Opinion
DOCKET NO. A-0028-13T1
09-29-2014
MICHAEL BANDLER, Plaintiff-Appellant, v. JOANNA KOSTAS, Defendant-Respondent.
Michael Bandler, appellant, argued the cause pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Carroll. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2225-12. Michael Bandler, appellant, argued the cause pro se. Respondent has not filed a brief. PER CURIAM
This appeal involves plaintiff Michael Bandler's efforts to collect a $10,000 Law Division judgment entered against defendant Joanna Kostas on August 3, 2012. After Joanna failed to pay the judgment, plaintiff served an information subpoena on her, and a deposition notice on her mother, Ruth Kostas, who he alleged possessed information about Joanna's whereabouts, employment and assets. After Joanna failed to answer the information subpoena, and Ruth did not appear for her deposition, plaintiff filed a series of motions to compel their compliance.
Since defendant and her mother share a common surname, we refer to them in this opinion by their first names for purposes of brevity and clarity. In so doing we intend no disrespect.
With respect to Joanna, plaintiff moved to enforce litigant's rights, which the court granted on February 15, 2013. Specifically, the order compelled Joanna to respond to the information subpoena within thirty days. Plaintiff served the order on Joanna by both regular and certified mail, return receipt requested, at both known addresses for her, in Whippany and Egg Harbor City. Defendant signed for the certified mailing at the Whippany address, but the Egg Harbor certified mailing was returned unclaimed. Neither of the ordinary mailings was returned.
The record does not include the February 15, 2013 order. We glean these facts from the statement of reasons that accompanied the court's July 1, 2013 order.
After Joanna still failed to comply, plaintiff then moved for an arrest warrant and for the imposition of financial sanctions against her. In his supporting certification, plaintiff detailed how he served the February 15, 2013 order on Joanna at the two addresses, and requested that arrest warrants issue in both counties where he believed she resided. He further averred that he had "expended at least $150 on the preparation and service of an information subpoena and preparation, filing and service of two motions caused by [Joanna's] failure to respond to the information subpoena, not including the value of [plaintiff's] time."
On July 1, 2013, the judge granted plaintiff's motion. In an attached statement of reasons, he found that plaintiff had complied with the court rules by serving Joanna at her last known address, and that Joanna had failed to respond to the information subpoena or contest the motion. The order directed that Joanna be arrested between 7:30 a.m. and 3:00 p.m. on a day when the court is in session and brought before a Superior Court judge. However, service of the arrest warrant was restricted to the Whippany address. The order made no provision for the Egg Harbor City address, and was silent as to sanctions.
Plaintiff then moved for reconsideration, challenging the provision in the order that limited Joanna's arrest location to her Whippany address. The court denied reconsideration on August 19, 2013.
During this same period, plaintiff moved to compel Ruth's deposition, which the court initially denied on February 15, 2013, because plaintiff did not comply with Rule 6:7-2(g). Following a motion for reconsideration, on April 2, 2013, the court ordered Ruth to appear for her deposition by June 1, 2013, but denied plaintiff's request for fees. After Ruth still failed to appear, plaintiff moved to enforce litigant's rights, serving Ruth at her Mays Landing address. Ruth refused to claim the certified mailing, but the ordinary mail service was not returned. Deeming such service on Ruth sufficient under Rule 1:5-4(a), the court granted plaintiff's motion on August 19, 2013, and authorized that a warrant issue for Ruth's arrest. Plaintiff's application for sanctions was denied without explanation.
Again this order is not included in plaintiff's appendix and we rely on the procedural history set forth in the statement of reasons that accompanied the court's July 1, 2013 order.
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Plaintiff appeals from the August 19, 2013 orders, arguing that the court erred in applying Part VI Special Civil Part court rules to this Law Division action, in limiting the location of Joanna's arrest to her Whippany address and in denying sanctions. As to Ruth, at oral argument plaintiff advised that she had appeared for her deposition during the pendency of this appeal, thus leaving open only the issue of sanctions related to her earlier non-compliance.
We conclude that the court erred in limiting Joanna's arrest to her Whippany address, where she had claimed the certified mailing. Rule 4:59-1(f) allows a judgment creditor to "proceed as provided by R. 6:7-2, except that service of an . . . information subpoena shall be made as prescribed by R. 1:5-2 for service on a party." Rule 1:5-2 in turn permits service by "registered or certified mail, return receipt requested, and simultaneously by ordinary mail to the party's last known address." If the addressee "fails to claim or refuses to accept" delivery of the certified mail, the simultaneous ordinary mailing shall be deemed to constitute service. R. 1:5-4(b). Where service of the order to enforce litigant's rights is effected by mail, as opposed to personal service, Rule 6:7-2(g) allows an arrest warrant to be executed only at the address to which the order was sent.
Here, all required documents were served on Joanna by ordinary and certified mail at both her Whippany and Egg Harbor City addresses. Plaintiff complied with all applicable court rules. Joanna previously acknowledged receipt of the certified mailing at her Whippany address, but the certified mailings to Egg Harbor City were returned unclaimed. None of the regular mailings were returned. We conclude that service was effective at both locations, and that the court abused its discretion in restricting the arrest warrant to Whippany. See, e.g., New Century Fin. Servs. v. Nason, 367 N.J. Super. 17, 19 (App. Div. 2004). Accordingly, we reverse and remand with directions that the court issue arrest warrants for Joanna at both her Whippany and Egg Harbor City addresses.
In his brief and at oral argument before us, plaintiff requested that a warrant also issue for Joanna's arrest at the Mays Landing address where Ruth was served. Although plaintiff may have attempted to serve Joanna with enforcement motions there, proof of those mailings is not part of the record before us. Nor has plaintiff shown that he served Joanna with the information subpoena at the Mays Landing address. Equally important, in his May 24, 2013 certification, plaintiff indicated that he had served Joanna with the February 15, 2013 order "at both known addresses," and specified that those mailings were sent to both Whippany and Egg Harbor City. We therefore decline to extend Joanna's arrest location to the Mays Landing address, without prejudice to plaintiff's right to seek such future relief from the trial court should he be able to establish effective service on her there.
We next address the issue of sanctions. At oral argument, plaintiff urged us to remand this issue to the trial court because it failed to provide any reasons why sanctions were not ordered. In addition to the costs associated with service and enforcement of the information subpoena on Joanna, plaintiff claimed he had incurred unnecessary expenses, such as court reporter's fees and travel costs, attendant to Ruth's failed deposition.
Our standard of review of a trial court's ruling on an application for sanctions is limited. We only must determine whether the court's disposition constituted an abuse of discretion. Gilbert v. Electro-Steam Generator Corp., 328 N.J. Super. 231, 235-36 (App. Div. 2000) (affirming a trial court's denial of sanctions and its rejection of claims that a litigant's pleadings were frivolous).
A monetary sanction imposed pursuant to Rule 1:10-3 is a proper tool to compel compliance with a court order. See Franklin Twp. Bd. of Educ. v. Quakertown Educ. Ass'n, 274 N.J. Super. 47, 55-56 (App. Div. 1994). Here, both Joanna and Ruth were found to be in violation of litigant's rights for failure to comply with the court's orders, yet the judge, without explanation, declined to impose monetary penalties.
Since plaintiff has prevailed on appeal as to Joanna and the matter is remanded to the trial court to issue an expanded arrest warrant, we similarly conclude that a remand is necessary for the court to reconsider what sanctions, if any, should properly be imposed upon her. On remand, the judge should also address whether sanctions should be levied against Ruth, who has since complied with the court's order. Plaintiff should present the court with a detailed itemization of the expenses he incurred in attempting to secure their compliance. The court's ruling should include a statement of reasons, as required by Rule 1:7-4(a). See Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) (requiring an adequate explanation of the basis for a court's action).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION