Opinion
DOCKET NO. A-3739-13T3
04-17-2015
GRUNOW MACHINERY PENSION TRUST, Plaintiff, v. NATIONAL INVESTMENT CORP., ESTATE OF FRANK PICENO, ANGELA PICENO, BRUCE KREEGER, DIANE KREEGER, Defendants-Respondents. IN THE MATTER OF MORRIS COUNTY SHERIFF'S OFFICE, Appellant.
Daniel W. O'Mullan, County of Morris, County Counsel, attorney for appellant (Robert J. Greenbaum, Special Morris County Counsel, on the brief). Law Offices of Alan R. Ackerman, attorney for respondents (Mr. Ackerman, of counsel; Lauren E. Allu, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2014-07. Daniel W. O'Mullan, County of Morris, County Counsel, attorney for appellant (Robert J. Greenbaum, Special Morris County Counsel, on the brief). Law Offices of Alan R. Ackerman, attorney for respondents (Mr. Ackerman, of counsel; Lauren E. Allu, on the brief). PER CURIAM
The Morris County Sheriff's Office (MCSO) appeals from a March 12, 2014 Law Division order denying it fees in the amount of $17,073.77 the MCSO claims it earned pursuant to N.J.S.A. 22A:4-8. We reverse.
I
On December 5, 2008, the court entered an order granting summary judgment in favor of plaintiff and against defendants in the amount of $915,343.67, plus interest and attorney's fees. On December 17, 2008, the clerk signed and filed a writ of execution commanding the MCSO to satisfy the judgment out of the defendants' personal property located in Morris County but, if there was insufficient personalty, the judgment was to be satisfied out of the debtors' real property located within the county.
Plaintiff conducted discovery to determine the assets defendants possessed. On February 23, 2010, plaintiff's attorney forwarded to the MCSO a certification stating defendants did not possess personalty of any value. Around this time plaintiff also advised the MCSO that the individual defendants owned real property in Mine Hill and provided the specific address of this property.
On March 9, 2010, the MCSO posted the property for a sheriff's sale. On March 10, 2010, the defendants' attorney faxed a letter to the MCSO claiming the property did not belong to the individual defendants but to a partnership the individual defendants had formed. The defense attorney did not attach any documentary proof to substantiate that the property was not owned by these defendants.
The next day, the plaintiff's attorney faxed a letter to the MCSO disputing these defendants' claim they were not the owners of the property and attached copies of deeds indicating they were the owners. A sheriff's officer certified that the MCSO verified with the Morris County Clerk that the deeds forwarded by plaintiff's counsel were recorded.
In June 2010, the parties resolved how defendants would pay the judgment. They agreed defendants would pay $876,333.83 over a period of time and that defendants would be responsible to resolve the MCSO's fee. Although defendants claim they sent the MCSO a letter in June 2010 informing it of the parties' settlement, the letter to which defendants refer merely requests that the MCSO release "all levies" to collect rent from tenants located at another property.
On February 11, 2011, the plaintiff's attorney faxed a letter to the MCSO requesting that it cancel the sheriff's sale then scheduled for March 3, 2011, because the writ had been satisfied. On September 20, 2012, the MCSO asserted a claim for fees pursuant to N.J.S.A. 22A:4-8 in the amount of $17,073.77.
Defendants filed a motion to discharge the levy against the subject property and to dismiss MCSO's claim for fees. The court ordered an evidentiary hearing to determine the owner of the property. Just before the hearing on November 15, 2013, the parties stipulated the property was solely owned by defendants' partnership. The court vacated the levy, and dismissed the MCSO's claim for fees on the ground the levy had "no legal effect, because the judgment debtor did not own the property. . . . And because the writ, for that reason, is effectively null and void."
II
On appeal, the MCSO argues it earned and is entitled to a fee under N.J.S.A. 22A:4-8, which plaintiff — or defendant under its agreement with plaintiff — must pay, and the fact plaintiff directed it to levy and post for sale property the debtors did not own is immaterial. The MCSO had no choice but to follow plaintiff's instructions and was not obligated to verify the accuracy of plaintiff's representations that defendants owned the property plaintiff wanted levied and sold.
Defendants argue Rule 4:59-1(g) required the MCSO to file a bill of taxed costs with the clerk within twenty days of learning of the settlement between plaintiff and defendants, and its failure to timely file a bill precludes it from recovering a fee. In the alternative, defendants argue the MCSO did not earn a fee because it levied upon property defendants did not own.
To enforce a money judgment out of the judgment debtor's personal or real property, the creditor must obtain and docket a judgment, prepare a writ of execution, have the writ entered by the court clerk, and deliver the writ of execution to the sheriff. Borromeo v. DiFlorio, 409 N.J. Super. 124, 136-37 (App. Div. 2009). It is the judgment creditor's responsibility to locate the property to be levied and to give the sheriff any information or instruction necessary to enable him to levy the debtor's property. Ibid. (citing Vitale v. Hotel Cal., Inc., 184 N.J. Super. 512, 519-20 (Law Div.), aff'd, 187 N.J. Super. 464 (App. Div. 1982)). The sheriff has a duty to execute the writ in accordance with the plaintiff's instructions, see Vitale, supra, 184 N.J. Super. at 520, although a sheriff must first levy on the debtor's personalty and, if insufficient, levy on the debtor's real property. N.J.S.A. 2A:17-1.
N.J.S.A. 22A:4-8 provides that
When a sale is made by virtue of an execution the sheriff shall be entitled to
charge the following fees: On all sums not exceeding $5,000.00, 6%; on all sums exceeding $5,000.00 on such excess, 4%; the minimum fee to be charged for a sale by virtue of an execution, $50.00.
. . . .
When the execution is settled without actual sale and such settlement is made manifest to the officer, the officer shall receive 1/2 of the amount of percentage allowed herein in case of sale.
This statute also states that the sheriff shall file his tax bill of costs with the clerk within such time as the court directs by general rule or special order. Although at one time Rule 4:59-1(f) required the bill to be submitted within twenty days after the date of sale, in 2008 Rule 4:59-1 was amended and the time constraint within which a bill must be filed was removed. See Rule 4:59-1(g).
"'The right of a sheriff to compensation for his services is derived from statute and must be strictly construed.'" Jacoby v. Eseo, 329 N.J. Super. 119, 122 (App. Div. 2000) (quoting Int'l Bhd. of Elec. Workers, Local No. 1470 v. Gillen, 174 N.J. Super. 326, 328 (App. Div. 1980)). As stated in Sturges v. Lackawanna & W. R.R. Co., 27 N.J.L. 424, 425-26 (Sup. Ct. 1859), the purpose of the fee is to compensate the sheriff for the "trouble, care, and risk" in levying upon a defendant's property, and
its safe keeping for the purpose of a sale and the securing the payment of the amount due.
Having taken the necessary measures to levy upon and secure the property, it would be unjust to deprive him of all compensation.
The service and risk are put upon the sheriff by the plaintiff, for his own benefit, and the statute has provided for his compensation.
It is of no consequence to the sheriff how the matter is arranged between the plaintiff and the defendant. If anything is done between them, by which a sale is rendered unnecessary, that must be considered a settlement within the meaning of the act. The execution is then settled without a sale; its operation is suspended by the act of the parties; the sheriff can proceed upon it no further, unless it may be to make his own costs; and he becomes entitled to the allowance provided by the statute.
Here, plaintiff advised the MCSO that there was no personalty on which to levy, but gave the MCSO the address of real property it believed the individual defendants owned. As the MCSO was obliged to do, it levied upon and posted that property for sale. Although these defendants subsequently advised the MCSO they were not the owners of the property, within a day plaintiff disputed that claim by providing the MCSO with copies of deeds substantiating its contention the individual defendants were the owners. Regardless, the MCSO did not have a duty to resolve the dispute over ownership, a task the court eventually concluded required an evidentiary hearing. But more to the point, the MCSO cannot be faulted and deprived of its fee because it levied upon and posted for sale property plaintiff had advised was owned by the judgment debtors.
Notwithstanding it did not have a duty to determine whether the individual defendants owned the property, the MSSO checked with the County Clerk's Office and learned the deeds plaintiff forwarded were in fact recorded. Further, if defendants believed the wrong property had been levied, defendants could have taken prompt corrective action and filed a motion to vacate the levy, rather than waited over two years.
Defendants argue that, under Borromeo, supra, 409 N.J. Super. 124, the writ of execution was defective and thus null and void, depriving the MCSO of its right to a fee. Borromeo is factually inapposite. In Borromeo the plaintiff-creditor gave the Somerset County Sheriff's Office a writ of execution that was in fact directed to the Mercer County Sheriff. Id. at 132-33. After the Somerset County Sheriff levied upon real property in Somerset County, the owner of the property, who was not the judgment debtor, moved to vacate the levy. Id. at 133. Among other things, the owner argued that the writ was defective because it was directed to the Mercer County Sheriff and not the Somerset County Sheriff. Id. at 133.
We held that the writ had no force and effect because "the error naming the wrong county official to execute on property actually located in a different county [is] a material departure from the positive command of the statute." Id. at 140. Finding the misdirected writ void, we found the levy void as well. Id. at 141-42. The Somerset County's Sheriff's entitlement to a fee was not raised as an issue.
Here, the writ was not defective. Once plaintiff delivered the writ to the MCSO with instructions to levy upon certain property, the MCSO was obligated to execute the writ. The MCSO followed through with those instructions and posted the property for sale. Accordingly, it earned its fee under N.J.S.A. 22A:4-8. The provision in the March 12, 2014 order finding the MCSO is not entitled to any commission is reversed.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION