November 5, 2007
MICHAEL LLOYD, PLAINTIFF-APPELLANT,
STACY L. SPINOSI AND JOSEPH MACHULSKY, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Gloucester County, Docket No. DC-3845-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2007
Before Judges Sapp-Peterson and Messano.
Plaintiff Michael Lloyd appeals from the motion judge's orders of September 21, 2006, that 1) denied his motion to disqualify defendant Stacy Spinosi, an attorney-at-law, from her continued representation of defendant Joseph Machulsky; and, 2) granted defendants summary judgment.
In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We decide first whether there was a genuine issue of material fact; if not, we then decide whether the motion judge's application of the law was correct. Id. at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
We must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.
Plaintiff filed his complaint in the Special Civil Part alleging defendants had wrongfully levied upon his property and asserting claims for abuse of process, conspiracy, "extortion," "breach of implied duty," a violation of 42 U.S.C.A. § 1983, "coercion," "harassment," "malicious action," "aiding and abetting," intentional infliction of emotional distress, and a claim under N.J.S.A. 2A:15-59.1, the frivolous litigation statute.
Spinosi filed an answer on behalf of herself and Machulsky, and contemporaneously filed a motion for summary judgment. In her certification she explained her version of the facts underlying plaintiff's complaint. Since 2003, Spinosi represented Joseph Machulsky (Joseph) in his matrimonial action wherein he was the defendant and his wife Mary Machulsky (Mary) was the plaintiff.*fn1 Spinosi alleged that plaintiff now resided with Mary and that neither defendant had "involvement or interest" in plaintiff's personal property.
These general denials were further expanded in the motion's statement of material facts. Defendants alleged that in January of 2006, in the matrimonial matter, judgment was entered in favor of Joseph, against Mary, in the amount of $2065.31. On April 12, 2006, Spinosi filed a writ of execution with the Gloucester County Sheriff in an effort to satisfy the judgment.
On June 7, 2006, another attorney, Robert J. Incollingo, contacted the sheriff on behalf of Joseph. Claiming to be "specially appearing on behalf [of] . . . Spinosi," he requested service of the writ of execution upon Mary. In his cover letter, Incollingo listed various personal items and effects that could be levied upon to satisfy the judgment and advised the sheriff that Mary owned a 1997 black Honda. Incollingo included an "abstract from the DMV" for the car.
The document was not an abstract from the Motor Vehicle Commission, but, rather was a report from "M.P.I. Investigative Services," summarizing a search of motor vehicle records it had conducted. These revealed that Mary alone was the owner of the black Honda and reported that "no lien information [was] available."
On June 28, 2006, plaintiff served both defendants with a letter demanding they "remove the fraudulent levy [they] caused to be placed upon [his] property." He claimed defendants "had specific knowledge that [he] had joint ownership of the automobile," and plaintiff threatened that litigation would follow if the levy was not removed by June 30.
Spinosi immediately advised plaintiff that Incollingo was handling the collection matter, and that any "inquiries" should be directed to him. She provided plaintiff with his address and phone number. Plaintiff immediately responded to Spinosi with another letter threatening litigation. He noted that the "[w]rit of execution employed by the Sheriff to levy on my property bears your name. The existence of Mr. Incollingo is of no moment to me."
In July, Incollingo moved for an order enforcing litigant's rights. He alleged in his affidavit in support of the motion that the sheriff's attempt to execute on the judgment was frustrated by Mary's refusal to allow entry into her home. The record fails to disclose the resolution of this motion.
On August 9, 2006, plaintiff filed opposition to defendants' summary judgment motion and cross-moved to disqualify Spinosi from her continued representation of Joseph. Defendant claimed that the statement of material facts in support of defendants' motion bore "little relation to this matter," was "far from accurate," and was "disputed." Claiming that Spinosi "acted under color of law" in securing the writ of execution, and that "Incollingo acted at the behest of Spinosi," plaintiff acknowledged that he had refused the sheriff entry into the home he apparently occupied with Mary. Plaintiff claimed that he told the sheriff's officer that he owned the Honda; the officer advised him that the vehicle had already been levied upon and plaintiff "would have to come to court to resolve the matter."
In his certification, plaintiff claimed, without detail, that the levy had "caused [him] substantial damage." He disputed the information contained in the investigator's motor vehicle report, furnishing copies of the installment sales contract from the Honda dealer that was in his and Mary's names, and a monthly loan statement from Chase that was mailed to both of them. He did not include the vehicle's actual title or registration.
Lastly, plaintiff attached portions of Mary's answers to an information subpoena dated April 21, 2006,*fn2 claiming these responses were supplied to defendants at an earlier date and before the writ was issued. In response to the subpoena's questions, Mary answered that the Honda was "owned jointly" and that Chase had a lien on the vehicle. There is no indication that she furnished copies of the vehicle's title or registration to support this assertion.
Based upon these disputed facts, plaintiff asked the court to deny defendants' summary judgment motion. In support of his cross-motion, plaintiff claimed that Joseph "may have causes of action against Spinosi," and to avoid any possible delay caused by potential conflicts, Spinosi should be disqualified from any further representation of Joseph.
Spinosi filed an affidavit in response to plaintiff's opposition and cross-motion. She noted that plaintiff's proofs as to ownership of the car were entirely inadequate, and that neither the title to the vehicle nor its registration card was supplied. She argued that whether or not there was a lien on the vehicle was irrelevant. She further disputed any claim of damages, noted that the writ was duly authorized and issued by the Superior Court, and that it was Incollingo, and not either defendant, who proceeded to execute on the warrant.
Spinosi further claimed that even before plaintiff filed opposition to the summary judgment motion, Mary had furnished two checks in amounts sufficient to fully satisfy any judgments against her. These checks were not provided to the sheriff, but rather were brought to Spinosi's law firm's office. Spinosi claimed that this procedure further delayed satisfaction of the judgments, but that she was now in the process of forwarding the monies to the sheriff and the levy on the Honda would be "rescinded." Spinosi argued that plaintiff's case was now moot. Lastly, claiming no conflict of interest, Spinosi asked that plaintiff's motion to disqualify her be denied.
On September 21, 2006, the parties appeared for oral argument on the motion and cross-motion before Judge Anne McDonnell. After hearing from plaintiff and Spinosi, the judge issued her decision which, because of its brevity, we quote in its entirety.
I am satisfied that the writ of execution was properly issued, and that, in fact, Judge McMaster, in the Family Court, had entered a money judgment against a party in a divorce action, Mary Machulsky.
That the sheriff, acting on the information that appeared to be from the Motor Vehicles Agency indicating that Mary Machulsky owned the vehicle, properly levied.
That pursuant to Rule 4:50-1, when there is an improper levy, the procedure is to file an objection to the levy, not to sue the lawyer and the client in Small Claims Court.
So that I find that this is an improper procedure. There is no legal basis for the action.
It's apparent that the Division of Motor Vehicle information supports the levy on the vehicle. And if improper, it could've been addressed in the usual format.
That this is really an attempt to extend what's obviously a very heartfelt and angry relationship. So that -- I will not be part of it.
Reiterating that there was "no legal basis" for the complaint, the judge granted defendants' summary judgment motion, and denied plaintiff's cross-motion. This appeal followed.
Before us, plaintiff contends Judge McDonnell erred because the existence of disputed material facts foreclosed the grant of summary judgment. He further argues that she erroneously relied upon R. 4:50-1 because he was not a party to the underlying matrimonial litigation and had no standing to challenge the writ issued in that action. Lastly, he claims the judge should have granted his motion to disqualify Spinosi because her continued representation of Joseph violated the Rules of Professional Conduct.
We have considered these arguments in light of the record and applicable legal standards. We find them to be of insufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm, in large measure, for the reasons expressed by Judge McDonnell in her brief oral opinion. R. 2:11-3(e)(1)(A). We add only these comments.
Plaintiff appropriately argues that any reliance upon R. 4:50-1 as a basis to dismiss his complaint was misplaced. By its own terms, that rule can only "relieve a party or a party's legal representative" of the effects of a final judgment or order. Plaintiff was not a party in the divorce case that spawned the writ of execution and the levy that followed. However, Mary, who resided with plaintiff, clearly could have moved for relief from the levy to the extent it sought to attach property that was not owned by her; but, she apparently chose not to.
We gather from the full transcript of the hearing, however, that Judge McDonnell may have intended to cite R. 4:59-1 as a basis for her decision. Subsection (g) of that rule provides,
Every court officer or other person levying on a debtor's property shall, on the day the levy is made, mail a notice to the person whose assets are to be levied on stating that a levy has been made and describing exemptions from levy and how such exemptions may be claimed . . . . If the clerk or the court receives a claim of exemption, whether formal or informal, it shall hold a hearing thereon within 7 days after the claim is made. If an exemption claim is made to the levying officer, it shall be forthwith forwarded to the clerk of the court and no further action shall be taken with respect to the levy pending the outcome of the exemption hearing.
The rule is specifically made applicable to actions in the Special Civil Part by R. 6:7-1(b).
By its terms, the rule is not limited to claims for exemption made by the judgment-debtor. Plaintiff acknowledged in his opposition papers that he was aware of the levy, told the sheriff's officer that he was part owner of the Honda, and was appropriately advised to contest the matter by notifying the court. As Judge McDonnell noted, plaintiff did not follow this procedure, choosing instead to file his complaint.
More importantly, the judge found there was no "legal basis" for this suit. We take that to mean that plaintiff failed as a matter of law to prove any theory of liability as to these defendants, and, on that point, we are in full agreement with Judge McDonnell. Assuming arguendo that plaintiff's ownership of the Honda is a disputed fact, which we resolve in his favor for purposes of resisting summary judgment, it is clear that these defendants could not be legally liable under any cause of action pled in the complaint because neither of them initiated or effectuated the levy upon the vehicle, and plaintiff could not prove otherwise.
Lastly, although Judge McDonnell did not rely upon it, defendants' assertion that the judgment was fully satisfied certainly limited any claim plaintiff may have had for damages. Obviously the Honda was not sold at auction to satisfy the judgment. In fact, throughout the various papers plaintiff filed, any claim for actual damages caused by the allegedly improper levy was never substantiated, or, for that matter, explained.
Affirmed. Since the order granting defendants summary judgment is affirmed, plaintiff's appeal of the denial of his cross-motion to disqualify Spinosi is moot.