Opinion
DOCKET NO. A-2418-14T4
09-29-2016
ROTHSCHILD REALTY I, L.P., Plaintiff-Respondent, v. COMMUNIDAD CRISTIANA INTERNACIONAL, Defendant-Appellant.
Tomas Espinosa, attorney for appellant. Robert M. Mayerovic, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-12657-14. Tomas Espinosa, attorney for appellant. Robert M. Mayerovic, attorney for respondent. The opinion of the court was delivered by SUTER, J.S.C. (temporarily assigned).
Defendant Communidad Cristiana Internacional (tenant) appeals a December 12, 2014 order, which vacated an order to show cause and stay, allowing Rothschild Realty I, L.P. (landlord) to evict tenant from a commercial premises. We affirm.
I.
Tenant is a church that for nine years rented a commercial property in Union City (the City) from landlord. In May 2014, tenant signed a three-year renewal of its lease. The commercial property has 25 units. Tenant leased a 3000 square foot unit, the interior of which contained sixty to seventy sprinkler heads, all part of a building-wide sprinkler system intended for the safety of the occupants.
In June 2014, tenant requested permission to install a drop ceiling in its rental unit. When landlord's maintenance contractor saw ceiling tiles being taken into the building that were not compatible with the sprinkler system, he left a note at the unit instructing tenant not to do any further work. A later inspection by landlord revealed the overhead sprinkler heads were painted, which rendered the heat sensors at their tips inoperative. Two bathrooms and a shower were built without landlord's knowledge. Sprinkler heads were blocked by the suspended ceiling in the bathroom. Walls were removed. Electrical junction boxes were left open. Because there were annual inspections of the sprinklers, landlord concluded tenant made these unauthorized changes.
Tenant contacted the City about the sprinkler system and an inspection was conducted on June 25, 2014. On July 1, 2014, landlord received notice from the Union City Building Department about violations in tenant's rental unit that included "sprinkler heads covered, pipes cut, and . . . sprinkler heads obstructed by the drop ceiling." There also were "open junction boxes with exposed wiring." Landlord hired a contractor in August 2014 to repair the sprinklers and junction boxes.
On August 4, 2014, landlord sent tenant a notice of lease termination, by certified and regular mail, advising that the lease was terminated as of August 9, 2014, because of willful destruction of property and that tenant was to quit the premises by that date. A complaint for eviction was filed on August 15, 2014, seeking tenant's eviction for willful destruction of the premises and for non-payment of rent for July and August 2014.
The letter sent by certified mail was never claimed, but the letter sent by regular mail was not returned.
At trial in the landlord-tenant case, landlord's representatives testified tenant made unauthorized changes and owed rent. Tenant's only witness was the church's pastor. Representing herself and with the assistance of a court interpreter, the pastor produced multiple photographs, which the court reviewed in making its decision. She alleged the leased property was never properly maintained. Tenant acknowledged making some renovations by painting the walls and installing carpet, but denied painting the sprinklers or making any changes to the electric boxes. Tenant alleged the City's violation letter to landlord was a result of tenant's contact with the City inspectors and the eviction was taken in response. Tenant denied it had not paid rent; rather, landlord had not accepted the rent.
These photographs have not been included in the appendix.
The court entered a judgment of possession on September 9, 2014. The court found tenant did not dispute receiving the notice of termination. Finding all parties to be credible, it was only landlord's witnesses who provided "relevant evidence" about the sprinklers and junction boxes. Tenant's pictures did not support its contention that the problem with the sprinklers and junction boxes predated the tenancy. The court found tenant owed two months' rent.
The trial court stayed the eviction on October 6, 2014, when tenant, now assisted by counsel, filed an order to show cause. The order to show cause sought to vacate the judgment of possession and warrant of removal, and requested a Marini hearing for the abatement of rent based on the condition of the sprinkler system. Tenant's contractor certified the sprinklers were not properly installed or maintained, and suffered from metal fatigue. The pastor alleged the eviction was in retaliation for the notice she gave to the City about the condition of the sprinkler system.
Marini v. Ireland, 56 N.J. 130 (1970). --------
On December 11, 2014, the court vacated the stay and dismissed the order to show cause without taking testimony. Finding that the order to show cause raised the same issues tenant raised at trial and that tenant already had an opportunity to address them, the court found there was no basis to order a new trial under Rule 4:49-1, to vacate the judgment of possession under Rule 4:50-1(f) or to order relief from the judgment under Rule 4:50-3 for fraud. Tenant has since been evicted.
Tenant raises the following issues for consideration:
POINT I. THE COURT SHOULD HAVE HEARD THE APPELLANT'S TESTIMONY AND EXPERT TESTIMONY ON THE ORDER TO SHOW CAUSE BECAUSE IT HAD BEEN TIMELY SUBMITTED.
POINT II. THE APPELLANT IS ENTITLED TO A VACATING OF THE POSSESSION ORDER AND WARRANT OF EVICTION.
POINT III. THE CONDITIONS PRECEDENT TO THE FILING OF THE COMPLAINT FOR POSSESSION WERE NEVER MET.
POINT IV. THE COURT BELOW SHOULD [HAVE] EXTENDED THE DEFENSE OF RETALIATORY EVICTION TO APPELLANT AND GRANTED THE ORDER TO SHOW CAUSE.
II.
We 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. Inv'rs Ins. Co. of Am., 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.), certif. denied, 4 0 N.J. 221 (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)).
We note, initially, that the appeal is only from the December 12, 2014, order that vacated the stay and dismissed the order to show cause, because that is the order that was identified in the notice of appeal. See W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review"). Any appeal from the September 9, 2014, judgment of possession is untimely.
Additionally, an appeal of the judgment of possession is moot because landlord's submission indicates the property has been re-rented, rendering the return of possession unavailable to this tenant. Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 258 (App. Div. 2006) (an issue is considered moot when our decision "can have no practical effect on the existing controversy").
We agree with the trial judge that the order to show cause raised the same issues tenant had raised about retaliation and the condition of the property in defense of the landlord-tenant action. Whether we conclude that the issues are res judicata because they were the same issues decided averse to tenant in the landlord-tenant action involving the same parties, see Nolan v. First Colony Life Ins. Co., 345 N.J. Super. 142, 152-53 (App. Div. 2001); or are barred by collateral estoppel because the same issue was raised in the order to show cause and the landlord-tenant case, see Bondi v. Citigroup, Inc., 423 N.J. Super. 377, 423 (App. Div. 2011), certif. denied, 210 N.J. 478 (2012); or are subject to dismissal under the entire controversy doctrine because all aspects of the claim could have been raised in the landlord-tenant case, see Hobart Bros. Co. v. Nat'l Union Fire Ins. Co., 354 N.J. Super. 229, 240 (App. Div.), certif. denied, 175 N.J. 170 (2002), it is clear that dismissal of the order to show cause was fully warranted.
We agree with the trial court that tenant did not file a motion for a new trial or for reconsideration. See Rule 4:49-1(b) (a motion for a new trial "shall be served not later than 20 days after the court's conclusions are announced in nonjury actions"); Rule 4:49-2 (a motion for reconsideration "shall be served not later than 20 days after service of the judgment or order upon all parties"). Even if the order to show cause were treated as an application for relief from the judgment of possession under Rule 4:50-1, we have no quarrel with the court's conclusions, which were amply supported by the record, and that it reviewed and considered the evidence before finding there was no fraud upon the court.
The trial court did not err by not taking testimony on the return of the order to show cause. Rule 4:52-1(c) provides discretion to the court: "Oral testimony may be taken in the court's discretion on the return date of the order to show cause and on the return date of defendant's motion to dissolve or modify the temporary restraint." Here, the same issues had been tried before the same judge in the landlord-tenant case.
Because tenant did not appeal from the entry of the judgment of possession, any issues regarding the termination notice given by landlord are not properly before us. We do observe, however, that the notice advised tenant the basis for the eviction, that the lease was terminated and to quit the premises. The judge found the notice was received by tenant.
Although tenant advances the claim of retaliatory eviction, that cause of action is not available in a commercial eviction. See 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 465 (App. Div. 2004) (declining to extend the defense of retaliatory eviction to a commercial lease because the legislature chose to make it available only in the context of a residential tenancy). We see no reason to further examine that claim.
After carefully reviewing the record and the applicable legal principles, we conclude that tenant's further arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION