METPARK II, LLC VS. ROBERT KEMPFE VS. OLIVE HOULDAY (L-3470-14, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 16, 2018
• Docket: A-3393-16T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3393-16T1

METPARK II, LLC,

Plaintiff-Respondent,

v.

ROBERT KEMPFE,

Defendant/Third-Party Plaintiff-Appellant,

OLIVE HOULDAY and FRANK ADUBATO,

Third-Party Defendants. _________________________________

Argued July 31, 2018 – Decided August 16, 2018

Before Judges Mayer and Mawla.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3470-14.

Robert Kempfe, appellant, argued the cause pro se.

Christopher J. Hanlon argued the cause for respondents (Hanlon Niemann & Wright, PC, attorneys; Christopher J. Hanlon, on the brief). PER CURIAM

Defendant Robert Kempfe appeals from the following Law

Division orders: a January 29, 2015 order declaring defendant's

mobile home abandoned; an August 19, 2016 order in favor of

plaintiff Metpark II, LLC (Metpark) and third-party defendants

Olive Houlday and Frank Adubato, dismissing defendant's

counterclaim and third-party complaint; and a March 3, 2017 order

awarding counsel fees to plaintiff in the amount of $7,258.50. We

affirm.

The relevant facts are straightforward. Metpark is a mobile

home community consisting of twenty-two mobile home lots located

in Neptune, New Jersey. Adubato is the owner and operator of

Metpark. Houlday, a resident of Metpark, assists Adubato in

managing the mobile home park. Defendant leased a lot in Metpark

for his mobile home.

In August 2012, defendant had a physical altercation with

Houlday and another resident of Metpark. Based on the incident,

Metpark filed an eviction action against defendant. The parties

resolved the eviction matter by placing a settlement agreement on

the record on October 26, 2012, and signing a written consent

judgment for possession that same date.

The terms for resolving the eviction action were simple.

Metpark held a judgment of possession for the lot occupied by

2 A-3393-16T1 defendant's mobile home. Notwithstanding the judgment of

possession, Metpark agreed a warrant for removal would be stayed

for ninety days to permit defendant to sell or rent his mobile

home. If defendant failed to act within ninety days, defendant

acknowledged he could lose his mobile home. Any sale or sublet

of defendant's mobile home was expressly conditioned on Metpark's

approval of the buyer or renter, which could not be unreasonably

withheld. During the ninety-day stay period, defendant agreed to

abide by Metpark's rules and regulations and to pay all outstanding

rent. Upon the expiration of the ninety days, defendant agreed

to move out of Metpark. Thereafter, defendant would be permitted

to return to Metpark solely to meet with individuals interested

in purchasing or subleasing his mobile home. Plaintiff agreed to

refrain from executing the warrant for removal provided defendant

complied with the terms of the consent judgment.

Despite acknowledging and accepting the terms settling the

eviction action, defendant filed several post-judgment motions,

including a motion to vacate the consent judgment for possession

and a motion to remove the case to the Law Division. Defendant's

post-judgment motions were denied.1

1 Defendant did not appeal from any of the tenancy court's orders related to the eviction action.

3 A-3393-16T1 Because defendant failed to abide by the terms of the consent

judgment, on May 1, 2013, plaintiff executed the warrant of

removal. After executing on the warrant of removal, defendant's

mobile home still remained on Metpark's property. Consequently,

on May 15, 2013, Metpark served defendant with a notice pursuant

to the Abandoned Tenant Property Act, N.J.S.A. 2A:18-72 to -84

(Act). In the notice, Metpark stated it considered defendant's

mobile home abandoned. The notice provided seventy-five days for

defendant to remove the home. If defendant failed to timely remove

his mobile home, the notice explained the home would be sold.

Because defendant's mobile home was titled as a motor vehicle,

plaintiff was required to use the form promulgated by the New

Jersey Motor Vehicle Commission to notify defendant concerning the

removal of his property.

Defendant failed to remove his mobile home from Metpark's

property in accordance with the Act.2 In September 2014, plaintiff

filed a complaint, seeking a declaration that the mobile home was

abandoned.

After receiving Metpark's complaint for declaratory relief,

defendant began to scavenge items from the mobile home, including

2 The Act requires a tenant to express an intent to remove any remaining property. Although defendant objected to plaintiff declaring his mobile home abandoned, he never stated an intent to remove the home from Metpark's property.

4 A-3393-16T1 appliances, countertops, and other fixtures. Defendant's removal

of items from the mobile home contravened a June 19, 2013 court

order, restraining defendant from entering the mobile home absent

prior notice to Metpark's manager.

In response to plaintiff's declaratory judgment complaint,

defendant filed a counterclaim and a third-party complaint

alleging Metpark, Houlday, and Adubato interfered with his right

to rent or sell the mobile home. Plaintiff, Houlday, and Adubato

denied any such interference in their responsive pleadings.

Metpark filed an order to show cause (OTSC), seeking a

declaration that defendant abandoned the mobile home and

continuing the restraints barring defendant from entering the

home. The OTSC judge heard counsels' arguments on January 12,

2015.3 The judge found defendant had more than sixteen months to

remove the mobile home from plaintiff's property and failed to do

so. The judge granted plaintiff's requested relief, declaring

plaintiff "established the right to the property, and defendant

has no available remedies that would allow him to take possession

of the property in question." The judge further confirmed that

defendant's counterclaim and third-party complaint, alleging

3 Defendant retained counsel to oppose Metpark's OTSC.

5 A-3393-16T1 interference with his efforts to sell or lease the mobile home,

remained pending.

On or about April 15, 2016, plaintiff and third-party

defendants moved for summary judgment, seeking dismissal of

defendant's counterclaim and third-party complaint. According to

plaintiff, despite completing discovery related to the allegations

in his pleadings, defendant failed to present any competent

evidence demonstrating that plaintiff and third-party defendants

interfered with his right to sell or rent the mobile home.

On August 19, 2016, a different judge heard argument on the

summary judgment motion. The judge found defendant offered hearsay

testimony in support of his interference claim and failed to

present any competent admissible evidence demonstrating bona fide

efforts to sell or rent the mobile home. The only non-hearsay

testimony presented by defendant was the potential sale of the

mobile home to his mother. The judge determined the sale to

defendant's mother for one dollar was not an arms' length

transaction and violated the terms of the consent judgment for

possession, in which defendant agreed he would not reside at

Metpark.

The judge also considered and rejected defendant's arguments

in opposition to summary judgment related to defendant's

dissatisfaction with the orders entered by the tenancy court judge.

6 A-3393-16T1 The motion judge noted the time within which to appeal from those

orders had passed and defendant did not file an appeal.

The motion judge further concluded the tenancy court orders

set forth the actions defendant could and should have undertaken

related to his mobile home, specifically its sale or rental. The

judge found defendant failed to sell or rent his mobile home within

the time provided pursuant to the consent judgment.4 The judge

entered an order on August 19, 2016, granting summary judgment to

plaintiff and third-party defendants and dismissing defendant's

counterclaim and third-party complaint. The judge postponed

consideration of plaintiff's request for counsel fees and

suggested the parties attempt to resolve that issue before

plaintiff filed a formal fee application.

The parties were unable to resolve the issue of counsel fees

allowable under the parties' lease agreement,5 requiring plaintiff

to file a motion for fees. The matter was heard by the same judge

who dismissed defendant's counterclaim and third-party complaint.

4 Plaintiff extended the time for defendant to sell or rent his mobile home beyond the ninety-day timeframe in the consent judgment for possession. In fact, Metpark did not execute the warrant for removal until May 2013. Despite the additional time afforded to him, defendant still failed to sell or rent his mobile home. 5 The motion judge determined that the parties' signatures affixed to the written rules and regulations governing Metpark was the equivalent of a written lease agreement.

7 A-3393-16T1 Defendant opposed the application for the award of fees, but did

not contest the amount of the fees requested. Based on the January

29, 2015 order declaring the mobile home abandoned, the judge

found abandonment was a violation of Paragraph 43 of Metpark's

rules and regulations. She also concluded Paragraph 46 of

Metpark's rules and regulations entitled Metpark to fees and costs

associated with a violation of the rules and regulations. Because

the judge found defendant "[did not] take issue with the quantum

of legal fees or costs sought," she reviewed the certifications

and documents in support of plaintiff's requested fees and costs

and "found that the fees and costs sought [were] not unreasonable."

The judge entered an order on March 3, 2017, awarding counsel fees

and costs to plaintiff in the amount of $7,258.50.

Defendant appeals from the court's orders declaring the

mobile home abandoned, granting summary judgment to plaintiff and

third-party defendants on the counterclaim and third-party

complaint, and awarding counsel fees and costs to plaintiff.

Defendant raises the following arguments in his merits brief and

reply brief:

POINT I

IT WAS ERROR TO GRANT SUMMARY JUDGMENT WITH MATERIAL FACTS IN DISPUTE.

8 A-3393-16T1 POINT II

BECAUSE OF THE COMPLEXITY OF THE HISTORY OF THE CASE, THE COURT SHOULD HAVE HELD A HEARING TO FULLY UNDERSTAND THE SAME.

POINT III

IT WAS ERROR TO AWARD COUNSEL FEES WITHOUT A PLENARY HEARING.

POINT IV

APPELLANT'S MOBILE HOME WAS NEVER ABANDONED WITHIN THE LANGUAGE OF THE STATUTE.

POINT V

THE COURT FAILED TO ARTICULATE AND EXPLAIN ITS RULING ON SUMMARY JUDGEMENT [SIC].

POINT VI (POINT I OF DEFENDANT'S REPLY BRIEF)

THE TRIAL COURT [ERRED] IN RULING THE MOBILE HOME ABANDONED WHERE EVIDENTIARY MATERIAL EXISTED CONTRARY TO THAT RULING.

POINT VII (POINT II OF DEFENDANT'S REPLY BRIEF)

SUMMARY JUDGEMENT [SIC] SHOULD NOT HAVE BEEN AWARDED WHERE THE CLAIMS MADE BY THE APPELLANT WERE NEITHER FRIVOLOUS [NOR] [REPETITIOUS] AND WERE GENUINE.

The issues raised by defendant lack sufficient merit to

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

We add only the following comments.

Defendant raises arguments on appeal that relate to

disposition of the original tenancy action. However, he never

9 A-3393-16T1 appealed from any of the orders issued by the tenancy court judge.

Nor could defendant have appealed from the October 26, 2012 consent

judgment for possession, barring him from living at Metpark and

according him ninety days to sell or rent the mobile home. An

order entered with the consent of the parties is generally not

appealable for purposes of challenging the substantive provisions

of the order. Winberry v. Salisbury, 5 N.J. 240, 255 (1950).

Having reviewed the record, we conclude that the judges deciding

the declaratory judgment action, the summary judgment motion, and

counsel fee application were bound by the non-appealed orders

entered by the tenancy court judge.

The Abandoned Tenant Property Act, N.J.S.A. 2A:18-72 to -84

(Act), governs abandonment of property left by a tenant on a

landlord's property. The Act compels a landlord to comply with

the enumerated requirements before disposing of a tenant's

property. In the case of a mobile home, the Act requires a

landlord to issue an "Abandoned Mobile Home Notice" in the form

promulgated by the New Jersey Motor Vehicle Commission.

Here, plaintiff served the required notice consistent with

the Act. The Act compelled defendant to state an intent "to remove

the property from the premises." Defendant never expressed an

intent to remove the mobile home. Rather, defendant sent a letter

"contest[ing]" plaintiff's abandoned property notice. Defendant

10 A-3393-16T1 had seventy-five days from the date of the notice within which to

remove his mobile home. Defendant's failure to remove his mobile

home within the time provided under the Act resulted in his

property being "presumed to be abandoned." N.J.S.A. 2A:18-76.

In opposing a motion for summary judgment, the non-moving

party is required to present competent evidence raising genuinely

disputed issues of material fact. Merchs. Express Money Order Co.

v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 2005),

(holding summary judgment cannot be defeated by "speculation,"

"fanciful arguments" or "disputes as to irrelevant facts"). We

agree with the motion judge that defendant's reliance on hearsay

testimony and speculation in support of his counterclaim and third-

party complaint was legally insufficient to defeat the summary

judgment motion.

We also agree with the judge's determination on the issue of

counsel fees. There is ample support in the record that plaintiff

was entitled to attorneys' fees and costs under Metpark's rules

and regulations. Based on the certifications filed in support of

the requested fee award, the judge assessed the legal tasks

performed by counsel and the time expended in determining the

proper fee award. We discern no basis to disturb the amount of

the fees awarded by the judge as defendant did not object to

plaintiff's requested sum.

11 A-3393-16T1 Affirmed.

12 A-3393-16T1