ANTONINO COELHO v. ANGEL FRANCO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANTONINO COELHO,

Plaintiff-Appellant,

v.

ANGEL FRANCO,

Defendant-Respondent.

_____________________________________________

April 23, 2014

Submitted March 24, 2014 - Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. SC-1892-12.

Antonino Coelho, appellant pro se.

Angel Franco, respondent pro se.

PER CURIAM

Antonino Coelho appeals from a March 28, 2013 Special Civil Part order1vacating a default judgment entered on January 29, 2013, awarding him $1,097. He also appeals from an April 16, 2013 judgment awarding him $152. For the reasons that follow, we affirm the order vacating the default judgment and the April 16, 2013 judgment.

On October 15, 2012, defendant Angel Franco met with Antonino Coelho and discussed renting a room in Coelho's rooming house located in Elizabeth for Franco's son, Reynaldo. The lease lists Coelho as the landlord and Angel as the tenant and provides that the weekly rent is $130. Angel paid the first week's rent and a security deposit. Reynaldo paid the second week's rent, but stopped paying rent on November 23, 2012. Coelho sought to evict Reynaldo, but was not successful in removing him until February 5, 2013.

On December 3, 2012, Coelho filed a small claims complaint against Angel seeking $300. As Reynaldo continued to reside in the room without paying rent, Coelho filed a motion to amend his complaint2on January 15, 2013, seeking $1,038.

On January 29, 2013, the Special Civil Part entered a default judgment for Coelho for $1,097. Angel moved to vacate the judgment and on March 28, 2013, the default judgment was vacated and the matter was restored to the trial calendar.

Trial occurred on April 16, 2013. Coelho testified that he was seeking $1,300 from Angel because Angel signed the lease for his son. Angel testified that he did not sign the lease and when shown a copy, claimed the signature was not his. After questioning both parties, the judge awarded Coelho $130 plus court costs.

On May 23, 2013, after Coelho filed a notice of appeal, the trial court filed an amplified opinion pursuant to Rule2:5-1(b), finding that Coelho was not credible:

Through the court's examination of Plaintiff it became apparent that Plaintiff's testimony was not credible and was unreliable. Plaintiff stated that Defendant signed a lease agreement prior to Defendant's son entering the premises, a contention that Defendant vehemently denied and even claimed the signature was forged. Plaintiff stated that the tenant failed to pay the weekly rent beginning on November 23, 2012, and never made any additional payments after that date. Then Plaintiff states the eviction occurred over ten (10) rental cycles later without providing an explanation as to why the eviction occurred so long after non-payment. When the court illustrated to Plaintiff his duty to mitigate damages plaintiff provided no viable reason or response.

Increasingly disconcerting is the procedural history of this matter. Plaintiff original[ly] obtained a judgment through default. After the date of default and prior to the proof hearing, Plaintiff moved to amend his complaint and dramatically increased the amount sought. Due to court oversight and a busy docket, the original complaint was not reviewed during Plaintiff's proof hearing and a judgment was entered for this increased amount. It was only because of Defendant's motion to vacate and credible testimony at trial that the court became aware of the discrepancies in Plaintiff's case and noted Plaintiff's drastic increase in the demand amount.

. . . .

Plaintiff was not credible at trial and demonstrated throughout the entirety of the case that his character and veracity was suspect at best.

On appeal, Coelho provided the following argument:

he (father angel franco) owes me the amount of $1097.00 given to me by [THE TRIAL COURT] on Jan 29/13. It was overturned by [THE MOTION COURT] on March 28/13 only because I served Mr. Franco at the address that the son resided and not at his own address, and [THE MOTION JUDGE] gave me a new trial. So, I am asking for the lower court decision to be reversed.

Angel did not appeal the judgment but provided a certification dated September 11, 2013, indicating that he was not disputing the judgment.

We find no abuse of discretion in the trial court's decision to vacate the default judgment. Such motions must be viewed with "'great liberality'" and tolerate "'every reasonable ground for indulgence . . . to the end that a just result is reached.'" Prof'l Stone, Stucco & Siding Applicators, Inc. v. Carter, 409 N.J. Super. 64, 68 (App. Div. 2009) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964)).

Coelho moved to vacate the default, claiming that he did not reside at the rooming house on Wyoming Avenue where the pleadings had been sent. When questioned by the court why he mailed the pleadings to Angel at the Wyoming address, Coelho claimed he did not know where Angel lived. We note that Coelho also admitted that when the lease was signed, he obtained a copy of Angel's driver's license, which clearly contained his address.

Our review of a trial court's fact-finding in a non-jury trial is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). Our inquiry is "'whether . . . there is substantial evidence in support of the trial judge's findings and conclusions.'" Sipko v. Koger, Inc., 214 N.J.364, 376 (2013) (quoting Seidman, supra, 205 N.J.at 169). Generally, this court "'do[es] not disturb the factual findings . . . of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" In re Trust Created by Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J.276, 284 (2008) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.474, 484 (1974)).

"'Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Because a trial court hears the case, sees and observes the witnesses, and hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses.'" Seidman, supra, 205 N.J. at 169 (quoting Cesare v. Cesare, 154 N.J.394, 412 (1998)).

Here, Coelho's case was predicated on his testimony that Angel had signed the lease and agreed to be responsible for the rent in the event Reynaldo failed to pay. The trial court found Coelho's testimony was "not credible and . . . unreliable." The judge also found that Coelho's attempt to "dramatically increase" the amount he was seeking after obtaining the default judgment, but before the proof hearing, was "disconcerting." We are satisfied that the trial court's decision is supported by competent, relevant, and credible evidence.

Affirmed.

1 Plaintiff's notice of appeal indicates that he is only appealing the judgments entered on January 29, 2013, and April 16, 2013, and does not include the March 28, 2013 order, which vacated the January judgment. Although defendant's notice of appeal does not reference that order, we view the orders together as comprising the "judgment, decision, action . . . appealed from[.]" See R. 2:5-1(f)(3)(A).

2 Coelho's motion indicates that he was seeking to amend a judgment but no judgment had been entered.