CORY BENNING v. GERALD STEVENSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5090-04T35090-04T3

CORY BENNING,

Plaintiff-Appellant,

v.

GERALD STEVENSON,

Defendant-Respondent.

_____________________________________________

 

Submitted February 1, 2006 - Decided May 5, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New

Jersey, Law Division, Special Civil Part,

Atlantic County, Docket No. DC-3365-03.

George N. Polis, attorney for appellant.

Gerald Stevenson, respondent pro se.

PER CURIAM

Plaintiff appeals from an order of April 15, 2005 which dismissed his complaint "with prejudice."

Plaintiff initiated this case seeking repossession of the premises from which he alleged he was illegally evicted by defendant's "unlawful and forcible entry and detainer," as well as compensatory and punitive damages and counsel fees. The complaint was filed in the Special Civil Part on August 2, 2002 and given docket number DC 5376-02. On December 30, 2002, Judge Joseph E. Kane entered judgment for defendant under that docket number based on findings that "the landlord did illegally lock out the tenant," but that "no proofs were submitted to substantiate any damages caused by the illegal lock." The order further provided that "[i]n consideration of the fact that the tenant waived his right to recover possession of the premises and no evidence as to monetary damages or a certification as to attorneys fees were presented to the court the plaintiff is not entitled to a money judgment."

Thereafter, plaintiff appears to have filed a second complaint, asserting the same claims. Defendant did not receive sufficient notice and failed to appear in court. Therefore, on July 3, 2003 a default "order for money judgment" for plaintiff was entered under the original docket number DC 5376-02 in the total amount of $15,727.00 (including $12,664.50 as damages for the "forcible entry," $1,125.00 for the security deposit and $1,837.50 for attorneys' fees) by Judge William C. Todd, III.

When defendant learned of the second action, he moved to vacate the default judgment against him. On February 23, 2004, an order was entered by Judge Kane, under new docket number DC 3365-03, denying plaintiff's motion to vacate the default judgment, but adding that "[w]hile this matter was filed under Docket Number 5376-02, which is a case involving these same parties, the judgment in this case was entered under Docket Number 3365-03."

Thereafter, on January 14, 2005, Judge Kane entered an order in Docket Number DC 3365-03 vacating the default and default judgment that had been entered. This enabled defendant to assert his procedural defense.

Accordingly, defendant filed a motion seeking to bar re-litigation of the claims previously dismissed. In a written "Memorandum of Decision" appended to his April 15, 2005 order, which is the subject of this appeal, Judge Kane determined that the relief sought in plaintiff's complaint was precluded by virtue of the prior litigation.

On this appeal, plaintiff argues that "the trial court misconstrued its authority in essentially overruling a fellow judge's ruling," because Judge Todd had concluded in July 2003 that "the issue of damages was never litigated" in December 2002. However, Judge Kane entered all of the orders in these two cases, including the December 2002 and April 2005 orders, except for the July 3, 2003 order entered by Judge Todd which Judge Kane subsequently vacated. In any event, given the record presented to us, including the wording of Judge Kane's December 30, 2002 order, we agree with his conclusion of April 15, 2005, and affirm substantially for the reasons stated in his "Memorandum of Decision." We add only that we do not consider the docket numbers critical to the disposition. The record would justify the April 15, 2005 order based on the order of December 30, 2002 in the absence of presentation to us of the transcript of the underlying November 2002 hearing.

Plaintiff also asserts that Judge Kane should have disqualified himself from hearing the "motion to preclude litigation." In an undated cross-motion seeking, among other things, "recusal" of Judge Kane "from hearing this case . . .

as well as from hearing any other cases involving [plaintiff's] attorney," the certification of plaintiff's counsel referred to another unrelated jury trial as evidence of Judge Kane's bias against him. In his brief before us, plaintiff's counsel merely refers to the other case "[b]y way of brief illustration (and not by way of limitation)." The record simply provides no basis for a recusal in this case.

Finally, given our disposition, there is no basis for considering plaintiff's claim for counsel fees.

Affirmed.

 

We have not been presented with a copy of a transcript of the June 18, 2003 hearing which resulted in the July 2003 order.

In his brief, plaintiff states that after the dismissal of his complaint in December 2002, "[a]nother Complaint was filed by the tenant regarding damages due [to] his improper ouster since the damages issue was never litigated." The record contain no such complaint, although Judge Kane's memorandum decision notes that it was filed on May 27, 2003. Nor does the record contain the transcript of any proceedings before the court, including the November 8, 2002 hearing resulting in the December 2002 order.

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A-5090-04T3

May 5, 2006