Opinion
DOCKET NO. A-0996-12T1
11-15-2013
LATRICE GEORGE, Plaintiff-Respondent, v. MUNESHWAR NAURANG, Defendant-Appellant.
John C. Spadora, attorney for appellant. Feintuch, Porwich & Feintuch, attorneys for respondent (Philip Feintuch and Matthew Kohut, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. DC-14362-12.
John C. Spadora, attorney for appellant.
Feintuch, Porwich & Feintuch, attorneys for respondent (Philip Feintuch and Matthew Kohut, on the brief). PER CURIAM
Defendant Muneshwar Naurang appeals from a September 14, 2012 Special Civil Part order denying his motion for reconsideration of an August 1, 2012 judgment for $15,000 entered in favor of plaintiff Latrice George, following a thirty-minute summary proceeding. See R. 6:1-2(a)(4). We reverse and remand for further proceedings.
I.
Because the parties commenced and tried this matter as pro se litigants, the record is fragmented and incomplete. Our review also has been hampered by the informal and jumbled presentation of oral and documentary evidence that was allowed by the trial judge. Nevertheless, we glean the following from what the parties — now both represented by counsel — have presented on appeal.
For some time prior to July 2012, George was Naurang's tenant at premises located in Jersey City. George never paid her share of rent due for July 2012, although a portion of it was received by Naurang from welfare authorities. Some time late in July 2012 — while operating under a misunderstanding that George had abandoned the premises — Naurang entered the leasehold to remove the remaining belongings. According to Naurang, after unsuccessfully trying to contact George, when he "enter[ed] the apartment the place [was] in total disarray. There's like pampers on the living room floor that have feces on it, and like mice been eating it, and so forth because it's been [uninhabited] awhile."
Part of the trial devolved into a heated back and forth argument between the litigants regarding Naurang's receipt, unbeknownst to George, of part of July's rent. A court officer eventually intervened, telling George, "Ma'am, just keep it down a little."
George admitted, "we did speak on me moving, because what it was is, I had [public assistance], and they told me after June 30th that [Naurang] wouldn't get no more checks."
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George did not dispute that she was in the process of moving out of the apartment at the time, testifying, "I did move some stuff out. I . . . threw stuff away, but I did not tell [Naurang] I was moving out. I told [him] when I'm about to move I'll give you [thirty] day[s] notice." George vehemently denied that the premises smelled from her daughter's potty, from leftover meat, or from urine.
When George learned of Naurang's unauthorized entry, she rushed to the property and discovered that her leftover possessions — including food, furniture, toys, and electronic equipment — had been unceremoniously dumped on the curb. After calling the police, George left her possessions "in the garbage" because she had to "get [her] kids to safety because it was raining and thundering that night."
Amidst the tumult of the trial, when the trial judge asked George, "[a]re you seeking to re-enter that apartment," George unequivocally answered, "[n]o, I just want my stuff back." And, although George claimed that she was locked-out of the apartment, the court did not find that George was deprived of possession of the premises, telling Naurang, "The point is, as far as the Court is concerned, not that you locked her out, but that you removed her possessions." The judge also admonished Naurang as follows:
Sir . . . the point is that if [George] paid for July you should not have gone into the apartment, and removed the items before the end of that month.
. . . .
At that point, you could bring your own order to show cause to seek relief from the Court. You don't engage in self-help with regard to the tenant's property.
After listening to the impulsive back and forth of the litigants, and without having them engage in direct or cross-examination, the trial judge concluded that George was entitled to a remedy under N.J.S.A. 2A:39-8. The statute provides that a plaintiff "recovering judgment shall be entitled to the possession of the real property and shall recover all damages proximately caused by the unlawful entry and detainer[.]" Furthermore, "[w]hen a return to possession would be an inappropriate remedy, treble damages shall be awarded in lieu thereof." Ibid.
The judge decided that George had proven the "reasonable value" of her lost possessions was $5,000, and pursuant to the statute, tripled the amount to $15,000. In support of her damage claim, George submitted a list of the lost personalty, but she did not testify (or provide even a lay opinion) of each item's then present value. Most notably, Naurang was not given an opportunity to challenge the list, cross-examine George about the items or their value, or otherwise participate in the admeasurement of damages. A memorializing order was entered on August 1, 2012, awarding George a judgment against Naurang for $15,000.
