Grand Essex LLC v. Ronald Morrison

• Court: New Jersey Superior Court Appellate Division
• Decided: May 17, 2024
• Docket: A-0071-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0071-22

GRAND ESSEX LLC and GREAT BERGEN HOMES, LLC, d/b/a GREAT BERGEN HOMES,

Plaintiffs-Respondents,

v.

RONALD MORRISON,

Defendant-Appellant. ___________________________

Submitted January 22, 2024 – Decided May 17, 2024

Before Judges Gilson and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-008963-21.

Eldridge Hawkins, LLC, and Cecile D. Portilla, LLC, attorneys for appellant (Cecile Delrose Portilla and Eldridge T. Hawkins, on the briefs).

Ofeck & Heinze, LLP, attorneys for respondents (Patrick J. Jordan, on the brief).

PER CURIAM Defendant Ronald Morrison appeals from the Law Division's Special Civil

Part order denying his motions for reconsideration and recusal of the trial judge.

After reviewing the record in light of the arguments advanced by defendant and

applying prevailing legal standards, we affirm the trial court's denial of

reconsideration and denial to recuse.

I.

On August 25, 2019, defendant entered a lease for an apartment located

in Irvington, New Jersey (the property) with Grand Essex LLC (Grand Essex)

and Great Bergen Homes LLC (Great Bergen Homes). The lease was to

commence September 15, 2019, and end September 14, 2020, with rent

determined at $1,385 per month. The lease defined "Landlord" as "Great Bergen

Homes," which is prominently displayed on the top of the lease's initial page,

and required rent be paid to "Great Bergen Homes." The lease is signed by Sasi

Shalom (Shalom), plaintiffs' property manager, as "Landlord" and by defendant

as "Tenant."

Defendant failed to timely pay rent on March 15, 2020. Four days later,

Governor Philip Murphy signed Exec. Order No. 106 (Mar. 19, 2020), 52 N.J.R.

549(a) (April 6, 2020), which prevented property owners from evicting tenants

during the COVID-19 pandemic. Plaintiffs filed suit to evict defendant, but the

A-0071-22 2 landlord-tenant matter was held in abeyance due to the pandemic and the

eviction moratorium. Plaintiffs then filed a complaint on June 10, 2021, in the

Law Division, Special Civil Part to recover outstanding rent.

In a related action, defendant claimed he and Shalom entered into a

separate oral agreement where defendant would receive rental credits for work

performed at the property and plaintiffs' other nearby property. Defendant filed

a lawsuit in the Law Division against plaintiffs and Shalom for acts related to

defendant's tenancy, including a claim for unpaid work on plaintiffs' properties.

Plaintiffs' complaint alleged defendant had not paid rent and late fees

accrued from March 2020 through May 2021, and it was owed $14,622.00 in

outstanding rent and fees. The court mailed defendant a summons on June 15,

2021. The notice stated he would be in default on July 23, 2021, if he did not

provide an answer. Defendant filed an answer on July 8, 2021, but did so in a

related action with a different docket number. Plaintiffs brought this error to

the court's attention, but default was nevertheless entered against defendant.

Defendant then moved to vacate default and file an answer, which was

granted on September 10, 2021. A hearing was scheduled for April 19, 2022,

with notice mailed to the address listed on defendant's answer on February 23,

2022. Defendant failed to appear. As a result, the court heard testimony from

A-0071-22 3 Shalom and entered judgment in plaintiffs' favor. The judgment awarded

plaintiffs $14,036.20, minus any funds plaintiffs had received from DCA. The

parties do not dispute plaintiffs received at least $12,107.80 from Department

of Community Affairs (DCA) for defendant's rent during the pendency of this

case.

Approximately one month later, on June 10, 2022, defendant moved to

vacate the default judgment and transfer the case from the Special Civil Part to

the Law Division. Defendant also moved to consolidate the Law Division case

with the instant case and the related landlord-tenant case. On June 19, 2022, the

Sunday before oral argument on defendant's motions, defendant asked the court

to take judicial notice of facts contained in numerous documents submitted in

the related Law Division case pursuant to N.J.R.E. 201(a), (b)(4), (c), & (d).

Defendant's motions were denied by the trial court.

