August 5, 2009
ROBERT J. TRIFFIN, PLAINTIFF-APPELLANT,
BENCHMARK, DEFENDANT-RESPONDENT, AND JOSEPH M. YAPKIEWICZ AND BRIAN J. DONALDSON, DEFENDANTS.*FN1
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. DJ-196748-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 11, 2009
Before Judges Sapp-Peterson and Alvarez.
Plaintiff, Robert J. Triffin, appeals from the April 11, 2008 order denying his motion seeking a turnover-of-funds order against defendant, Benchmark, and granting Benchmark's cross-motion for sanctions. Plaintiff also appeals from the May 15, 2008 order denying his motion for reconsideration. We reverse the counsel fee award and remand for further proceedings but otherwise affirm all other aspects of the two orders.
Plaintiff has been in the business of buying dishonored checks for a considerable period of time. See generally, Triffin v. Quality Urban Hous. Partners, 352 N.J. Super. 538, 540 (App. Div. 2002); Triffin v. Somerset Valley Bank, 343 N.J. Super. 73 (App. Div. 2001); Triffin v. Bridge View Bank, 330 N.J. Super. 473 (App. Div. 2000); Triffin v. First Union Bank, N.A., 319 N.J. Super. 72 (App. Div. 1999); Triffin v. Cigna Ins. Co., 297 N.J. Super. 199, (App. Div. 1997). As a result of commencing an action to recover $382.07 from Benchmark in connection with one of its dishonored checks that he purchased, plaintiff obtained a judgment against Benchmark in the amount of $275.11 (Benchmark judgment).
More than one year earlier, however, on July 6, 2004, Automatic Data Processing, Inc. (ADP) obtained a judgment against Triffin in an unrelated matter for $23,679.20 (ADP judgment). Triffin v. Automatic Data Processing, Inc., No. L-1916-03 (Law Div. June 28, 2007). On December 5, 2005, ADP issued a writ of execution against Benchmark as part of its effort to enforce the ADP judgment against plaintiff.
On February 6, 2006, plaintiff commenced post-judgment proceedings against Benchmark to enforce the Benchmark judgment against it by seeking leave of court to serve interrogatories upon Benchmark's bank. Benchmark opposed the motion, arguing that as a result of ADP's writ of execution in connection with the ADP judgment, plaintiff no longer had any right to seek enforcement of the Benchmark judgment against it. While this motion was pending, Benchmark, in accordance with the ADP judgment writ, paid $275.11 to ADP.
On March 17, 2006, the return date of plaintiff's post-judgment discovery motion on the Benchmark judgment, Judge Hyland entered an order denying plaintiff's motion. By letter dated March 23, plaintiff advised the court that its March 17 order was "appealable as of right." Citing Rule 1:7-4, plaintiff requested a "written opinion with findings of fact and conclusions of law in this regard." In response, Judge Hyland, via certified mail, provided plaintiff with a written statement of reasons, finding that:
[T]he writ of execution provided in the matter of Robert J. Triffin v. Automatic Data Processing, Inc.; Automatic Data Processing, Inc. v. Linda Avallone (consolidated) ESX-L-1915-03, J-85921-05, and Robert J. Triffin v. Automatic Data Processing, Inc., et al., ESX-L-1916-03 dated December 5, 2005, provided Automatic Data Processing with a writ of execution upon your judgment against Benchmark in the instant matter. Therefore, your right to enforce your judgment against Benchmark was rendered moot.
Although fully aware of his right to appeal from Judge Hyland's order, plaintiff failed to do so. He did, however, file a timely appeal of the ADP judgment. On June 28, 2007, in a reported opinion, we reversed the ADP judgment and remanded the matter for further proceedings before the trial court. Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 253 (App. Div. 2007).
On November 27, 2007, plaintiff sent a letter to the Middlesex County Sheriff to which he attached "the original Writ of Execution as issued in [the Benchmark] matter" and "a check for $50.00 in payment of your office's service fee" for service upon Benchmark's accounts at its bank. Benchmark's attorney, in correspondence dated December 6, 2007, served upon Triffin a "Notice and Demand pursuant to Rule 1:4-8(b)(1) regarding your continued attempts to execute against Benchmark on the October 31, 2005 judgment...." The letter reviewed the history of the post-judgment action involving the judgment, including the fact that Benchmark had fully satisfied plaintiff's judgment against it by "paying over the sum of $275.11 to ADP." The letter further advised that plaintiff's "quarrel, if you have one, is not with Benchmark, but is with ADP" and formally requested that plaintiff "withdraw [his] request that the Middlesex County Sheriff execute against Benchmark's assets...."
Plaintiff did not withdraw his request. Rather, he filed a motion seeking an order directing the turnover of funds from Benchmark's bank in partial satisfaction of his judgment against it. Benchmark opposed the motion and filed a cross-motion to enforce litigant's rights pursuant to Rule 1:4-8(b). Benchmark specifically sought "attorney's fees and costs incurred opposing Mr. Triffin's improper efforts to enforce the judgment against Benchmark after [the] March 17, 2006 Order as well as all fees and costs imposed upon Benchmark by the Bank of America in complying with Mr. Triffin's writ of execution."
On April 11, 2008, following oral argument on the motion and cross-motion, the court found that Benchmark had satisfied its obligation to plaintiff and that plaintiff's action was commenced "solely and only for harassment purposes to induce settlement where no obligation is due and owing." The court denied plaintiff's motion but granted Benchmark's cross-motion.
Thereafter, plaintiff sought reconsideration. The court, in an oral opinion delivered from the bench on May 15, found:
This motion for reconsideration is nothing more than harassment with the intent to increase the costs of legal fees paid by defendant, Benchmark. The facts, the arguments presented in this case don't lend the conclusion that the [c]court acted in an arbitrary, capricious, or unreasonable manner when it rendered its decision....
Plaintiff's motion for reconsideration is not to be granted. This [c]court will not vacate the [c]court's finding that was never appealed[,] Judge Hyland's May 9th, 2006.
Judge Hyland's ruling plaintiff's right to enforce the judgment against Benchmark was rendered moot and in fact, continued to [be] moot consistent with the opinion of Triffin versus ADP, [supra]. If the plaintiff is unhappy with this [c]court's findings, he knows he should appeal it, not frankly waste time and money by refiling in this court for reconsideration.
On appeal, plaintiff raises the following points for our consideration:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DEEMED TRIFFIN'S BENCHMARK JUDGMENT AS SATISFIED, AND DENIED TRIFIN'S TURN-OVER MOTION.
THE TRIAL COURT BOTH COMMITTED REVERSIBLE ERROR OF LAW, AND ABUSED ITS DISCRETION WHEN IT AWARDED BENCHMARK $6,116.97 FOR ITS EFFORTS IN OPPOSING TRIFFIN'S TURN-OVER MOTION.
Unquestionably, once a final monetary judgment is entered by a court against a party in a civil action, that party becomes a judgment debtor while the prevailing party becomes a judgment creditor. R. 4:59-1. The judgment creditor is thereafter entitled to seek to recover the judgment against the judgment debtor by executing upon "debt[s]" due and owing to the judgment debtor. See N.J.S.A. 2A:17-19 and N.J.S.A. 2A:17-56.23(b). That is exactly what occurred here.
ADP obtained a judgment against plaintiff in an unrelated matter and sought to execute upon the debts owed to plaintiff, which, at the time of ADP's execution, included the $275.11 Benchmark judgment plaintiff had obtained against Benchmark. The subsequent reversal of the ADP judgment may have provided a basis upon which to seek to recover the Benchmark judgment from ADP, but did not entitle plaintiff to seek to recover that judgment against Benchmark. See Bernoskie v. Zarinsky, 394 N.J. Super. 421, 425 (App. Div. 2007) (reiterating the rule announced in Bruns v. Mattocks, 6 N.J. Super. 174, 177 (App. Div.), certif. denied, 4 N.J. 456 (1950), that "'[w]hat has been given or paid under the compulsion of a judgment the court will restore when its judgment has been set aside and justice requires restitution.'" (quoting United States v. Morgan, 307 U.S. 183, 197, 59 S.Ct. 795, 802, 83 L.Ed. 1211, 1221 (1939))); see Bruns, supra, 6 N.J. Super. at 177 (quoting Morgan, supra, 307 U.S. at 197, 59 S.Ct. at 795, 802, 83 L.Ed. at 1221). Here, Benchmark paid over the Benchmark judgment to ADP under the "compulsion" of the ADP judgment. Consequently, any effort to recover the Benchmark judgment should have been directed to ADP. Ibid.
During oral argument before the court on April 11, 2008, plaintiff argued that as an additional basis to set aside Judge Hyland's order, ADP failed to "file a motion for turnover funds as the Court rules provide." Plaintiff acknowledged to the court that he did not raise this purported defect before Judge Hyland, despite the fact that Benchmark had argued before Judge Hyland that plaintiff was not entitled to post-judgment discovery because Benchmark, by virtue of the ADP judgment writ of execution, had fully satisfied the judgment. Although plaintiff explained to the court that he did not do so because the ADP judgment had not yet been reversed, the court properly rejected this argument, noting that our decision, in connection with the ADP judgment on appeal, had no bearing upon the proceedings before Judge Hyland. Because plaintiff did not raise this issue before Judge Hyland nor appeal from the March 11, 2006 order, we decline to consider this issue here.
Next, we turn our attention to the award of counsel fees and costs to defendant. We are satisfied the trial court's finding that plaintiff's efforts to enforce the Benchmark judgment after March 17, 2006, "were frivolous, were commenced for improper purposes, in bad faith, solely for the purposes of harassment, delay, and to increase Benchmark's costs" during the course of the litigation, is supported by substantial, credible evidence in the record and is entitled to our deference. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We are also satisfied that defense counsel provided plaintiff with the requisite safe harbor notice provisions of Rule 1:4-8(b)(1). Toll Brothers, Inc. v. Township of West Windsor, 190 N.J. 61, 69 (2007). The court, however, failed to place on the record any specific findings as to the reasonableness of the fees sought. Both Rule 1:4-8(d) and N.J.S.A. 23:15-59.1 permit the award of "reasonable" counsel fees where appropriate. Such an award may consist of all counsel fees and litigation costs sought, but only after the court has made the requisite findings of fact. R. 1:7-4.
Defense counsel, during oral argument, estimated that the counsel fees and costs incurred in defending against plaintiff's actions from the entry of Judge Hyland's March 11, 2006 order up to the return date of the April 11, 2008 oral argument were approximately $1660. In the affidavit defense counsel submitted in support of the fee application three weeks later, $6,116.97 in counsel fees and costs were sought. While these fees may be reasonable, in the absence of any factual findings, we are constrained to remand to the trial court for specific findings on the reasonableness of the fees sought.
In view of our remand, we note that defense counsel did not attach any contemporaneous records to the affidavit submitted in support of the fee application. "The use of contemporaneously recorded time records is the preferred practice to verify hours expended by counsel in connection with a counsel-fee application." Szczepanski v. Newcomb Med. Ctr., Inc., 141 N.J. 346, 367 (1995) (citing Webb v. Board of Educ., 471 U.S. 234, 238 n. 6, 105 S.Ct. 1923, 1926 n. 6, 85 L.Ed. 2d 233, 239 n. 6 (1985)). There is nothing in the record before us to suggest that contemporaneous time records were "unavailable [for the court's review] because of an exceptional circumstance." Ibid.
The remaining arguments advanced by plaintiff are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part.