defendant's application, the record includes facts that invite consideration of the grounds of relief set forth in Rule 4:50-1(a). See Tradesmens Nat'l Bank & Trust Co. v. Cummings, 38 N.J. Super. 1, 4-5 (App. Div. 1955) (holding that trial court did not abuse its discretion in vacating default judgment on basis of excusable neglect where defendant who was seventy-seven years old and emotionally upset due to death of his wife carelessly failed to respond to complaint). Furthermore, doubt should be resolved in favor of the party seeking relief. Mancini v. EDS, 132 N.J. 330, 334 (1993).

The problem we perceive in this case is that the judge failed to make any findings or take any testimony under oath pertaining to defendant's assertion that he was ill and, possibly, hospitalized on the morning of October 20, 2011. Further, defendant claimed that his father moved from the apartment in May, thereby raising some prospect of a meritorious defense. Here, too, no testimony was taken, however. Consequently, we have no record before us on which to base a determination that the motion judge properly exercised his discretion or abused that discretion. Moreover, it appears to us that the motion judge did not require defendant to explain his initial failure to appear for trial on September 1, 2011, given that the court entered the order to show cause on September 30, 2011, apparently without any showing on that issue.

The failure of the motion judge to make findings of fact and set forth his conclusions of law violates Rule 1:7-4(a). The critical importance of adhering to the requirements of this rule cannot be overemphasized. Not only is such a failure a disservice to the litigants and the appellate court, Curtis v. Finneran, 83 N.J. 563-569-70 (1980), but also it interferes with the discharge of our appellate duties. Here, we cannot discern the basis of the motion court's exercise of its discretion. See In re Commitment of M.M., 384 N.J. Super. 313, 332 (App. Div. 2006) ("[W]ithout findings relevant to the legal standards the litigants and the reviewing court 'can only speculate about the reasons' for the decision." Rosenberg v. Bunce, 214 N.J. Super. 300, 304 (App. Div. 1986)). We are thus required to reverse the determination of the court and remand the matter. Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574 (App. Div. 2005).2

We reverse the order denying defendant's application to vacate the default judgment and we remand this matter to the trial court to undertake a hearing and render findings of fact and conclusions of law. We leave to the trial court's sound discretion a determination as to the scope and timing of additional proofs on the issues involved in the application. However, because defendant is not a native English speaker, the court should order the appearance of an interpreter in defendant's native language for the hearing. We do not retain jurisdiction.

1 We do not have a transcript of the hearing that occurred on October 12, and we can only infer from later transcripts that the judge was prepared to consider vacating the default judgment of possession and hearing the case on the merits.

2 Plaintiff contends that by accepting the benefit of an order for "orderly removal" defendant waived his right to appeal. We disagree and, under the circumstances before us, determine that the issue is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).