CONVENT MEWS ASSOCIATION, INC. v. JAMES BENSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2097-06T32097-06T3

CONVENT MEWS ASSOCIATION, INC.,

Plaintiff-Respondent,

v.

JAMES C. BENSON,

Defendant-Appellant.

___________________________________

 

Submitted May 23, 2007 - Decided July 24, 2007

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, MRS-C-172-97.

James C. Benson, appellant pro se.

Arnold J. Calabrese, attorney for respondent (Karl T. Meth, on the brief).

PER CURIAM

Defendant James Benson appeals from the Chancery Division's November 13, 2006 order, which denied his motion to reconsider and vacate an order of September 18, 2006 as well as prior orders dating back to 1997. The orders in question impose and continue restraints upon defendant with respect to his conduct relating to plaintiff, Convent Mews Association, Inc. ("Convent Mews").

Defendant has been a unit owner in the Convent Mews condominium complex in Morristown since the early 1980s. He continues to reside there. For many years defendant has been critical of the management of Convent Mews, expressing dissatisfaction with matters such as snow removal, pet rule violations, repairs, street lighting, soil erosion, insects, wasteful expenditures and the like. Over time, defendant's relationship with the condominium's management and its Board of Trustees became very contentious. Defendant displayed his negative feelings about the condominium's operation in inappropriate ways, including alleged threats of physical violence upon Board members, the harassment of neighbors, and the disruption of Board meetings.

Consequently, in 1997 Convent Mews brought an action in the Chancery Division against defendant seeking to curtail his disruptive behavior. On September 11, 1997, the court issued temporary restraints against defendant, prohibiting him from further attending Board meetings, distributing libelous written materials about the condominium association, and having telephone or personal contact with Board members or with designated staff members. Protracted efforts to resolve the case through mediation failed. After considering additional proofs, the court entered a final judgment on July 13, 2000, which included a permanent injunction against defendant and an award of counsel fees. Defendant failed to file a timely appeal of the judgment.

In August 2002 Convent Mews filed an application in aid of litigant's rights to compel defendant to comply with the outstanding injunction. After considering defendant's opposition, the court entered an order on September 3, 2002 finding defendant in "willful violation of the [c]ourt's [o]rder dated July 12, 2000," and a related order on October 22, 2002 awarding plaintiff additional counsel fees. Neither of those enforcement orders were timely appealed.

In June 2006 defendant moved to vacate the restraints. He also sought a declaration from the court that Convent Mews had "filed false claims against [him] . . . without first determining [the] usefulness of his suggestions." Defendant also requested the court to make certain findings of impropriety concerning the manager of the premises. After considering defendant's filing, Convent Mews' opposing papers and oral argument, the court denied defendant's motion in all respects. In his ruling, the Chancery judge noted:

[Defendant] has failed to establish a factual basis for any of his claims for relief. He continues to portray himself to the court as a victim of oppressive action by the condo association, its officers and employees. In fact, the converse is established by the record. He has created situations for his own personal purposes, then complains when management rejected his ideas for running the condominium complex. His proposals are unrealistic.

Having succeeded in defeating the application, Convent Mews cross-moved for sanctions. The Chancery judge denied the cross-motion, rejecting Convent Mews' claim that defendant's assertions had been frivolous:

Although the [c]ourt has found against [defendant] on all aspects of the motion which is the focus of this cross-motion, the court finds that his assertion of[,] and argument for[,] relief was not frivolous. He was[,] and continues to be, entitled to ask the [c]ourt for relief from the permanent injunction ordered on July 12, 2000 upon a showing of changed circumstances.

The judge also rejected Convent Mews' request for additional counsel fees in aid of litigants' rights:

Plaintiff, in the alternative, has relied on Rule 1:10-3 as the basis for an award of attorney fees. Plaintiff, however, has not pointed to any specific order which [defendant] violated by filing his motion. The argument for fees fails.

Defendant then moved for reconsideration of the court's September 18, 2006 order, again seeking to vacate the long-standing restraints governing his activities with respect to Convent Mews. In the meantime, the Chancery judge who had been presiding over this matter for many years retired.

The successor Chancery Judge, Judge Langlois, heard argument on the reconsideration motion on November 13, 2006. Judge Langlois denied the motion, finding that defendant had failed to present new contentions or proofs that he could not have presented previously when his motion had been heard on September 18, 2006.

On appeal, defendant contends that the July 13, 2000 order imposing permanent restraints was "flawed [and] improper." He also argues that Convent Mews has presented "faked claims" to the court, and that it still has not improved its operation of the complex since this litigation began in 1997. He also contends that the Chancery Division has treated him unfairly and unduly prolonged the litigation.

Having fully considered the points raised on appeal and the corresponding record, we affirm. Defendant's attempt to seek review of the July 13, 2000 final judgment is untimely. See R. 2:4-1 (affording forty-five days to file an appeal of a final judgment); see also Alberti v. Civil Service Comm'n, 41 N.J. 147, 154 (1963). The judgment may not be relitigated. Brunetti v. Borough of New Milford, 68 N.J. 576, 587-88 (1975).

As the trial court correctly recognized, defendant is not precluded from presenting changed circumstances to attempt to justify a dissolution or modification of the restraints. See R. 4:50-1; see also Nat'l Inst. for Rehab. Eng. v. Fenton, 146 N.J. Super. 434 (App. Div. 1976). However, we affirm the trial court's determination that defendant has failed thus far to demonstrate sufficient new facts that would warrant such relief.

We are unpersuaded by defendant's contentions that he was treated unfairly by the two judges who heard his case, and that the court unduly delayed addressing his claims on the merits. The denial of Convent Mews' most recent cross-motion for counsel fees--and the court's related finding that defendant's substantive arguments, while insufficient to prevail, were not frivolous--reflects what is apparent throughout this decade-long litigation: that the Chancery Division gave fair consideration to defendant's proofs and to the equities of his circumstances. We also note that the delays in hearing the merits were largely attributable to the court's laudable efforts, consistent with the policies under R. 1:40, to attempt to resolve or narrow the parties' disputes through complementary dispute resolution mechanisms.

We are equally satisfied that the motion for reconsideration was properly denied because of defendant's failure to present new facts or controlling legal authority that could not have been presented in the first instance. See R. 4:49-2; Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996).

Defendant's remaining arguments, concerning alleged flaws in the court's July 13, 2000 order, the imposition of injunctive relief, the alleged lack of a "plan" to bind the litigants, the imposition of attorneys fees, the alleged "faked claims," the prolongation of the litigation, and the alleged lack of improvement in the condominium, all lack sufficient merit to be discussed in this opinion. R. 2:11-3(e)(1)(E).

Although we appreciate defendant's desire to improve the quality of life in the condominium community in which he resides, we discern no basis to set aside the orders that regulate, because of his past indiscretions, the manner in which he can raise his criticisms and suggestions. We thus affirm the orders of September 18 and November 13, 2006, without prejudice to defendant's right to renew a motion for relief in the Chancery Division, upon a proper future showing of changed circumstances.

Affirmed.

 

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A-2097-06T3

July 24, 2007