Defendant's motion to vacate was premised on his assertion that he never

received the hearing notice because plaintiffs were stealing his mail, and

because he claimed both plaintiffs lacked standing to sue. On lack of notice, the

trial court found defendant's unsupported and contested assertion that plaintiffs

stole his mail was insufficient to rebut the presumption of mailing. As to

standing, the court found that although defendant claimed this suit was being

A-0071-22 4 carried out by the wrong parties, he nevertheless sued the same entities in his

Law Division case. The court also found the discrepancy between the named

parties in the complaint and the lease at issue -- i.e., the lack of the descriptor

"LLC" -- was not a valid reason to vacate the judgment. The court declined to

consolidate the three related cases because judgment had been entered in the

instant case.

Defendant then moved for reconsideration of his motion to vacate and for

the trial judge's recusal. Defendant claimed the trial judge should not be able to

hear his own recusal motion. The trial court denied defendant's motions, finding

defendant failed to carry his burden upon reconsideration. There was no reason

to vacate the default judgment as there was no excusable neglect or meritorious

defense. It also denied the motion for recusal. This appeal followed.

II.

On appeal, defendant makes multiple procedural, evidentiary,

constitutional, and due process arguments in favor of reversal including: 1) the

trial court improperly asked him to supply an alternative address; 2) his motion

to vacate should have been granted because DCA had paid the money due for

outstanding rent; 3) plaintiffs did not have standing; 4) the trial judge's

communication with another trial judge's chambers violated judicial canons and

A-0071-22 5 required the judge's recusal; 5) defendant was denied his right to due process

pursuant to Morrissey v. Brewer, 408 US 471 (1972), which required a hearing

by an independent hearing officer on motions to vacate and reconsider ; and 6)

various arguments regarding the trial court's failure to take judicial notice of

documents and reliance upon hearsay statements. He also claims Rules 1:12-1

and -2 are void for vagueness because they do not provide adequate notice to

the public regarding the self-recusal of judges.

Many of these issues are not before us because they were not raised

properly below or involve federal law not applicable to these proceedings. The

matters before us concern only whether the trial court erred in denying

reconsideration, and whether the trial judge erred in failing to recuse himself.

See Kopec v. Moers, 470 N.J. Super. 133, 153 (App. Div. 2022) (quoting Hayes

v. Delamotte, 231 N.J. 373, 387 (2018)). ("[A]ppeals are taken from orders and

judgments and not from opinions, oral decisions, . . . or reasons given for the

ultimate conclusion.")

We grant deference to the trial court's denial of a motion for

reconsideration. Castano v. Augustine, 475 N.J. Super. 71, 78 (App. Div. 2023)

(quoting Hoover v. Wetzler, 472 N.J. Super. 230, 235 (App. Div. 2022)). As

such, we decline to reverse the trial court's decision unless it is a clear abuse of

A-0071-22 6 discretion. Kornbleuth v. Westover, 241 N.J. 289, 301 (2020) (quoting Hous.

Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). Reconsideration of a

final order "is appropriate only in those cases which fall into that narrow corridor

in which either: 1) the court has expressed its decision based upon a palpably

incorrect or irrational basis; or 2) it is obvious that the court either did not

consider, or failed to appreciate the significance of probative, competent

evidence . . . ." Castano, 475 N.J. Super. at 78 (quoting Triffin v. SHS Grp.,

LLC, 466 N.J. Super. 460, 466 (App. Div. 2021)); see R. 4:49-2.

A. Reconsideration of Motion to Vacate Default Judgment.

A party to an action in the Special Civil Part may move to vacate pursuant

to Rule 4:50-1, Olympic Indus. Park v. P.L., Inc., 208 N.J. Super. 577, 582 (App.

Div. 1986) (Pressler, J.), or for reconsideration. R. 6:6-1. Pursuant to Rule

4:50-1(a), a default judgment will remain undisturbed unless the defendant

shows the failure to appear or otherwise defend was due to excusable neglect

under the circumstances and the existence of a meritorious defense to both the

cause of action and damages. U.S. Bank Nat’l Ass’n v. Guillaume, 209 N.J.

449, 468-69 (2012). Excusable neglect has been defined as "something the

parties could not have protected themselves from during the litigation." Romero

v. Gold Star Distrib., LLC, 468 N.J. Super. 274, 298 (App. Div. 2021) (emphasis

A-0071-22 7 omitted). Absent an abuse of discretion, trial court decisions will not be

disturbed by a reviewing court. Id. at 293.

Rule 4:50-1 grants courts the power to relieve a party from a final

judgment under six conditions: "a) mistake, inadvertence, surprise, or

inexcusable neglect; b) newly discovered evidence; c) fraud, misrepresentation,

or other misconduct; d) when the judgment is void; e) when the judgment is

satisfied, released, or discharged; and f) any other reason justifying relief."

