Opinion
DOCKET NO. A-6024-12T4
06-11-2014
CAHN ESTATES, Plaintiff-Respondent, v. FACUNDO SANCHEZ, Defendant-Appellant.
Khabirah H. Myers argued the cause for appellant. Neil Chessin argued the cause for respondent (Goodman, Galluccio & Chessin, attorneys; Mr. Chessin, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, St. John, and Manahan.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. LT-3848-13.
Khabirah H. Myers argued the cause for appellant.
Neil Chessin argued the cause for respondent (Goodman, Galluccio & Chessin, attorneys; Mr. Chessin, on the brief). PER CURIAM
This appeal arises from a judgment for possession entered in favor of plaintiff, Cahn Estates. The trial court found the landlord demonstrated by a preponderance of the evidence that the tenant engaged in terroristic threats and a simple assault of the landlord's employee. Under N.J.S.A. 2A:18-61.1, both acts would constitute grounds for eviction. After a review of the record in light of the issues raised, we reverse.
Facundo Sanchez, (tenant) has leased the apartment from Cahn Estates (landlord) for approximately seventeen years. The tenant resides in the leased premises with his wife and children.
On April 22, 2013, the landlord's employee, Joseph Patti (Patti) went to the tenant's apartment to discuss the tenant's dog, who had been repeatedly tied-up in the common hallway, had defecated and urinated in the hallway, and had barked at other tenants. The tenant answered the door with the dog. The dog barked, growled, and lunged at Patti. The tenant refused to put the dog away despite Patti's request. When Patti stated that he was concerned the dog would bite him, the tenant confirmed this fear by stating the dog would bite. Patti left. During the hearing, the tenant denied that the dog threatened Patti.
At the time of the incident, the dog was approximately ten years old and weighed about twenty pounds. Three years prior, the landlord served the tenant with a notice to cease demanding removal of the dog. No further action was taken by the landlord.
On April 26, 2013, the landlord served the tenant with a notice terminating tenancy. The notice stated:
Your tenancy is terminated because you are a disorderly tenant in that you have caused + or allowing [sic] the following.
1 - dog threatening landlord's employee on April 22, 2013
2 - your [sic] allowing + or causing a dog to loiter in the common hallway, urinating, defecating and in general causing cleanliness [sic], safety and unsanitary conditions
3 - you are feeding cats outside of the premises causing safety and sanitary issues.
4 - your [sic] are causing + or allowing municipal violations. See attached Notice of violation made part hereof
5 - you are causing other tenants to not have peacefull [sic] use of their premises.
The notice was dated April 23, 2013 and provided a move-out date of May 1, 2013. On May 8, 2013, the landlord filed a Verified Complaint seeking judgment for possession as a result of "threats against landlord reps., disorderly/destructive tenant."
On June 10, 2013, the matter went to trial. A judgment for possession was entered in favor of the landlord. The judge found that the "threatening conduct" of the tenant in allowing his dog to lunge at the employee constituted simple assault under N.J.S.A. 2C:12-1(a)(1) and terroristic threats under N.J.S.A. 2C:12-3(a).
On June 17, 2013, the tenant received a warrant of removal with an execution date of June 25, 2013. On June 18, the parties entered into a consent to vacate agreement, with the vacate date of July 31, 2013. On July 26, 2013, the tenant removed the dog from his home and gave it to a shelter.
On July 29, 2013, oral argument was heard on the tenant's Order to Show Cause. The Order to Show Cause sought to vacate the previous judgment for possession, or alternatively, sought a stay pending appeal. The motion was denied.
On July 30, 2013, we granted the tenant's Application for Permission to File Emergent Motion. On August 5, 2013, we also granted the tenant's motion to stay eviction. The tenant has continued to reside at the premises.
The tenant first claims that under the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12. ("the Act"), the trial court did not have jurisdiction to enter a judgment of possession for the landlord. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (internal citations omitted). Thus, the trial court's interpretation and application of the Act are reviewed de novo.
However, "[A]n appellate court should not disturb 'the factual findings and legal conclusions 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.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference is given "when the evidence is largely testimonial and involves questions of credibility." Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "Findings by the trial court are considered binding on appeal when supported by adequate, substantial, credible evidence." Rova Farms, supra, 65 N.J. at 484 (citations omitted).
"The Act reflects the public policy that landlord rights must, in the interest of the general welfare, defer to the needs of the tenant population." Franklin Tower One, L.L.C. v. N.M., 304 N.J. Super. 586, 592 (App. Div. 1997), aff'd, 157 N.J. 602 (1999) (citing Morristown Mem'l Hosp. v. Woken Mortg. & Realty Co., Inc., 192 N.J. Super. 182, 188 (App. Div. 1983)). It was created as remedial legislation with the purpose of protecting tenants from losing their housing in the midst of a housing shortage. Id. at 591. As remedial legislation, this Act "should be liberally construed to effectuate its purpose." Royal Assocs. v. Concannon, 200 N.J. Super. 84, 93 (App. Div. 1985) (citing Bd. of Conservation & Dev. v. Veeder, 89 N.J.L. 561, 563 (E. & A. 1916) (remedial legislation must be afforded a construction that considers "what the mischief was that the legislature sought to remedy, as well as the remedy intended to be provided by that body to cure the mischief")).
"'[The Act's] aim was to safeguard residential tenancies, who were generally complying with their obligations as tenants, by limiting their removal from covered premises to those situations in which reasonable grounds existed for removal and suitable notice was given.'" Franklin Tower One, supra, 304 N.J. Super. at 591-92 (citing Riverview Realty v. Williamson, 284 N.J. Super. 566, 568 (App. Div. 1995); Montgomery Gateway East I v. Herrera, 261 N.J. Super. 235, 241 (App. Div. 1962)); see also Bradley v. Rapp, 132 N.J. Super. 429, 432 (App. Div.), certif. denied, 68 N.J. 149 (1975). When interpreting the Act, primary regard must be given to its purpose. Bradley, supra, 132 N.J. Super. at 433.
N.J.S.A. 2A:18-61.1a notes the purpose of the Act is an attempt to avoid imposing significant hardships on those who would be rendered homeless by a blameless eviction. "It is in the public interest of the State to maintain for citizens the broadest protections available under State eviction laws to avoid such displacement and resultant loss of affordable housing[.]" N.J.S.A. 2A:18-61.1a(d).
Strict compliance with the statute is required in order for the court to maintain jurisdiction over the eviction action because "the cause of termination is jurisdictional." Carteret Props. v. Variety Donuts, 49 N.J. 116, 123 (1967). Even if the landlord acted in good faith, or the tenant was not prejudiced by the lack of strict compliance, "punctilious" compliance, even with regard to notice requirements, is required. 224 Jefferson St. Condo. Ass'n v. Paige, 346 N.J. Super. 379, 383 (App. Div.) (citing Weise v. Dover Gen. Hosp., 257 N.J. Super. 499, 504 (App. Div. 1992)), certif. denied, 172 N.J. 179 (2002). "The sufficiency of the notice as a jurisdictional prerequisite must be judged within its four corners." Carteret, supra, 49 N.J. at 125. Therefore, departure from the stringent requirements of the Act requires a dismissal of the action. Id. at 123.
N.J.S.A. 2A:18-61.1(b) provides a ground for eviction if "[t]he person has continued to be, after written notice to cease, so disorderly as to destroy the peace and quiet of the occupants or other tenants living in said house or neighborhood." N.J.S.A. 2A:18-61.1(b).
Here, the landlord's notice of April 26, 2013 did not, in part, comport with the stringent requirements of the Act. An eviction based on "disorderly conduct" requires a prior written notice to cease. N.J.S.A. 2A:18-61.1(b). The landlord does not argue that the notice to cease issued years prior is sufficient under the Act. Therefore, any grounds for eviction based on disorderly conduct, i.e., the dog barking, were properly dismissed by the trial court. See N.J.S.A. 2A:18-61.1(b); see also Carteret, supra, 49 N.J. at 123.
However, a notice to cease is not required where a landlord seeks to dispossess a tenant for assault or terroristic threats against the landlord or an employee of the landlord. N.J.S.A. 2A:18-61.1(p). The statute provides in pertinent part that a tenant may be evicted if he or she:
[H]as been found, by a preponderance of the evidence, liable in a civil action for removal commenced under this act for an offense under . . . N.J.S. 2C:12-1 or N.J.S. 2C:12-3 involving assault or terroristic threats against the landlord, a member of the landlord's family or an employee of the landlord[.]
Subsection (p) does not mandate a conviction or plea to a criminal offense in order to institute a civil action for eviction. Hous. Auth. of Newark v. Smith, 264 N.J. Super. 200, 203 (Law Div. 1992). Because the landlord did not issue a notice to cease but only issued a notice to terminate the tenancy, the trial court only had jurisdiction to consider eviction on the grounds specified in N.J.S.A. 2A:18-61.1(p).
A notice to terminate the tenancy requires specificity of the grounds for termination. Carteret, supra, 49 N.J. at 124. "'Specify' means to name in a specific or explicit manner; to state precisely or in detail, to point out, particularize, or to designate by words one thing from another." Ibid. (citations omitted).
The tenant contends that the notice to terminate lacked the requisite specificity under Carteret. The notice states, "[D]og threatening landlord's employee on April 22, 2013[.]" The tenant argues that the claim of terroristic threats should not have been entertained at trial because the notice did not contain the word "terroristic."
The landlord cites Ivy Hill Park Apts. v. GNB Parking Corp., 236 N.J. Super. 565 (Law Div.), aff'd, 237 N.J. Super. 1, (App. Div. 1989), to support its position that the notice to terminate was sufficient to evict. Although Ivy Hill dealt with an eviction under N.J.S.A. 2A:18-53(c), it pointed to the "specific" definition found in Carteret, supra, 49 N.J. at 124-25. Ivy Hill noted:
Obviously, the purpose of the specificity requirement in N.J.S.A. 2A:18-53(c) is not that of aiding the tenant in changing his conduct, since no notice to cease is required. The obvious reason is to permit the tenant to adequately prepare a defense, since the tenant may contest an alleged breach of a covenant or may raise equitable defenses. Because an action to evict the tenant is normally a summary proceeding devoid of discovery, specification of the cause of termination is a means of
adequately advising the tenant of the allegations against which it must defend.
[Ivy Hill, supra, 236 N.J. Super. at 570 (emphasis added).]
Here, the notice specifically states the date of the incident, the fact that the victim was the landlord's employee (if not identifying the employee by name), and that a ground for eviction was the "dog threatening" the employee. Moreover, the conduct constituting a threat occurred on April 22, 2013. The notice to terminate was served four days later. As such, we consider the notice specific enough under the Act for the tenant to adequately prepare a defense against the claim of terroristic threats.
The judge found that the tenant's actions constituted terroristic threats, which are grounds for eviction under N.J.S.A. 2A:18-61.1(p). The judge stated that:
[I]n answering the door holding the dog, letting it continue to bark and lunge at Mr. Patti, refusing to remove the dog so that he could — so Mr. Patti could speak to him and especially when Mr. Patti evidenced fear saying he's going to bite me, saying to Mr. Patti yes, he will, I believe that was clearly a threat by the tenant.
The judge added that under N.J.S.A. 2C:12-3, a person is guilty of a crime of "making a terroristic threat" if he threatens to commit any crime of violence with the intent to terrorize another. This language is somewhat akin to N.J.S.A. 2C:12-3(a), which provides in pertinent part: "A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another[.]"
N.J.S.A. 2C:12-3(a) does not define "terrorize." N.J.S.A. 2C:12-3(a). The Model Jury charge also does not contain a definition of "terrorize" but does describe the required conduct. See Model Jury Charge (Criminal), "Terroristic Threats" (2004). The charge provides: "The words or actions of the defendant must be of such a nature as to convey menace or fear of a crime of violence to the ordinary person. It is not a violation of this statute if the threat expresses fleeting anger or was made merely to alarm." Ibid. (footnote omitted).
Here, a finding that the tenant engaged in terroristic threats under N.J.S.A. 2C:12-3(a) is unsupported by the evidence. The tenant's conduct could not be reasonably determined to rise to the level of "purpose to terrorize" under N.J.S.A. 2C:12-3(a).
The trial court also found that the tenant's conduct constituted simple assault. However, the notice to terminate did not specify "assault" as a ground for eviction. Because the landlord did not inform the tenant that it was seeking eviction on the basis of an alleged assault, the court lacked jurisdiction to consider that claim. Moreover, even if the notice did include assault as a basis for terminating the tenancy, the evidence presented at trial did not establish an assault.
"A person is guilty of assault if he: (1) Attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another[.]" N.J.S.A. 2C:12-1(a)(1). The trial court found that "the conduct of the tenant was a threat with the dog toward Mr. Patti in order to make him in effect retreat, leave, and to foreclose any further conversation between himself and Mr. Patti." N.J.S.A. 2C:12-1(a)(1) does not contain the word "threat," but requires an actual attempt of bodily injury. Since there is no evidence that the tenant attempted to inflict bodily injury on the employee, the simple assault finding is without basis.
Finally, the landlord argues that we should enforce the consent to vacate agreement between the parties. The tenant claims he felt under duress, and that he had no alternative but to agree to vacate. The landlord notes that subsequent to a Harris announcement at the landlord-tenant trial call advising tenants of their rights, and after the trial, the tenant and landlord entered into a consent to enter judgment for possession whereby the tenant would vacate.
Ordinarily, a party cannot appeal from a judgment or order to which he has consented. Bass v. DeVink, 336 N.J. Super. 450, 455 (App. Div.), certif. denied, 168 N.J. 292 (2001). So long as the provisions of a consent order benefitted both sides, we need not determine whether it was the wisest or the best course for a court to have entered the order. O'Loughlin v. Nat'l Cmty. Bank, 338 N.J. Super. 592, 602-04 (App. Div.), certif. denied, 169 N.J. 606 (2001).
Even so, we conclude that the consent to enter judgment does not preclude tenant from pursuing this appeal. Here, the trial court entered a judgment for possession on June 10, 2013, following the summary proceeding. The warrant for the tenant's removal was dated June 14, 2013. According to the tenant, on June 15, 2013, he consulted his attorney to determine if he could stop the execution of the warrant. Later that day, defendant's attorney convinced the landlord to allow the tenant to remain in the apartment until July 31, 2013. On June 17, 2013, the tenant was served with the warrant for his removal from the premises. On June 18, 2013, the tenant signed the consent to enter judgment, which stayed execution of the warrant until July 31, 2013.
Although the form states that the tenant consented to the entry of the judgment for possession, that judgment had already been entered. Moreover, as the tenant explained, the consent form was executed to stay execution of the warrant for removal and memorialize the parties' agreement allowing tenant to remain on the premises through July 31, 2013.
Furthermore, the consent form does not state that the tenant waived his right to appeal from the June 10, 2013 judgment. We are convinced that, under these circumstances, the tenant's execution of the consent form does not preclude him from appealing the June 10, 2013 judgment.
Reversed. Remanded to vacate the judgment for possession.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
See Cmty. Realty Mgmt. v. Harris, 155 N.J. 212 (1998) (requiring courts to provide tenants with instructions on procedures and rights at the beginning of the calendar call).