On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-7769-02 and L-8698-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Grall and Chambers.
Plaintiff Chadwick-Greene Agency is the management agent and landlord for commercial property in Upper Saddle River leased to defendant Thermion Technologies, Inc. (TTI), under a lease and extension agreement executed by defendants Otis and June Hastings as principals of TTI.*fn1 On a prior appeal, this court affirmed an order of February 13, 2004, granting partial summary judgment in favor of Chadwick-Greene Agency and awarding possession of the property and a sum of $185,283.37, which was the total amount of rent, pro-rated taxes and insurance, late fees and interest defendants owed under the lease as of January 10, 2004. The order reserved for trial the question of damages for costs, expenses and other obligations under the lease agreement, including counsel fees, subject to any right to offset that Hastings and TTI might establish.*fn2 Although the appeal was interlocutory and defendants filed a notice of appeal without leave, this court addressed the merits and affirmed the order in an opinion dated May 25, 2005. Following this court's decision, Judge Moses conducted a proof hearing on the question of damages, which had been reserved for trial by order of February 13, 2004. Defendants now appeal from the order entered following the proof hearing, which fixes additional damages.*fn3
Although defendants were represented by counsel at the proof hearing, they did not present testimony or introduce evidence. The proof hearing was held on June 8, 2005. Prior to entry of the judge's decision, defendants filed an action for bankruptcy. On January 17, 2006, the United States Bankruptcy Judge entered an order granting relief from the automatic stay, which authorized Judge Moses to enter her ruling on the question of damages tried before her on June 8, 2005. For reasons stated in a letter opinion dated April 7, 2006, and final order of April 28, 2006, amending the April 7, 2006, decision and entering judgment, Judge Moses fixed damages including counsel fees and costs, in the amount of $480,705.83. That order was entered on April 28, 2006.
On this appeal, defendants raise two arguments as required by Rule 2:6-29A)(5):
I. Summary Judgment was improper at Law and in Fact.
Appeal [from the] April 28, 2006, Order of Final Judgment and Amending the Courts Decision of April 7, 2006.
AND Order Pursuant to [Rule] 4:46 Summary Judgment dated February 13, 2004.
II. Summary Judgment was impropre[sic] by collusion, fraud and improper influence between attornies [sic] and certain parties against Hastings/TTI.
We have considered the issues presented and find no basis for disturbing the orders. The arguments lack sufficient merit to warrant more than brief comment in a written opinion.
R. 2:11-3(e)(1)(E). We cannot reconsider the order of February 13, 2004, granting summary judgment; the parties and this court are bound by our prior decision affirming that order. See State v. Myers, 239 N.J. Super. 158 (App. Div. 1990), certif. denied, 127 N.J. 323 (1992). Our review of the record of the subsequent hearing on damages convinces us that Judge Moses's determination is based on findings of fact that are adequately supported by the record. R. 2:11-3(e)(1)(A); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).
On October 19, 2007, after this case was listed for submission to this panel on December 11, 2007, defendants filed a motion. We held that motion for determination in this opinion. On November 7, 2007, defendants filed an additional letter in support of the motion. As we understand the submissions, defendants sought to expand the record relevant to the order of February 13, 2004, granting summary judgment, and to submit ...