PHILIP E. HAHN v. DENNY WIGGERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0217-10T3

PHILIP E. HAHN,

Plaintiff-Appellant,

v.

DENNY WIGGERS and

KELLY POPEK,

Defendants-Respondents.

__________________________________

Argued July 12, 2011 Decided July 25, 2011

Before Judges R. B. Coleman and Ashrafi.

On appeal From Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-027071-09.

Philip E. Hahn, appellant, argued the cause pro se.

Respondents have not filed a brief.

PER CURIAM

Plaintiff Philip Hahn appeals from an April 27, 2010 judgment following trial dismissing with prejudice his Special Civil Part complaint, and a July 27, 2010 order denying his motion for reconsideration. We reverse and remand for reinstatement of the complaint on a jury trial calendar.

Plaintiff filed a pro se complaint against defendant Denny Wiggers. The handwritten factual allegations of the complaint stated in full: "The defendant failed to honor an oral contract where the plaintiff paid $850.00 rent for one months rent at [a street address], Paramus, NJ, 07652." Plaintiff sought $538.33 in damages, plus interest and costs. The complaint also included the notation "Jury Demand." Plaintiff paid the required filing and service fees for the complaint plus an additional fee of $50 for a jury trial in the Special Civil Part. See R. 6:1-1(c); R. 6:5-3(a).

One month later, before any responsive pleading was filed, plaintiff filed an amended complaint naming Kelly Popek as an additional defendant. See R. 4:9-1; R. 6:3-1. The amended complaint contained the following handwritten allegations:

Kelly Popek denied plaintiff access to [a street address], Paramus, NJ 07652 in breach of an oral contract to provide 30 days of lodging in exchange for $850.

As a result of Kelly Popek denying the plaintiff access to [a street address], Paramus, NJ the plaintiff suffered a loss of $538 in lost rent money.

The plaintiff seeks the lost rent money & costs associated with retrieval of the lost rent money.

Plaintiff states that the amended complaint and summonses were served upon Wiggers and Popek.

Popek filed an answer in which he wrote by hand: "I am a tenant in the house and not the owner of the property, Denny Wiggers is the owner. Therefore I don't own [sic] any money to the plaintiff." Wiggers never responded to the summons and complaint. Plaintiff filed a request for entry of default judgment against Wiggers. He stated in a certification of proof that Wiggers owed him $583 and court costs of $89.1

Plaintiff and defendant Popek appeared before a judge of the Special Civil Part on April 27, 2010. Wiggers was not present. The court swore in both parties to testify. A brief colloquy followed, in which the court asked a number of questions, almost entirely directed to plaintiff.

Plaintiff said he had given a check for $850 as one month's rent to Wiggers and moved into a house in Paramus that he believed Wiggers owned. He had a bedroom and apparently use of other parts of the house. About a week later, plaintiff had an argument with Popek about a television remote control, and he called the police. The police told plaintiff he should not stay at the house that night, and he left. When he tried to return a day or two later, Popek prevented him from entering the house.

After that very brief testimony in response to the court's questions, and only one or two statements on the record from Popek, the court dismissed plaintiff's complaint against both Popek and Wiggers. The court stated that Wiggers had "nothing to do with that remote control incident" and that plaintiff failed to prove Wiggers breached the rental agreement. The court analogized plaintiff's allegations against Wiggers to cases involving uninhabitability of residential premises. See Marini v. Ireland, 56 N.J. 130 (1970). The court stated the premises were not uninhabitable on the ground that plaintiff did not have use of the remote control. With respect to Popek, the court stated plaintiff's claims that Popek had threatened physical harm to him might be appropriately considered by means of a harassment complaint in municipal court but were not appropriate in a suit for damages.

The court entered a judgment stating that the case had been "tried without jury" and "dismissed." In the next several months, the court entered two post-trial orders for which we have not been provided any record other than the orders: (1) a June 2, 2010 order denying plaintiff's motion for reconsideration "based on Plaintiff's own admission during trial whereby Plaintiff stated that Defendant Denny Wiggers has nothing to do with the case," and (2) a July 27, 2010 order denying reconsideration a second time and stating that "[t]he Court reviewed all the evidence before it and considered Plaintiff's argument before denying Plaintiff's motion to vacate the dismissal Ordered on 4/27/10."

Plaintiff filed a notice of appeal from the July 27, 2010 order and the "entire judgment." We now reverse because plaintiff was entitled to a jury trial, or proper alternative proceedings in conformity with the rules of court. He made a demand for a jury trial in his initial pleading and paid the required fee. The court should not have proceeded to try the case without a jury unless plaintiff and the non-defaulting defendant waived a jury.

Furthermore, the bench trial was conducted in summary fashion without giving plaintiff an opportunity to present his case. Plaintiff answered the court's several questions, but he was not asked to present his proofs, either through his own testimony or through questioning of Popek. In effect, the court converted a Special Civil Part case with a jury demand into summary proceedings, without a motion being made by either party, and then it determined that both defendants were entitled to judgment dismissing plaintiff's complaint.

In appropriate circumstances, the court might dismiss a pleading under the relaxed rules applicable to cases within the monetary limits of the Small Claims Section. See N.J.R.E. 101(a)(2)(A); R. 6:1-2(a)(2); R. 6:11. The court may determine that a complaint does not state a cause of action or that a plaintiff is not entitled to judgment even if all the facts alleged are proven. But the court must proceed cautiously in making such a ruling so that it does not prevent a plaintiff from presenting his claims and being heard. Before dismissing a frivolous or unsupported claim cognizable as a Small Claims complaint, the court should consider plaintiff's pleading under the same liberal and generous standards applicable to a motion under Rule 4:6-2(e) to dismiss a complaint for failure to state a claim upon which relief may be granted.

Under that rule, courts search the allegations of the pleading in depth and with liberality to determine whether a cause of action is "'suggested' by the facts." Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). Dismissal is appropriate if the complaint states no basis for relief and further proceedings would not provide one. Camden County Energy Recovery Assoc., L.P. v. N.J. Dep't of Envtl Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd, 170 N.J. 246 (2001). The court must assume that plaintiff can prove the facts alleged in his complaint. See Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 625-26 (1995).

On appeal, our standard of review is plenary from a trial court's dismissal of a pleading pursuant to Rule 4:6-2(e). Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div)., certif. denied, 185 N.J. 297 (2005). We owe no deference to the trial court's conclusions.

In this case, plaintiff made sufficient allegations against Wiggers of breach of a rental contract. He alleged he paid $850 for one month's rent but had access to the premises for only part of the month. Although it was another tenant, Popek, who denied him access, Wiggers could be held liable for failing to provide premises free of other tenants who interfered with plaintiff's quiet use and enjoyment. It was not the lost use of the remote control for which plaintiff sought recovery of $538 of his rent money; it was the loss of access to the house and the room he rented. In the absence of a defense by Wiggers, or evidence that plaintiff was personally responsible for being denied use of the premises, the court should have considered plaintiff's proofs and entered default judgment against Wiggers for the amount of unearned rent plus costs.2

Plaintiff's complaint also stated a viable cause of action against Popek namely, that Popek tortiously interfered with his enjoyment of his rental contract with Wiggers. See Printing Mart, supra, 116 N.J. at 750; Harris v. Perl, 41 N.J. 455, 461 (1964). The court should not have dismissed the complaint against Popek merely on the ground that Popek was not an owner of the property and did not receive the rent money.

We express no view as to whether plaintiff can prove his claims in a contested case. We disagree, however, with the trial court's legal conclusion that Popek could not be sued for money damages if he harassed plaintiff or otherwise wrongfully interfered with plaintiff's enjoyment of a contractual right to occupy the premises.

On remand, the court must grant plaintiff his right to a jury trial against Popek unless it follows appropriate procedures either in dismissing his complaint under the rules of court or obtaining the parties' voluntary waiver of trial by jury.

Reversed and remanded. We do not retain jurisdiction.

1 The $583 could be an inadvertent transposition of digits, since plaintiff's complaint states he was owed $538 in rent money.

2 Plaintiff's certification also stated that Wiggers had personally told him he was not in the military service.