August 14, 2008
CONVENT MEWS ASSOCIATION, INC., PLAINTIFF-RESPONDENT,
JAMES C. BENSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-172-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 6, 2008
Before Judges R. B. Coleman and Sabatino.
This protracted matter returns on appeal following a series of motions and correspondence in the Chancery Division that ensued shortly after this court's opinion dated July 24, 2007. See Convent Mews Ass'n v. Benson, No. A-2097-06 (App. Div. July 24, 2007) (slip op. at 1). We incorporate by reference the background chronology set forth in our earlier opinion.
In essence, this matter involves a long-running dispute between plaintiff, Convent Mews Association, Inc. ("Convent Mews"), which operates a condominium facility in Morristown and defendant, pro se, James Benson, who has been a unit owner there since the early 1980's and who has been severely critical of the property's management. As we outlined in our July 2007 opinion, the parties have been embroiled in litigation since 1997, when the Chancery Division first issued restraints against defendant because of disruptive conduct aimed at the condominium board. The litigation ripened into a final judgment in July 2000, which was not timely appealed.
In June 2006, defendant moved to vacate the restraints against him, which the Chancery Division denied after finding that the restraints were still justified. We affirmed the continuation of those restraints, while noting that defendant is "not precluded from presenting changed circumstances to attempt to justify a dissolution or modification of the restraints." Id. at 5. We also thereafter awarded appellate costs to Convent Mews, but denied it counsel fees.
About a month after our July 2007 opinion, defendant filed a lengthy motion in the Chancery Division again seeking relief from the continuing restraints and also seeking monetary compensation from the Association. Convent Mews cross-moved for counsel fees and other sanctions. It also sought in its cross-motion what would be, in essence, a pre-screening provision, requiring defendant to submit any future proposed motions to the court for advance "review and determination as to whether [defendant] has made a prima facie case for the restraints to be lifted." The cross-motion also requested the Chancery Division to add a clarifying paragraph to its prior order dated July 12, 2000, which would specifically preclude defendant from "raising issues previously raised in the litigation."
After hearing oral argument Judge Langlois issued two orders on September 28, 2007, which collectively denied all of the relief sought by defendant and a portion of the relief sought by Convent Mews. In denying all relief in the form of order submitted by defendant, the judge specifically inserted a handwritten finding that "no future change of circumstances is set forth in [the] papers presented [by defendant]."
As to the companion order submitted by Convent Mews, the judge awarded it $1,895 in counsel fees, to be paid by defendant in twenty dollar monthly installments through a separate financial obligation to the condominium association. The judge also granted Convent Mews' request to amend the order of July 12, 2000, to restrain defendant more specifically from "corresponding, or contacting in any way the [condominium's] Board and/or Management, regarding 'old issues,' which shall include issues previously raised, by his pleadings in Docket Number MRS-C-172-97 and the appeals, up to and including his current motion." The judge denied Convent Mews' separate request for a motion pre-screening provision. However, the judge did attempt to reduce the volume of future motion papers by adding a proviso that any response by Convent Mews to future applications by defendant "shall be responded to by one[-]page opposition, without prejudice to [its] opportunity to respond more completely after [the court's] review of the merits."
Defendant admittedly did not file a timely appeal of the September 28, 2007 orders. Nor has he furnished this court with a transcript of the proceeding on that date which resulted in those orders, even though the ensuing events in the Chancery Division no doubt were impacted by that proceeding and whatever additional findings the judge made in open court at that time. See R. 2:5-3(a). Nevertheless, we shall review the matters before us based upon the record the parties have chosen to provide us, as best we can, without the benefit of the September 28 transcript.
Three days after appearing in court on September 28, defendant submitted a letter to the trial court and plaintiff's counsel on October 1, seeking clarification of the September 28 orders. The judge responded with a brief letter advising defendant that "[a]ll the questions you asked in your letter of October 1, 2007 were discussed on the record on September 28, 2007 to the best of my ability. I have nothing else to add. If you choose to appeal, you have 45 days."
Defendant next submitted another proposed application to the court on October 15, 2007, again requesting that the ongoing restraints be vacated. After reviewing Convent Mews' one-page opposition to that submission, the judge sent defendant another letter on October 24, 2007, which read:
The issues you raised in the submission of October 15, 2007 will not be addressed by any further trial court proceedings. Again, you bring up "unresolved issues" from the past. If you seek relief, it is not in this court now.
Thereafter, on October 31, 2007, defendant filed another formal motion to vacate the restraints, repeating his contention that he has satisfied the condition of demonstrating changed circumstances. Defendant again sought compensation. In his accompanying cover letter, defendant stated that he would not appeal the September 28 orders because he perceived that Convent Mews had not persuasively answered his claim of changed circumstances, and also because he thought it was unfair to have to file such an appeal within forty-five days while he was occupied with pursuing another motion in the trial court. Convent Mews opposed the motion, again in a one-page submission, which prompted a rebuttal submission from defendant.
On November 26, 2007, Judge Langlois issued an order denying defendant's most recent application in all respects. At the bottom of the signed order, the judge added the following language:
The court will not hear any claims of "negligence" against the Association or claims that [the] Association fails to "manage" affairs. These are past claims. The court ORDERS: (1) No Fees or compensation to [defendant] for "past injustices" [; and] (2) Arbitration is ordered (at Mr. Benson's initial payment) for future circumstances.
Defendant has now appealed the November 26, 2007 order, but not the September 28, 2007 orders.
In his present appeal, defendant has variously argued that the Chancery judge erred in failing to recognize that defendant has shown changed circumstances; that Convent Mews has continued to generate problems; that the Association has inadequate recordkeeping; that the restraints against him are unjustified; and that the trial court has generally given his contentions short shrift. Defendant also criticizes this court for failing to scrutinize his contentions adequately in the appeal that resulted in our July 2007 opinion.
Having fully considered the issues and the record presented to us, we are satisfied that the November 26, 2007 order is sound and in accordance with applicable principles of law, and that defendant's arguments on the present appeal lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). Because defendant did not timely appeal the September 28, 2007 orders specifically finding that he had not demonstrated a change of circumstances, they are binding and will not be disturbed. See R. 2:4-1; see also Alberti v. Civil Service Comm'n, 41 N.J. 147, 154 (1963). Defendant's proffered excuses for not seeking appellate review within the deadline prescribed by the Court Rules are insufficient, particularly given the trial judge's express guidance to him in her October 3 letter that he had forty-five days to appeal.
Moreover, defendant's present criticisms of aspects of our July 2007 opinion are untimely and not properly before us. As defendant did not pursue and obtain certification from the Supreme Court, our July 2007 opinion remains the law of the case. See State v. Reldan, 100 N.J. 187, 203 (1985). Additionally, under principles of res judicata, any issues that defendant could have pursued on the original appeal, whether asserted or not, may not be relitigated now. See McNeil v. Legislative Apportionment Comm'n, 177 N.J. 364, 395 (2003), cert. denied, 540 U.S. 1107, 124 S.Ct. 1068, 157 L.Ed. 2d 893 (2004).
That all being said, we do not wish to discourage the parties from attempting to achieve a peaceful resolution of future disputes, and to end their decade-long skirmishing in a constructive manner. Toward that end, we encourage the parties and the trial court to take advantage of alternative dispute resolution measures that might obviate or limit the need for continued judicial involvement.
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