Defendant asserts the trial court abused its discretion in denying his

motion for reconsideration by failing to vacate the default judgment . He

contends he established excusable neglect pursuant to Rule 4:50-1(a) because

the trial court required defendant provide the court an alternative mailing

address; fraud pursuant to Rule 4:50-1(c) because there was no outstanding rent

at the time judgment was entered; and exceptional circumstances pursuant to R.

4:50-1(f) because he proved he diligently participated in this and the related

litigation.

Defendant's Rule 4:50-1(a) arguments ignore the presumption of mailing

rule and focus entirely upon minutiae in the trial court's oral decision . The trial

court's denial of defendant's motion for reconsideration was neither palpably

incorrect nor irrational. The court merely stated defendant provided the court

A-0071-22 8 with only his apartment address for official notice purposes. This comment was

prompted because defendant stated he had his mail forwarded by the U.S. Postal

Service (USPS) from his apartment address to his P.O. box. The court did not

order him to provide his P.O. box address and even agreed with defendant at

oral argument that he was not required to inform the court about his decision to

forward his mail.

Nor did the trial court fail to consider competent, probative evidence. It

correctly found defendant's claim that plaintiffs were stealing his mail

irrelevant, given the USPS was automatically forwarding his mail for several

months before the court sent notice of the hearing. Because the trial notice was

never physically delivered to his apartment but instead automatically forwarded

to the P.O. box by the USPS, plaintiffs could not have stolen it. Defendant's

only argument against the presumption of mailing rule is its application "was an

unfair resolution of doubt in [plaintiffs'] favor."

Mail that is properly addressed, stamped, and posted is presumed to be

received by the party addressed. U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J.

Super. 94, 112 (App. Div. 2016) (quoting SSI Med. Servs., Inc. v. Dep't of

Human Servs., 146 N.J. 614, 621 (1996)). The presumption may be rebutted

through evidence that indicates notice was never received. SSI Med., 146 N.J.

A-0071-22 9 at 625 (quoting Szczesny v. Vasquez, 71 N.J. Super. 347, 354 (App. Div. 1962)).

Although the court must treat motions to vacate default judgments with great

liberality, any indulgence must be grounded in reason. MTAG v. Tao Invs.,

LLC, 476 N.J. Super. 324, 333 (App. Div. 2023) (quoting Mancini v. EDS ex

rel. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993)). The denial

of receipt, without more, is insufficient to rebut the presumption of mailing. See

City of East Orange v. Livingston Township, 27 N.J. Tax 161, 170 (Tax 2013)

(finding the presumption rebutted when "[e]ight assessment notices were sent to

a non-existent zip code" and another 32 notices lacked a street address). A party

unable to defeat the presumption, and thus properly noticed, cannot establish

excusable neglect pursuant to Rule 4:50-1(a). Curcio, 444 N.J. Super. at 112.

According to defendant, "but for the fraudulent theft of [his] mail, he

would not have been forced to request mail forwarding." Here, the fact remains

defendant began forwarding his mail prior to the notice being sent, and hence

plaintiffs had no opportunity to steal it.

B. Reconsideration of Denial of Recusal Motion.

Whether a judge should disqualify himself or herself is a matter within the

sound discretion of the judge. State v. Buckner, 437 N.J. Super. 8, 36 (App.

Div. 2014) (quoting Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.

A-0071-22 10 2009)), aff'd on other grounds, 223 N.J. 1 (2015); Panitch v. Panitch, 339 N.J.

Super. 63, 66 (App. Div. 2001). We review for abuse of discretion. Ibid.

"Any party, on motion made to the judge before trial or argument and

stating the reasons therefor, may seek that judge's disqualification." R. 1:12-2.

"[B]ias is not established by the fact that a litigant is disappointed in a court's

ruling on an issue." State v. Marshall, 148 N.J. 89, 279 (1984). "[T]he belief

that the proceedings were unfair must be objectively reasonable." Id. at 279.

Defendant claims the trial judge's recusal was necessary because he called

another judge's chambers on the date of the hearing after noting defendant failed

to appear, which informed him they had sent a zoom link to defendant's email

for the hearing that resulted in the default. He claims this was a prohibited ex

parte communication that required the judge's recusal. That claim is without

legal merit and is an insufficient basis to require recusal. Moreover, defendant

failed to set forth any relevant case law that would require recusal pursuant to

these facts.

