July 20, 2011
ROBERT J. TRIFFIN, PLAINTIFF-APPELLANT,
CAPITAL ONE, DEFENDANT-RESPONDENT, AND JP MORGAN CHASE & COMPANY, AND LISA M. CERMINISKE, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Special Civil Part, Docket No. DC-1222-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 16, 2010
Before Judges Carchman and Waugh.
Plaintiff Robert J. Triffin appeals the dismissal with prejudice of his complaint against Capital One, N.A. (Capital One). For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
We discern the following facts and procedural history from the record on appeal.
This appeal stems from a pattern of activity in which Triffin has engaged for nearly a decade, which we describe in some detail to put the present appeal in context. Triffin "is in the business of purchasing dishonored checks and taking assignments from the sellers by which he seeks to recover as holder in due course from banks and others in the collection process." Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 241 (App. Div. 2007) (ADP). Since 2004, Triffin has filed more than 4000 lawsuits to recover the value of such checks. Id. at 242.
In ADP, Triffin demanded payment on numerous dishonored checks. Id. at 242. ADP refused, and Triffin sued to recover the value of the checks. Attached to the complaints were copies of assignment agreements corresponding to each dishonored check, which identified Triffin as the buyer. Each agreement also named a specific check cashing facility as the seller, and contained a certification from the seller's representative stating their authority to enter the agreement. Id. at 242-43.
During discovery, ADP determined that the assignment agreements had not been manually signed by sellers' representatives. Id. at 244. Triffin conceded that the agreements were completed after the checks had been delivered to him. He further conceded that he had scanned the signatures of various sellers' representatives into his computer and then copied them onto the assignment forms. Finally, Triffin conceded that he had created the assignment agreements for the checks and that the sellers had never agreed to or signed them. ADP subsequently filed a counterclaim alleging common-law fraud, RICO*fn1 violations, and negligence. Id. at 244-45.
Following an eight-day jury trial, Triffin was held liable for common-law fraud and ADP was awarded compensatory and punitive damages. Id. at 245. The trial judge substantially reduced the damages awarded to ADP. Both parties appealed. We held that the trial record clearly supported the conclusion that Triffin made a material misrepresentation regarding the assignment agreements, but nonetheless concluded that ADP's judgment for fraud could not stand because ADP could not have reasonably relied on the misrepresentation. Id. at 247-49. Although we reversed the judgment in ADP's favor, we noted the lack of redress for Triffin's wrongful conduct and recognized the trial court's "inherent power to sanction a fraud on the court." Id. at 250-53. Consequently, we remanded for further proceedings to determine whether Triffin's conduct constituted fraud upon the court warranting sanctions. Id. at 253.
On remand, Judge Donald S. Goldman determined that Triffin had committed a fraud upon the court and entered an order awarding ADP's counsel fees and costs, which we affirmed on appeal. Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292, 301-03, 315 (App. Div. 2010) (ADP II). Additionally:
After determining ADP's attorney's fee award, Judge Goldman went on to note that a modest financial penalty is unlikely to deter future misconduct on Triffin's part. As such, the judge's order required Triffin to provide a certification, under oath, to indicate whether or not he possesses a document with original signatures whenever he submits a document to a trial court either as a pleading, as an attachment to a motion, or seeks to mark an exhibit for identification or in evidence at trial. The opposing party or the court, sua sponte, could then seek to suppress a pleading or other filing that does not comply with this order. [Id. at 303-04 (internal quotation marks omitted).]
The injunction, which was in effect from September 1, 2008 until August 31, 2009, set forth three possible certifications, one of which Triffin was required to submit depending on whether he sought to file a document with an original signature, a copy of an original signature, or both. The order provided for enforcement by Judge Goldman or any court in which a violation of the injunction occurred. On appeal, Triffin also claimed that Judge Goldman abused his discretion in entering the injunction. Although we affirmed in ADP II, we did not address the injunction specifically.
We now turn to the facts concerning the present action. On January 13, 2009, Triffin filed a complaint against Capital One in the Special Civil Part. He alleged that he was a holder in due course of a dishonored check in the amount of $75.81, which had been assigned to him by Sun Ae Corporation (Sun Ae)*fn2 on December 19, 2008. An assignment agreement from Sun Ae to Triffin and a copy of the dishonored check were attached to the complaint.
Instead of using one of the three possible certification forms set forth in the injunction entered by Judge Goldman, Triffin filed an omnibus certification setting forth the language of all three of certifications. Triffin did not specify whether he was submitting a document with an original signature or a copy or both. Capital One filed a counterclaim alleging the check was fraudulent and that Triffin had committed a fraud upon the court.
In March 2009, Triffin filed a motion to amend the complaint and to join JP Morgan Chase as a defendant. Triffin did not affix a conforming certification to the proposed amended complaint as required by the injunction entered by Judge Goldman.
After oral argument on April 3, 2009, the motion judge granted Capital One's motion for permission to depose Triffin pursuant to Rule 6:4-4 and to serve additional interrogatories. The implementing order also permitted Capital One to serve a request for admissions and a notice to produce documents pursuant to Rule 6:4-3. Triffin was required to provide answers to the request for admissions by May 3, 2009, and to produce documents by May 8, 2009. On May 1, the judge denied Triffin's motion for extended discovery and to serve his own requests for admissions.
Triffin did not provide the required discovery by the aforementioned deadlines. On May 12, Capital One sent Triffin a letter informing him that if he did not comply with the April 3 order by May 15, it would immediately file a motion to enforce the order and for attorney's fees and costs. Triffin submitted answers to the request for admissions on May 15, but did not produce any of the requested documents. Triffin also served Capital One with a request for admissions, despite the May 1 order denying him leave to do so.
Capital One filed a motion for sanctions on June 10, in which it requested attorney's fees and the dismissal of Triffin's complaint with prejudice. In support of its motion, Capital One's counsel filed a certification alleging that Triffin had failed to file the required certification with his complaint, thereby violating the ADP II injunction. Capital One also cited Triffin's failure to comply with the April 3 and May 1, 2009 orders concerning discovery.
Triffin opposed the motion. He argued that his failure to comply with the April and May discovery orders was moot because he produced documents on June 19, 2009, ten days after Capital One had filed its motion for sanctions. He also withdrew his unauthorized request for admissions. Additionally, Triffin filed a cross-motion seeking denial of Capital One's motion based on its failure to resolve the discovery dispute in good faith pursuant to Rule 1:6-2(c).
On June 26, 2009, the motion judge granted Capital One's motion for sanctions and dismissed the complaint with prejudice. The judge found that Triffin's complaint, motion to amend the complaint, and proposed amended complaint were filed without appropriate certifications as required by the injunction. The judge also found that Triffin was "stonewalling and obstructing justice by preventing depositions and not complying with discovery" as required by the April 3 order. An implementing order was entered on June 26. The order directed Capital One to submit a certification detailing the services rendered in connection with responding to Triffin's complaint. A second order, also entered on June 26, denied Triffin's cross-motion.
On July 7, Triffin filed a motion for reconsideration. Capital One opposed the motion and filed a cross-motion seeking additional sanctions against Triffin on the grounds that the motion for reconsideration was frivolous. Capital One also filed a certification of services. Triffin opposed the cross-motion.
After oral argument on July 31, the judge denied Triffin's motion for reconsideration and awarded Capital One attorney's fees and costs in the amount of $10,808.80. Capital One's cross-motion for additional sanctions was denied.
This appeal followed.
On appeal, Triffin makes several arguments that have already been rejected by this court. First, he contends that Judge Goldman did not have the authority to issue the injunction on remand after ADP I because it constituted a statewide procedural rule, the promulgation of which offended the Supreme Court's exclusive authority to "make rules governing the . . . practice and procedure in all such courts." N.J. Const. art. VI, § 2, ¶ 3. We disagree.
Triffin unsuccessfully raised the same argument in Triffin v. Elite Personnel, Inc., No. A-0211-09 (App. Div. May 13, 2010) (slip op. at 4-5).*fn3 Elite Personnel arose out of factual circumstances similar to those now before us. In Elite Personnel, Triffin's complaint was dismissed with prejudice after he submitted an omnibus certification in violation of the ADP II injunction.
On appeal, Triffin argued that Judge Goldman lacked the constitutional authority to enter the statewide injunction. Id. at 4-5. We held that the injunction was constitutional:
[T]he injunction [was] to have been a prophylactic disciplinary measure that appropriately addressed a course of conduct that had been found to have constituted fraud on the court. In this regard, we note that Judge Goldman's certification requirement was limited in time. Further, it did not in any material fashion prohibit access by Triffin to the courts. It simply provided a policing mechanism, designed to insure that pleadings and evidence in Triffin's matters properly and truthfully reflected the underlying facts of those matters. We have been offered nothing to suggest that Judge Goldman lacked the inherent power to issue such an injunction, which regulated only Triffin's conduct.
Indeed, in a related context, the entry of court-wide injunctions against the filing of frivolous actions is frequently recognized as a lawful exercise of judicial power, so long as principles of due process are honored. See, e.g., Rosenblum v. Borough of Closter, 333 N.J. Super. 385 (App. Div. 2000); see also Gilgallon v. Carroll, 153 Fed. Appx. 853 (3d Cir. 2005); Perry v. Gold & Laine, P.C., 371 F. Supp. 2d 622 (D.N.J. 2005). Moreover, although in the course of his order Judge Goldman recognized the power of his colleagues to impose judicial sanctions upon Triffin should he violate the order's provisions, Judge Goldman did not mandate that his colleagues employ any such sanctions. [Id. at 5-6.]
Second, Triffin argues that the motion judge did not have the authority to decide whether Triffin violated the injunction, arguing that Judge Goldman "expressly reserved for himself the sole authority to entertain alleged violations" of the injunction. Again, we disagree.
Paragraph four of the injunction permits enforcement "by any [c]court having jurisdiction over the matter in which the document in question is attempted to be filed or submitted without the required certification." In Elite Personnel, supra, slip op. at 6, we also rejected the argument that the trial judge lacked jurisdiction under the injunction to impose sanctions. We found that "[s]uch jurisdiction was specifically authorized by paragraph 4 of the order, which recognized the court in which the violation occurred as a proper venue for sanction proceedings." Ibid.
Finally, Triffin argues that the trial court erred by failing to determine which of the three certifications set forth in his omnibus certification would have satisfied the injunction's terms. He maintains that his "conservative handling of the selection issue" by including all three possible certifications was warranted.
We rejected the same argument in Elite Personnel, supra, slip op. at 6:
[W]e read Judge Goldman's order . . . to require Triffin, not the court, to make an initial determination as to which of the three certifications of authenticity and lack of alternation was applicable to the present matter and to offer that certification in connection with his complaint in the case.
Triffin cannot relitigate any of those issues in this appeal. See Khoudary v. Salem Cnty. Bd. of Soc. Servs., 281 N.J. Super. 571, 575 (App. Div. 1995) (stating plaintiff may not "reargue the merits of what we decided in the first appeal" because the judgment issued by this court "became final and the law of the case" when "the time for appeal or petition for certification [had] expired").
Triffin next argues that the trial judge abused his discretion by dismissing his complaint with prejudice. He maintains that his failure to comply with the April 3 and May 1 discovery orders in a timely manner is not an appropriate basis for dismissal of the complaint with prejudice, inasmuch as he had complied by the time the judge heard the motion for sanctions.
The judge dismissed with prejudice pursuant to Rule 4:23-2(b)(3) and Rule 4:37-2(a), which provide that dismissal with or without prejudice is available as a sanction for failure to comply with an order to provide or permit discovery. Although dismissal of plaintiff's claim is a permissible sanction for failure to comply with a discovery order, we have deemed it "the last and least favorable option." Il Grande v. DiBenedetto, 366 N.J. Super. 597, 624 (App. Div. 2004). "[T]he sanction of dismissal with prejudice for a procedural violation must be a recourse of last resort," and the judge should "first explore the availability of lesser sanctions under Rule 4:23-1." Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 11 (App. Div. 2007).
Here, the motion judge's order did not articulate any reason for the dismissal with prejudice other than Triffin's violation of the discovery orders, nor did the judge "explore the availability of lesser sanctions." Ibid. Our review of the record suggests that a lesser sanction, including an award of counsel fees, would have been more appropriate. We therefore reverse the dismissal with prejudice and remand the case for further proceedings consistent with this opinion.*fn4
Lastly, Triffin argues that the motion judge abused his discretion by awarding counsel fees as a sanction without providing any reasons, including an analysis of the factors set forth in Rule of Professional Conduct 1.5(a). Our review of the record convinces us that Triffin's repeated violations of the orders entered by Judge Goldman and the judge in this case warranted an award of counsel fees by way of sanction. Nevertheless, we cannot review the quantum of the award without the required articulation of how it was calculated. Rule of Professional Conduct 1.5(a) requires an award of attorney's fees to be "reasonable," and sets forth the following "factors to be considered in determining the reasonableness of a fee":
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services;
(8) whether the fee is fixed or contingent. [R.P.C. 1.5(a).]
After analyzing the applicable factors, the trial judge "then must state its reasons on the record for awarding a particular fee." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004) (citing Rule 1:7-4(a)). See also 4:42-9(b).
The motion judge failed to articulate his basis for calculating the counsel fees awarded to Capital One. "'The absence of adequate findings . . . necessitates a reversal.'" Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008)(alteration in original) (quoting Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996)). We therefore remand to the motion judge for an analysis of the applicable factors and articulation of the basis of his award of fees and costs to Capital One.
Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.