On appeal from the Superior Court of New Jersey, Law Division, Sp. Civil Part, Bergen County, Docket No. DC-029516-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Simonelli.
In this landlord-tenant action, defendant Richard J. Abrahamsen, a licensed New Jersey attorney, appeals from the denial of his motion for summary judgment to dismiss this matter pursuant to the entire controversy doctrine and res judicata. We affirm.
Pursuant to a lease agreement between defendant and plaintiff Englewood Professional Center, LLC, defendant began leasing commercial space in Englewood beginning September 1, 2006 at a monthly rental of $3,756.67. Defendant failed to pay rent for March, June and July 2007, and vacated the premises on September 17, 2007.
Plaintiff filed a complaint on April 3, 2008, seeking unpaid rent in the amount of $11,270.01. Defendant filed an answer on April 18, 2008. The court scheduled the trial for May 21, 2008. Plaintiff failed to appear for trial, resulting in the entry of an order dismissing the complaint. The order did specify that the complaint was dismissed with prejudice.
Plaintiff claimed that it had not received a trial notice because its attorney had moved and founded a new law firm at a new address. Upon discovering the dismissal, instead of moving to vacate, plaintiff filed a second complaint on October 6, 2008, which was identical to the first complaint.
Defendant filed a motion for summary judgment, arguing that the entire controversy doctrine and res judicata barred the second complaint. The trial judge denied the motion, finding no bar to the second complaint because the first complaint had been dismissed without prejudice. After a bench trial, the judge found defendant liable for the unpaid rent and entered judgment against him for $11,345.01 plus costs.
On appeal, defendant argues that the entire controversy doctrine and res judicata bar the second complaint, and thus the trial judge erred in denying his summary judgment motion. We have considered defendant's argument in light of the record and applicable law, and conclude that the argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make the following comments.
The original dismissal was clearly without prejudice. Plaintiff's conduct did not rise to the level of conduct that would have justified a dismissal with prejudice. See Connors v. Sexton Studios, 270 N.J. Super. 390, 393 (App. Div. 1994) (holding that dismissal of a complaint for failure to appear should be without prejudice absent "egregious conduct"). Also, there was no adjudication of plaintiff's claims on the merits until trial.
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