August 13, 2010
MICHAEL OKPOR, PLAINTIFF-APPELLANT,
RALPH DIFABIO AND CHAMPION TRUCKS, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. SC-21287-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2010
Before Judges Rodríguez and Reisner.
Plaintiff Michael Okpor appeals from the May 26, 2009 order dismissing his complaint against Ralph DiFabio and Champion Trucks, and granting Champion's cross-claim for storage, counsel, and frivolous litigation attorney's fees pursuant to N.J.S.A. 2A:15-59.1. We affirm.
These are the salient facts. In April 2005, Okpor purchased a 1990 Volvo truck, two Caterpillar engines, and one Cat Caterpillar diesel generator from Champion. From this point on, the facts are sharply contested. According to Okpor, he paid for these purchases in full one week later, with cash, but did not receive a receipt. Champion refused to deliver the purchased items. For that reason, he filed a breach of contract claim for $3,000 in the Small Claims Division of the Special Civil Part. The suit was filed on November 2, 2007.
According to Champion, the sale was conditioned on Okpor's immediate removal of the items from Champion's Camden and Blackwood storage yards. The agreed price was $1,100. Okpor gave a $500 deposit. The balance was never paid. Okpor did not remove these items. The scrap metal began to leak. Okpor refused to remove the items or pay the balance. Champion removed them from its storage yards. After Okpor filed this action against Champion and DiFabio, the latter answered and counterclaimed for storage fees and frivolous litigation costs.
The procedural history is tortuous due to Okpor's failure to appear in court for trial or to generally follow court procedure. He moved successfully to remove the matter to the Special Civil Part's regular calendar, but failed to remove the action to the Law Division. He filed numerous motions, but failed to give notice to his adversary. Champion's counsel obtained a restraining order against Okpor for threatening behavior. There were three default judgments entered and numerous motions filed.
Eventually Okpor moved unsuccessfully to recuse Judge Lee B. Laskin, who then proceeded to conduct a trial. Okpor's complaint was dismissed when he refused to present any proofs. Judge Laskin heard DiFabio's testimony on the counterclaim. In a May 19, 2009 oral opinion, the judge found that: Okpor breached the contract; Champion was justified in charging $35 a day for six months for storage; and Okpor's complaint was frivolous. The judge entered a judgment in favor of Champion for $6,300 in damages and $7,015 for filing a frivolous claim.
On appeal, Okpor alleges that he only received one week's notice of the trial and his witnesses were not available. He refused to testify because he thought the judge would not believe him without corroborating witnesses. He also contends the trial judge pre-judged his credibility and should have recused himself.
Okpor now appeals pro se, contending that: (a) Champion failed to show how his claim was frivolous, and thus, there was no entitlement to an attorney's fee award; (b) the judge should have recused himself; and (c) and the judge abused his discretion by refusing to grant a short adjournment of the trial. We are not persuaded.
The fact findings by the judge are supported by the proofs. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Thus they are binding on us. Ibid. It was up to the finder of facts to determine credibility and the weight to be accorded to the proofs. State v. Locurto, 157 N.J. 463, 470-71 (1999). Therefore, we have no basis to set aside the judgment.
The motion for recusal was addressed to the discretion of the judge. Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001). It was properly denied. From our careful review of the record, we find nothing which required the judge's recusal.
With respect to the adjournment, it was within the judge's discretion to grant or deny it. See State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). In light of Okpor's failure to appear twice before, we can understand the need for a short trial date. Okpor's prior behavior unnecessarily delayed the resolution of this case.
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