On appeal From Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-027071-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Ashrafi.
Plaintiff Philip Hahn appeals from an April 27, 2010 judgment following trial dismissing with prejudice his Special Civil Part complaint, and a July 27, 2010 order denying his motion for reconsideration. We reverse and remand for reinstatement of the complaint on a jury trial calendar.
Plaintiff filed a pro se complaint against defendant Denny Wiggers. The handwritten factual allegations of the complaint stated in full: "The defendant failed to honor an oral contract where the plaintiff paid $850.00 rent for one months rent at [a street address], Paramus, NJ, 07652." Plaintiff sought $538.33 in damages, plus interest and costs. The complaint also included the notation "Jury Demand." Plaintiff paid the required filing and service fees for the complaint plus an additional fee of $50 for a jury trial in the Special Civil Part. See R. 6:1-1(c); R. 6:5-3(a).
One month later, before any responsive pleading was filed, plaintiff filed an amended complaint naming Kelly Popek as an additional defendant. See R. 4:9-1; R. 6:3-1. The amended complaint contained the following handwritten allegations:
Kelly Popek denied plaintiff access to [a street address], Paramus, NJ 07652 in breach of an oral contract to provide 30 days of lodging in exchange for $850.
As a result of Kelly Popek denying the plaintiff access to [a street address], Paramus, NJ the plaintiff suffered a loss of $538 in lost rent money.
The plaintiff seeks the lost rent money & costs associated with retrieval of the lost rent money.
Plaintiff states that the amended complaint and summonses were served upon Wiggers and Popek.
Popek filed an answer in which he wrote by hand: "I am a tenant in the house and not the owner of the property, Denny Wiggers is the owner. Therefore I don't own [sic] any money to the plaintiff." Wiggers never responded to the summons and complaint. Plaintiff filed a request for entry of default judgment against Wiggers. He stated in a certification of proof that Wiggers owed him $583 and court costs of $89.*fn1
Plaintiff and defendant Popek appeared before a judge of the Special Civil Part on April 27, 2010. Wiggers was not present. The court swore in both parties to testify. A brief colloquy followed, in which the court asked a number of questions, almost entirely directed to plaintiff.
Plaintiff said he had given a check for $850 as one month's rent to Wiggers and moved into a house in Paramus that he believed Wiggers owned. He had a bedroom and apparently use of other parts of the house. About a week later, plaintiff had an argument with Popek about a television remote control, and he called the police. The police told plaintiff he should not stay at the house that night, ...