Opinion
No. 12070215.
2013-02-13
David R. OLIVER, Plaintiff, v. Jeff JONES, Defendant.
Reed N. Summers, Esq., for Plaintiff.
THOMAS J. DiSALVO, J.
History of the Case.
The plaintiff brought an action in the Small Claims part of this Court under Uniform Justice Court Act Section 1812, which was returnable on November 26, 2012 at 6:00 P.M.. The plaintiff alleges that he is entitled to treble damages and attorneys fees as a result of the defendant's failure to pay three (3) previous small claims judgments in the plaintiff's favor. Specifically, the plaintiff claims through his attorney that he is entitled to damages equal to three times the amount of the most recent small claims judgement filed to date by the plaintiff against the defendant. The plaintiff initially appeared only by his attorney, who submitted an affidavit in support of plaintiff's claim. The defendant failed to appear at the initial small claims hearing date. The defendant was properly notified of said date by regular first class mail and certified mail with return receipt requested directed to the defendant at his residence.
A return receipt was provided to the court by the U.S. Postal Service, signed by said defendant on November 7, 2012.
Since the plaintiff only appeared by his attorney on the initially scheduled hearing date, the matter was set down for a default hearing on February 6, 2013 at 5:00 P.M. This is due to the requirement that “Even though only the plaintiff appears and the defendant is in default, proof still must be taken under oath. The proof will determine whether or not there is sufficient evidence of the plaintiff's direct claim to grant the award sought”. (Bogle, Dobiel, Liotti and Morris, Village, Town and District Courts, Section 11:63 [2012 ed] ) The defendant was provided with notice of the default hearing by the court via regular mail and certified mail return receipt requested. Again, the return receipt was subsequently provided to the court by the U.S. Postal Service, albeit signed by someone other than the defendant.
However, the defendant failed to appear at the said default hearing. The plaintiff appeared with his attorney. Upon taking the stand and being sworn in by the court, he underwent direct examination by his attorney pertaining the to facts of his claim.
Neither of the two notices sent by regular mail by the court to the defendant were returned.
Issues Presented.
Is the plaintiff entitled to treble damages based on the amount of the most recent small claims judgment?
Have the parties engaged in a “repeated course of dealing or conduct”?
Is the plaintiff entitled to be awarded attorney's fees?
Facts of the Case.
Upon reviewing the testimony of the plaintiff and the evidence provided, the court makes the following findings of fact:
1. The plaintiff has at least two small claims judgments against the defendant;
2. In fact the plaintiff has three previous small claims judgements against the defendant, to wit:
Copies of the judgments were entered into evidence by plaintiff's attorney at the time of the initial appearance, i.e. Exhibits 3, 4 and 5.
Webster Town Court—Case # : 120070215, Amount of judgement: $515 .00, entered on August 27, 2012;
Rochester City Court—Docket # : SC–000806–12/RO, Amount of Judgement: $2,020, entered on March 20, 2012;
Webster Justice Court—Case # : 12030290, Amount of Judgment: $1,515.00, entered on June 25, 2012;
3. Defendant failed to satisfy the judgments within 30 days after receipt of a notice of said judgments;
4. In addition to the notices sent out to the defendant by the court as required by the Uniform Justice Court Act, the plaintiff's attorney provided the court with an affidavit of personal service showing the defendant was personally served with the “Request for Small Claims Action”.
Entered into evidence as Exhibit 2.
5. A notice containing a list of three prior small claims judgments taken by the plaintiff against the defendant was personally served on the defendant as set out in a second affidavit of personal service that was entered into evidence;
Entered into evidence as Exhibit 1.
6. That notice included a statement that the plaintiff would be entitled to treble damages and attorney's fees if the judgments were not paid within 35 days;
.UJCA Section 1812(a)(3) requires satisfaction of the judgment within thirty (30) days. In addition, it was plaintiff's original position that he was entitled to use all three prior judgments in determining the amount of treble damages. At the default hearing counsel conceded that only the most recent judgment could be used to compute the amount of said treble damages. That original theory was specifically set out on the copy of the judgment in Exhibit 3 wherein the total of all judgments was multiplied by three for a total of $12,135.00 in alleged treble damages.
7. A copy of the most recent judgement entered in Webster Justice Court, Case # : 120070215, Amount of judgement: $515.00, entered on August 27, 2012 was personally served on the defendant;
Said judgement contained a notice that treble damages and attorneys fees can awarded if there are other unpaid claims. The notice and final judgment was entered into evidence attached to an affidavit of personal service received in evidence as Exhibit 3.
8. The defendant failed to appear or interpose an answer or defense to the allegations herein;
9. That the prior judgments arose out three separate and unrelated contracts between the plaintiff and defendant, who were originally friends, i.e. Webster Justice Court judgment of August 27, 2012, regarding value of property wrongly retained by defendant; Webster Justice Court judgment of June 25, 2012, regarding the failure of defendant to pay for a vehicle sold to him by plaintiff; and Rochester City Court Judgment of March 20, 2012, regarding an unpaid promissory note.
