NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4428-06T34428-06T3

JOHN LONGO,

Plaintiff-Respondent,

v.

FLORENCE TOLLGATE CONDOMINIUM

ASSOCIATION,

Defendant-Appellant.

________________________________

DONNA PROVENZANO, DOCKET NO. A-4429-06T3

Plaintiff-Respondent,

v.

FLORENCE TOLLGATE CONDOMINIUM

ASSOCIATION,

Defendant-Appellant.

________________________________________________________________

Submitted February 14, 2008 - Decided

Before Judges Lisa and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Burlington County, Docket Nos. SC-2294-06 and SC-2293-06.

Robert A. Gleaner, P.C., attorney for appellant in A-4428-06T3 and A-4429-06T3 (Thomas M. Herdelin, on the brief).

John Longo, respondent pro se in A-4428-06T3.

Donna Provenzano, respondent pro se in A-4429-06T3.

PER CURIAM

In these back-to-back appeals, consolidated for the purposes of this opinion, defendant, Florence Tollgate Condominium Association, challenges final judgments entered on April 3, 2007 in the Special Civil Part in favor of Donna Provenzano in the amount of $2,112, and John Longo in the amount of $1,017. We affirm.

Longo and Provenzano purchased condominiums at the Florence Tollgate Condominiums and were charged capital contribution fees at that time. In the aftermath of our decision in Micheve, L.L.C. v. Wyndham Place at Freehold Condominium Ass'n, 381 N.J. Super. 148 (App. Div. 2005), certif. denied, 186 N.J. 256 (2006), in which we declared such assessments violative of the Condominium Act, N.J.S.A. 46:8B-1 to -38, Longo and Provenzano sued defendant for a return of the assessments they paid. Longo and Provenzano, as well as two other similarly situated plaintiffs, all acted pro se, and all of their cases were tried together on January 4, 2007.

All four plaintiffs testified to the exact amount each paid at the time they purchased their units. When each was asked whether they had documentation to corroborate their payment, each responded in the same manner, namely that they did not have documentation with them, but they could easily produce it. The main thrust of defendant's contention at trial was that the assessments in dispute were distinguishable from those in Micheve. There was really no dispute about the amounts assessed against each plaintiff, which were calculated as three times the monthly dues they each paid. Defendant produced no evidence contradicting the testimony of each plaintiff that he or she had paid the amount claimed.

At the conclusion of the trial, the judge found that the Micheve holding was controlling and that defendant's assessment for the capital contributions was illegal. However, the judge further found that plaintiffs' proofs of damages were deficient for failure to produce documentary evidence to prove the payments made. When plaintiffs asked whether they could bring the documents to court, the judge answered in the negative, telling them the case was "finished" and they could appeal within forty-five days. The judge entered judgment dismissing the complaints with prejudice.

Twenty-two days later, Longo and Provenzano filed a motion seeking to amend the judgment or reopen the case. They attached photocopies of checks and settlement sheets which corroborated the amounts paid. Over defendant's objection, the judge granted their motions, vacated the judgments previously entered, and set the matter down for plenary hearing to determine damages. After that hearing on April 3, 2007, judgments were entered in favor of Longo and Provenzano for the amounts we set forth at the outset of this opinion.

Defendant's sole argument on appeal is that the judge erred in granting plaintiffs' motions to reopen the case. The judge explained the reason for granting the motions thusly:

The relief granted under 4:50-1(f) is granted in exceptional circumstances; its nature is such that it defies specific boundaries. Court Invest. Co. v. Perillo, 48 N.J. 334, 341 (1966). The movant must show that the circumstances are exceptional and that enforcement of the order or judgment would be unjust, oppressive or inequitable. Lawson Mardon Wheaton, Inc. v. Smith, 160 N.J. 383, 404-07 (1999). The boundaries of subsection (f), "are as expansive as the need to achieve equity and justice." Mancini v. EDS, 132 N.J. 330, 336 (1993).

In the present matter, it is appropriate to give relief. Plaintiffs appeared pro se, and while they are still required to comply with the same court rules and burdens of proof, the court should grant more leeway to pro se plaintiffs. See Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982) (explaining that court should have adjourned a motion when defendant appeared on the return date when, stating he believed [] no written response was required and he thought he could orally argue the motion on the return date).

The courts are to apply the rules to avoid inequitable and unjust results. Tenby Chase Apartments v. NJ Water Co., 169 N.J. Super. 55, 59 (App. Div. 1979). Here, the court determined that the actions of the defendant were not allowed under N.J.S.A. 46:8B-17, as interpreted in the Micheve decision. Therefore, the court has determined that defendant's are liable to plaintiffs for their claims. However, plaintiffs made a mistake in not believing they would have to show the amount they paid in order to get recovery of same. This was an honest mistake, made by self-represented litigants, and the application of Rule 4:50-1(a) and (f) is appropriate.

In light of the foregoing, the court will reopen the order with respect to the issue of damages only, pursuant to Rule 4:50-1(a) and/or (f). However, it is inappropriate for the court to enter judgment without giving defendant an opportunity for a hearing as to plaintiff's claimed damages. As such, this matter will be set for a hearing at which time the plaintiff[]s may be given the opportunity to prove their damages.

Trial judges are afforded broad discretion in ruling on motions to reopen a judgment, guided by principles of equity. F.B. v. A.L.G., 176 N.J. 201, 207 (2003). We will not interfere in the absence of a "clear abuse of discretion." Ibid. Considering all of the circumstances here, we have no hesitancy in concluding that the reopening of this judgment did not constitute a mistaken exercise of discretion. Defendant's argument to the contrary lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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A-4428-06T3

March 5, 2008