Opinion
DOCKET NO. A-0484-12T2
05-31-2013
GEORGIA KING VILLAGE, Plaintiff-Respondent, v. ANITA FLOYD, Defendant-Appellant, and ANIJAH HENRY, Defendant.
Beth L. Williams argued the cause for appellant (Essex-Newark Legal Services, attorneys; Ms. Williams and Felipe Chavana, on the briefs). Jeffrey R. Kuschner argued the cause for respondent (Mr. Kuschner, attorney and on the brief; Steven J. Zweig, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Mantineo.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT 10462-12.
Beth L. Williams argued the cause for appellant (Essex-Newark Legal Services, attorneys; Ms. Williams and Felipe Chavana, on the briefs).
Jeffrey R. Kuschner argued the cause for respondent (Mr. Kuschner, attorney and on the brief; Steven J. Zweig, on the brief). PER CURIAM
In this summary dispossess matter, defendant Anita Floyd appeals the August 29, 2012 judgment of possession entered in favor of plaintiff Georgia King Village. Because we conclude the court lacked jurisdiction to enter the judgment, we reverse.
I.
Georgia King Village (Village) is a privately owned, federally subsidized, multi-family housing complex located in Newark, New Jersey. Floyd and her five children have been residents of the complex for several years. On February 16, 2012, a female Village resident was assaulted and robbed outside the Village's premises as she walked home from work. Floyd's son, E.P., was arrested and charged with committing the offenses.
The complaint also names Anijah Henry as a defendant. No testimony was provided at trial as to this individual.
Any minor in this opinion will be identified only by their initials.
On February 27, 2012, Village served Floyd with a "notice to quit/termination notice" ending her tenancy effective March 9, 2012. The notice advised Floyd that Village was terminating her lease because her son had violated the lease by engaging in criminal activity. The notice provided:
3. Your tenancy is being terminated because the lease has been violated as follows:
On February 16, 2012 a member of your household . . . punched the child of another tenant in the face and stole their cell phone. [He] was one of four persons involved in this assault and robbery. All suspects fled . . . after the crimes. The Newark Police were notified and [he] was arrested and charged with assault and robbery.
When Floyd failed to vacate the premises, Village filed a summary dispossess action seeking Floyd's eviction based upon N.J.S.A. 2A:18-61.1(e)(2), violation of lease covenants in public housing. N.J.S.A. 2A:18-61.1(e)(2) authorizes public housing authorities to evict a tenant when "the person has substantially violated or breached any of the covenants or agreements contained in the lease for the premises pertaining to illegal uses of controlled dangerous substances, or other illegal activities[.]" The complaint alleged that on February 16, 2012, Floyd's son violated the lease's provisions by engaging in criminal activity threatening the health, safety or right to peaceful enjoyment of the premises by other residents.
Trial commenced August 7, 2012, and continued on August 14, 2012. Prior to the start of the trial, Village's counsel informed the court he had issued a notice in lieu of subpoena for Floyd's son's appearance on August 7, 2012. Because E.P. failed to respond to the subpoena, Village's counsel wished to either enforce the subpoena or receive an explanation for the non-appearance. In response to these demands Floyd's counsel advised the court E.P. had invoked his privilege not to testify pursuant to N.J.S.A. 2A:81-6. Counsel argued the statute prohibited E.P. from being called as a witness by an adverse party in a forfeiture proceeding. The court declined to rule stating it was "going to defer decision . . .[,]" pending "where we go with the rest of the case."
At trial, the court heard testimony from the victim, two Village security guards, and the Village's past and present property managers.
The victim testified that on February 16, 2012, as she crossed the street near the entrance to the Village, she noticed a group of boys some of whom made comments as she passed. Suddenly, "one of the boys . . . punched [her] in [her] face and grabbed [her] . . . and asked . . . where the money was. . . ." When the victim told the assailant that she did not have any money, he "act[ed] like he didn't want to let [her] go, unless [she] gave him something," so she "just gave him [her] phone." The victim was then able to get a "good look" at the boy who punched her and a "quick glance" at the five boys with him. The five boys were approximately seven or eight feet from the victim and were just standing there, "joking around." The victim then ran home and informed her sister of the attack, who, in turn, reported the incident to security at the Village.
That same evening, the victim identified two boys who had been apprehended by Village security as individuals involved in the attack. She identified Omar Clowers as the individual who punched her and took her cell phone. Clowers possessed the victim's cell phone when he was apprehended. E.P. was identified as one of the boys with Clowers at the time of the assault. A week after the incident, the victim picked out a photograph of another individual, S.T., and identified him as the person who robbed and assaulted her. She also picked out photographs of four other boys she claimed took part in the assault and E.P.'s photograph was not among those selected.
In the trial court's decision this individual is referred to as Omar Flowers.
The other witnesses who testified at the trial had no personal knowledge of the incident and their testimony is not relevant to our review. At the close of the evidence, the court permitted the parties to submit written summations. On August 29, 2012, the court issued a written opinion awarding judgment to Village. This appeal followed. The trial court entered a stay pending appeal.
II.
Our review of a trial court's fact-finding in a non-jury case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We "should 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." Ibid.
However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]'" and thus is subject to de novo review. Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 199 N.J. 129 (2009). Further, we review the trial court's interpretation of the New Jersey Anti-Eviction Act (Act), N.J.S.A. 2A:18-61.1 to -61.12, de novo.
The Act protects residential tenants from eviction absent a showing of good cause. Morristown Mem'l Hosp. v. Wokem Mortg. & Realty Co., 192 N.J. Super. 182, 186 (App. Div. 1983). The Act specifically enumerates permissible grounds for eviction and the associated notice requirements. N.J.S.A. 2A:18-61.1 and - 61.2. Absent proof of one of the enumerated grounds for eviction, the court lacks jurisdiction to enter a judgment of possession. Housing Auth. of Morristown v. Little, 135 N.J. 274, 281 (1994).
Further, the public policies underlying the Act require strict compliance with the notice and procedural requirements before a landlord may evict a tenant. 224 Jefferson St. Condo. Ass'n v. Paige, 346 N.J. Super. 379, 383 (App. Div.), certif. denied, 173 N.J. 179 (2002). "In any instance in which a notice to quit is required as a prerequisite to the entry of a judgment of possession, the notice must be facially accurate in every substantial respect." Bayside Condos., Inc. v. Mahoney, 254 N.J. Super. 323, 326 (App. Div. 1992). A notice must be specific and detailed in order to provide the defendant with adequate opportunity to prepare a defense. Ivy Hill Park Apts. v. GNB Parking Corp., 236 N.J. Super. 565, 570 (Law Div.), aff'd, 237 N.J. Super. 1 (App. Div. 1989). Further, "[because] an action to evict the tenant is normally a summary proceeding devoid of discovery, specification of the cause of termination is a means of adequately advising the tenant of the allegations against which it must defend." Ibid.
Failure to provide a notice to quit that is factually and formally sufficient deprives the court of jurisdiction to enter a judgment of possession. Bayside Condos., supra, 254 N.J. Super. at 326. The notice to quit must "specify in detail the cause of the termination of the tenancy." N.J.S.A. 2A:18-61.2. In this regard, the Court has interpreted the verb "specify" to mean "to name in a specific or explicit manner; to state precisely or in detail, to point out, to particularize, or to designate by words one thing from another." Carteret Props. v. Variety Donuts, Inc., 49 N.J. 116, 124 (1967). Accordingly, a landlord's failure to comply with the notice requirements emasculates the salutary purpose of the Act, precluding entry of judgment. Paige, supra, 346 N.J. Super. at 383-84.
The notice served on Floyd specified that the termination of her lease was premised upon her son punching the victim in the face and stealing her cell phone. At trial, however, Village proceeded on a different theory arguing her lease termination was based upon her son being an accomplice of the assailant. Village failed to present any evidence to support the good cause grounds articulated in the notice to quit as all of the evidence introduced at trial supported a finding that Omar Clowers, not E.P., assaulted and robbed the victim. Indeed, the victim herself testified that Clowers acted alone when he assaulted her and took her phone. Given Village failed to establish the allegations contained in the notice to quit, no judgment of possession could properly be entered. See Marini v. Ireland, 56 N.J. 130, 138 (1970) (a plaintiff's failure to establish good cause for eviction is sufficient ground to warrant dismissal for lack of jurisdiction).
Additionally, the notice to quit was insufficient to confer jurisdiction on the court to consider Village's complaint to terminate the tenancy for cause on any basis other than that alleged in the notice. The court was not free to sua sponte amend the notice to quit after trial to comport with Village's newly advanced theory of liability. Floyd had no notice that accomplice liability would be argued as the specific ground for her lease termination and therefore had no opportunity to prepare a defense against it. See Ivy Hill Park Apts., supra, 236 N.J. Super. at 570. Unlike the trial court, we do not regard this failure as a mere technical noncompliance. Instead, we consider this failure to explicitly and specifically state the reason for the termination constitutes substantive noncompliance that is prejudicial to the tenant. This Court has consistently recognized the "role of equitable considerations in dispossess cases[,]" 279 4th Ave. Mgmt., LLC v. Mollett, 386 N.J. Super. 31, 39 (App. Div.), certif. denied, 188 N.J. 354 (2006), and we conclude that the court's sua sponte amendment of the notice to quit is not sustainable. Village could have amended its notice to quit at any time prior to trial but chose not to do so. We find the court was not free to cure the deficiency by sua sponte amending the notice after trial.
Accordingly, the judgment of possession is reversed and the matter is remanded to the trial court for entry of judgment in the tenant's favor. By so ruling, however, we do not suggest that Village is precluded from serving a new notice to quit based on the violation of either state or federal law proscribing criminal activity on, within, or near the leased premises. We only require that any future notice to quit specify in detail the cause of the termination of the tenancy.
III.
We next address Floyd's argument that the court erred in drawing an adverse inference against her. Given that the matter is being remanded and there may be future proceedings involving the parties, we provide the following comments for guidance. Village's counsel petitioned the court to employ an adverse inference against Floyd in its summation. However, Village failed to provide notice during the trial that it intended to seek an adverse inference against Floyd as a result of her and E.P.'s failure to testify. While Village's counsel informed the court on the morning of trial that E.P. had been served with a notice in lieu of a subpoena and had not appeared, he did not notify the court that he would therefore seek an adverse inference against Floyd. Rather, Village sought enforcement of the subpoena or an explanation for the non-appearance. Floyd offered that her son was exercising his right not to testify pursuant to N.J.S.A. 2A: 81-6.
N.J.S.A. 2A:81-6 provides: "[i]n all civil actions in any court of record a party shall be sworn and shall give evidence therein when called by the adverse party, but no party thereto shall be compelled to be sworn or give evidence in any action brought to recover a penalty or to enforce a forfeiture."
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The court deferred decision on the issue and never heard arguments on the matter. Further, neither side sought a ruling on the question prior to the conclusion of the trial. It was only when Village submitted its written summation that it urged the court to employ an adverse inference against Floyd based on her own failure to testify as well as a consequence of her failure to produce her son to testify.
A party seeking an adverse inference must comply with the procedure adopted by the Court in the seminal case of State v. Clawans, 38 N.J. 162 (1962). In particular, "the party seeking . . . such an inference [must] advise the trial judge and counsel . . . at the close of his opponent's case, of his intent. . . ." Id. at 172; see also Nisivoccia v. Ademhill Assocs., 286 N.J. Super. 419, 429 (App. Div. 1996) (noting "'better practice' . . . suggests that an attorney who seeks to comment upon the nonproduction of a witness advise the trial judge and opposing counsel of his intention before summation").
Here, Village failed to advise the court and counsel prior to his summation that he intended to seek an adverse inference. Village thus deprived Floyd of the opportunity to demonstrate why an adverse inference should not be utilized. Additionally, if the court had ruled in a timely manner on E.P.'s exercise of privilege under N.J.S.A. 2A:81-6, or on the propriety of issuing a notice in lieu of subpoena on E.P. in light of Village's argument that he was not a party to the case, Floyd would have been afforded the opportunity to alter her trial strategy if necessary. The court's failure to rule on the issue before issuing its opinion effectively denied Floyd her right to due process. Therefore, if these issues need to be addressed on remand, they should be decided by the trial court during trial.
IV.
Finally, we believe it would be best if the matter is heard by a different judge. We do not question the sincerity of the court's view of the merits. Notwithstanding, we believe it would place the court in an untenable position to now have to reevaluate a case in which it had already expressed credibility determinations. We direct that a different judge handle the case on remand. See J.L. v. J.F., 317 N.J. Super. 418, 438 (App. Div.), certif. denied, 158 N.J. 685 (1999).
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION