Opinion
DOCKET NO. A-5157-12T2
02-24-2015
SHARON JOHNSON, Plaintiff-Respondent v. ILIRJAN BIDA, Defendant-Appellant.
Vincent J. D'Elia argued the cause for appellant (D'Elia & McCarthy, attorneys; Mr. D'Elia, on the brief). Gregory G. Diebold argued the cause for respondent (Northeast New Jersey Legal Services Corp., attorneys; Mr. Diebold, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket Nos. DC-5334-12 and DJ-26880-12. Vincent J. D'Elia argued the cause for appellant (D'Elia & McCarthy, attorneys; Mr. D'Elia, on the brief). Gregory G. Diebold argued the cause for respondent (Northeast New Jersey Legal Services Corp., attorneys; Mr. Diebold, of counsel and on the brief). PER CURIAM
Defendant landlord, Ilirjan Bida, appeals the entry of a November 15, 2012 judgment for $13,156.23 following his failure to pay the first agreed-upon installment of a $3000 settlement, as well as the April 10 and May 24, 2013 orders denying both his motion to vacate the judgment and his motion for reconsideration. That defendant failed to remit the payment required and was therefore in breach of the settlement is not in dispute. Nor is the validity of the agreement itself. Rather, defendant asserts that his due process rights were violated because, due to a clerical error, the judgment was entered before his opposition papers were timely received. We affirm for the reasons expressed by Judge Francis B. Schultz, who twice reviewed the merits of defendant's opposition to the entry of judgment.
We granted defendant's motion to file an appeal of this judgment out of time.
I
Defendant sought to evict plaintiff, Sharon Johnson, from a residence that he owned in Jersey City for nonpayment of rent. Defendant, however, had violated a zoning ordinance by renting Johnson an illegal third apartment. After a December 2011 landlord-tenant trial at which both parties were represented by counsel, defendant was ordered to pay plaintiff $3600, six times her monthly rent, as relocation-assistance benefits. We dismissed defendant's appeal as untimely on March 22, 2012, and our Supreme Court denied certification on July 17, 2012.
N.J.S.A. 2A:18-61.1(h) requires a landlord to provide tenants who are evicted as a result of a zoning-ordinance violation for an illegal occupancy with a fixed amount of relocation-assistance benefits based on six-times the monthly rent. That sum must be paid five days prior to eviction. . . . [A] landlord cannot reduce the relocation-assistance obligation by the amount of past-due rent or other damages owed by the tenant.
[Miah v. Ahmed, 179 N.J. 511, 529 (2004).]
More than two months after the award of relocation fees, plaintiff filed a complaint against defendant for nonpayment, as well as other damages and costs incurred, totaling $13,156.23. Defendant, acting pro se, filed a counterclaim seeking payment of four months past-due rent plus additional costs, totaling $2904.
On the trial date, August 17, 2012, the parties and their attorneys each signed a stipulation of settlement. The handwritten portion of the agreement stated:
Case is settled for $3000.00. Payments will be made as follows: The first $1000.00 payment will be made within 30 days of the N.J. Supreme Court's order denying rehearing on defendant's pending motion [to reconsider the denial of certification sought by
defendant in the landlord-tenant matter.] Thereafter, defendant will pay an additional $1000.00 each month within 30 days of the preceding payment. Counterclaim, as well as settlement [of defendant's small claims suit against plaintiff for unpaid rent] are dismissed. If Supreme Court grants certification and reverses Appellate Division, parties agree they are bound by that decision.The following statement was pre-printed on the bottom of the agreement, as part of what plaintiff describes as "the [c]ourt's own approved settlement form[:]"
Upon payment, the parties release each other from liability covering the matters in this dispute. In the event any party Defaults as to the term(s) of this Settlement, the aggrieved party must file a Certification with the Clerk of the Special Civil Part together with proof of Service upon Adversary, requesting that a judgment be entered in the amount of the original Complaint.
On September 19, 2012, our Supreme Court denied defendant's motion seeking reconsideration of the order denying his petition for certification. The September 19 order was filed on September 21, 2012.
On October 29, 2012, defendant, without counsel, prepared a complaint seeking to have the award of $3600 in relocation expenses "corrected" in federal court.
On April 30, 2013, the federal court dismissed this complaint.
On November 14, 2012, plaintiff, using the court's preprinted form, submitted a certification entitled "IN SUPPORT OF A REQUEST TO ENFORCE SETTLEMENT AGREEMENT AND ENTER A JUDGMENT FOR THE AMOUNT CLAIMED IN THE ORIGINAL COMPLAINT." Plaintiff wrote that because defendant failed to make a payment by October 19, 2012, as required by the settlement agreement, she sought the originally requested relief of $13,156.23. This statement was pre-printed on the bottom of the form: "ANY OBJECTION TO THIS CERTIFICATION MUST BE FILED WITH THE CLERK OF THE SPECIAL CIVIL PART WITHIN 10 DAYS OF RECEIPT." Plaintiff's attorney certified that this certification was sent to defendant and the attorney who represented defendant when the case was settled.
The next day, November 15, 2012, a judgment for $13,156.23 was mistakenly entered against defendant, before the ten-day response period expired and before his opposition papers were received or reviewed. On November 20, 2012, defendant, without counsel, filed a timely opposition in which he wrote that plaintiff was aware that he had filed a case with the Federal District Court of New Jersey and requested "that the New Jersey Courts defer to the [federal court] and that collection against me not [] be allowed until the [federal court] has ruled."
Defendant was first notified of the $13,156.23 judgment on February 7, 2013. On March 20, 2013, defendant, now again represented by counsel, moved to vacate the judgment. Defendant certified that he had deposited $3000 into his attorney's trust account.
Defendant's counsel argued that defendant had "wanted to have a federal court make the ultimate decision." Defendant asserted that he was denied due process because judgment was entered before he timely entered his opposition. Judge Schultz asked counsel to "go back" in time and argue as if the first payment was past due and the court was hearing the matter on its merits. Judge Schultz stated that he was "curing [defendant's] notice problems." Defendant's counsel then stated that he believed the court could have ordered sanctions, immediate payment or counsel fees.
Judge Schultz indicated why he was enforcing the agreement as written:
If we agree that that [Supreme Court] order was entered on September 19th, then [defendant] had plenty of time. He had until October 19th to pay.
He didn't. Come October 20th, if that's the 31st day, $13,000 was due. And this was entered into by two people with their attorneys. It was very clear.
And even what would happen in default, the full amount . . . was part of the agreement. So even if a judge heard the matter in November, it was clear that the settlement was breached.
While acknowledging that someone in the courthouse erroneously entered judgment on November 15, 2014, the judge denied defendant's motion, stating, "[H]ad there been a meritorious defense, I would have granted [defendant's] application[,]" but the issue of the erroneous judgment date was "a red herring" because it made no difference.
Less than two weeks later, defendant, now again without counsel, filed a motion for reconsideration. Defendant argued that had he been before a judge shortly after filing his opposition to the entry of judgment, the judge would have told him that he could pay the $3000, perhaps with interest for one month. Judge Schultz stated that he had considered defendant's opposition nunc pro tunc; that if the erroneous date had made a difference, he would have rectified it; and that the agreement did not allow for late payment with interest. Judge Schultz explained to defendant that "[t]here was no alternative selection if you violated the agreement."
II
All of defendant's arguments are based on the contention that because the judgment was erroneously entered on November 15, 2012, before his timely opposition papers were sent, his due process rights were violated.
Plaintiff argues that "defendant asks this [c]ourt to disregard the terms of the settlement he negotiated because of a clerical error by the clerk that did not prejudice his rights." Plaintiff asserts that "[w]hat occurred is akin to a clerical error under [Rule] 1:13-1" such that "[t]he admitted fact of the clerk's mistake should not mask the fact that defendant breached the settlement and had no legal excuse for doing so." We agree.
Rule 1.13-1 states:
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission may at any time be corrected by the court on its own initiative or on the motion of any party, and on such notice and terms as the court directs, notwithstanding the pendency of an appeal.
Settlement agreements are "governed by principles of contract law." Thompson v. City of Atl. City, 190 N.J. 359, 379 (2007) (citation omitted). The courts cannot "make a better contract for the parties than they themselves have seen fit to enter into or [] alter it for the benefit of one party and to the detriment of the other." Christafano v. N.J. Mfrs. Ins. Co., 361 N.J. Super. 228, 237 (App. Div. 2003) (citation and internal quotation marks omitted).
Our strong policy of enforcing settlements is based upon the notion that
the parties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone. In furtherance of this policy, our courts strain to give effect to the terms of a settlement wherever possible. As we have held, settlements will usually be honored absent compelling circumstances. An agreement to settle a lawsuit is a contract, which like all contracts, may be freely entered into and which a court, absent a demonstration of fraud or other compelling circumstances, should honor and enforce as it does other contracts.
[Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008) (citations and internal quotation marks omitted).]
Defendant, with the assistance of counsel, entered into a voluntary agreement setting the schedule for payment of a sum significantly less than the amount plaintiff sought. Defendant had the opportunity to present his arguments against the entry of judgment in his opposition papers, which the judge read, and again during oral argument, when the judge "went back" as if the erroneously entered judgment had never happened. The judge found that defendant breached the terms of an agreement with no valid excuse. Throughout the post-judgment litigation defendant never challenged the validity of the agreement itself, nor his breach. He raised issues relating to his post-settlement decision to seek relief in the federal courts, the occurrence of Hurricane Sandy days after the initial payment was due, and a spirit of leniency in the courts that he claimed would have afforded him relief had his objections been heard timely.
The settlement agreement required that in the event of a breach, plaintiff had to inform her adversary that judgment equal to the amount of the initial complaint was sought. As evidenced by defendant's timely opposition papers, this notification took place. Defendant's opposition was heard by Judge Schultz using the same standard of consideration as if it were heard before the premature entry of judgment. Defendant was afforded all of the process due him.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION