August 10, 2010
NELSON AND JOAN FERNANDES, PLAINTIFFS-APPELLANTS,
SPARTA TOWNSHIP COUNCIL, SPARTA TOWNSHIP MANAGER, SPARTA TOWNSHIP ENGINEERS, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3162-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 16, 2010
Before Judges Messano and LeWinn.
Plaintiff Nelson Fernandes appeals from the January 30, 2009 order that dismissed his complaint with prejudice. The same order provided that any "further pleadings involving the subject matter of th[e] lawsuit," as well as two earlier lawsuits filed by plaintiff, "w[ould] result in a review by the Assignment Judge . . . for disposition.*fn1 Plaintiff's subsequent motion for reconsideration was denied, and that order is also the subject of this appeal.
This is plaintiff's third lawsuit against the Township Council of Sparta, its manager and its engineer (collectively, defendants), all involving the same dispute. His first complaint filed in 1999, alleged various theories of recovery against defendants and the New Jersey Department of Environmental Protection, and centered on plaintiff's claims regarding property he owned in the Lake Mohawk Country Club section of Sparta.*fn2 In a comprehensive written decision that accompanied his July 21, 2004 order, Judge B. Theodore Bozonelis, A.J.S.C., dismissed plaintiff's complaint after trial. Plaintiff filed two motions for reconsideration. They were both denied by Judge Bozonelis.
Plaintiff appealed. He sought a stay and remand to the trial court so that he could assert various theories for relief pursuant to Rule 4:50-1. Alternatively, he requested that we exercise original jurisdiction and grant him the requested relief. Essentially, plaintiff's brief contended that Sparta's attorney had "committed fraud on the court," that Judge Bozonelis "made [himself] a party to Sparta's fraud on the court," that the judgment was "void on its face," and Judge Bozonelis "exceeded [his] jurisdiction in reaching the merits" of the litigation.
We ordered plaintiff to produce the transcripts of the various hearings below. He failed to do so, and, on September 27, 2005, we dismissed his appeal. Plaintiff's petition for certification was denied by the Supreme Court, Fernandes v. Sparta Twp. Council, 186 N.J. 255 (2006), which also denied his motion for reconsideration.
Plaintiff filed another lawsuit against defendants on April 20, 2006. It is fair to say that the second lawsuit alleged most, if not all, of the things plaintiff alleged on appeal regarding Sparta's counsel's "fraud" and Judge Bozonelis's errors. The relief plaintiff sought in his complaint was the vacation of the July 21, 2004 judgment, recusal of Judge Bozonelis, disqualification of Sparta's counsel, amendment of his complaint, and a "new trial."
Sparta moved for summary judgment, and, in a written opinion that accompanied his order, Judge Bozonelis dismissed plaintiff's complaint. The judge determined that plaintiff's second complaint was "barred by the doctrine of res judicata, . . . by the doctrine of collateral estoppel . . . and by the doctrine of the entire controversy as to preclusion of omitted claims now being raised . . . ." The judge further noted, "[r]esort to R. 4:50 may not be used as a substitute for appeal as plaintiff attempts herein," citing our opinion in In Re Estate of Schifftner, 385 N.J. Super. 37, 43 (App. Div. 2006), certif. denied, 188 N.J. 356 (2006).
Plaintiff appealed. We affirmed dismissal of the complaint, "substantially for the reasons stated by Judge Bozonelis . . . ." Fernandes, supra, (slip op. at 3-4). We denied plaintiff's motion for reconsideration. Plaintiff's petition for certification was again denied, Fernandes v. Sparta Twp. Council, 192 N.J. 599 (2007); his motion for reconsideration was also denied, by the Supreme Court. Plaintiff's petition for a writ of certiorari was denied by the United States Supreme Court.
On October 27, 2008, plaintiff filed a third complaint. It was a virtual copy of the second complaint, again asserting claims of fraud by Sparta's counsel, that the 2004 judgment was "void," that Sparta's counsel and the judge should be disqualified, and that his original complaint should be reinstated. Two days later, plaintiff filed an amended complaint seeking the same relief, and further, that he be permitted to file a late notice of claim under the Tort Claims Act, N.J.S.A. 59:1-2 to 12-3.
Sparta sought summary judgment; Judge Bozonelis granted that motion, and, in a short statement of reasons that accompanied the order under review, he again determined that plaintiff's complaint was barred by res judicata, collateral estoppel, and the entire controversy doctrine. Plaintiff moved for reconsideration. On March 20, 2009, Judge Bozonelis denied that motion, and this appeal followed.
We subsequently granted defendants' motion for a temporary remand so that their fee application pursuant to Rule 1:4-8 could be heard. On June 19, 2009, the judge entered an order granting defense counsel fees and costs. Plaintiff moved for direct certification to the Supreme Court; that application was denied.
With the exception of his argument that Judge Bozonelis "abused his discretion on the sanction issue," plaintiff's arguments on appeal are substantially the same he advanced in his prior appeals, and which we addressed in our prior opinion. Regarding the dismissal of plaintiff's third complaint, once again we affirm substantially for the reasons stated by Judge Bozonelis. Plaintiff's claims "are without sufficient merit to warrant [any further] discussion . . . ." R. 2:11-3(e)(1)(E).
Regarding the sanctions imposed by Judge Bozonelis, plaintiff only challenges the award of fees and costs contained in the June 19 order, not that part of the prior order that required any future filings regarding the subject matter of this litigation to be reviewed by the Assignment Judge or his designee "for disposition."
As to the fees and costs assessed, we reject plaintiff's arguments because they lack sufficient merit. See R. 2:11-3(e)(1)(E). Judge Bozonelis did not mistakenly exercise his discretion in awarding defendants counsel fees and costs pursuant to Rule 1:4-8 based upon the continued, frivolous litigation plaintiff has pursued.