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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...