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Loring v. Clark

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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

POINT [II]

N.J.S.A. 39:6-35 AS DRAFTED AND FOLLOWED IS UNCONSTITUTIONAL.

POINT [III]

DUE PROCESS REQUIRES (1) ADEQUATE NOTICE AND (2) AN OPPORTUNITY TO BE HEARD.

POINT [IV]

THIRD TEST FOR DUE PROCESS.

POINT [V]

CIRCUMSTANCES UNDER WHICH DUE PROCESS MUST BE ACCORDED.

POINT [VI]

N.J.S.A. 39:5-30 REQUIRES NOTICE TO LORING.

POINT [VII]

N.J.S.A. [39:]6-35 MIGHT BE UPHELD IF READ IN PARI MATERIA WITH N.J.S.A. 39:6-25 OR 39:5-30.

POINT [VIII]

THIS COURT COULD INTERPRET THE INTENT OF THE LEGISLATURE TO REQUIRE THE DIRECTOR OF MOTOR VEHICLES TO PROPOUND RULES AND REGULATIONS REQUIRING DMV TO GIVE NOTICE.

POINT [IX]

EXCEPTION TO REQUIREMENT FOR NOTICE AND OPPORTUNITY TO BE HEARD.

POINT [X]

THE COURT BELOW FAILED TO ADDRESS THE APPLICABLE STANDARDS FOR THE AWARD OF COUNSEL FEES.

POINT [XI]

DOES PLAINTIFF HAVE A CAUSE OF ACTION AGAINST ANY OF THE DEFENDANTS FOR MONEY DAMAGES IF THE COURT DECLARES THE STATUTE TO BE UNCONSTITUTIONAL?

POINT [XII]

AMERICANS WITH DISABILITIES ACT REQUIRES NEW JERSEY TO MAKE REASONABLE ACCOMMODATIONS FOR DISABLED PERSONS.

Plaintiff claims his constitutional rights were violated because the MVC suspended his driving privileges without notice and an opportunity to be heard. Defendants argue that because the MVC director is statutorily obligated to revoke his driving privileges "forthwith" upon receipt of the certified judgment from the court, plaintiff was not entitled to notice or an opportunity to be heard.

Twenty years ago, our Supreme Court expressed its view about the significance of a driver's license in State v. Hamm, 121 N.J. 109 (1990), cert. denied, 499 U.S. 947, 111 S.Ct. 1413, 113 L.Ed. 2d 466 (1991), stating that "[a] license to drive is not a privilege, it is nearly a necessity. And its deprivation is clearly a 'consequence of magnitude.'" Id. at 124 (quoting Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971)). Recently, our Court reiterated this view in State v. Moran, 202 N.J. 311, 325-26 (2010), stating:

However a license to drive is denominated, either as a right or a privilege, a license suspension may not be imposed arbitrarily. . . . The suspension of a driver's license is a consequence of magnitude because a license to drive in this State "is nearly a necessity," as it is the primary means that most people use to travel to work and carry out life's daily chores. Hamm, supra, 121 N.J. at 124 . . . . No one would suggest that a court can take away one's driving privileges on a whim or capriciously. . . . The need for standards governing license suspensions touches on core constitutional principles.

N.J.S.A. 39:6-35 provides in pertinent part:

If a person fails to pay and satisfy every judgment rendered against him for damages because of . . . damage to property in excess of $500.00, resulting from the . . . operation of a motor vehicle and every judgment based on an agreement or contract made in settlement of damages arising out of a motor vehicle accident, within 60 days after its entry . . . the operator's license and all registration certificates of any such person . . . shall, upon receiving a certified copy of a transcript of the final judgment from the court in which it was rendered showing it to have been still unsatisfied more than 60 days after it became final, be forthwith suspended by the director. [(Emphasis added).]

The statute is silent on the question of notice to the licensee. However, we are satisfied that when it is read together with N.J.S.A. 39:5-30(a), notice is required where revocation of driving privileges results from action taken by the director rather than, for example, by a court. See, e.g., N.J.S.A. 39:4-50 (directing the court to revoke driving privileges upon conviction for driving while under the influence).

N.J.S.A. 39:5-30(a) expressly provides that where action is taken by the director to revoke a licensee's driving privileges, the notice requirements apply "for a violation of any of the provisions of this Title," meaning Title 39, which includes N.J.S.A. 39:6-35. Support for this construction is found in the very language of N.J.S.A. 39:6-35, which affords the director discretion to extend the time period for payment of the judgment if the director is satisfied that the failure to satisfy the judgment during the requisite sixty-day period is due to no fault of the judgment debtor. The exercise of such discretion therefore contemplates that information has been provided to the director, presumably by the judgment debtor, in advance of the suspension. Based on such information, the director may exercise discretion in determining whether it is appropriate to extend the time period during which the judgment must be satisfied for a period of time that is reasonably "necessary to complete the formality of payment of the judgment[.]" Ibid.

Additionally, our interpretation is guided by the fact that without receiving notice, either contemporaneously or in advance of the suspension, the licensee is exposed to the risk of further adverse consequences. Those consequences include, while operating a motor vehicle, being subjected to a routine motor vehicle stop. If a license check discloses that the driver is on the revoked list, the police may make an arrest and have the vehicle impounded. See N.J.S.A. 39:5-25 (authorizing a law enforcement officer to arrest a driver who commits an offense under Chapter 3 of Title 39, in the officer's presence); see also State v. Pierce, 188 N.J. 155 (2006) (agreeing that operating a motor vehicle while on the revoked list is one of the more serious offenses contained in Title 39). We therefore find no constitutional infirmity in the language of N.J.S.A. 39:6-35 but only in how the agency has interpreted the statute.

That said, we nonetheless are satisfied plaintiff suffered no harm as a result of the MVC's actions. There is no dispute that the MVC notice of the revocation was mailed to plaintiff two days following the effective date of the suspension. However, the brief delay in plaintiff's receipt of the notice of suspension was, in our view, of no consequence. Defense counsel gave notice to plaintiff, through his attorney, of the possible license suspension more than six months before the actual license revocation. Neither plaintiff nor his attorney responded to this correspondence. Further, there is no evidence that plaintiff suffered any harm during the delay between the effective date of the suspension and his receipt of the actual notice of the revocation. Moreover, had plaintiff received notice of the suspension from MVC on or before March 27, 2009, he would not have been able to assert any of the statutory grounds for withholding the suspension: (1) "the refusal or legal inability of the judgment creditor to accept payment"; or (2) the "neglect of the judgment debtor's insurance carrier and not . . . any fault of the judgment debtor[.]" N.J.S.A. 39:6-35. Hence, the motion judge properly dismissed plaintiff's complaint against the defendants.

Plaintiff's remaining arguments related to the award of counsel fees to defendants and his claimed entitlement to reasonable accommodation under the Americans with Disabilities Act, 42 U.S.C.A. §§ 12101 to -12213,*fn4 are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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