NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3128-22
ROOSEVELT MANOR APARTMENTS,
Plaintiff-Respondent,
v.
JALIS ESPINOZA,
Defendant-Appellant. __________________________
Submitted June 4, 2024 – Decided August 14, 2024
Before Judges Natali and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. LT-007378-22.
Rutgers Camden Housing Advocacy Clinic, attorneys for appellant (Ashley D. Maddison, on the briefs).
Greenblatt, Lieberman, Richards & Weishoff, LLC, attorneys for respondent (Nicolas G. Rotsides, on the brief).
PER CURIAM Defendant Jalis Espinoza appeals from the Law Division's April 20, 2023
judgment of possession (JOP) entered in favor of plaintiff Roosevelt Manor
Apartments; the May 22, 2023 order denying her application for an order to
show cause with temporary restraints; and the June 7, 2023 order denying her
application for an order to show cause to vacate the JOP and stay the execution
of the warrant of removal pending reconsideration.1 We affirm.
I.
Plaintiff owns and operates a government-subsidized residential
apartment complex in the City of Camden, where defendant and her children
began residing in January 2011. Pursuant to the terms of defendant's lease
agreement, she was required to recertify her income, assets and household
composition on an annual basis to confirm her eligibility for Camden's Low
Income Housing Tax Credit Program (LIHTC). If she failed to do so in breach
1 Defendant's notice of appeal also listed the June 14, 2023 order denying her application for a stay of judgment and vacating the warrant of removal pending resolution of this appeal. Because she did not brief the issue, it is deemed waived. See 539 Absecon Blvd., L.L.C. v. Shan Enters. Ltd. P'ship, 406 N.J. Super. 242, 272 n.10 (App. Div. 2009); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2024) (noting "an issue not briefed is deemed waived"). That order is also rendered moot as a result of our resolution of the appeal. A-3128-22 2 of the lease agreement, the lease would be converted to a month-to-month basis
and her rent would increase to the unsubsidized or flat rate.
On December 6, 2022, plaintiff filed a complaint seeking to remove
defendant from her apartment on two grounds: count one alleged defendant
violated the terms and conditions of the lease agreement by failing to complete
the annual certification, and count two alleged nonpayment of rent and sought
the outstanding amount, attorneys' fees and costs totaling $18,246.47. The form
summons, however, indicated the sole cause of action was based on nonpayment
of rent. The following facts were adduced at trial through the testimony of
Annette Hilton, plaintiff's community manager, and defendant, who appeared
self-represented.2
On December 2, 2020, plaintiff served defendant with a notice to recertify.
The notice required defendant to sign the recertification documents and deliver
them to Hilton's office the next day, along with verification of the balance on
her unemployment and child support debit cards, most recent unemployment
2 The record before us does not contain most of the documents entered into evidence at trial. We are unpersuaded by defendant's argument plaintiff bore the burden to file these documents for our review. Defendant was provided these documents during trial and as the appellant in this matter, it was incumbent on her to file the documents in the record before the trial court. See R. 2:6- 1(a)(1)(I). A-3128-22 3 payment information, most recent six pay stubs, and a printout of her child
support disbursement. When defendant failed to comply, plaintiff served her
with a second request extending the deadline to December 30, 2020. Plaintiff
served defendant with another follow-up request for outstanding documentation,
specifically ATM balance receipts for her unemployment and child support
cards, with a deadline of February 12, 2021. These notices were served on
defendant via hand delivery directly to her apartment by maintenance staff.
On March 9, 2021, Hilton responded to an email from defendant about an
unrelated matter, advising defendant she still needed to submit the ATM
receipts. The next day, Hilton sent defendant a second email requesting the
ATM receipts. The email also advised defendant that, because she had not
timely recertified, her lease had been converted to a month-to-month basis as of
January 1, 2021.
On May 26, 2021, plaintiff served defendant with a fourth request to
recertify, asking for the still outstanding ATM receipts; a notice of rent
adjustment advising that, because she failed to recertify, her rent had increased
from $241 to the unsubsidized rate of $908 per month; and a notice to cease for
failure to recertify. These notices were served directly to defendant's apartment
by maintenance staff. The notice to cease was also sent to defendant by regular
A-3128-22 4 and certified mail; the certified mail was returned to plaintiff as unclaimed but
the regular mail was not returned. On June 8, 2021, plaintiff served defendant
with a final request to recertify, via direct delivery to her apartment by
maintenance staff.
Defendant eventually completed her recertification for 2021 in March
2023, prior to the hearing. As a result, on March 22, 2023, her rent was reduced
to $522 retroactive to January 1, 2021, leaving her a balance of $2,718.47 for
that year.
Hilton also testified that, despite having been served with notices and
meeting with Hilton to complete the recertification packet, defendant remained
non-compliant with recertification for 2022 and 2023 by failing to sign
documents and releases to verify her income and assets and failing to provide
all the necessary documentation and receipts. She also had not paid any rent
since December 2021.
Defendant testified she complied with the recertification process for 2021
in December 2020 and provided Hilton with the receipts on more than one
occasion, but Hilton continued to ask her for them. Defendant said she had proof
of her submitting the ATM receipts because she took screenshots of them, but
she did not produce any evidence of that at trial. She also claimed she had proof
A-3128-22 5 of her emailing requested documentation to Hilton, but could not retrieve her
email because she no longer had access to the phone number associated with it.
She stated Hilton told her the application had been submitted for approval but
was delayed because of staffing issues due to COVID-19.
Defendant further stated she lost her mailbox key in April 2021 and the
post office would not give her a new key unless she produced a current lease ,
which she did not have. Because she had no access to her mailbox, she did not
receive any of the notices that were mailed to her. She did not dispute having
received the hand-delivered notices.
Defendant stated at some point Hilton became "malicious" and
"threatened to evict" her. She claimed she did not complete recertification for
2022 because she was unclear how to report her fluctuating income, Hilton
refused to answer her questions, and Hilton's supervisor was unhelpful.
After considering testimony and documents in evidence, the court found
defendant "just elected, over a period of time, just simply not to cooperate" with
the recertification process. The court "could tell just with some of the questions.
Well [defendant] had this question or this question or this question and [she]
wanted this and [she] wanted that." The court was "satisfied [defendant] did not
cooperate with [her] landlord and . . . there [wa]s notice after notice after notice
A-3128-22 6 here trying to get this information and [defendant] just didn't comply." The
court further found defendant's testimony not credible, and her argument she did
not receive mailed notices because she lost her mailbox key "not persuasive in
the least." Accordingly, the court found it was left with "no other alternative
than to grant the relief requested."
The resulting JOP reflects the following:
This matter having been brought before the court by a complaint by the [p]laintiff . . . , in an action for possession of the premises for: [n]on[]payment of [r]ent, N.J.S.A. 2A:18-53 ([s]tatutory [b]asis) against [d]efendant . . . , and
The [c]ourt having conducted a trial on the issues raised in the complaint; and
[Plaintiff] having produced and the [c]ourt having reviewed a copy of the lease and any required registration statement and found that [plaintiff] has proven a cause of action for possession on the basis of [defendant] has refused to cooperate with completing certifications so that rent could be paid by an outside agency[,] and there is not rent due and a [JOP] should enter in this case;
IT IS on this 20th day of April 2023, ORDERED that a [JOP] is hereby entered for the property at issue in the [c]omplaint.
The judge is not determining an amount of rent owed at this time.
A-3128-22 7 On May 4, 2023, defendant filed a pre-printed form application for an
order to show cause in which she circled the option indicating she was seeking
only the following relief: "I need more time before I can move because I have
been unable to obtain a new residence." She did not circle the option indicating
"I am applying to have the judgment for possession vacated." In support of her
application, defendant listed the following reasons, which we have condensed
for purposes of this decision: 1) she was not served "a letter" from Hilton or
counsel; 2) she was not provided a 2021 lease agreement during 2021 or 2022,
even though she completed the recertification packet before December 26, 2020;
3) she called, emailed and visited Hilton "the entire year of 2021" asking for a
new lease agreement; 4) Hilton did not provide defendant with an opportunity
to make another appointment to help her answer or complete the remainder of
the 2022 recertification packet; and 5) her children faced a safety risk if she were
to be removed from the apartment.
That same day, the court entered an order granting defendant's request to
stay the warrant of removal to May 15, 2023.
On May 11, 2023, defendant filed a second application for an order to
show cause seeking the same limited relief. Defendant listed the following
reasons in support of her application: 1) she was not served with notice of the
A-3128-22 8 court date by email or phone; 2) she was not given a lease agreement for 2021
or 2022 in those years; 3) her rent increased far above her income; 4) Hilton
refused to submit defendant's 2021 recertification or receipts, despite
defendant's having provided her verification in December 2020; 5) she did not
have anywhere else to live; and 6) through 8) she and her children were at risk
of harm if they were to be removed from the apartment.
The next day, the court entered an order granting defendant's request to
stay the warrant of removal until May 23, 2023. The order further stated, "A
review of [defendant]'s [order to show cause] suggests [she] is seeking to vacate
the JOP. Such relief may be raised by motion wherein [defendant] can show
cause why any defenses now raised could not have been raised during the trial
scheduled for [April 21, 2023]."
Defendant then obtained her current counsel, who filed a third application
for an order to show cause with temporary restraints on May 22, 2023 seeking
to vacate the JOP and dismiss the complaint against her. Defendant's
certification in support of the application reflected her testimony at trial: she
had provided Hilton with the recertification packet and ATM receipts on
December 21, 2020; Hilton repeatedly asked her for additional receipts and told
her the recertification was pending but delayed because of COVID-19; she lost
A-3128-22 9 her mailbox key and did not have access to her mailbox; and she signed new
recertification documentation on March 22, 2023, which was approved.
Defendant further certified she was unable to make her initial appointment
for the 2022 recertification because her child was sick, she emailed Hilton
documentation of her income, and she did not sign all the required documents
during a subsequent meeting in April 2023 because she had questions about how
to report her income. She reiterated her children would be at risk if she had to
move out of the apartment.
On May 22, 2023, the court entered an order denying the application
because "a trial was conducted on [April 20, 2023] and the ruling of [JOP]
stands. The [w]arrant of [r]emoval may move forward." Three days later, the
court also placed reasons for the denial on the record, in which it noted
defendant's application failed to meet the standard to warrant vacating the JOP:
It was a full trial. Exhibits were introduced and I don't believe this [application] is appropriate.
So I'm denying it. I'm not going to now have an order to show cause and basically relitigate the case unless I'm shown . . . where there's been some sort of palpable mistake of the law or newly discovered evidence or the other factors set forth in the rules with regard to that.
A-3128-22 10 On June 7, 2023, defendant filed another application for an order to show
cause to vacate the JOP and stay the execution of the warrant of removal pending
reconsideration. That same day, the court entered an order denying the
application. After reiterating the procedural history of the case and its prior
decisions, the court noted it had already "concluded that no palpable mistake of
law was shown nor was newly discovered evidence claimed" and there was a
"lack of basis to seek an amended judgment." The court then addressed the
pending application:
[Defendant]'s latest [order to show cause and] motion for reconsideration essentially raise[] nothing new. [Defendant]'s assertions of various notice failures[] ignores both the happening of the trial and admissions by [her] that she lost her mailbox key. The instant application by [defendant] further ignores her trial admission that she refused to sign her certification papers. To the extent there exists a valid emergent situation, it is an emergency brought on by [defendant]'s own making.
This appeal follows, wherein defendant raises the following issues for our
consideration: the trial court erred as a matter of law by entering a JOP without
a legally permissible cause of action; the court committed plain error by failing
to make findings of fact and conclusions of law and failing to enter evidence
into the record in deciding defendant's May 4, 2023 application for an order to
show cause; and the court abused its discretion in denying post-judgment relief
A-3128-22 11 for these same reasons. In addition to its arguments in opposition to defendant,
plaintiff contends the appeal is moot because defendant vacated the apartment,
which has been leased to other individuals.
II.
We first address the issue of mootness. "Courts normally will not decide
issues when a controversy no longer exists, and the disputed issues have become
moot." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010).
"A case is technically moot when the original issue presented has been resolved,
at least concerning the parties who initiated the litigation." Ibid. (quoting
DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring)). Stated
differently, "[a]n issue is moot when the decision sought in a matter, when
rendered, can have no practical effect on the existing controversy." Greenfield
v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (internal
quotation marks omitted) (quoting N.Y. Susquehanna & W. Ry. Corp. v. State,
Dep't of Treasury, 6 N.J. Tax 575, 582 (Tax 1984), aff'd, 204 N.J. Super. 630
(App. Div. 1985)).
"Ordinarily, where a tenant no longer resides in the property, an appeal
challenging the propriety of an eviction is moot." Sudersan v. Royal, 386 N.J.
Super. 246, 251 (App. Div. 2005) (citing Ctr. Ave. Realty, Inc. v. Smith, 264
A-3128-22 12 N.J. Super. 344, 347 (App. Div. 1993)). However, we may nevertheless consider
the appeal if the "eviction carries residual legal consequences potentially
adverse to defendant." Ibid. Here, we are persuaded defendant's ability to
secure public housing in the future may be impacted by her past performance,
including any evictions. See 24 C.F.R. § 982.552. In light of the risk to her
future housing and the public importance of the issue generally, we decline to
dismiss the appeal as moot.
Turning to defendant's arguments, we begin with our standard of review
applicable to the JOP. Appellate courts afford a deferential standard of review
to the factual findings of the trial court on appeal from a bench trial. Rova Farms
Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). These findings
will not be disturbed unless they are "so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as to
offend the interests of justice." Id. at 484 (quoting Fagliarone v. Twp. of N.
Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). However, our review of a
trial court's legal determinations is plenary. D'Agostino v. Maldonado, 216 N.J.
168, 182 (2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)).
A-3128-22 13 As to the post-judgment motions, "[t]he trial court's determination under
[Rule 4:50-1] warrants substantial deference and should not be reversed unless
it results in a clear abuse of discretion." U.S. Bank Nat'l Ass'n v. Guillaume,
209 N.J. 449, 467 (2012). An abuse of discretion "arises when a decision is
'made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor,
171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. &
Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
We likewise review a trial judge's decision on whether to grant or deny a
motion for reconsideration under Rule 4:49-2 for an abuse of discretion. Branch
v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (citing Kornbleuth v.
Westover, 241 N.J. 289, 301 (2020)). "An abuse of discretion 'arises when a
decision is made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'" Pitney Bowes Bank,
Inc. v. ACB Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015)
(quoting Flagg, 171 N.J. at 571 (internal quotation marks and citation omitted)).
Defendant first argues the trial court erred as a matter of law by entering
a JOP on the wrong statutory basis, where it found no rent was due and owing,
and without plaintiff's compliance with statutory notice requirements applicable
A-3128-22 14 to actions based on nonpayment of rent. We are unpersuaded by defendant's
contentions because they rest on the incorrect premise that the trial court issued
the judgment for possession based on defendant's nonpayment of rent.
Defendant points to the JOP's first paragraph, which stated the matter had
been brought before the court by plaintiff "in an action for possession of the
premises for: [n]on-payment of [r]ent, N.J.S.A. 2A:18-53 ([s]tatutory [b]asis)."
While this preface reflects the information contained in the summons, it did not
encompass both grounds substantively plead in the complaint and did not reflect
the basis on which the court issued the JOP. The JOP plainly stated rent was
not due and plaintiff's cause of action was proven "on the basis of [defendant]
has refused to cooperate with completing certifications so that rent could be paid
by an outside agency," which was a breach of the parties' lease agreement. We
are satisfied the court's decision was based solely on defendant's noncompliance
with recertification, as the court found at trial, and not on the nonpayment of
rent. As such, defendant's arguments in this regard lack support in the record.
We next address defendant's contention plaintiff waived the right to seek
eviction for cause by accepting rent and entering into a new lease agreement
with defendant. The trial court was aware defendant complied with the
recertification process for 2021 prior to trial and, as a result, her rent was
A-3128-22 15 retroactively reduced. While defendant received a copy of the notice prior to
trial, as evidenced by her signature on the document dated March 22, 2023, 3 she
did not offer the document as evidence at trial nor did she argue that the
retroactive extension of the lease constituted waiver of plaintiff's claims.
Ordinarily, we will decline consideration of an issue not properly raised
before the trial court, unless the jurisdiction of the court is implicated or the
matter concerns an issue of great public importance. Nieder v. Royal Indem.
Ins. Co., 62 N.J. 229, 234 (1973). Neither situation exists here and, therefore,
we decline to consider defendant's contention on this point. See Est. of Doerfler
v. Fed. Ins. Co., 454 N.J. Super. 298, 302 (App. Div. 2018) (noting that the
function of an appellate court is to review the decisions of the trial court, rather
than to decide applications tabula rasa). This is particularly so here, because the
question of "waiver always rests on intent, and is ever a question of fact."
Jasontown Apts. v. Lynch, 155 N.J. Super. 254, 262 (App. Div. 1978) (quoting
United Illuminating Co. v. Syntex Rubber Corp., 4 Conn. Cir. 303, 231 (Cir. Ct.
1966)).
3 The notice was annexed to defendant's June 9, 2023 application for an order to show cause. A-3128-22 16 We next turn to defendant's contention the court committed plain error by
failing to make findings of fact and conclusions of law and failing to enter
evidence into the record to allow for review. Although not entirely clear, it
appears defendant makes this argument with regard to the court's consideration
of all four orders to show cause. However, we note defendant did not list the
court's May 4 and 12, 2023 orders in her notice of appeal and we therefore
decline to address her challenge to those orders. An appeal is limited to those
judgments or orders, or parts thereof, designated in the notice of appeal and
pursuant to Rule 2:5-1(f)(2)(ii), defendant's challenge to those orders has been
waived. See Pressler & Verniero, Current N.J. Court Rules, cmt. 5.1 on R. 2:5-
1(f) (2024) ("Courts have concluded that only the judgments, orders or parts
thereof designated in the notice of appeal are subject to the appellate process
and review.").
As to defendant's May 22, 2023 application for an order to show cause
seeking to vacate the JOP, Rule 4:50-1 provides:
On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R[ule] 4:49.
A-3128-22 17 Defendant's June 7, 2023 application for an order to show cause sought
the same relief by way of reconsideration. Reconsideration "is not appropriate
merely because a litigant is dissatisfied with a decision of the court or wishes to
reargue a motion." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div.
2010). Rather, reconsideration
should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.
[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]
Having reviewed the trial transcript and motion certifications, we are
satisfied the court did not abuse its discretion in declining to hold a plenary
hearing and denying the motions. As the court found, defendant's certification
failed to raise any issues that would warrant relief from judgment under either a
motion to vacate or for reconsideration. Although defendant appeared for trial
unrepresented by counsel, she had the opportunity to present her case and did
so. Her certification merely reiterated the explanations and defenses she
proffered at trial, which the court had already considered and rejected. Because
A-3128-22 18 her applications failed to meet the requisite standard for the relief she sought,
we discern no error in the court's denial on the papers.
To the extent we have not expressly addressed any issues raised by
defendant, it is because they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3128-22 19