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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0556-06T50556-06T5 JIM SCHNELLER, JIM SCHNELLER, d/b/a JIM'S FLASHLIGHT, Plaintiff-Appellant, v. J.W. INDUSTRIES, INC., Defendant-Respondent. ________________________________________________________________

Submitted November 5, 2007 - Decided Before Judges Gilroy and Baxter. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-722-06. James Schneller, appellant pro se. John Scott Boyer, attorney for respondent. PER CURIAM Plaintiff Jim Schneller, d/b/a Jim's Flashlight (Schneller) appeals from a June 26, 2006 order dismissing his complaint against defendant J.W. Industries, Inc. We affirm. Schneller's complaint against defendant J.W. Industries arises out of an earlier book account action. Defendant is an

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importer of industrial rubber molded and die cast products. In 2002, Schneller placed an order with defendant for specially-molded pool and spa mats. After the mats were manufactured and partially delivered, a dispute arose over the material used in the manufacturing of the mats, and Schneller refused to pay for them. On February 19, 2004, defendant instituted a book account action against Schneller in the Law Division, Burlington County. After a twoday bench trial, on January 26, 2005, the Law Division entered judgment in favor of defendant, and against Schneller, in the amount of $44,841, exclusive of post-judgment interest. After Schneller's motion for a new trial was denied, he appealed and we affirmed. J.W. Indus., Inc. v. Jim Schneller, No. A-3741-04 (App. Div. June 23, 2006). On February 15, 2006, while the above appeal was pending, Schneller filed a complaint in the Law Division, Burlington County, alleging that by filing a book account action against him, defendant had engaged in malicious use of process, malicious interference with prospective economic advantage, and negligent and intentional infliction of emotional and mental anguish. After filing its answer, defendant moved to dismiss the complaint based on the doctrine of res judicata. On June 23, 2006, Judge Marc Baldwin dismissed Schneller's complaint, ruling that Schneller could not prevail on his causes of action because of the prior determination in the Law Division that defendant's book account lawsuit was valid. Judge Baldwin observed, "it seems to me that this case--this case here should be dismissed, and if you lose on appeal, it's over. If you win on appeal, your underlying case will be retried." Judge Baldwin also explained that "for [Schneller] to win, I've got to say the prior judge was wrong, and I don't have that jurisdictional ability to do that because we're co-equals of the judiciary." A confirming order was entered on June 26, 2006. Approximately one month later, on July 21, 2006, after he received this court's June 23, 2006 decision affirming the judgment in favor of defendant, Schneller moved for reconsideration of our June 23, 2006 decision. We denied his motion for reconsideration on August 11, 2006. On September 14, 2006, Schneller filed the instant appeal from Judge Baldwin's order of June 26, 2006. He argues that by granting defendant's motion for summary judgment, the Law Division abused its discretion. Although many arguments are grouped together under that one point heading, in violation of Rule 2:6-2(a)(5), we nonetheless list his principal arguments. He contends the Law Division: prejudiced his case through its decision regarding venue; made improper pretrial decisions; erred when it declined to issue a stay pending an appeal of the venue decision; improperly denied plaintiff a jury trial; improperly evaluated documentary evidence; and overlooked strong evidence of fraud. As is readily apparent, the majority of these claims address the original Law Division trial, not Judge Baldwin's decision of June 28, 2006. The claims regarding any errors made in the trial that resulted in the

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January 26, 2005 judgment have already been conclusively determined in our decision of June 23, 2006 affirming the judgment in favor of defendant. We have carefully considered defendant's arguments in light of the available record, and conclude that they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge Baldwin was correct when he determined that no action for malicious prosecution or abuse of process can be maintained unless the underlying book account action lacked merit and was purposely undertaken to harass Schneller. Our decision of June 23, 2006, establishes that was not the case, and that the claims of J.W. Industries against Schneller in the book account action were legitimate. Affirmed. (continued) (continued) 4 A-0556-06T5 November 16, 2007 0x01 graphic

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