April 16, 2012
BASHAR SABBAGH, PLAINTIFF-APPELLANT,
BOROUGH OF FRANKLIN LAKES, BOROUGH OF FRANKLIN LAKES POLICE DEPARTMENT, AND SGT. WILLIAM COLLIGAN, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-020827-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 17, 2012
Before Judges Grall and Alvarez.
Plaintiff Bashar Sabbagh filed suit against defendants Borough of Franklin Lakes, Borough of Franklin Lakes Police Department, and Sergeant William Colligan. His complaint was dismissed by way of summary judgment. For the reasons that follow, we dismiss his appeal.
The events leading to plaintiff's lawsuit began when, while hauling a trailer on February 5, 2009, plaintiff was stopped by Colligan for a routine inspection at a truck checkpoint. Colligan issued three motor vehicle summonses to plaintiff and, because plaintiff was unable to produce the required registration documents, impounded the trailer. Plaintiff claims defendants did not answer his inquiries regarding the location of the trailer after the tow and that as a result he was unable to retrieve it.
On August 17, 2009, plaintiff entered a guilty plea to the lapsed inspection summons issued by Colligan on account of his truck. See N.J.S.A. 39:8-1. The two remaining summonses, for unregistered vehicle, N.J.S.A. 39:3-4, and failure to maintain lamps, N.J.S.A. 39:3-66, had been dismissed approximately three months earlier. The record does not indicate the reason for the dismissal of the two summonses, or for the entry of a guilty plea to the third.
Plaintiff's complaint demands the return of the trailer or damages in the amount of $14,300, presumably the value of the trailer. Plaintiff also certified that the three motor vehicle summonses were issued to him improperly: "personally, instead of issuing them to the registered owner." He does not identify "the registered owner." Plaintiff does not explain the reason he is entitled to damages despite not being the registered owner of the trailer.
In answers to interrogatories, plaintiff certified that the trailer was owned by DMC Leasing, Inc. But during deposition, plaintiff testified that he did not know which of his several corporations owned the trailer, from whom or when the trailer was purchased, or the purchase price. When deposed, plaintiff also said that he was unsure if he had a copy of the title for the trailer.
The trial judge granted summary judgment to defendants because he found them to be immunized from liability pursuant to N.J.S.A. 59:3-3,*fn1 as Colligan had "probable cause" to stop the vehicle. During oral argument, when plaintiff was asked directly by the judge about the trailer's ownership, plaintiff said he had just picked up the trailer that morning, having bought it from DMC Leasing, Inc., and that he had not paid for it.
Absent from the record is any evidence, testimonial or otherwise, establishing plaintiff's personal ownership of the trailer. To the contrary, plaintiff acknowledged that at the time of the tow, the trailer was titled in the name of a corporation. Despite the fact that he filed the complaint in his own name, plaintiff is actually seeking to recover the value of a corporate asset. It is the corporate owner who, if there is any basis for recovery, is entitled to payment.
Keeping in mind that a corporation is entitled to damages, not plaintiff personally, we note that Rule 1:21-1(c) prohibits individuals from directly filing lawsuits on behalf of corporations, with certain exceptions not applicable to this case. Given plaintiff's statements: that the trailer was titled in a corporation, that he had not paid for it, and his assertion that the summonses, including the unregistered vehicle summons for the trailer, issued in error because they were addressed to him individually, this lawsuit seeking damages for a corporate asset cannot be maintained.
This is not a situation in which a party not represented by counsel recovers a judgment, subsequently appealed, in favor of a corporate entity. In that scenario, a remand may be equitable to allow a plaintiff the opportunity to retain counsel and preserve a meritorious recovery despite procedural error. See Gobe Media Grp., LLC v. Cisneros, 403 N.J. Super. 574, 580 (App. Div. 2008). In this situation, plaintiff was found not to have a cause of action when he should not have been heard at all in an unrepresented capacity.
The rule's proscription applies to appeals as well as the initial trial court proceeding. Regardless of the somewhat confusing record, it cannot be disputed that plaintiff, without the benefit of counsel, seeks damages for an item titled in a corporation in violation of Rule 1:21-1(c).
Accordingly, we dismiss the appeal.