Concerning the DCA payment, it appears defendant failed to raise this

issue before the trial court in either the underlying motion to vacate or for

reconsideration. Although generally we decline to consider an issue not

presented to the trial court, because the trial court's order stated a sum certain

A-0071-22 11 minus any credits received from DCA, we review defendant's claim

substantively. See Berardo v. City of Jersey City, 476 N.J. Super. 341, 354

(App. Div. 2023) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973)).

Factually, defendant's argument relies upon a miscalculation. As detailed

during the proof hearing, defendant owed $16,987 at the end of August 2021.

The court took notice of a $12,107.80 payment from DCA to plaintiffs in August

2021, which was confirmed by Shalom at the April 19, 2022 hearing. This left

$4,879.20 in outstanding payments. Shalom testified plaintiffs received no

further payments and thus plaintiffs were owed rent for December 2021, as well

as January, February, March, and April 2022, for an additional $6,925. Those

amounts, when added to the $400 in late fees assessed, totaled $12,204.20. The

trial court added $1,750 in attorney's fees and $82 in costs for a total judgment

amount of $14,036.20. Contrary to defendant's assertions, the amount of the

judgment was correct, despite plaintiffs having received over $12,000 from

DCA.

Rule 4:50-1(f) applies when a defendant can prove exceptional

circumstances. DEG, LLC v. Township of Fairfield, 198 N.J. 242, 269-70

(2009); Guillaume, 209 N.J. at 468, 494. However, the broad language of

A-0071-22 12 subsection (f) "does not present the court with a standardless residual

discretionary power to set aside judgments." Little, 135 N.J. at 285 (quoting

Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977)). Defendant relies

entirely upon the same reasons for vacatur pursuant to Rule 4:50-1(a) as he does

for subsection (f). None of those circumstances rise to the level of excusable

neglect, let alone exceptional circumstances.

Nor does defendant raise any meritorious defense. Defendant claims

plaintiffs lacked standing to sue him for the outstanding rent and asserts the trial

court erred by refusing to acknowledge his defenses and counterclaims.

Standing is a threshold determination, Petro v. Platkin, 472 N.J. Super.

536, 558 (App. Div. 2022) (quoting N.J. Dep't of Env't Prot. v. Exxon Mobil

Corp., 453 N.J. Super. 272, 291 (App. Div. 2018)), subject to plenary review on

appeal. Ibid. No deference is afforded to the trial court's conclusions. Cherokee

LCP Land, LLC v. City of Linden Planning Bd., 234 N.J. 403, 414 (2018).

Defendant contends his lease was with Shalom in his individual capacity.

Although the lease displays "Great Bergen Homes" prominently on the first

page, defendant asserts this lacks any legal significance. He claims the contract

was not signed by any of its authorized agents because Shalom did not identify

himself as such.

A-0071-22 13 Generally, standing in contract cases exists only for parties to the contract.

Med. Soc'y of N.J. v. AmeriHealth HMO, Inc., 376 N.J. Super. 48, 61 (App.

Div. 2005).

Plaintiffs have standing pursuant to the lease. The lease was executed

between "TENANT," defined as defendant, and "LANDLORD," defined as

"Great Bergen Homes." Rent was to be paid to Great Bergen Homes at its listed

P.O. box. The lease makes repeated reference to the duties and obligations of

both landlord and tenant. Shalom, in his individual capacity, does not appear

on the lease. We enforce contracts as written when the parties' intent is clear

and the language unambiguous, save only when enforcement would produce an

absurd result. Quinn v. Quinn, 225 N.J. 34, 45 (2016).

In addition to the lease's plain language, the record amply demonstrates

defendant did not believe he executed a lease with Shalom in his individual

capacity. Defendant filed a citizen's report against Shalom "with Grand Essex

LLC . . . ." In his first motion to vacate the default judgment and to file an

answer, defendant referred to Shalom as owner/operator/agent "for plaintiff

Great Bergen Homes LLC . . . ." His verified answer also states, "Plaintiff and

owner/operator/agent [Shalom]," and his amended complaint in his Law

Division case claims Shalom is the principal/owner of Grand Essex and acts

A-0071-22 14 "through [his] agent" Great Bergen Homes, "or [he is] the managing agent[] for

said entities . . . ." Given defendant's course of conduct, there is ample evidence

in the record to find defendant knew he entered a contract with Great Bergen

Homes through Shalom as its agent. The trial court correctly rejected

defendant's standing argument.

Here, the record does not reflect a valid reason to disturb the trial court's

orders and we affirm both orders. To the extent we have not addressed any

remaining arguments raised by defendant, we find they are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-0071-22 15