March 29, 2011
SHAUKAT ALI, PLAINTIFF-APPELLANT,
WASSERMAN AND SCHACHMAN COUNSELORS AT LAW AND DAVID B. WASSERMAN, ESQ., DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket Nos. DC-41408-08 and DC-4069-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 16, 2010
Before Judges Payne and Koblitz.
Plaintiff, Shaukat Ali, appeals from the order of a judge of the Special Civil Part, dated April 28, 2009, dismissing his complaints*fn1 against the law firm of Wasserman & Schachman and attorney David B. Wasserman with prejudice and sanctioning plaintiff in the amount of $500 and the order, dated June 12, 2009, denying reconsideration.
In his brief on appeal, plaintiff poses the following questions, which we set forth verbatim:
Does court err when tried to conduct hearing on civil right case, when case on March 28, 2009 for proof hearing was Replevin Action in violation of? H.E.S. v. J.C.S., 175 N.J. 309, 815 A.2d 405 (N.J. 02/06/2003)
Does court err when it did not enter default judgment for plaintiff against when defendant did not respond to both cases in violation of court rule 6:6-2?
Does court err when it did not give judgment from Plaintiff when defendant admitted he destroyed documents in violation of Rosenblit v. Zimmerman, 166 N.J. 391, 766 A.2d 749 (N.J. 02/26/2001) accord Aetna Life and Casualty Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 707 A.2d 180 Issue 1V Does actor is liable for destruction of documents in violation NCP Litigation Trust v. KPMG LLP, 901 A.2d 871, 187 N.J. 353 (N.J. 06/28/2006):
We affirm in part and reverse in part.
This action, like the many that preceded it, was filed by plaintiff following the entry of a judgment of divorce on December 31, 2002, in an action instituted against him by his former third wife, Tehmina Ali. Plaintiff had been divorced previously on two occasions, obtaining a divorce in Pakistan on September 10, 1980 and in Haiti on August 8, 1984.
The 2002 judgment required, among other things, that Shaukat Ali pay the legal fees incurred by Tehmina Ali in connection with the divorce proceeding in the amount of $30,000. Tehmina Ali was represented in that matrimonial matter by defendant David B. Wasserman, then a member of the firm of defendant Wasserman & Schachman. Plaintiff has responded to that aspect of the order with a barrage of suits against Wasserman and his firm. Additional motions have been filed by Ali against his former wife.*fn2
Of relevance to the present matter, on April 22, 2004, Shaukat Ali filed a motion against Tehmina Ali in Sussex County seeking sanctions for her failure to provide "two Original divorce Decrees one from Pakistan of September 10, 1980 and Second from Haiti Divorce Decree of August 8, 1984 in English and French." The outcome of the motion is not stated, and the record on appeal does not contain an order relating to the motion or a transcript of any oral argument that may have occurred. However, Shaukat Ali continues to seek the original judgments.
On November 12, 2008, Shaukat Ali filed a replevin action against Wasserman & Schachman and David Wasserman, in which he claimed:
I filed this motion with Sussex County Court on April 22, 2004, which was returnable on 5/14/08.
I served this motion properly to Wasserman and Schachman firm and Mr. David B. Wasserman Esq.
Wasserman and Schachman firm and Mr. David
B. Wasserman Esq. never denied plaintiff charges and refused to provide plaintiff property. Due to inaction of Wasserman and Schachman firm and Mr. David B. Wasserman Esq., Plaintiff have to spend money to get documents and suffered financial damages.
Now plaintiff filed this replevin action get remaining documents and damages which plaintiff suffered from Wasserman and Schachman firm and Mr. David B. Wasserman.
The documents that plaintiff sought in his complaint were the following:
Pakistani divorce of September 10, 1980; Haitian Divorce of August 9, 1984;
You and Law in New Jersey Resource Guide; Divorce prepared against Tehmina Ali in New
York City circa 1988-89; and
Auto accident settlement papers and amount of May 1, 1990 and July 7, 1991 settlement, together with name and bank account number where settlement was deposited.
Damages in the amount of $14,567.76 were claimed for replacement of the lost documents.
Subsequently, in an action filed by Shaukat Ali in the Special Civil Part of the Superior Court in Essex County, docket no. DC-4069-09, he apparently asserted civil rights claims against Wasserman and his firm. However, we do not have a copy of the complaint in that matter, and cannot verify its content.
On December 1, 2008, an appearance of behalf of the firm of Wasserman & Schachman was entered by the firm of Sussman & Altwarg in the DC-41408-08 action. In an accompanying letter, Robert Sussman stated that Wasserman was the sole survivor of the firm, and that he was hospitalized.*fn3 An appearance was entered in lieu of an answer because the complaint served on defendants, entitled "Replevin Action," stated "See attached Complaint," but no attached complaint was provided. An appearance was entered by David Wasserman on the same date. On December 29, 2008, Wasserman filed an answer in the matter, in which he stated that he had moved his office in June 2007 and "[t]he only documents that I maintained were Orders that were entered" in the divorce proceedings. Additionally, Wasserman counterclaimed, alleging improper filing and maintenance of litigation.
Discovery was served by plaintiff on defendants, and on January 2, 2009, plaintiff moved to strike defendants' answers for failure to respond. Wasserman replied by letter dated January 9, 2009:
I know you have filed Interrogatories and Demands for Documents in this action. As you know, I have been back and forth with hospitals and I was unable to keep up with the paperwork.
With regard to the Interrogatories and Demands for Documents, I can tell you that we never had possession of any such original documents. This applies to all the documents that you requested. You may accept this statement as accurate and as answers to both the Interrogatories and the Demands. You may accept this statement as if sworn to.
There is no evidence in the record on appeal as to the outcome of plaintiff's motion.
The matter was called to trial on March 26, 2009. At that time, Wasserman, who had at some point joined the firm of Sussman & Altwarg, but had later retired, did not appear. A call by the trial judge to the Sussman & Altwarg firm suggested that it lacked notice of the proceeding. In any event, neither attorney was available to appear; one was undergoing hospital tests and the other was ill.
Nonetheless, on that date, the trial judge took testimony from plaintiff that suggested that the documents at issue were in the custody of Tehmina Ali, and that Wasserman and his firm were sued as Tehmina's agents. The book that plaintiff sought to regain had allegedly been used as a weapon by Tehmina in an alleged act of domestic violence prior to the filing of the divorce complaint. Plaintiff claimed that the automobile accident settlement proceeds, in the amount of $35,000, had allegedly been given by him to Tehmina to finance the education of their children, but had been diverted by her to her brother. Plaintiff later claimed that he sought the return of the funds so that he could finance his own law school education. When the judge pointed out that these settlements preceded the divorce, and an accounting for them should have occurred in the divorce proceedings, plaintiff stated that he "was a pro se" and "just railroad[ed]."*fn4 Plaintiff did not address the relevance of aborted divorce proceedings by him against Tehmina Ali in New York.
At the conclusion of the proofs on March 26, plaintiff stated on the record that his focus in the matter was on the divorce decrees. After that statement, the judge found that plaintiff had failed to prove that he had any relationship with Wasserman & Schachman, which plaintiff admitted represented his former wife, and that plaintiff had failed to prove that the firm or its members had possession of the decrees. However, because it was unclear that defendants had notice of the proceeding, he adjourned the matter to April 28, 2009.
At the April 28 hearing, the judge, having investigated the procedural history of the matter, dismissed plaintiff's complaint as frivolous, and he recommended that the Essex County assignment judge enter an order similar to that which had been entered in the Morris/Sussex vicinage enjoining further action on plaintiff's part without the specific authorization of the assignment judge. A sanction of $500 was entered for improper use of the courts.
Although the matter proceeded under docket no. DC-41408-08, the order of dismissal that was entered referred to both that docket number and to docket no. DC-4069-09.
As we have previously stated, the complaint in the case filed under docket no. DC-4069-09 is not contained in the record. Further, it was not discussed substantively by the trial judge. For that reason, we are not able to evaluate whether it was frivolous, as the order of dismissal suggests. Accordingly, we vacate the order insofar as it relates to that matter and remand the case for further consideration of its merits in light of the comments with respect to frivolous litigation that follow.
With respect to the action filed under docket no. DC-41408-08, the trial judge ultimately cited as grounds for dismissal his conclusion that the litigation was "frivolous." However, the judge did not state the substantive basis for that conclusion, but instead, appeared to rely on a procedural history containing multiple additional motions, complaints and appeals, and on the entry of the order enjoining additional filings in the Morris/Sussex vicinage without the consent of the assignment judge. We do not regard the judge's determination in that regard to be sustainable.
In Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 390 (App. Div. 2000), we rejected in somewhat similar circumstances the position that, because prior filings that have been deemed frivolous have engendered a injunction against further litigation, an assignment judge can preclude plaintiff from ever filing another complaint, no matter how meritorious. In that case, the assignment judge had barred further suit purely on procedural grounds. We held that, although a history of frivolous filings could be considered by that judge, the judge must also "address the allegations in the present complaints and conclude why, if frivolous, traditional sanctions are inadequate to protect the interests of the courts and defendants. She must also give reasons for her conclusion that the complaints may not be filed." Id. at 397.
Unlike Rosenblum, in the present case, no order enjoining the filing of actions in Essex County had been entered, and the matter was not pending before the assignment judge. However, the principle of Rosenblum that meritorious actions may not be precluded remains. As a consequence, we decline to recognize plaintiff's litigious history, without more, as the basis for dismissal of this suit. For similar reasons, we vacate the $500 sanction imposed on plaintiff for improper use of the courts.
Nonetheless, we affirm the dismissal of plaintiff's action, basing that affirmance on the judge's determination at the conclusion of the March 26 hearing that plaintiff had not established his claim.
At a default hearing, the trial judge has the discretion to require a plaintiff to prove liability. R. 4:43-2(b); Douglas v. Harris, 35 N.J. 270, 276-77 (1961); Heimbach v. Mueller, 229 N.J. Super. 17, 20-21 (App. Div. 1988). At the hearing, however, only a prima facie right to relief must be demonstrated. Kolczycki v. City of E. Orange, 317 N.J. Super. 505, 514 (App. Div. 1999); Heimbach, supra, 220 N.J. Super. at 20; see also Pressler & Verniero, Current N.J. Court Rules, comment 2.2.2 on R. 4:43-2 (2011) (stating that "unless there is intervening consideration of public policy or other requirement of fundamental justice, the judge should ordinarily apply to plaintiff's proofs the prima facie case standard of R. 4:37-2(b) and R. 4:40-1, thus not weighing evidence or finding facts but only determining bare sufficiency.").
Our review of the record satisfies us that, as the trial judge concluded on March 26, plaintiff failed to establish prima facie proof that satisfies the elements of a replevin action against Wasserman and the firm of Wasserman & Schachman. Replevin is statutorily governed in New Jersey by N.J.S.A. 2B:50-1 through -5. N.J.S.A. 2B:50-1 provides that "[a] person seeking recovery of goods wrongly held by another may bring an action for replevin in the Superior Court." Pursuant to that statute, it was incumbent upon plaintiff to provide prima facie proof that the attorneys for his former wife "wrongly held" the judgments of divorce and other documents that plaintiff sought. A fair reading of the transcript, however, suggests that plaintiff claimed that his former wife held the documents, and that he asserted liability on the part of her attorneys merely because they represented her. Although it is clear that, as counsel for Tehmina Ali, Wasserman & Schachman acted as her agents, Cohen v. Southbridge Park, Inc., 369 N.J. Super. 156, 161 (App. Div. 2004), the existence of that relationship provides insufficient grounds upon which to premise a replevin action absent proof that she entrusted the documents to one of the firm's attorneys, who retained possession of them. That proof is lacking, here. Consequently, plaintiff's suit was properly dismissed.
We decline to address plaintiff's remaining arguments, finding them to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We merely add that Wasserman did not admit to destroying the documents sought by plaintiff. He only stated that he had destroyed unspecified documents maintained in his file with the exception of court orders.
The appealed orders are vacated insofar as they require dismissal of the action filed under docket no. DC-4069-09 and impose a fine of $500 upon plaintiff for misuse of the courts. The orders are affirmed insofar as they require dismissal of the action filed under docket no. DC-41408-08.
Affirmed in part and reversed in part.