METODI DONCHEV VS. DENNIS DESIMONE(L-0956-05, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1565-15T1
METODI DONCHEV and
FAITH DONCHEV,
Plaintiffs-Appellants,
v.
DENNIS DESIMONE,
Defendant-Respondent.
___________________________
Argued June 7, 2017 – Decided July 5, 2017
Before Judges Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Gloucester County,
Docket No. L-0956-05.
Faith Donchev, appellant, argued the cause pro
se.
Amanda J. Sawyer argued the cause for
respondent (Methfessel & Werbel, attorneys;
Edward L. Thornton, of counsel and on the
brief; Ms. Sawyer, on the brief).
PER CURIAM
Plaintiff Faith Donchev appeals from numerous Law Division
orders and a judgment that were entered after our decision in
Donchev v. DeSimone, No. A-0395-11 (App. Div. Sept. 24, 2012),
certif. denied, 213 N.J. 534 (2013). For the following reasons,
we affirm.
We are constrained to recite the tortured procedural history
of this matter in order to place this appeal in perspective. This
litigation arose from injuries plaintiff's husband, Metodi Donchev
(Donchev),1 sustained on June 16, 2003. Donchev was employed by
D.N. DeSimone Construction Company, Inc. (DND) at the time of his
injury. Defendant was president of DND, and hired the company to
complete several projects at his home, including garage roof
repairs. Donchev was injured when he fell through the garage
roof. He filed a claim petition with the Division of Worker's
Compensation (Division) seeking benefits for his injuries.
Donchev and plaintiff also filed a complaint against
defendant individually, asserting landowner liability. Donchev
subsequently died from causes that were in dispute. Thereafter,
the complaint was amended to substitute his estate as a plaintiff
and assert a wrongful death claim, which the trial court eventually
dismissed. In addition, the estate filed a dependency claim
1
Donchev is deceased. After his death, plaintiff amended the
complaint to substitute his estate as a plaintiff and assert a
wrongful death claim, which the court dismissed.
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petition with the Division. The Division approved a settlement
between DND and the estate.
Defendant filed two motions for summary judgment. In the
first motion he argued there was no landowner liability, and in
the second motion he argued that the New Jersey Workers'
Compensation Law (WCL), N.J.S.A. 34:15-70 to -146, barred
plaintiffs' claims. The trial court denied both motions and the
matter proceeded to a jury trial. The court entered judgment
against defendant after the jury rendered a verdict in plaintiffs'
favor.
Plaintiff filed a post-trial motion to reinstate the wrongful
death claim, and defendant filed a cross-motion for remittitur or,
in the alternative, a new trial. The court denied all motions.
Defendant then appealed from the two orders denying summary
judgment, the final judgment, and the order denying his post-trial
cross-motion. Plaintiff did not cross-appeal.
In Donchev, we reversed the jury award, finding that the
court improperly denied summary judgment to defendant. Donchev,
supra (slip op. at 9-12). We held that defendant was entitled to
summary judgment as a matter of law because as a landowner, he
neither owed nor breached a duty of care to Donchev, and as an
employer, he was immune from suit pursuant to the WCL. Id. (slip
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op. at 10). The trial court subsequently vacated the judgment
against defendant.
Thereafter, beginning in October 2013, plaintiff embarked on
an unrelenting campaign in the trial court to reinstate the jury
verdict and all claims and for a trial on the wrongful death
claim.2 Plaintiff filed numerous motions seeking to re-litigate
the matter on the basis that our prior opinion only applied to
defendant as president of DND and defendant was liable as the
homeowner.
The court denied all of plaintiff's motions. In particular,
in a July 26, 2014 order, the court denied plaintiff's motion to
reinstate the wrongful death claim and judgment and for a jury
trial. The order warned plaintiff that "any refiling of a similar
motion will be considered for possible sanctions and/or submission
to . . . determine if future motions should be subject to review
and [possible] rejection." In an October 20, 2014 order, the
court denied plaintiff's motion to enter judgment and for
reconsideration of a prior order; imposed a $50 sanction; and
notified plaintiff that any further frivolous motions "shall lead
to further, harsher sanctions, including monetary sanctions and
2
Plaintiff also made several unsuccessful applications with this
court and our Supreme Court.
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[p]lainitiff to file any further pleadings at the discretion of
the Assignment Judge, Georgia M. Curio."3
Undeterred by these orders, and ignoring defense counsel's
repeated warnings that sanctions would be sought pursuant to Rule
1:4-8, plaintiff continued filing motions raising the same
arguments. In a May 8, 2015 order, the court granted defendant's
motion for counsel fees and costs, ordered defense counsel to
submit a certification of services, permitted plaintiff to rebut
the certification, and reiterated the warnings set forth in the
October 20, 2014 order. Defense counsel submitted a certification
of services, and plaintiff responded with yet more motions. On
August 4, 2015, the court entered a judgment against plaintiff in
the amount of $1,201.50 for defendant's attorney's fees and costs
in opposing her most recent "frivolous application."
Defendant subsequently filed a motion to enforce litigant's
rights, seeking an order prohibiting the clerk from accepting any
further applications from plaintiff and to close the docket.
Defendant also sought an award of attorney's fees and costs.
Plaintiff filed a cross-motion to reinstate all claims, which the
court denied in an August 21, 2015 order. Plaintiff filed a motion
3
The court subsequently vacated the $50 sanction.
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for reconsideration of the August 4, 2015 judgment and the August
21, 2015 order.
In an October 13, 2015 oral opinion, Judge Curio gave a
detailed procedural hisotry and found as follows, in pertinent
part:
This history and procedural path that
this matter has taken demonstrates that there
has been a constant attempt to re[-]litigate
issues that have previously been litigated to
a conclusion.
It's clear that the plaintiff disagrees
with the legal conclusions of the Appellate
Division by which the [t]rial [c]ourt is
bound. However, to simply insist repeatedly
that those issues be revisited is
inappropriate and can't be allowed to go on
forever.
Plaintiff in arguing has expressed and
articulated a number of legal principles and
concepts, but they're being discussed in a
vacuum without any appropriate application of
those concepts and principles to the legal
issues at hand in this case.
Throughout the procedural history of
this, we have [m]otions to [r]econsider prior
[o]rders. We have [m]otions to reinstate the
[j]ury verdict. we have [m]otions to [v]acate
Appellate [o]rders. We have [m]otions seeking
to affirm the [t]rial [c]ourt's original
denial of the [s]ummary [j]udgment [m]otions.
We have [m]otions for [n]ew [t]rial.
. . . .
Indeed, plaintiff's response to
[defendant's motion to enforce litigant's
rights] is indicative of all of the prior
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history, because what has been submitted by
plaintiff in response to this [m]otion . . .
is more of the same . . . all again seeking
to re[-]litigate the issues that had
previously been before the [c]ourt. Litigated
to the point of a [r]uling by the Appellate
Division and Supreme Court having denied the
[p]etition for [c]ertification and indeed even
further subsequent motions before the Supreme
Court.
There's no further litigation beyond the
Appellate Division and the Supreme Court. The
matters have been fully and finally
adjudicated, and no effort, no degree of
repetition can change that fact.
The case law allows the rare relief of
enjoining a litigant's ability to file
pleadings with the [c]ourt without review by
the Assignment Judge. And I am satisfied
given the procedural history that I've
attempted to outline . . . that the
circumstances presented here warrant the sort
of rare relief that's being requested.
. . . .
First and foremost, the use of pleading
to attempt to bring the issues to the [c]ourt
again and again after they've been concluded
renders those continuing efforts to be
frivolous. And the [c]ourt has the authority,
as the [c]ourt in Parish [v. Parish, 412 N.J.
Super. 39 (App. Div. 2010)] said, "Courts have
the inherent authority, if not the obligation,
to control the filing of frivolous motions and
to curtail harassing and vexatious
litigation."
[Plaintiff's] persistent attempt to
revisit over and over issues that have been
fully and finally adjudicated is frivolous,
is harassing, is vexatious and serves no
purpose. It is a detriment to the court
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system, and it is a continuing hardship
visited upon the defendant who must answer,
respond and address issues which have already
been fully adjudicated.
. . . .
[T]he Court Rules simply do not allow
incessant repetition until you get the answer
that you want. It's simply not contemplated
in the Rules. It is an abuse of the Rules and
the process.
The judge entered two orders on October 14, 2015: (1) granting
defendant's motion to enforce litigant's rights and enjoining
plaintiff from filing any future pleadings without first
submitting it to the Assignment Judge or her designee; and (2)
denying plaintiff's cross-motion. This appeal followed.
For what we can discern from plaintiff's rambling merits
brief, she reiterates the arguments made before the trial court
and also argues that the court erred in imposing sanctions. We
have considered these arguments in light of the record and
applicable legal principles and conclude they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). We affirm substantially for the reasons Judge
Curio expressed in her comprehensive oral opinion.
Affirmed.
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