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Cho v. Retail Recovery Services of N.J.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 8, 2010

JAMES P. CHO, PLAINTIFF-APPELLANT,
v.
RETAIL RECOVERY SERVICES OF N.J., INC., DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-2067-08 and L-5456-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 13, 2010

Before Judges Skillman and Parrillo.

Appellant James P. Cho appeals from a September 11, 2009 grant of summary judgment in favor of respondent, Retail Recovery Services of N.J., Inc., on its malicious abuse of legal process complaint against Cho, awarding respondent $9,173.28 in compensatory damages, consisting of $8,444.00 in attorney's fees and $729.28 in costs. We affirm.

Some background is in order. Respondent, an assignee of a certain book account, obtained a default judgment against Cho in January 1998. On July 20, 1998, a wage execution was placed into effect and approximately $8,400 was garnished from Cho's wages through December 2002. In January 2004, when the judgment was almost satisfied, Cho was successful in obtaining an order vacating the default judgment. Thereafter, when scheduled for trial in the Special Civil Part on July 7, 2004, the matter was apparently settled in mediation and the case was dismissed.

Cho took no action to recover the garnished monies until January 2007, when he began filing a succession of motions and other applications for return of the money, to vacate dismissal of the complaint and counterclaim, for relief from judgment under Rule 4:50, for a new trial under Rule 4:49-1, and to "correct the error." All of these motions were denied and, in one instance, a monetary sanction was assessed against Cho for filing a fifth application without basis. A sixth motion was also denied on March 28, 2008, with the order expressly providing that the application was without merit as there was no error to correct. Cho did not appeal from any of these adverse determinations.

Undeterred, on May 6, 2008, Cho sent an ex parte motion to the presiding judge of the Civil Part, to "correct omission of documents and properly filed documents not filed on the Court record," in which he specifically requested the judge to review and investigate and file pleadings relating to objections to the wage execution and motions to vacate the default judgment. He stated on the notice of motion that he did not serve it on his adversary "because this motion is [a] matter between I and Court." At the presiding judge's direction, the Assistant Civil Division Manager responded to Cho by letter of May 7, 2008, informing him that the "Presiding Judge feels there is no basis to have your motion heard. He advised that you should direct any disagreement to the Appellate Division." Accordingly, Cho filed an appeal. Treating "the letter as a final judgment of the court for appeal purposes pursuant to Rule 2:2-3(a)(1), in the interest of justice and expeditiously disposing of this matter[,]" we affirmed the Law Division's ruling, finding the arguments advanced by Cho to be without merit under Rule 2:11-3(e)(1)(E). Retail Recovery Servs. of N.J., Inc. v. Cho, No. A-4690-07 (App. Div. decided Apr. 15, 2009) (slip op. at 3).

In the meantime, on March 14, 2008, respondent had filed a complaint against Cho seeking compensatory and punitive damages, attorney's fees and costs, alleging malicious abuse of legal process. Cho answered and counterclaimed. No one appeared on the scheduled trial date of May 7, 2009, and, for some reason not disclosed in the record, respondent filed an identical complaint under a different docket number on June 19, 2009. The two matters were consolidated. Following an unsuccessful settlement conference on July 15, 2009, respondent notified Cho by correspondence the following day that it considered Cho's counterclaims to be frivolous, pursuant to Rule 1:4-8(b).

Respondent then filed a motion for summary judgment and other relief. In an accompanying certification, respondent's counsel attached as an exhibit copies of his law firm's billing statements detailing hours expended and fees and costs incurred from January 3, 2007 to the date of the filing of the present summary judgment motion. By order of September 11, 2009, the Law Division granted summary judgment in favor of respondent in the amount of $9,173.28 in compensatory damages, struck Cho's answer and counterclaim with prejudice, and restrained Cho from filing any further applications in the matter.

On appeal, Cho raises the following issues:

I. LEGAL FEES ALREADY BEEN LITIGATED AT ESSEX COUNTY COURT CAN NOT DOUBLE CLAIM FOR THE SAME.

II. EXECUTION OF LEVIED FUND WITHOUT WARRANT IS NOT JUST SHOULD RELIEF FROM ORDER.

III. SHOULD ADMIT ANSWER/COUNTERCLAIM AND MOTION DISCOVERY.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and appellant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20101108

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