TROOPER BRETT BLOOM, ETC. VS. STATE OF NEW JERSEYÂ (L-542-12, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0101-15T2
MANSIONS APARTMENTS,
Plaintiff-Respondent,
v.
TONIANN HUSBAND,
Defendant-Appellant.
_______________________________
Argued March 23, 2017 - Decided April 18, 2017
Before Judges Lihotz and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. LT-
4743-15.
Sonia Bell argued the cause for appellant
(South Jersey Legal Services, Inc., attorneys;
Ms. Bell, on the brief).
Thomas M. Pohle argued the cause for
respondent (Greenblatt & Lieberman, LLC,
attorneys; Mr. Pohle, on the brief).
PER CURIAM
Defendant Toniann Husband appeals from a July 9, 2015 judgment
of possession granted to her landlord, plaintiff Mansions
Apartments, and an August 20, 2015 order denying her emergent
application for reconsideration. Judgment was granted premised
on the trial judge's finding defendant continuously violated the
lease agreement by allowing an unauthorized tenant to occupy the
premises, despite a written Notice to Cease, issued pursuant to
N.J.S.A. 2A:18-61.1(e)(1). Defendant argues the evidence was
insufficient to prove a lease violation and maintains plaintiff
accepted rent after the judgment was issued, creating a new
tenancy. We reject these arguments and affirm.
Plaintiff owns and operates a 360-unit apartment complex in
Pine Hill, which is federally subsidized through the Department
of Housing and Urban Development (HUD) Section 8 awards. See 42
U.S.C.A. § 1437f. In 2007, defendant commenced her tenancy in a
one-bedroom apartment located in plaintiff's complex. She
executed a lease agreement, identifying she was the sole occupant
of the premises and qualified for a Section 8 housing subsidy,
which satisfied defendant's entire monthly rent.
On March 24, 2015, plaintiff issued a notice demanding
defendant cease activity, which violated the lease. Specifically,
the notice instructed plaintiff to cease conduct identified as:
(1) disturbing the peace, including "disturbances and heavy
traffic in and out of [the] apartment," "loitering, numerous guests
and other disturbances," and (2) "harboring a female unauthorized
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occupant, Michelle Dea,1 in the leased premises." The notice
warned defendant's failure to cease the impermissible activity and
remove the unauthorized occupant within ten days would result in
the landlord's termination of the lease.
A "Notice Terminating Lease" was issued on April 27, 2015,
citing defendant's failure to comply with the prior Notice to
Cease, by her continued conduct of "disturb[ing] the peace and
quiet of other residents" and "harboring a female unauthorized
occupant, Michelle Dea, in the leased premises as well as three
(3) other adult unauthorized occupants and multiple children."
The notice further instructed defendant "must quit and vacate said
premises on or before May 31, 2015."
Plaintiff filed a summary dispossession complaint alleging
defendant failed to adhere to the Notice to Cease by disturbing
the peace and allowing Dea to occupy her apartment. Trial was
conducted on July 9, 2015. Plaintiff proceeded solely on the
unauthorized occupation of the unit and withdrew the disturbing
the peace allegations.
Plaintiff introduced the lease and issued notices, and
presented testimony from Assistant Property Manager, Dawn Brandt
1 At trial defendant stated her friend's surname was spelled
"Dey," which appears throughout the transcript. However, the
certification filed by the party used "Dea," which we have accepted
as the correct spelling of her surname.
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and a maintenance employee, Jesse White. Defendant testified on
her own behalf.
Brandt, who assumed the position of assistant property
manager in 2012 and manager in 2015, worked seven days per week
from 6:30 a.m. to 5 p.m. She identified provisions in defendant's
lease and discussed Section 8 requirements limiting occupation of
the unit solely to defendant.
Next, Brandt related her personal knowledge of Dea's use of
defendant's apartment. Dea went to Brandt's office seeking to
lease a unit and handed Brandt her driver's license, which listed
defendant's unit as her address. Brandt inquired how Dea was
living in the complex and was told she lived "with a friend." This
prompted the issuance of the Notice to Cease.
Further, Brandt, who opens and closes the complex playground,
located adjacent to defendant's unit, observed Dea "coming and
going," at "all different times of the day" "[e]very day[,]" "even
on the weekends," after defendant was issued the notice. Brandt,
referring to Dea, emphasized: "She's always, always, always
there." In addition, Brandt stated she saw "numerous children
. . . always in there" and an adult male and females in addition
to Dea in the unit. Brandt explained HUD guidelines require strict
compliance with the occupation guidelines, which determines the
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amount of rent paid by HUD.2 On cross-examination, Brandt
acknowledged Dea's mother and daughter live in plaintiff's
complex.
White testified he works as a maintenance technician at the
Mansions, from 7 a.m. to 4 p.m. He asserted he knew defendant and
personally observed Dea coming and going on a daily basis from
defendant's unit.
Next, defendant testified. She identified Dea as "[o]ne of
[her] best friends" but insisted she lives alone in her unit and
Dea "never" lived with her, but once spent the night two years
earlier. Defendant asserted Dea lives in Camden and visits
"[m]aybe two or three times [per] month," while seeing relatives,
and other friends in the complex. She also explained Dea is
friendly with defendant's neighbor, and "is very well known in the
Mansions."
Defendant refuted Brandt's testimony stating Dea was not at
the complex all spring because she underwent knee replacement
surgery. When asked a second time how frequently Dea visits,
defendant replied: "Whenever she's in town . . . probably like
sometimes twice, three times a week. Or a couple times a month
2 In a recent opinion we discussed in more detail federal
standards affecting lease provisions of leaseholds subject to the
Section 8 public housing subsidy program. See 175 Executive House,
LLC v. Miles, __ N.J. Super. __ (2017) (slip op. 6-8).
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. . . I haven't even seen her in the past couple months . . . at
all." Then added: "But . . . she just came to see me yesterday
actually" as she "visits for a couple hours and then she goes and
wanders all around the Mansions."
Addressing Brandt's testimony, defendant, on direct
examination, said Dea's driver's license lists the address of
Dea's sister in Blackwood. On cross-examination, however,
defendant responded Dea "don't [sic] even have a driver's license."
The trial judge issued an oral opinion at the close of
testimony. He noted the inconsistencies in defendant's testimony
regarding the frequency of Dea's visits and the address listed on
Dea's driver's license. The trial judge labeled defendant's
testimony "a fabrication," stating he found her "completely
unbelievable, incredible and not telling the [c]ourt the truth."
On the other hand, the judge found Brandt's testimony "completely
credible," "uncontroverted," and supported by White's
observations. Limiting his findings to Dea's occupation of the
unit, the trial judge found Dea presented a driver's license to
Brandt listing defendant's unit as her address. This, along with
the observations by Brandt and White, established Dea's
unauthorized use of defendant's apartment. The judge granted
plaintiff's request for a judgment of possession and denied
defendant's request for a stay pending appeal.
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Defendant was served with a warrant for removal, and on August
5, 2015, filed a pro se order to show cause seeking a hardship
stay. The motion judge stayed the execution of the warrant for
removal until August 15.
On August 12, 2015, defendant filed a second order to show
cause, seeking reconsideration of the judgment of possession. Her
supporting certification requested the judgment be vacated, while
acknowledging she was a frequent visitor, insisted Dea did not
live with her. Dea also filed a certification stating she does
not live with defendant, certifying she resides in Camden. She
asserted her license was copied when she applied for a unit at the
Mansions, which would prove she did not use defendant's address.
Therefore, Brandt's failure to produce the copy was suspect. Dea's
certification attached copies of documents listing her name and a
Camden address; her driver's license was not among them.
Additionally, defense counsel filed a memorandum in support
of the order to show cause, arguing plaintiff "accepted full rent
paid on the tenant's behalf for the following month[s] of June"
and July, 2015, despite the effective date of the "Notice of
Termination," listed as May 31. Defendant argued this "acceptance
of payment" "effectively created a new tenancy," which was not
terminated.
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Following the August 20, 2015 motion hearing, the motion
judge denied defendant's motion for reconsideration. Plaintiff
thereafter locked defendant from the apartment. Defendant filed
this appeal.
Before this court, defendant moved for emergent relief to
seek restoration of possession. The motion was denied. Plaintiff
moved to supplement the record, which we granted on May 24, 2016.
See R. 2:5-5. The supplemental record includes the certification
of La Niece S. Lewis, the property manager of plaintiff's apartment
complex, relating a fire destroyed the unit formerly occupied by
defendant. Based on these facts, plaintiff sought to dismiss the
appeal, which we denied.
Lewis also explained the circumstances surrounding
plaintiff's receipt of HUD funds following defendant's eviction.
She certified HUD electronically sends a lump sum transfer of
funds on behalf of all residents in the complex whose rent is
subsidized each month. While HUD paid the rental amount attributed
to defendant's unit after the notice to terminate was issued, the
funds were never accepted or applied by plaintiff, but were
"reversed and transferred back to HUD."
In our review of an order following a bench trial, we defer
to a trial judge's factual findings, if "supported by adequate,
substantial and credible evidence." Rova Farms Resort, Inc. v.
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Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "[W]e do not
disturb the factual findings and legal conclusions of the trial
judge unless we are 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." Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169
(2011) (quoting In re trust Created By Agreement Dated December
20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)). Further,
"particular deference," attaches to credibility determinations,
RAB Performance Recov., LLC v. George, 419 N.J. Super. 81, 86
(App. Div. 2011), as the trial judge is in the best position to
observe the witnesses and hear them testify; Cesare v. Cesare, 154
N.J. 394, 412 (1998).
Initially we address plaintiff's argument the appeal is moot
because defendant's unit was destroyed by fire. We reject the
argument.
Ordinarily, where a tenant no longer resides
in the property, an appeal challenging the
propriety of an eviction is moot. See Ctr.
Ave. Realty, Inc. v. Smith, 264 N.J. Super.
344, 347 (App. Div. 1993). Here, however, the
eviction carries residual legal consequences
potentially adverse to defendant. That is, a
tenant's federal subsidy may be revoked if
that tenant "has been evicted from federally
assisted housing in the last five years." 24
C.F.R. 982.552(c)(ii).
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[Sudersan v. Royal, 386 N.J. Super. 246, 251
(App. Div. 2005).]
Because defendant remains exposed to additional diverse
consequences, we decline to dismiss the appeal as moot. Ibid.
We turn to defendant's assertion the judgment must be vacated
because plaintiff failed to prove a violation of the lease.
Defendant argues plaintiff's evidence showed only that Brandt and
White viewed Dea in the vicinity of defendant's apartment "coming
and going," which insufficiently proves she resided in the unit.
Further, she argues plaintiff's failure to produce a copy of Dea's
alleged driver's license using defendant's address should defeat
the assertion. We are not persuaded.
The trial judge found Brandt and White's testimony credible
regarding seeing Dea consistently entering and exiting defendant's
apartment over an extended period. In contrast, the judge found
defendant's testimony "completely not credible," as it was replete
with inconsistencies and contradictions. We decline to disturb
the trial judge's credibility findings, which are well supported
by the record. Zaman v. Felton, 219 N.J. 199, 215-16 (2014).
Additionally, the judge found Dea presented a driver's
license to Brandt, which listed defendant's address as her own.
Although defendant testified this was untrue, her added statements
that Dea used her sister's Blackwood address, lived in Camden, and
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did not have a driver's license, were contradictions causing the
judge to reject defendant's testimony entirely, finding her not
truthful. We accept the trial judge's conclusion, giving deference
"to the trial court's factual findings . . . 'supported by
adequate, substantial and credible evidence.'" Toll Bros., Inc.
v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002) (quoting Rova
Farms, supra, 65 N.J. at 484).
Defendant also argues the motion judge erred in denying
reconsideration. Plaintiff argues reconsideration was warranted
because Dea certified, stating she lived in Camden and not with
defendant. Further, plaintiff "accepted rent payments made on
[defendant]'s behalf" for the months of June, July and August
2015, "after the termination of the tenancy[,]" thereby voiding
the judgment of possession and establishing a new tenancy, which
was never terminated. These arguments are rejected.
Reconsideration is a matter within the sound discretion of
the trial court. Capital Fin. Co. of Del. Valley, Inc. v.
Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied,
195 N.J. 521 (2008).
As provided by Rule 4:49-2, a motion for reconsideration is
only granted under certain narrow circumstances, "in which either
(1) the [c]ourt has expressed its decision based upon a palpably
incorrect or irrational basis, or (2) it is obvious that the
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[c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence." Fusco v. Bd. of
Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div.)
(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.
1990)), certif. denied, 174 N.J. 544 (2002). Neither circumstance
is present here.
Defendant's claim regarding Dea's residence was considered
at trial. Dea did not testify and defendant relied on her own
testimony regarding this issue. The certifications attached to
her motion do not provide newly discovered information, which was
unavailable at the time of trial. Consequently, we determine no
abuse of discretion is shown by the motion judge's denial of
reconsideration on this issue.
Defendant also asserts plaintiff accepted rent payments after
notice to vacate was issued. She incorrectly contends the law
mandates acceptance of rents after issuance of a notice to quit
voids the judgment of possession.
This argument misses the mark. N.J.S.A. 2A:18-61.1 lists
several "grounds for removal of tenants," including, subsection
(a), for failure to pay rent. However, plaintiff's June 11, 2015
complaint did not allege defendant failed to pay rent. Rather,
plaintiff alleged defendant violated her lease by hosting an
unauthorized occupant, Dea. Defendant's violation of the lease
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was itself a separate ground for removal under N.J.S.A. 2A:18-
61.1(d). HUD's continued payment of rent on defendant's behalf,
the precise timing of which we express no opinion on, has no effect
on plaintiff's valid judgment of possession, obtained under
N.J.S.A. 2A:18-61.1(d). See Hous. and Redev. Auth. of Franklin
v. Mayo, 390 N.J. Super. 425, 432-34 ("Unlike [non-payment of]
rent, however, which can be cured retroactively, not all cases for
eviction can be completely cured"). A tenant's continued
compliance with another condition of the tenancy is immaterial,
once a landlord has obtained a valid judgment for possession based
on one of the enumerated statutory grounds of N.J.S.A. 2A:18-61.1.
Cf. Mayo, supra, 390 N.J. Super. at 434 ("[T]herefore, the question
[is] whether the late vacation of the premises by the unauthorized
persons constituted an adequate cure of this particular breach.").
Defendant characterizes the issue as one of waiver, asserting
plaintiff accepted payment of rent from HUD on behalf of defendant,
which voided plaintiff's judgment for possession by establishing
a new tenancy. As we have noted, we disagree the issue of payment
of rent is material to plaintiff's right to seek eviction.
Nevertheless, waiver requires "the intentional relinquishment of
a known right." Jasontown Apartments v. Lynch, 155 N.J. Super.
254, 262 (App Div. 1978) (citation omitted). In Jasontown, "[a]
landlord's acceptance of a tenant's admitted liability for use and
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occupancy" is rent and "should not result, as a matter of law, in
loss of the right to seek dispossession." Id. at 261-62. In this
matter, plaintiff proffered a certification from its property
manager stating plaintiff received a bulk transfer of funds from
HUD for rent for residents in the complex, but that defendant's
share of the bulk payment, for the time after the judgment of
possession was entered. However, before defendant vacated the
premises, the funds were returned to HUD. Plaintiff's receipt of
the bulk transfer would not constitute a waiver and establish a
new tenancy requiring a new judgment of possession. Id. at 262.
Here, even assuming plaintiff accepted HUD payments on
defendant's behalf, there was no evidence of intent by plaintiff
to waive its right to seek dispossession as alleged in its
complaint. Further, the record establishes monies issued by HUD
were combined with rent from all units. Therefore, acceptance of
the bulk electronic transfer in and of itself was not an agreement
to waive its right regarding defendant's unit. Jasontown, supra,
155 N.J. Super. at 262. Finally, other than the HUD bulk transfer
issued to plaintiff, defendant offered no evidence from which
waiver could be established.
We find no error. We conclude reconsideration of the judgment
of possession was properly denied.
Affirmed.
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