NOT FOR PUBLICATION WITHOUT THE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-3393-16T1
METPARK II, LLC,
Plaintiff-Respondent,
v.
ROBERT KEMPFE,
Defendant/Third-Party
Plaintiff-Appellant,
v.
OLIVE HOULDAY and FRANK ADUBATO,
Third-Party Defendants.
_________________________________
Argued July 31, 2018 – Decided August 16, 2018
Before Judges Mayer and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No.
L-3470-14.
Robert Kempfe, appellant, argued the cause pro
se.
Christopher J. Hanlon argued the cause for
respondents (Hanlon Niemann & Wright, PC,
attorneys; Christopher J. Hanlon, on the
brief).
PER CURIAM
Defendant Robert Kempfe appeals from the following Law
Division orders: a January 29, 2015 order declaring defendant's
mobile home abandoned; an August 19, 2016 order in favor of
plaintiff Metpark II, LLC (Metpark) and third-party defendants
Olive Houlday and Frank Adubato, dismissing defendant's
counterclaim and third-party complaint; and a March 3, 2017 order
awarding counsel fees to plaintiff in the amount of $7,258.50. We
affirm.
The relevant facts are straightforward. Metpark is a mobile
home community consisting of twenty-two mobile home lots located
in Neptune, New Jersey. Adubato is the owner and operator of
Metpark. Houlday, a resident of Metpark, assists Adubato in
managing the mobile home park. Defendant leased a lot in Metpark
for his mobile home.
In August 2012, defendant had a physical altercation with
Houlday and another resident of Metpark. Based on the incident,
Metpark filed an eviction action against defendant. The parties
resolved the eviction matter by placing a settlement agreement on
the record on October 26, 2012, and signing a written consent
judgment for possession that same date.
The terms for resolving the eviction action were simple.
Metpark held a judgment of possession for the lot occupied by
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defendant's mobile home. Notwithstanding the judgment of
possession, Metpark agreed a warrant for removal would be stayed
for ninety days to permit defendant to sell or rent his mobile
home. If defendant failed to act within ninety days, defendant
acknowledged he could lose his mobile home. Any sale or sublet
of defendant's mobile home was expressly conditioned on Metpark's
approval of the buyer or renter, which could not be unreasonably
withheld. During the ninety-day stay period, defendant agreed to
abide by Metpark's rules and regulations and to pay all outstanding
rent. Upon the expiration of the ninety days, defendant agreed
to move out of Metpark. Thereafter, defendant would be permitted
to return to Metpark solely to meet with individuals interested
in purchasing or subleasing his mobile home. Plaintiff agreed to
refrain from executing the warrant for removal provided defendant
complied with the terms of the consent judgment.
Despite acknowledging and accepting the terms settling the
eviction action, defendant filed several post-judgment motions,
including a motion to vacate the consent judgment for possession
and a motion to remove the case to the Law Division. Defendant's
post-judgment motions were denied.1
1
Defendant did not appeal from any of the tenancy court's orders
related to the eviction action.
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Because defendant failed to abide by the terms of the consent
judgment, on May 1, 2013, plaintiff executed the warrant of
removal. After executing on the warrant of removal, defendant's
mobile home still remained on Metpark's property. Consequently,
on May 15, 2013, Metpark served defendant with a notice pursuant
to the Abandoned Tenant Property Act, N.J.S.A. 2A:18-72 to -84
(Act). In the notice, Metpark stated it considered defendant's
mobile home abandoned. The notice provided seventy-five days for
defendant to remove the home. If defendant failed to timely remove
his mobile home, the notice explained the home would be sold.
Because defendant's mobile home was titled as a motor vehicle,
plaintiff was required to use the form promulgated by the New
Jersey Motor Vehicle Commission to notify defendant concerning the
removal of his property.
Defendant failed to remove his mobile home from Metpark's
property in accordance with the Act.2 In September 2014, plaintiff
filed a complaint, seeking a declaration that the mobile home was
abandoned.
After receiving Metpark's complaint for declaratory relief,
defendant began to scavenge items from the mobile home, including
2
The Act requires a tenant to express an intent to remove any
remaining property. Although defendant objected to plaintiff
declaring his mobile home abandoned, he never stated an intent to
remove the home from Metpark's property.
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appliances, countertops, and other fixtures. Defendant's removal
of items from the mobile home contravened a June 19, 2013 court
order, restraining defendant from entering the mobile home absent
prior notice to Metpark's manager.
In response to plaintiff's declaratory judgment complaint,
defendant filed a counterclaim and a third-party complaint
alleging Metpark, Houlday, and Adubato interfered with his right
to rent or sell the mobile home. Plaintiff, Houlday, and Adubato
denied any such interference in their responsive pleadings.
Metpark filed an order to show cause (OTSC), seeking a
declaration that defendant abandoned the mobile home and
continuing the restraints barring defendant from entering the
home. The OTSC judge heard counsels' arguments on January 12,
2015.3 The judge found defendant had more than sixteen months to
remove the mobile home from plaintiff's property and failed to do
so. The judge granted plaintiff's requested relief, declaring
plaintiff "established the right to the property, and defendant
has no available remedies that would allow him to take possession
of the property in question." The judge further confirmed that
defendant's counterclaim and third-party complaint, alleging
3
Defendant retained counsel to oppose Metpark's OTSC.
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interference with his efforts to sell or lease the mobile home,
remained pending.
On or about April 15, 2016, plaintiff and third-party
defendants moved for summary judgment, seeking dismissal of
defendant's counterclaim and third-party complaint. According to
plaintiff, despite completing discovery related to the allegations
in his pleadings, defendant failed to present any competent
evidence demonstrating that plaintiff and third-party defendants
interfered with his right to sell or rent the mobile home.
On August 19, 2016, a different judge heard argument on the
summary judgment motion. The judge found defendant offered hearsay
testimony in support of his interference claim and failed to
present any competent admissible evidence demonstrating bona fide
efforts to sell or rent the mobile home. The only non-hearsay
testimony presented by defendant was the potential sale of the
mobile home to his mother. The judge determined the sale to
defendant's mother for one dollar was not an arms' length
transaction and violated the terms of the consent judgment for
possession, in which defendant agreed he would not reside at
Metpark.
The judge also considered and rejected defendant's arguments
in opposition to summary judgment related to defendant's
dissatisfaction with the orders entered by the tenancy court judge.
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The motion judge noted the time within which to appeal from those
orders had passed and defendant did not file an appeal.
The motion judge further concluded the tenancy court orders
set forth the actions defendant could and should have undertaken
related to his mobile home, specifically its sale or rental. The
judge found defendant failed to sell or rent his mobile home within
the time provided pursuant to the consent judgment.4 The judge
entered an order on August 19, 2016, granting summary judgment to
plaintiff and third-party defendants and dismissing defendant's
counterclaim and third-party complaint. The judge postponed
consideration of plaintiff's request for counsel fees and
suggested the parties attempt to resolve that issue before
plaintiff filed a formal fee application.
The parties were unable to resolve the issue of counsel fees
allowable under the parties' lease agreement,5 requiring plaintiff
to file a motion for fees. The matter was heard by the same judge
who dismissed defendant's counterclaim and third-party complaint.
4
Plaintiff extended the time for defendant to sell or rent his
mobile home beyond the ninety-day timeframe in the consent judgment
for possession. In fact, Metpark did not execute the warrant for
removal until May 2013. Despite the additional time afforded to
him, defendant still failed to sell or rent his mobile home.
5
The motion judge determined that the parties' signatures affixed
to the written rules and regulations governing Metpark was the
equivalent of a written lease agreement.
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Defendant opposed the application for the award of fees, but did
not contest the amount of the fees requested. Based on the January
29, 2015 order declaring the mobile home abandoned, the judge
found abandonment was a violation of Paragraph 43 of Metpark's
rules and regulations. She also concluded Paragraph 46 of
Metpark's rules and regulations entitled Metpark to fees and costs
associated with a violation of the rules and regulations. Because
the judge found defendant "[did not] take issue with the quantum
of legal fees or costs sought," she reviewed the certifications
and documents in support of plaintiff's requested fees and costs
and "found that the fees and costs sought [were] not unreasonable."
The judge entered an order on March 3, 2017, awarding counsel fees
and costs to plaintiff in the amount of $7,258.50.
Defendant appeals from the court's orders declaring the
mobile home abandoned, granting summary judgment to plaintiff and
third-party defendants on the counterclaim and third-party
complaint, and awarding counsel fees and costs to plaintiff.
Defendant raises the following arguments in his merits brief and
reply brief:
POINT I
IT WAS ERROR TO GRANT SUMMARY JUDGMENT WITH
MATERIAL FACTS IN DISPUTE.
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POINT II
BECAUSE OF THE COMPLEXITY OF THE HISTORY OF
THE CASE, THE COURT SHOULD HAVE HELD A HEARING
TO FULLY UNDERSTAND THE SAME.
POINT III
IT WAS ERROR TO AWARD COUNSEL FEES WITHOUT A
PLENARY HEARING.
POINT IV
APPELLANT'S MOBILE HOME WAS NEVER ABANDONED
WITHIN THE LANGUAGE OF THE STATUTE.
POINT V
THE COURT FAILED TO ARTICULATE AND EXPLAIN ITS
RULING ON SUMMARY JUDGEMENT [SIC].
POINT VI (POINT I OF DEFENDANT'S REPLY BRIEF)
THE TRIAL COURT [ERRED] IN RULING THE MOBILE
HOME ABANDONED WHERE EVIDENTIARY MATERIAL
EXISTED CONTRARY TO THAT RULING.
POINT VII (POINT II OF DEFENDANT'S REPLY
BRIEF)
SUMMARY JUDGEMENT [SIC] SHOULD NOT HAVE BEEN
AWARDED WHERE THE CLAIMS MADE BY THE APPELLANT
WERE NEITHER FRIVOLOUS [NOR] [REPETITIOUS] AND
WERE GENUINE.
The issues raised by defendant lack sufficient merit to
warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E).
We add only the following comments.
Defendant raises arguments on appeal that relate to
disposition of the original tenancy action. However, he never
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appealed from any of the orders issued by the tenancy court judge.
Nor could defendant have appealed from the October 26, 2012 consent
judgment for possession, barring him from living at Metpark and
according him ninety days to sell or rent the mobile home. An
order entered with the consent of the parties is generally not
appealable for purposes of challenging the substantive provisions
of the order. Winberry v. Salisbury, 5 N.J. 240, 255 (1950).
Having reviewed the record, we conclude that the judges deciding
the declaratory judgment action, the summary judgment motion, and
counsel fee application were bound by the non-appealed orders
entered by the tenancy court judge.
The Abandoned Tenant Property Act, N.J.S.A. 2A:18-72 to -84
(Act), governs abandonment of property left by a tenant on a
landlord's property. The Act compels a landlord to comply with
the enumerated requirements before disposing of a tenant's
property. In the case of a mobile home, the Act requires a
landlord to issue an "Abandoned Mobile Home Notice" in the form
promulgated by the New Jersey Motor Vehicle Commission.
Here, plaintiff served the required notice consistent with
the Act. The Act compelled defendant to state an intent "to remove
the property from the premises." Defendant never expressed an
intent to remove the mobile home. Rather, defendant sent a letter
"contest[ing]" plaintiff's abandoned property notice. Defendant
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had seventy-five days from the date of the notice within which to
remove his mobile home. Defendant's failure to remove his mobile
home within the time provided under the Act resulted in his
property being "presumed to be abandoned." N.J.S.A. 2A:18-76.
In opposing a motion for summary judgment, the non-moving
party is required to present competent evidence raising genuinely
disputed issues of material fact. Merchs. Express Money Order Co.
v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 2005),
(holding summary judgment cannot be defeated by "speculation,"
"fanciful arguments" or "disputes as to irrelevant facts"). We
agree with the motion judge that defendant's reliance on hearsay
testimony and speculation in support of his counterclaim and third-
party complaint was legally insufficient to defeat the summary
judgment motion.
We also agree with the judge's determination on the issue of
counsel fees. There is ample support in the record that plaintiff
was entitled to attorneys' fees and costs under Metpark's rules
and regulations. Based on the certifications filed in support of
the requested fee award, the judge assessed the legal tasks
performed by counsel and the time expended in determining the
proper fee award. We discern no basis to disturb the amount of
the fees awarded by the judge as defendant did not object to
plaintiff's requested sum.
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Affirmed.
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