On appeal from the Superior Court of New Jersey, Law Division, Special Civil, Middlesex County, Docket Nos. DC-4142-08 and DC-4840-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 27, 2012
Before Judges Messano, Ostrer and Kennedy.
We issue a single opinion disposing of these two appeals, which present the same legal issues and were calendared back-to-back. In A-2550-11, the Sheriff of Middlesex County (the Sheriff) appeals from the Law Division's order that, among other relief provided, converted the "amercement petition" of plaintiff Onyx Leasing Systems, Inc. (Onyx) into a complaint in lieu of prerogative writs seeking mandamus; "ordered and directed" the Sheriff to "levy upon . . . the title of" a certain motor vehicle, as well as "the motor vehicle itself"; ordered the Sheriff to transmit certain forms to the Motor Vehicle Commission (the MVC); and ordered the MVC to "process the levy . . . and provide the appropriate documentation to the Sheriff . . . ." In A-2552-11, the Sheriff appeals from the Law Division's order that granted plaintiff M&R Auto Sales, Inc. (M&R) the same relief.
We set forth the factual and procedural history of the litigation, which is undisputed. Onyx and M&R (hereafter, collectively referred to as plaintiffs) obtained judgments in the Special Civil Part against Lakrisha Stevens and Shareef J. Braxton respectively. Plaintiffs obtained writs of execution and forwarded them to the Sheriff requesting that she levy upon vehicles owned by Stevens and Braxton, and providing a description of the cars and their vehicle identification numbers.
As to both requests to levy, the Sheriff reported that service was ineffective because, as to Stevens, the officer "did not see [any] cars," and, as to Braxton, "no vehicles [were] present on any attempt." Plaintiffs' counsel thereafter wrote the Sheriff:
It [was] not necessary for your officer to physically see the motor vehicle in order to levy. A constructive levy may be accomplished by sending the CO-55 [form] to [the MVC] and informing them of the levy and they will issue an appropriate stop on the title. After the stop is issued on the title if you are still unable to locate the vehicle I will hire the services of a repossession company to locate and seize the vehicle for sale. Please send the appropriate paperwork to motor vehicle to effectuate the levy.
Less than two weeks later, plaintiffs' counsel again wrote to the Sheriff, noting that the Sheriff's "refus[al] to accomplish the constructive levy . . . by posting at the premises and sending the appropriate paperwork to the [MVC]," left her with no alternative but to file litigation "to compel appropriate action . . . ."
On November 15, 2011, plaintiffs filed ex parte motions "for an [o]rder of [a]mercement, pursuant to N.J.S.A. 40A:9-109." Plaintiffs sought "to compel . . . [the Sheriff] to file [MVC] Form OS/SS 55 . . . with [the MVC] . . . ." The motions were apparently made returnable for December 2.
On November 30, the Sheriff sought an adjournment and, alternatively, advanced two arguments in opposition to plaintiffs' motions. First, the Sheriff "contend[ed] that th[e] action [was] not properly an amercement under N.J.S.A. 40A:9-109." Second, the Sheriff "contend[ed] that plaintiffs' motion[s] for entry of an order that compels [the Sheriff] to file the [OS/SS 55] forms when they do not actually see the subject vehicle is unsound and not legally compelled."
The judge adjourned the motions and the Sheriff submitted additional written arguments in opposition. Since plaintiffs did not allege "any actual damages," a necessary element of an amercement action, the Sheriff contended the motions should be denied. The Sheriff also argued that the order submitted by plaintiffs sought to compel the Sheriff "to take certain action" and "properly should have been the subject of a complaint in lieu of prerogative writ[s] as . . . mandamus . . . ."
On December 12, plaintiffs' counsel sent a letter to the motion judge. She enclosed a copy of an order entered on December 2 by another Law Division judge in a different case seeking similar relief. Counsel wrote:
In short, the enclosed is respectfully submitted so as to offer the court guidance in a similar fact pattern, and to further request that this . . . court treat the pending motions as a request for prerogative writ in lieu of mandamus, in similar fashion, in that the relief requested is in the nature of compelling the Sheriff to do something it [sic] is obligated to do, rather than an amercement action[,] as at this point, no damages have ...