Opinion
DOCKET NO. A-1940-11T4
03-06-2013
THACKRAY CRANE RENTAL, INC., Plaintiff, v. CAPE ATLANTIC PILING & GENERAL CONTRACTING INC., ESPERANZA URBAN RENEWAL, LLC, INTERNATIONAL CONSTRUCTION EQUIPMENT, INC., RALPH CLAYTON & SONS, CLAYTON BLOCK CO., INC., UNITED RENTALS (NORTH AMERICA), INC., SANDY'S CRANE CO., ASBURY PARTNERS, LLC, and NORTH FORK BANK CORPORATION, Defendants. CLAYTON BLOCK CO., INC. and RALPH CLAYTON AND SONS, Third-Party Plaintiffs, v. JEFF FIEDLER, Third-Party Defendant. ESPERANZA URBAN RENEWAL, LLC, Third-Party Plaintiff, v. JIM FARLEY, Third-Party Defendant. CETEC N.E., LLC, Plaintiff, v. METRO HOMES, LLC, ESPERANZA URBAN RENEWAL, LLC, DEAN GEIBEL, PAUL FRIED, CAPITAL ONE, N.A., SUCCESSOR-BY-MERGER TO NORTH FORK BANK, SANDY'S CRANE CO., INTERNATIONAL CONSTRUCTION EQUIPMENT, INC., THACKRAY CRANE RENTAL, INC., CAPE ATLANTIC PILING & GENERAL CONTRACTING, INC., RALPH CLAYTON & SONS, CLAYTON BLOCK CO., INC., UNITED RENTALS (NORTH AMERICA), INC., SILVI CONCRETE OF BRICK, INC., SILVI CONCRETE OF ENGLISHTOWN, INC., KENDERIAN-ZILINSKI ASSOCIATES, RDM CONCRETE & MASONRY, LLC, FIRE & SAFETY SYSTEMS COMPANY, TITAN FORMWORK SYSTEMS, LLC, MEN OF STEEL REBAR FABRICATORS, LLC BARKER STEEL, LLC f/k/a BARKER STEEL CO., INC., MARK COLON d/b/a WEATHER-TITE, ISRAEL BERGER & ASSOCIATES, LLC, WILLIAM ELLIS PARTNERS, INC. d/b/a VOLVO RENTS, BENDER ENTERPRISES, INC., and THERMAL DESIGN, INC., Defendants. SILVI CONCRETE OF BRICK, INC., Third-Party Plaintiff, and SIL-KEMP CONCRETE, INC. t/a SILVI CONCRETE OF ENGLISHTOWN, INC., Third-Party Plaintiff-Respondent, v. IGOR KIRTCHAKOV, Third-Party Defendant-Appellant.
Daniel Maxwell argued the cause for appellant Igor Kirtchakov (Mark Krassner, attorney; Mr. Krassner, on the brief). Audra L. Schwartz argued the cause for respondent Sil-Kemp Concrete, Inc. t/a Silvi Concrete of Englishtown (Fellig Schwartz, LLC attorneys; Ms. Schwartz, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-4732-07 and L-1829-08.
Daniel Maxwell argued the cause for appellant Igor Kirtchakov (Mark Krassner, attorney; Mr. Krassner, on the brief).
Audra L. Schwartz argued the cause for respondent Sil-Kemp Concrete, Inc. t/a Silvi Concrete of Englishtown (Fellig Schwartz, LLC attorneys; Ms. Schwartz, on the brief). PER CURIAM
Third-party defendant Igor Kirtchakov (Kirtchakov) appeals from a November 18, 2011 order requiring him to pay $11,229.84 in counsel fees and costs to third-party plaintiff Sil-Kemp Concrete, Inc., t/a Silvi Concrete of Englishtown, Inc. (Silvi), as well as an additional $6525 in counsel fees and costs Silvi incurred on a motion to compel Kirtchakov to comply with earlier orders and in opposing a motion for reconsideration that Kirtchakov later withdrew. These orders for fees and costs were entered after Kirtchakov repeatedly failed to comply with information demands and orders properly issued in accordance with post-judgment supplementary proceedings pursuant to Rule 4:59-1(f). We affirm.
I.
On August 6, 2010, Silvi obtained judgment by default against Kirtchakov and Cetec N.E., LLC, jointly and severally, in the amount of $305,259.34. On October 8, 2010, Silvi served Kirtchakov with an information subpoena pursuant to Rule 4:59-1(f) and Rule 6:7-2(b)(1). Kirtchakov ignored the subpoena and failed to provide the information demanded therein. Consequently, on December 21, 2001, Silvi filed a motion in aid of litigant's rights seeking an order compelling Kirtchakov to provide the information sought in the subpoena. The certification of Silvi's counsel in support of the motion stated that he had spent one hour preparing the motion and incurred a cost of $30 for the filing fee.
Prior to the return date of the motion, Kirtchakov requested an adjournment and thereafter signed a consent order which was entered on January 21, 2011, conceding he had violated Silvi's rights as a litigant; agreeing to comply with the information subpoena within ten days and, if he failed to do so, to pay Silvi's counsel fees and costs on a subsequent application for relief; and agreeing to pay Silvi's counsel fees and costs of $270.
Kirtchakov thereafter forwarded to Silvi's counsel a response to the information subpoena and a check for $270. The responses were inadequate and the check bounced. On April 12, 2011, Silvi filed a motion to compel compliance with the January 21 consent order and for other relief. The motion was adjourned several times at the request of Kirtchakov, and he thereafter signed a second consent order, entered on May 18, 2011, wherein he agreed to provide to Silvi, by May 31, additional documents and information pertinent to the supplementary proceedings initiated by Silvi. The consent order further stated, "[i]n the event Kirtchakov fails to timely comply with this order, Kirtchakov shall reimburse Silvi for its attorneys' fees and costs incurred in connection with this motion."
Kirtchakov failed to produce documents by May 31, as required by the consent order, but did provide some documents and information by electronic mail on June 2. Silvi's counsel then provided the court with a detailed recital of Kirtchakov's deficient responses and requested an order compelling compliance with the prior order and for counsel fees and costs.
On June 10, 2011, after considering Kirtchakov's opposition, the court entered an order again requiring "full and complete" compliance with prior orders and the original information subpoena. The order declined Silvi's request for a daily sanction for a tardy response, but required Kirtchakov to reimburse Silvi for "all reasonable counsel fees and costs incurred in connection with this motion." The order also required Silvi's counsel to provide a certification of fees and costs to the court and Kirtchakov.
Thereafter, Silvi's counsel submitted a detailed certification identifying counsel who provided services, the nature and dates of each service, and the hourly rates of all counsel. The court entered an order on June 22, 2011, allowing Silvi "reasonable" fees and costs totaling $10,898.59, and requiring Kirtchakov to reimburse Silvi that amount. The record provided does not indicate that Kirtchakov opposed the quantum of the fees and costs, or that he asked for an evidential hearing on the issue of fees and costs.
On July 18, 2011, Silvi filed a further motion in aid of litigant's rights to compel Kirtchakov to comply with the terms of the June 10 order and to pay counsel fees and costs. The certification in support of the application indicated that Kirtchakov had provided "nothing" in response to the June order and that counsel had incurred an additional $401.25 in fees and costs in connection with the motion. The court granted the relief sought by order of August 5, 2011, noting that the motion was "unopposed." The order provided that the court would issue an arrest warrant for Kirtchakov if he failed to comply with the terms of the order.
Kirtchakov then moved for reconsideration and submitted a certification explaining that he had, in fact, filed timely opposition to the motion. Silvi cross-moved for an arrest warrant and for an additional $280 fees and costs. By agreement of the parties, the court entered an order on October 11, 2011, adjourning Silvi's cross-motion to November 4 and requiring Kirtchakov to provide the information and documents which he had earlier been ordered to provide by the order of June 10. The order further required Kirtchakov to pay all the counsel fees and costs which the court had earlier ordered to be paid on June 22 and August 5. Kirtchakov withdrew his motion for reconsideration.
Silvi thereafter claimed that Kirtchakov failed to comply with the order of October 11, 2011, and submitted a detailed certification setting forth the nature and substance of his failure to provide ordered documents and information. Counsel for Silvi also provided a certification setting forth the hours spent and costs incurred in opposing Kirtchakov's motion for reconsideration and in submitting the most recent application for sanctions.
On November 18, 2011, after hearing argument from counsel, the court found that Kirtchakov had "willfully not complied with the earlier orders" and entered an order granting Silvi's cross-motion, and issued an arrest warrant for Kirtchakov. The order also required Kirtchakov to pay an additional $6525 in counsel fees and costs - an amount supported by the certification of Silvi's counsel - which, when combined with the fees and costs required by the orders of June 22 and August 5 - brought the total fees and costs to $17,824.84.
II.
Kirtchakov thereafter paid the ordered fees and costs and no arrest warrant was issued. On appeal, Kirtchakov only challenges the fees and costs assessed against him. He makes the following arguments:
I. Respondent Was Not Entitled to An Award of Attorneys Fees Because Respondent's Attorney's Certification Does Not Comply With [R.] 4:42-9(b).After considering the arguments in light of the record and the applicable law, we conclude they are clearly without merit. R. 2:11-3(e)(1)(A) and (E). We add only the following comments.
II. Respondent Was Not Entitled to an Award of Attorney's Fees That Respondent Claims It Incurred to Oppose Appellants Withdrawn Motion in the Amount of $3,515.00 Because Plaintiff Failed to Comply With The Safe Harbor Provision of [R.] 1:4-8.
III. Respondent Was Not Entitled to an Award of Attorney's Fees Because Respondent Failed to Set Forth Facts That Could Support Findings that Appellant Had the Capacity to Comply With The Court's Prior Orders and Willfully Refrained From Doing So.
IV. The Court Erred By Failing to Conduct a Plenary Hearing Before Considering Whether to Order Appellant to Pay Attorney's Fees.
We review the Law Division's imposition of sanctions pursuant to the abuse of discretion standard. Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 571 (App. Div. 2000). We should not disturb the trial court's exercise of that discretion unless an injustice has occurred. Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988).
Both Rule 4:59-1 and Rule 1:10-3 provide procedural mechanisms by which to compel a party to pay a monetary judgment rendered against it. Rule 1:10-3 authorizes what "is essentially a civil proceeding to coerce the defendant into compliance with the court's order for the benefit of the private litigant[.]" Pasqua v. Council, 186 N.J. 127, 140 (2006) (quoting Essex County Welfare Bd. v. Perkins, 133 N.J. Super. 189, 195 (App. Div.), certif. denied, 68 N.J. 161 (1975)). It is well established that such a proceeding, which is referred to as an action for enforcement of litigant's rights, "is a proper tool to compel compliance with a court order," as long as it is "not for the purpose of punishment, but as a coercive measure to facilitate the enforcement of the court order." Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997). Rule 1:10-3 further provides that the court, at its discretion, may "make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule."
In the case before us, we observe that Kirtchakov not only failed to comply with a duly issued information subpoena, but also the terms of consent orders which explicitly provided for counsel fees and costs based on continued noncompliance. Silvi's counsel explicitly supported each fee and cost application with certifications identifying counsel, the nature of the services rendered, the time spent in providing each service and counsel's hourly rate. See Rule 4:42-9(b). The record provided does not contain a certification from Kirtchakov contesting the provision of those services by Silvi's counsel or the reasonableness of the fees sought.
The court rules require submission of an affidavit of service, R. 4:42-9(b), but do not require a plenary hearing before an award of counsel fees. Elizabeth Bd. of Educ, supra, 342 N.J. Super. at 271. See also Cohen v. Fair Lawn Dairies, Inc., 44 N.J. 450, 452 (1965) ("no reason for requiring plenary proof, provided the record before the trial court, including the affidavit of services, is sufficiently complete to enable it to reach a fair determination as to the extent of the legal services rendered"); Jacobitti v. Jacobitti, 263 N.J. Super. 608, 618-19 (App. Div. 1993) (no need for an "extensive and time-wasting" hearing regarding counsel fees in a matrimonial action where the papers in support of the application are not patently insufficient), aff'd 135 N.J. 571 (1994).
The New Jersey Supreme Court has held that it is common sense that "a plenary hearing should be conducted only when the certifications of counsel raise material factual disputes that can be resolved solely by the taking of testimony. We expect that such hearings will be a rare, not a routine, occurrence." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 24 (2004). Therefore, appellate courts should "not disturb the decision to deny a plenary hearing unless there is a 'clear abuse of discretion.'" Id. at 25 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION