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Loring v. Clark

October 26, 2010

ALAN LORING, PLAINTIFF-APPELLANT,
v.
ROBERT P. CLARK, ESQ., CLARK AND DI STEFANO, P.C., PROFORMANCE INSURANCE COMPANY, STATE OF NEW JERSEY, DIVISION OF MOTOR VEHICLES, AND JENNIFER BARQUERO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-707-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 22, 2010

Before Judges Fisher and Sapp-Peterson.

Plaintiff, Alan Loring, appeals from various orders, namely: (1) the July 17, 2009 orders denying his motion for declaratory relief and granting defendants' motions for dismissal; (2) the August 28, 2009 order awarding counsel fees to defendants; and (3) the October 30, 2009 order incorporating the July 17, 2009 order, which had inadvertently neglected to dismiss the claims against all defendants. We affirm.

Plaintiff's complaint arises out of an August 2004 motor vehicle accident in which plaintiff rear-ended a vehicle operated by defendant, Jennifer Barquero. Barquero's vehicle sustained $729.43 in property damage, which her insurance company, Proformance Insurance Company,*fn1 paid. Proformance exercised its contractual right of subrogation and commenced an action to recover damages against plaintiff, as the tortfeasor.

After plaintiff failed to answer or otherwise file a responsive pleading, Proformance successfully moved for the entry of default and, later, for a default judgment against plaintiff. The court later granted plaintiff's motion to vacate the default judgment but granted summary judgment in favor of Proformance on the question of plaintiff's liability. The parties reached a settlement on the issue of damages prior to trial. The settlement called for plaintiff to make eleven monthly payments of $50 commencing June 11, 2008. Additional language in the settlement provided as follows: "In the event any party defaults as to the term(s) of Settlement, the aggrieved party may file a Certification with the Clerk of the Special Civil Part together with proof of Service upon the defaulting party, requesting that a Judgment be entered in the amount of the original Complaint."

When plaintiff missed the June and July payments, Robert P. Clark, and Clark & DiStefano, P.C. (collectively Clark), Proformance's attorneys, forwarded an ex parte order for judgment that included a certification outlining the factual basis for the order. The court entered the judgment on August 6, 2008. The order directed that Proformance serve plaintiff with a copy of the order within ten days. A copy of the order was forwarded to plaintiff's counsel on August 12, 2008, along with a cover letter requesting that plaintiff's counsel contact Clark within the next ten days or post-judgment execution remedies would be commenced, "which may include the suspension of your client's driving and registration privileges. Any and all attorney fees or costs will be your client's responsibility." Plaintiff's counsel did not respond.

On October 29, 2008, Clark wrote to the Special Civil Part, advising the court of the entry of judgment and the fact that the judgment had not been satisfied within sixty days of its entry. Clark also sought a certification of the judgment to the New Jersey Motor Vehicle Commission (MVC)*fn2 and suspension of plaintiff's driving and registration privileges. Upon receipt of the certification of judgment, the MVC director suspended plaintiff's driving privileges effective March 27, 2009.

On April 15, 2009, plaintiff commenced this action by filing a verified complaint and seeking the court's entry of an order to show cause in Superior Court. Among the relief sought was restoration of his driving privileges, as well as injunctive and declaratory relief. The court denied the relief sought but allowed plaintiff to preserve his claim against Clark alleging that defense counsel wrongfully filed a request for the revocation of his motor vehicle privileges.

On June 1, 2009, the court, upon satisfaction of the judgment, restored plaintiff's driving privileges. The next day, plaintiff filed a motion for partial summary judgment seeking, among other relief, a declaration that N.J.S.A. 39:6-35 is unconstitutional due to the absence of a notice requirement or, alternatively, that the revocation procedures employed against him deprived him of his constitutional rights. Defendants cross-moved for summary judgment and sought awards of counsel fees. After hearing oral argument the judge rendered an oral opinion denying plaintiff's motion, granting summary judgment dismissing all of plaintiff's claims against defendants, and awarding counsel fees.*fn3 The order memorializing the court's decision was entered on that same date. After defendants' attorneys submitted affidavits of services provided, the court entered an order on August 28, 2009, awarding $1700 in counsel fees to each of the three defense firms. The present appeal followed.

On appeal, plaintiff raises the following points for our consideration:

POINT [I]

THE GRANT OF ATTORNEYS [FEES] FOR UNNECESSARY LEGAL WORK IS AN ...


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