Rodney Kelly v. James H. Kostopolis ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2657-22
RODNEY KELLY,
Plaintiff-Appellant,
v.
JAMES H. KOSTOPOLIS,
ODISE A. CARR, CLERK #3,
JENN, and OFFICE OF
THE SHERIFF OF BURLINGTON
COUNTY,
Defendants-Respondents.
_____________________________
Argued September 11, 2024 – Decided September 25, 2024
Before Judges Currier and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey,
Chancery Division, Camden County, Docket No.
L-0727-23.
Rodney Kelly, appellant, argued the cause pro se.
James K. Grace argued the cause for respondents
(Malamut & Associates, LLC, attorneys; Daniel Gee,
on the brief).
PER CURIAM
This appeal arises from the Chancery Division's March 23, 2023 order
dismissing as moot plaintiff Rodney Kelly's self-represented complaint against
defendants Burlington County Sheriff, the Burlington County Sheriff's Office
(Sheriff's Office), and a Sheriff's Office clerk. Plaintiff alleged defendants erred
in denying his requests for adjournments under N.J.S.A. 2A:17-36 of the then-
looming sheriff's sale of his property. The Chancery Division dismissed the
complaint as moot because plaintiff was accorded the adjournments. We affirm.
I.
A. Foreclosure History
This appeal arises from protracted foreclosure proceedings that
commenced in 2012 regarding plaintiff's property located in Burlington County
after plaintiff defaulted on the mortgage. The granular details of those lengthy
proceedings need not be recounted in full; instead, we distill the following
relevant facts and procedural history from the record.
After plaintiff fervently but unsuccessfully challenged the foreclosure,
Wells Fargo Bank (Wells Fargo) secured a final judgment in 2015. Plaintiff
subsequently engaged in extensive motion practice seeking to set aside or extend
the foreclosure, including obtaining two adjournments to which he was
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statutorily entitled under N.J.S.A. 2A:17-36. Thereafter, Wells Fargo was the
successful bidder at a sheriff's sale in 2015.
Roughly two years later, after discovering an error in the legal description
attached to the original mortgage, Wells Fargo successfully moved to vacate the
foreclosure, and in 2019, successfully prevailed in its action to quiet title.
Accordingly, the court allowed modification of the property's legal description
to reflect its accurate metes and bounds. In 2020, after filing a certification
confirming the property description had been corrected, Wells Fargo secured a
second final judgment in foreclosure, and a sheriff's sale was set for January 16,
2023. After Wells Fargo obtained its two statutory adjournments, the sale was
rescheduled for March 16, 2023.
B. Plaintiff's Adjournment Requests and Subsequent Complaint
On or around March 1, 2023, plaintiff sought his statutory adjournments
under N.J.S.A. 2A:17-36. After mistakenly believing plaintiff had exhausted
any available adjournments prior to the original 2015 sheriff's sale, the Sheriff's
Office denied his request and incorrectly advised that any further adjournment
requests would have to be granted by the court.
On March 8, 2023, plaintiff, self-represented, filed a complaint against
defendants, labeled "Complaint in Lieu of Prerogative Writs and Action
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Permitted under N.J.S. 10:6-1, 2" seeking to compel the adjournments. The
complaint alleged in part that plaintiff was deprived of "[d]ue [p]rocess and
[e]qual [p]rotection under the [l]aw, [and] [s]ubjected to [u]nlawful and [u]nfair
[l]imitation on [a]djournments guaranteed by N.J.S.A. 2A:17-36." Plaintiff filed
certifications—presumably considered as accompanying motions—seeking
"stay and adjournment" and "temporary restraints and preliminary injunction."
The case was transferred to Camden County and an initial conference was
scheduled before the Chancery Division. However, prior to the conference or
any court intervention, and before any action commenced toward removal, the
Sheriff's Office granted defendant's adjournment requests, recognizing its
mistaken reliance on the prior adjournments of the first sheriff's sale in
erroneously denying plaintiff's adjournment request of the second sheriff's sale.
Both the Sheriff's Office and defendant's counsel advised plaintiff by separate
notices sent to his home address that his adjournment requests were granted, and
the sheriff's sale rescheduled for May 11, 2023.
The court held an initial conference as scheduled, entertained argument,
confirmed that plaintiff's statutory adjournments were granted, determined that
no viable claims remained, and dismissed the complaint as moot. At the hearing,
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plaintiff did not challenge the Chancery Division's jurisdiction to hear the case
and instead argued against dismissal.
Although conceding that he secured his adjournments, plaintiff claimed
entitlement to damages asserting generally that the adjournments were granted
only after he filed his complaint. The court inquired, "I do not understand and/or
[am] unable to understand what, if any, damage there is. You got your
adjournment . . . you were provided that prior to being removed, locked out, and
your belongings stored . . . [t]herefore, there could be no deprivation of any of
your rights." The court dismissed the complaint, discerning no viable claim and
noting that plaintiff could still pursue any further discretionary adjournment
requests or applications under the foreclosure docket.
II.
Plaintiff claims on appeal that the Chancery Division lacked jurisdiction
to address his complaint, as actions in lieu of prerogative writs must proceed in
the Law Division under Rule 4:69. He further contends the court improperly
dismissed his complaint as moot.
Defendants contend that the Chancery Division was the proper forum
because this was not a challenge to a municipal action, and, although plaintiff
designated his complaint as "in lieu of prerogative writs," the requested relief as
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pled and at its root sought to enforce his right to an adjournment of a sheriff's
sale under N.J.S.A. 2A:17-36. Defendants assert that plaintiff secured his
adjournments less than two weeks after their denial and before any removal
action commenced, rendering the case moot.
III.
Plaintiff did not contest the Chancery Division's jurisdiction at the time of
the hearing. Fundamentally, "the points of divergence developed in proceedings
before a trial court define the metes and bounds of appellate review ," State v.
Robinson, 200 N.J. 1, 19 (2009), and this court ordinarily declines consideration
of issues unexplored and unpreserved in the trial court. Jurisdictional questions,
however, fall within a narrow exception to that limitation, id. at 20, and we
therefore consider plaintiff's claim.
Plaintiff correctly contends that actions in lieu of prerogative writs
proceed in the Law Division. R. 4:69-1. However, despite its title, the
complaint is not an action in lieu of prerogative writs. Indeed, "[t]o bring an
action in lieu of prerogative writs, a plaintiff must show that the appeal could
have been brought under one of the common-law prerogative writs."
Alexander's Dep't Stores v. Paramus, 125 N.J. 100, 107 (1991). There was and
could be no such showing here.
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In considering sheriff's sale adjournments in foreclosure matters, the
County Sheriff's Office, not a municipal body or agency, acts in furtherance of
state foreclosure law after foreclosure proceedings in the Chancery Division and
upon final judgment of foreclosure. See N.J.S.A. 2A:50-19. Accordingly, an
action in lieu of prerogative writs was not the proper vehicle to pursue the relief
sought by plaintiff. As the matter arose out of the foreclosure proceedings,
jurisdiction was properly laid in the Chancery Division. "It is not the label
placed on the action that is pivotal but the nature of the legal inquiry." Couri v.
Gardner, 173 N.J. 328, 340 (2002).
By any name, the crux of plaintiff's complaint—seeking to compel his
statutory adjournments of the impending sheriff's sale—was properly venued in
the Chancery Division.
IV.
Accordingly, we now consider whether the court correctly dismissed the
complaint as moot. We review dismissals of complaints for mootness under a
de novo standard of review. See Stop & Shop Supermarket Co. v. Cnty. of
Bergen, 450 N.J. Super. 286, 290 (App. Div. 2017). Although "[a] reviewing
court must accept the factual findings of a trial court that are 'supported by
sufficient credible evidence in the record,'" State v. Mohammed, 226 N.J. 71, 88
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(2016) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)), "[a] trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference." Rowe v. Bell & Gossett Co.,
239 N.J. 531, 552 (2019) (quoting Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
"[C]ontroversies which have become moot or academic prior to judicial
resolution ordinarily will be dismissed." Cinque v. N.J. Dep't of Corr., 261 N.J.
Super. 242, 243 (App. Div. 1993). The vital inquiry into mootness ensures that
"judicial power is . . . exercised to strike down governmental action only at the
instance of one who is himself harmed, or immediately threatened with harm,
by the challenged conduct." Jackson v. Dep't of Corr., 335 N.J. Super. 227, 231
(App. Div. 2000). "A case is moot if the disputed issue has been resolved, at
least with respect to the parties who instituted the litigation." Caput Mortuum,
L.L.C. v. S & S Crown Servs., Ltd., 366 N.J. Super. 323, 330 (App. Div. 2004).
Dismissal is appropriate when "a judgment cannot grant effective relief, or there
is no concrete adversity of interest between the parties." Ibid. "An issue is 'moot
when our decision sought in a matter, when rendered, can have no practical
effect on the existing controversy.'" Redd v. Bowman, 223 N.J. 87, 104 (2015)
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(quoting Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 221-22
(App. Div. 2011)).
Here, plaintiff's statutory adjournments of the sheriff's sale were granted
two weeks after being mistakenly denied, and the sheriff's sale was adjourned
for two months. Because this relief was granted prior to the first court
conference on March 22, 2023, no "concrete adversity" existed between the
parties. Significantly, no steps toward lock out or removal ever commenced
before the sheriff's sale was adjourned. Thus, the complaint was moot, and the
court's order dismissing the complaint was supported by the evidence in the
record.
Plaintiff sets forth numerous argument points; those we have not
specifically addressed lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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