On appeal from Superior Court of New Jersey, Law Division, Civil Part, Ocean County, Docket No. L-1981-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 2010
Before Judges Messano and Waugh.
Plaintiff Carl Schmidt appeals the dismissal with prejudice of his multi-count complaint against defendant Debra Steele. We affirm.
We discern the following facts and procedural history from the record.*fn1 Schmidt and Steele once had a romantic relationship. According to Schmidt, they entered into various financial arrangements during that relationship, including the sharing of household expenses, a loan from Schmidt to Steele, her purchase of a truck owned by Schmidt, and the assignment of a debt owed by third parties to Schmidt. With respect to the latter, Schmidt contends that Steele agreed to take the debt as a tax write-off and pay him any amounts he received from the debtors' bankruptcy estate.
Steele paid Schmidt $4,000 for the loan and $26,000 for the truck. Schmidt sent Steele an email stating that they would "call it even" unless Steele received funds from an insurance claim, which would be paid to Schmidt. The insurance claim was denied.
Steele's income tax return reflects a $15,000 deduction for the bad debt. When Steele received two checks from the debtors' bankruptcy trustee, she returned them, asserting that she was not owed anything by the debtors. The debtors then attempted to have Schmidt listed as the creditor for their $15,000 debt, but that their application was denied by the bankruptcy court.
After their relationship ended, Schmidt filed several actions against Steele seeking to recover money he claimed was still owed to him. The parties have not provided copies of the pleadings in most of those actions. However, it appears that Schmidt filed two actions in the Special Civil Part in Ocean County (DC-1034-06 and DC-6409-06). There was apparently a third complaint in Ocean County (DC-407-06) that also involved the same parties, but it is not clear who filed that action. We understand that these complaints were all dismissed on procedural grounds, at least as between the present parties.
In June 2008, Schmidt filed another action against Steele, this time in the Civil Part in Ocean County (L-719-08). According to Steele, she successfully moved for summary judgment in December 2008. The records of the Appellate Division reflect that Schmidt filed a notice of appeal with respect to that dismissal in February 2009. However, after Schmidt's motion for leave to proceed as an indigent was denied, he made no further filings, and the appeal was dismissed on April 1, 2009 for failure to prosecute.
In May 2009, Schmidt filed the present action in the Civil Part in Ocean County (L-1981-09). Steele filed a motion to dismiss in August 2009. Although originally returnable in late August, the court rescheduled it to September 10, 2009,*fn2 at which time Schmidt failed to appear and the motion was granted. Schmidt filed a motion for reconsideration in October 2009, alleging that his then attorney received no notice of the date for the motion argument.
The motion for reconsideration was heard and denied on December 4, 2009. Judge Rochelle Gizinski gave the following reasons for her decision:
The plaintiff has filed at least four Complaints against the defendant. The most recent was dismissed on September 10, 2009 by [another judge]. The Complaint prior to that had been dismissed by [a different judge] on December 18, 2008.
I have no doubt from reviewing the allegations that the allegation in this Complaint contained in Docket No. 1981-09 are the same claims that were set forth in those two prior Complaints which were previously dismissed and that this Complaint although dressed obviously in legal language since in this attempt the plaintiff availed himself of legal assistance, the general Complaints are the same. They have essentially to do with the $4,000 promissory note, the truck, the $26,000 truck, and the assignment of a ...