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Davis v. Riverview Towers


March 26, 2009


On appeal from the Superior Court of New Jersey, Special Civil Part, Camden County, Docket No. SC-001150-07.

Per curiam.


Argued February 25, 2009

Before Judges Fisher and C.L. Miniman.

Plaintiff, acting pro se, filed a handwritten small claims complaint, seeking $3000 in damages from defendant. She alleged she was a resident of her mother's apartment in the premises owned by defendant; when her mother went to the hospital for her final illness, defendant locked plaintiff out of the apartment.

Plaintiff's complaint alleged pain and suffering and the loss of her personal property.

At trial, defendant sought dismissal, arguing that plaintiff's complaint failed to state an actionable claim because plaintiff was not the named tenant on the lease; the lease, however, was not provided to the trial judge and no decision was rendered on this point. Instead, the parties and the trial judge engaged in a colloquy concerning the need for input from the estate of plaintiff's mother. This discussion eventually led to the adjournment of the trial.

Plaintiff apparently appeared late on the new trial date and the action (Docket No. SC-766-07) was dismissed. Rather than seek reinstatement, plaintiff filed a new small claims complaint (Docket No. SC-1150-07).

Plaintiff appeared on the trial date scheduled in the second suit; defendant did not. A transcript of the calendar call reveals that the judge directed the entry of defendant's default. However, the trial court's docket entry of June 1, 2007 reveals that Per [the trial judge] Judgment on SC-1150-07 can not be entered because the previous case SC-766-07 was dismissed with prejudice. SC-1150-07 should not have been allowed to be filed per [the trial judge].

Like plaintiff, we interpret this docket entry as the functional equivalent of an order of dismissal. And, like plaintiff, we agree that her due process rights were violated by the judge's sua sponte act of dismissing the action.

We need not burden the record with any extensive explanation regarding the requirements of due process. Quite simply, a trial judge has no authority to dismiss an action, on his own motion, without giving the parties notice and an opportunity to be heard. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 657-58, 94 L.Ed. 865, 873-74 (1950); Feuchtbaum v. Constantini, 59 N.J. 167, 175 (1971). Here, after indicating at the calendar call that default would be entered against defendant, the judge --according to the docket entry -- instructed the clerk, in an off-the-record conversation, to discontinue this action. In the absence of notice and an opportunity to be heard, the judge exceeded his authority.

Lastly, we note that defendant has argued that the dismissal of the second action can be affirmed because the second action was barred by various issue and claim preclusion theories, such as res judicata and the entire controversy doctrine. We reject these arguments; the disposition of the first suit did not constitute an adjudication on the merits but was simply a dismissal for lack of prosecution because the pro se plaintiff appeared late for court.

For these reasons, we vacate the judge's sua sponte dismissal of this action, reject defendant's arguments that the action is barred because of the administrative dismissal of the first suit, and remand for a trial on the merits. We do not retain jurisdiction.


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