July 25, 2008
AFOLABI A. BABALOLA, PLAINTIFF-APPELLANT,
CONNOLLY PROPERTIES, DEFENDANT-RESPONDENT, AND KEY TOWING, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. DC-010397-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 15, 2008
Before Judges C.S. Fisher and Grall.
Plaintiff was a tenant in an apartment building in East Orange either owned or managed by defendant Connolly Properties (defendant). He filed a complaint in the Special Civil Part alleging that, on November 30, 2004, his vehicle was lawfully parked but inadvertently towed at defendant's request by defendant Key Towing Company. A judgment was entered in plaintiff's favor in the amount of $370; it appears from the handwritten judgment that half of that amount was paid by Key Towing at the time, and defendant agreed to pay the remainder at a later date. Defendant's counsel also provided plaintiff with a letter indicating that defendant did not wish to prosecute the parking summons that precipitated the suit. Plaintiff provided this letter to the prosecutor at the East Orange Municipal Court on the date scheduled for the trial of the parking summons and left the building.
On October 6, 2006, plaintiff's vehicle was stopped by a police officer in Maywood, and plaintiff was charged with operating his vehicle with a suspended license. His license had apparently been suspended as a result of what had occurred in the East Orange Municipal Court with regard to the November 30, 2004 parking ticket. Plaintiff subsequently commenced this action in the Special Civil Part seeking damages from defendant and Key Towing based on his incurring of costs and expenses in resolving the East Orange matter and in responding to the Maywood charge of driving while suspended.
Key Towing defaulted, and plaintiff's claim against defendant proceeded to trial on October 15, 2007. At trial, plaintiff testified about the circumstances that led to the settlement of the earlier suit. He also claimed that he had appeared in the East Orange Municipal Court at the appropriate time and provided the prosecutor with defendant's letter, which, as we have observed, indicated that defendant had no interest in prosecuting that matter; plaintiff testified that the prosecutor indicated he would take care of it.
Plaintiff also testified that after being served in Maywood on October 6, 2006 with a summons for driving while suspended, he learned at the East Orange Municipal Court that the parking summons had not been dismissed as he allegedly had been led to believe. As a result, he then paid what was required in East Orange and presented this information to the Maywood Municipal Court, which prompted a dismissal of the Maywood matter. Plaintiff then paid $100 to have his license restored by the Motor Vehicle Commission.
At the conclusion of the trial,*fn1 as well as during the course of the trial when ruling on defendant's motion for an involuntary dismissal, the judge concluded that the matter at hand was not barred by the results of the earlier case.
However, the judge found that the damages sought by plaintiff in this second suit were not proximately caused by defendant. That is, the judge found that defendant met all the terms of the settlement agreement entered into in the first action by paying the agreed upon amount and by providing plaintiff with a letter indicating that defendant had no interest in prosecuting the parking summons. The judge found, after hearing and considering all the evidence, that defendant owed plaintiff no other duty.
The standard we apply in reviewing the findings of fact of a judge sitting without a jury requires that we determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). In light of the judge's findings regarding the nature and content of the settlement agreement in the first action, which are fully supported by the evidence, we have no cause to second guess the conclusion that defendant fulfilled the promises contained in that settlement agreement by paying $170 and by providing its counsel's letter, which plaintiff could provide to the East Orange Municipal Court to obtain a dismissal of the parking summons. What the municipal prosecutor chose to do with the letter was out of defendant's control, and what thereafter happened occurred through no fault of defendant.
We lastly observe that plaintiff also argues that the judge improperly dismissed his claim against Key Towing. We find insufficient merit in that argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).