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Abulkhair v. Liberty Mutual Insurance

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 1, 2008

ASSEM ABULKHAIR, PLAINTIFF-APPELLANT,
v.
LIBERTY MUTUAL INSURANCE, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6411-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 15, 2008

Before Judge Grall and Chambers.

Plaintiff Assem Abulkhair was insured by defendant Liberty Mutual Insurance when he was involved in an automobile accident with an uninsured motorist on March 18, 1998. He appeals following a denial of his motion to reinstate his second complaint to compel defendant to submit the claim to arbitration in accordance with the terms of the policy. For the reasons stated below, we affirm.

Plaintiff filed this complaint in the Law Division of the Superior Court, in Bergen County, in September 2005. It was not the first complaint plaintiff filed seeking this relief based on the same facts. On March 17, 1999, he filed a nearly identical complaint in the Law Division of the Superior Court, Union County. Assem Abulkhair v. Liberty Mut. Ins. Co., No. A-5984-04 (App. Div. May 24, 2006) slip op. at 1-2, certif. denied, 188 N.J. 354 (2006), cert. denied, ___ U.S. ___ , 167 L.Ed. 2d 110, 127 S.Ct. 1294 (2007). The issues raised on this appeal cannot be understood without reference to the procedural history relevant to both the Union County and Bergen County complaints.

The Union County complaint, filed in March 1999, was eventually referred to arbitration. Plaintiff was awarded $18,000. Id. at 3. Dissatisfied with the award, plaintiff sought trial de novo. Ibid. The case was restored to the active calendar and scheduled for trial. Ibid. On July 6, 2004, the complaint was dismissed, without prejudice, on the condition that defendant waive the statute of limitations defense and plaintiff retain an attorney and file a new complaint within sixty days. Id. at 3-6.

Plaintiff subsequently filed a motion to vacate the July 6, 2004, order dismissing the Union County complaint; that motion was denied on October 8, 2004. Id. at 6. His motion for reconsideration of the order of October 8, 2004, was denied on January 1, 2005. Id. at 6-7. His motion to vacate the order of dismissal was denied on June 10, 2005. Id. at 7. Following the order of June 10, 2005, plaintiff filed a notice of appeal with this court.

Plaintiff filed the Bergen County complaint on September 14, 2005, while his appeal from the order denying his motion to vacate the dismissal of his Union County complaint was pending before this court. Id. at 7 n.1. On December 16, 2005, the trial judge dismissed the Bergen County complaint, without prejudice, because the appeal from the Union County case was pending before this court.

This court issued its decision on the appeal from the Union County case on May 24, 2006. We concluded that the order of July 6, 2004, which dismissed the Union County complaint without prejudice and subject to the condition that a new complaint be filed within sixty days, was the result of the judge's effort to be "very accommodating to plaintiff." Id. at 8. The conditions imposed "[gave] plaintiff one last opportunity to retain yet another attorney" to try the case. Id. at 9. Noting that plaintiff had not filed a new complaint within the sixty-day period, we affirmed the order of June 10, 2005, which denied plaintiff's request to vacate the order of dismissal due to his delay. Id. at 10. We held that because plaintiff had not filed a new complaint within the limited sixty-day period, "defendant had a right to expect final repose in this protracted litigation." Ibid. The Supreme Court denied plaintiff's petition for certification, and the United States Supreme Court denied his petition for certiorari. 188 N.J. 354 (2006), cert. denied, ___ U.S. ___ , 167 L.Ed. 2d 110, 127 S.Ct. 1294 (2007).

After his unsuccessful efforts to overturn the dismissal and reinstate the Union County complaint, plaintiff attempted to resume the litigation in Bergen County. On September 22, 2006, the trial court denied plaintiff's motion to vacate the dismissal of the Bergen County complaint, which plaintiff had filed on September 14, 2005. On November 1, 2006, plaintiff filed a notice of appeal from the order of "September 22, 2006."

Plaintiff raises four issues on appeal, which we set forth as he has stated them.

I. THE 60-DAY TOLLING TO REFILE HAD BEEN LEGALLY HALTED WHEN ABULKHAIR FILED HIS AUGUST 30TH MOTION TO VACATE DISMISSAL, COUPLED WITH HIS PERSISTENCE, SUBSEQUENTLY TIMELY PURSUING THE CAUSE THAT THE APPEAL STEMS FROM, AND THEREFORE HIS BERGEN CASE WAS REFILED LEGALLY AND IN A TIMELY FASHION.

II. WHILE ABULKHAIR HAS THE ABSOLUTE RIGHT TO REPRESENT HIMSELF IN COURT, THE COURT ERRED IN DENYING HIM THAT RIGHT BY INSISTING ON MANDATING HIM TO REFILE HIS COMPLAINT WITH AN ATTORNEY, WHICH IS UNCONSTITUTIONAL.

III. ABULKHAIR IS ENTITLED TO HIS DAY IN COURT. TO DEPRIVE HIM OF HIS ABOSLUTE RIGHT TO DUE PROCESS AND EQUAL PROTECTION UNDER THE LAW IS MANIFESTLY UNJUST SINCE IT IS UNCONSTITUTIONAL.

IV. DEFENDANT'S CREDIBILITY AND HONESTY IN BALANCE.

Although plaintiff appeals from the order of September 22, 2006, he presents no argument as to how the court erred in entering that order. Although the order indicates that the judge placed his findings and reasons on the record on September 22, 2006, plaintiff has not provided a transcript of the judge's decision. The deficiency prohibits us from reviewing the order that is the subject of this appeal. See Cipala v. Lincoln Technical Inst., 179 N.J. 45, 55 (2004).

The arguments plaintiff presents on this appeal are largely based on his objections to the order of July 6, 2004, which this court addressed on plaintiff's prior appeal. Once reviewed by this court, an order is not subject to further review on a subsequent appeal. See State v. Myers, 239 N.J. Super. 158, 164 (App. Div. 1990), certif. denied, 127 N.J. 323 (1992).

Accordingly, we cannot reconsider the propriety of that order anew simply because the arguments are presented on a second appeal from an order entered in a different county on a complaint seeking the same relief on the same facts.

The Rules of Court do not permit the course of litigation that plaintiff pursued. A civil action is commenced by filing a complaint. R. 4:2-2. The rules do not contemplate simultaneous litigation of the same claim between the same parties in different counties or courts. See, e.g., R. 4:5-1; R. 4:3-1 to -4. While an appeal is pending before this court, the trial courts have limited authority to act in the matter. See R. 2:9-1(a); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 376 (1995). A trial court's limited jurisdiction during an appeal does not include the authority to proceed on a new action on the same claim. R. 2:9-1(a). Because plaintiff continued the litigation he commenced in Union County by filing an appeal with this court, he deprived the trial court of jurisdiction to accept a new complaint and could not pursue litigation on the same claim against the same party in Bergen County while that appeal was pending. See R. 2:9-1(a). After this court affirmed the order denying plaintiff's motion to vacate the dismissal of his Union County complaint and higher Courts denied review, the Union County litigation concluded. On that appeal, we held that because plaintiff did not file a new complaint within the time allotted in the order of July 6, 2004, defendant had a right "to expect final repose in this protracted litigation." Abulkhair, supra, slip op. at 10.*fn1

Because plaintiff presents no argument as to how the judge who decided that motion on September 22, 2006, erred and because that order is consistent with this court's decision on plaintiff's prior appeal, we affirm.


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