The Uniform Commercial Code Section 1–205(1) defines Course of Dealing as follows: “A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.”
Legal Analysis.
Treble Damages.Uniform Justice Court Act Section 1812(a)(1) states, among other things, that “The special procedures set forth in subsection (b) shall be available only where there is a recorded judgment in a small claims court”. UJCA 1812(a)(2)(i) requires in pertinent part that “the aforesaid judgment resulted from ... a repeated course of dealing or conduct of the judgment debtor.” UJCA 1812(a)(2)(ii) goes on to require that “there are at least two other unsatisfied recorded judgments of a small claims court arising [from a] repeated course of dealing or conduct against that judgment debtor”. In addition UJCA 1812(a)(3) requires that the most recent judgment go unsatisfied for thirty days after receiving notice of the existence of the judgment. Section 1812(b) states “Where each of the elements of subdivision (a) of this section are present the judgment creditor shall be entitled to commence an action against the judgment debtor for treble the amount of such unsatisfied judgment [emphasis added] together with reasonable counsel fees....” The statute specifically uses the word judgment in the singular, not the plural. Furthermore, the words “such unsatisfied judgment” is a reference to the most recently filed small claims judgment. If the intent of the legislature was to allow for treble damages equal to the amount of all prior small claims judgements ever filed by the plaintiff against the defendant, it could have easily made that clear. The statute is clear that if treble damages are permitted, they must be computed by using the most recently filed small claims judgment. Three times the amount of the most recent judgment of $515.00 would be $1,545.00.
Course of Dealing or Conduct. This is the more problematic issue for the court to determine. The phrase “repeated course of dealing or conduct” is not defined by the Uniform Justice Court Act. The Uniform Commercial Code Section 1–205(1) defines “Course of Dealing” as follows: “A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.” The course of dealing between parties can be used by courts to explain or justify the actions of parties to a contract when the contract in question is unclear and the parties had engaged in a series of related or similar contracts over time. [See United B International Corp. v. UTI United States, Inc., 5 Misc.3d 1013A, 798 N.Y.S.2d 714 (2004), involving a 12 year business relationship between the parties. See also Feinberg v. Federated Dept. Stores, Inc., 15 Misc.3d 299,302, 832 N.Y.S.2d 760,763 (2007), which also cited U.C.C 1–205(1) ].In the instant case the plaintiff has not established a course of dealing between the parties as that term is defined by the said U.C.C. 1–205(1).
Since the phrase “course of conduct” is not defined by the law in general or the Uniform Justice Court Act in particular, the court is left with the plain meaning of that phrase. The defendant has established a pattern of failure to live up to his contract obligations with the plaintiff. The defendant has also failed to satisfy the resulting small claims judgments.Thus the plaintiff has established a course of conduct by the defendant. Based on that fact the plaintiff is entitled to the relief of treble damages as provided by UJCA Section 1812.
Attorney's Fees. As previously stated UJCA Section 1812(b) permits the court to award reasonable attorneys fees to the plaintiff's attorney. That begs the question as to what constitutes reasonable attorney's fees. “However, a reasonable attorney's fee is commonly understood to be a fee which represents the reasonable value of the services rendered ( see NYCTL 1998–1 Trust v. Oneg Shabbos, Inc., 37 AD3d 789, 791, 830 N.Y.S.2d 763 [2007];Matter of Gamache v. Steinhaus, 7 AD3d 525, 527, 776 N.Y.S.2d 310 [2004] ). In general, factors to be considered include (1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the lawyer's experience, ability, and reputation; (3) the amount involved and benefit resulting to the client from the services; (4) the customary fee charged for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7) the responsibility involved (Matter of Freeman, 34 N.Y.2d 1, 9, 355 N.Y.S.2d 336, 311 N.E.2d 480 [1974];Matter of Gaffney v. Village of Mamaroneck, 21 AD3d 1032, 801 N.Y.S.2d 400 [2005];Steiger v. Dweck, 305 A.D.2d 475, 762 N.Y.S.2d 84 [2003] ).” ( Diaz v. Audi of America, Inc. 57 AD3d 828,830, 873 N.Y.S.2d 308,311 [2nd Dept.2008] ). In this case, the attorney for the plaintiff is requesting attorney's fees at his normal hourly billing rate. The court believes that would not be reasonable in a collection case of this size, since such an award would be ninety percent of the base amount awarded. Taking into account all of the factors set out herein, including the customary fee of one-third of the amount collected, a reasonable amount of attorney's fees would be $515.00.
Conclusions of Law
Section 1812 of the Uniform Justice Court Act authorizes judgement for treble the amount of the most recent unsatisfied judgment plus reasonable attorney's fees and the costs of the action, i.e. [$515
x 3] $1,545.00, plus reasonable counsel fees of [$1,545.00/3] $515.00, plus the filing fee of $15.00 for a total judgment $2,075.00 in favor of the plaintiff. This constitutes the decision and order of the court.