On August 17, 2012, Naurang — now represented by counsel — filed a timely motion for reconsideration pursuant to Rule 1:7-4(b), and requested oral argument. In support of the motion, the attorney stated the following:
3. Based upon what I have learned, it appears that there was a miscarriage of justice and plaintiff was not entitled to judgment or damages.
4. When I receive the transcript, I will supplement the certification.
On September 14, 2012, without a hearing or oral argument, the trial judge entered an order denying relief, and wrote the following:
[D]efendant's motion is denied for failure to provide any basis for relief. No transcript to the proceeding in which the Court is alleged to have erred is attached.
On September 25, 2012, Naurang's attorney protested in writing, stating that he had just recently received a compact disc containing the transcript file, and that he never received notice that the motion was actually scheduled for disposition. Accordingly, he requested that "the court restore the motion so that [his] client's matter can be heard."
The trial judge responded with a letter dated October 4, 2012. In it, the judge indicated the following:
[T]he Court never received any supplemental papers or a request to adjourn [the motion]. Additionally, oral argument is not heard in every case, and motions are routinely heard on the papers, as your motion was here.This appeal followed.
Lastly, it is improper to request the Court to restore your motion to the calendar once it has been ruled upon. The proper application would be to file a motion to reconsider.
II.
Naurang's notice of appeal and case information statement limited themselves to the propriety of the September 12, 2012 order, not the underlying August 1, 2012 judgment. See Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 460-62 (App. Div.) (limiting review to the motion for reconsideration and not to the underlying motion for summary judgment), certif. denied, 174 N.J. 544 (2002). He nevertheless challenges the judgment by asserting deficiencies in the litigational process that produced it. For example, Naurang claims that George was not properly seeking remedies for unlawful entry and detainer under N.J.S.A. 2A:39-1 because George still had a key to the premises and did not seek to return there. Thus, according to Naurang, George's true remedy was based upon common law trespass and conversion, for which a summary action was inappropriate. Indeed, Naurang argues that he was entitled to discovery because he "had to have been surprised that the issue was not access to the premises but an alleged loss of personal property." Furthermore, Naurang contends that not only were treble damages inappropriate, but also George's evidence of value — and the trial judge's acceptance of such proof — was contrary to law because it was based upon "the value of the personal property at the time it was purchased and/or donated approximately a year before."
Our problem is that none of these contentions was raised in the Special Civil Part. "Appellate review is not limitless." State v. Robinson, 200 N.J. 1, 19 (2009). Because of this, "the points of divergence developed in proceedings before a trial court define the metes and bounds of appellate review." Ibid. Generally, unless the question so raised on appeal concerns a jurisdictional issue or a matter of "great public interest," we routinely will not entertain the issue. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (internal quotations and citations omitted). Notwithstanding these principles, we are satisfied that Naurang was deprived of a fair opportunity to challenge the judgment through his timely motion for reconsideration.
We review the trial court's denial of a motion for reconsideration under an abuse of discretion standard. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). Reconsideration is "'a matter within the sound discretion of the Court, to be exercised in the interest of justice[.]'" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is appropriate if "'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.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria, supra, 242 N.J. Super. at 401); see also Fusco, supra, 349 N.J. Super. at 461-62. Reconsideration is not appropriate as a vehicle to bring to the court's attention evidence that was not presented, but was available, in connection with initial argument. Fusco, supra, 349 N.J. Super. at 463.
Here, although Naurang's attorney requested oral argument of the reconsideration motion and expected a hearing date, neither was provided. Although the basis for reconsideration at that time was plainly unremarkable, the transcript of the trial — on its face — presents numerous questions that deserve reconsideration. If the trial court had allowed Naurang — as his motion papers requested — an opportunity to supplement the motion record with the trial transcript, the outcome of the reconsideration motion very likely would have been different.
We conclude that the perfunctory disposition of Naurang's reconsideration motion constituted a mistaken exercise of discretion that warrants a remand. In so doing, we do not foretell the outcome of that motion nor do we intimate a particular result. We leave it to the trial court to determine whether the August 1, 2012 judgment was properly awarded.
Accordingly, we reverse the trial court's order of September 14, 2012, and remand the matter for reconsideration in light of all of the relevant circumstances. The court shall determine, among other things, whether Naurang was deprived of due process because of the summary nature of the proceeding, the haphazard manner of conducting the trial, the lack of cross- examination with respect to damages, or any other cognizable reason.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.