Opinion
DOCKET NO. A-0285-14T3
04-25-2016
WESTBROOK AT WEATHERBY, LLC, Plaintiff-Respondent, v. BARBARA PORTIS, Defendant-Appellant.
Barbara Portis, appellant pro se. Greenblatt & Lieberman, LLC, attorneys for respondent (Thomas M. Pohle, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. LT-1402-14. Barbara Portis, appellant pro se. Greenblatt & Lieberman, LLC, attorneys for respondent (Thomas M. Pohle, on the brief). PER CURIAM
Defendant Barbara Portis appeals from an order entered by the Special Civil Part of the Law Division on September 5, 2014, for her orderly removal from premises she leased from plaintiff, Westbrook at Weatherby, LLC. For the reasons that follow, the appeal is dismissed.
We briefly summarize the relevant facts and procedural history. In November 2012, defendant leased the premises from plaintiff for a twelve-month term, beginning on December 1, 2012, at a monthly rent of $1,195. Among other things, the lease provided that defendant would be required to pay as additional rent a late fee of $100 if any monthly payment is made after the fifth day of the month, and attorney's fees incurred by plaintiff to enforce the terms of the lease. The lease was thereafter renewed for another year.
Defendant failed to pay certain monthly rental payments and late fees when due, and on June 3, 2014, plaintiff filed a complaint in the Special Civil Part seeking a judgment of possession and warrant for removal, based on defendant's non-payment of rent. According to the complaint, rent, late fees, and attorney's fees totaling $2,891 were due and owing.
On June 26, 2014, the parties agreed to resolve the dispute. The court entered a consent order which stated that defendant agreed to the immediate entry of a judgment for possession and a warrant for removal. The order stated, however, that plaintiff had agreed the warrant for removal could not be executed until July 10, 2014, and defendant would not be required to pay the monies due. Thereafter, plaintiff notified defendant that she must vacate the premises by July 16, 2014.
Defendant filed an application in the trial court seeking an order staying her removal and requiring plaintiff to show cause why she should not be permitted to remain in the leased premises. The parties reached another agreement, and the court entered a consent judgment dated July 17, 2014. The order stayed the execution of the warrant for removal until November 30, 2014, provided that by July 25, 2014, defendant paid plaintiff $4,086, and submitted a voucher for the additional rent payments from a social service agency.
Defendant did not comply with the conditions for a further stay of execution of the warrant for removal. Plaintiff then sought to execute the warrant. On July 28, 2014, defendant filed another application in the trial court, seeking an order requiring plaintiff to show cause why her removal should not be further stayed. In a supporting certification, defendant stated that she needed additional time in which to obtain the voucher from the social services agency. Defendant acknowledged that she owed plaintiff $4,086, and stated that she had deposited $1,500 in court to pay the rent for July 2014.
On July 29, 2014, the court entered an order, which stayed the execution of the warrant until August 7, 2014. Plaintiff was required to show cause why defendant's eviction should not be further stayed. The order required defendant to deposit $5,507 with the court by August 6, 2014.
On August 7, 2014, the parties reached a settlement, and the court entered another consent order, which stated that defendant had agreed to vacate the premises by November 30, 2014. The order stayed defendant's removal until that date, conditioned upon her payment of $7,172. The order noted that defendant had paid $4,000 into court, and those monies would be released to plaintiff. The order required defendant to pay plaintiff $3,172 by August 13, 2014. However, defendant failed to pay plaintiff the monies due by that date.
Plaintiff again sought to execute the warrant for removal. On August 25, 2014, defendant filed a motion in the trial court to alter the settlement agreement. She claimed that she had overpaid rent by $77. She also claimed that on August 19, 2014, she had paid plaintiff's leasing office $2,922. On September 4, 2014, plaintiff served a warrant for removal upon defendant.
On September 5, 2014, defendant filed an application in the trial court for a further stay of her removal from the leased premises. The court entered an order, which stayed the execution of the warrant until September 12, 2014. On September 10, 2014, defendant filed a notice of appeal from the trial court's September 5, 2014 order.
On September 11, 2014, defendant filed another application in the trial court seeking a stay of her removal from the leased premises. In a certification submitted in support of that application, defendant asserted that she had certain unspecified mental disorders, and did not owe the amounts claimed by plaintiff. Defendant noted that she had filed a notice of appeal with this court, and she asked the trial court to stay of her removal pending appeal.
Defendant filed an application with a judge of this court seeking permission to file an emergent motion for a stay pending appeal. The judge denied the application, noting that although defendant claimed she overpaid the amounts claimed by plaintiff, she had agreed to pay the amounts specified in the trial court's orders and had not appealed.
The trial court considered defendant's motion on September 25, 2014. We note that defendant has not provided the court with a copy of the transcript of that proceeding. In any event, the trial court denied defendant's motion to alter the parties' settlement agreement and granted plaintiff's application to proceed with execution of the warrant for defendant's removal.
The warrant for removal was executed on September 30, 2014. In November 2014, defendant apparently filed another application with the trial court. The court determined that under N.J.S.A. 2A:42-10.1, the Special Civil Part did not have jurisdiction in the matter because more than ten days had passed after the execution of the warrant for removal.
On appeal, defendant argues that she overpaid plaintiff and was current with her rent payments prior to eviction. Defendant asserts that she should not have been evicted from her apartment and should have been allowed to move back in. However, plaintiff contends that the issues raised by defendant in her appeal are moot. We agree.
"[O]ur courts normally will not entertain cases when a controversy no longer exists and the disputed issues have become moot." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303-04 (1975)). "A case is technically moot when the original issue presented has been resolved, at least concerning the parties who initiated the litigation." Ibid. (citing Oxfeld, supra, 68 N.J. at 303).
As we have explained, in June, 2014, defendant consented to the entry of a judgment for possession and the issuance of a warrant for her removal from the leased premises. Thereafter, plaintiff agreed several times to stay the execution of the warrant, subject to certain conditions, but defendant failed to fully satisfy those conditions. Eventually, on August 7, 2014, plaintiff agreed to stay execution of the warrant until November 30, 2014, and defendant agreed that she owed $7,172. The court's consent order notes that defendant had deposited $4,000 in court, and defendant had agreed to pay the balance by August 13, 2014.
Defendant did not pay the amount due by the date specified in the order. She then sought to amend the judgment and extend the stay of execution, but the trial court denied her applications and authorized the execution of the warrant for removal. The warrant was executed on September 30, 2014.
Defendant now claims that she did not owe plaintiff the amounts that she specifically agreed to pay. She argues that she should have been permitted to remain in her apartment. However, plaintiff never agreed to stay execution of the warrant beyond November 30, 2014, and defendant has been removed from the premises. The issues raised by defendant on appeal are moot.
Appeal dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION