DANIEL SHAFFER v. TINY BLESSINGS II, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4442-04T54442-04T5

DANIEL SHAFFER,

Plaintiff-Appellant,

v.

TINY BLESSINGS II, MYRIAM &

ELIAS SANTIAGO,

Defendants-Respondents.

_____________________________________

 

Submitted October 6, 2005 - Decided

Before Judges Wefing and Graves.

On appeal from Superior Court of New

Jersey, Law Division-Special Civil Part,

Essex County, No. LT-40289-04.

Pearce Fleisig, attorneys for appellant

(Randy T. Pearce, on the brief).

Respondents did not participate in this

appeal.

PER CURIAM

Plaintiff Daniel Shaffer appeals from a trial court order dismissing his complaint seeking to dispossess his tenant. Defendant tenant has not participated in the appeal. After reviewing the record in light of contentions advanced on appeal, we reverse.

This is one of several appeals plaintiff landlord has brought to this court. One appeal has recently been decided. Shaffer v. Tiny Blessings, No. A-1698-04 (App. Div. December 8, 2005). We are informed that another appeal is also pending.

Tiny Blessings is a child care center operated by Myriam and Elias Santiago at premises owned by plaintiff under a lease dated February 1, 2002. It is clear that the relationship between the parties has not been smooth.

On July 22, 2004, plaintiff filed a complaint in the landlord-tenant division of the Special Civil Part to evict defendant for non-payment of rent. Plaintiff alleged in his complaint that defendant owed more than $46,000 in rent and more than $2,000 for water and electric charges, together with bad check fees of $150. According to plaintiff, that matter was tried to conclusion, but eviction was denied because plaintiff had not provided notice in accordance with the requirements of the lease.

Plaintiff provided defendant with the requisite notice and, when the deficiency in rent was not cured, filed a second dispossess complaint with the landlord-tenant division of the Special Civil Part. By the time the second dispossess complaint was filed, plaintiff alleged the amount due had increased to $52,636.45. This second action was tried to conclusion before another judge who denied possession on several grounds. That is the subject of A-1698-04, in which we reversed the determination of the trial judge and remanded the matter, with directions to enter a judgment of possession. In that appeal, we could not determine from the record before us the exact amount of the deficiency, and we directed that the amount should be determined on remand, following a hearing, if necessary.

After plaintiff was unsuccessful in obtaining relief in the second proceeding, he again sought to obtain possession. In addition to filing a notice of appeal, he provided defendant with another Notice of Termination and Demand for Delivery of Possession and then filed a third action for possession of the premises, based not upon non-payment of rent, but upon breach of covenant. The breaches asserted were the tenant's continued late payment of rent and failure to have separate utility meters installed, as required by paragraph ten of the lease. According to plaintiff, of the thirty-two months defendant had occupied the premises, it had been late with its rent thirty-one times.

This third matter was heard by the judge who had handled plaintiff's second complaint and had denied possession. The judge dismissed the complaint, finding that it was barred by the entire controversy doctrine. The judge held that plaintiff was barred from bringing this third action because he should have joined the allegation of a breach of covenant by the tenant in the earlier action.

We are satisfied the trial judge erred in applying the principles of the entire controversy doctrine to this action. It is unnecessary in this opinion to trace the evolution of the entire controversy doctrine to which our courts have been firmly committed for many years. Olds v. Donnelly, 150 N.J. 424, 431-34 (1997). The doctrine is equitable in nature and will not be applied if to do so would be unfair in the totality of the circumstances and would not serve the underlying purposes of the doctrine, the promotion of conclusive determinations, party fairness and judicial economy. K-Land Corp. No. 28 v. Landis Sewerage Auth., 173 N.J. 59, 74-75 (2002).

The doctrine is now incorporated in our court rules, R. 4:30A. Although the rules contain no specific exemption from R. 4:30A for proceedings in the Special Civil Part, Luppino v. Mizrahi, 326 N.J. Super. 182 (App. Div. 1999), R. 4:30A does specifically provide that it is inapplicable to summary actions.

An example may be found in Levchuk v. Jovich, 372 N.J. Super. 149 (Law Div. 2004), in which the trial court refused to apply the entire controversy doctrine to an executor's action seeking a return of monies obtained by the decedent's caregiver at a time the decedent was allegedly mentally incompetent. Defendant asserted that return of the monies should have been sought in connection with the probate proceedings, but the trial court disagreed, noting the summary nature of probate proceedings. Id. at 158.

An eviction action between a landlord and a tenant is summary in nature and, in our judgment, it would not serve the purposes of the entire controversy doctrine to apply it without exception to such proceedings. We recognize the concerns expressed by the trial judge that at some point it might become unfair for a landlord to file successive dispossess actions upon successive grounds. A court, however, retains an inherent power to prevent such harassment were it to occur. We see nothing in the matter before us which would support a conclusion that this landlord was intentionally withholding claims for possession to obtain an unfair advantage over his tenant.

The alternate grounds put forth by the trial judge to support his dismissal of plaintiff's complaint was that the grounds asserted in this complaint were so intertwined with the issues decided in the earlier matter and then on appeal that he lacked jurisdiction. Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 376 (1995). We need not address that issue in light of the fact that the appeal to which the trial judge referred has been concluded and the matter remanded for further proceedings.

 
Reversed.

(continued)

(continued)

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A-4442-04T5

December 13, 2005