STEVEN BOLLING v. LEONARD JENOFF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2550-05T22550-05T2

STEVEN BOLLING,

Appellant,

v.

LEONARD JENOFF,

Respondent.

_______________________________________

 

Submitted June 6, 2006 - Decided June 29, 2006

Before Judges Skillman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, DC-7714-00.

Steven Bolling, appellant pro se.

Leonard Jenoff, respondent pro se.

PER CURIAM

Plaintiff Steven Bolling, who is incarcerated in the New Jersey State Prison as the result of a 1985 aggravated manslaughter conviction, appeals as insufficient a civil judgment for $2,000.00 entered in his favor on August 9, 2005 by the Special Civil Part against defendant Leonard Jenoff, who is presently an inmate in the Riverfront State Prison. Plaintiff also appeals as insufficient the judgment's directive that the amount owed to him is to be paid out of defendant's institutional account at the rate of seven dollars per month. We affirm.

Briefly, in or about 1990, plaintiff, who was by then already in the State's custody, retained the services of defendant, a licensed private investigator, to assist in locating witnesses or information that might exculpate plaintiff. Plaintiff paid defendant a retainer of $4,957.49 for the work, to be billed against periodically as the services were performed. Before defendant could finish his work on the matter, he was himself arrested on an unrelated matter and subsequently convicted of aggravated manslaughter. At the time of defendant's arrest, there was still a balance left on the retainer.

In 2001 plaintiff filed suit against defendant in the Special Civil Part, which initially resulted in a September 4, 2001 consent order for partial summary judgment for $2,314.49, plus interest and costs. The consent order was signed by plaintiff and by defendant's former criminal defense attorney. In 2004 defendant moved to set aside the judgment under R. 4:43-3 for lack of notice. That motion resulted in a hearing before the Special Civil Part on January 24, 2005, at which each inmate separately testified through videoconference. Following that hearing, and after considering the credibility of the principals, the Special Civil Part entered a superseding judgment for $2,000.00, payable at the rate of seven dollars per month from defendant's prison account.

Plaintiff contends that the judgment amount should be enhanced to approximately $3,000, representing his calculation of the remaining balance on the retainer, plus incidental costs and interest. Defendant, however, in his sworn testimony at the hearing, disputed the exact amount owed, contending that plaintiff had asked him to forward some of the retainer to a family member and that other services had been incurred. When questioned by the judge, defendant estimated that the proper amount owed was "$1,900 to $2,000."

Based upon the parties' competing proofs, the record contains substantial credible evidence to support the Special Civil Part's determination to award plaintiff the round-figure amount of $2,000.00. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974) ("[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence"). Plaintiff had the burden of proving a higher sum by a preponderance of the evidence, and we shall not disturb the judge's determination that he failed to do so and the judgment should be fixed at $2,000.00. For purposes of clarification, we do note that the judgment should be amended to specifically provide for post-judgment interest on that amount in accordance with R. 4:42-11(a), effective from September 4, 2001 when the initial order of judgment was entered.

We also sustain the Special Civil Part judge's decision to require seven dollars to be transferred monthly from defendant's prison account to plaintiff's prison account. The record indicates that defendant earns approximately twenty dollars per month in the prison, net of various deductions. We discern no abuse of discretion in requiring defendant to pay no more than a third of those represented earnings towards the plaintiff's judgment. Plaintiff seeks higher installments of ten dollars or more, arguing that defendant underestimated his prison earnings in his hearing testimony, but we nonetheless defer to the Special Civil Part judge's determination.

Although he has filed no cross-appeal, defendant argues that the transfer of the monthly installments would subject him to prison discipline under N.J.A.C. 10A:4.4.1(a).752, a regulation that generally prohibits an inmate from "giving money or anything of value" to another inmate. That regulation does not apply here, in the unique context where an inmate has procured a civil judgment against another inmate for inadequate services provided while the judgment debtor was a civilian. Cf. Russo v. N.J. Dept. of Corrections, 324 N.J. Super. 576, 579 (App. Div. 1999)(upholding sanctions under N.J.A.C. 10A:4-4.1(a).752 where an inmate, in the course of running an unauthorized business for profit within the institution, had obtained cigarettes and other items of value from other inmates). Additionally, N.J.S.A. 30:4-16.4 and N.J.A.C. 10A:2-2.2(i) allow monies that an inmate derives from a civil judgment to be deposited into an inmate's institutional account. See also N.J.A.C. 10A:2-2.2(e)(1), authorizing deductions from inmate accounts for, among other things, "[c]ourt ordered payments." Further, the record shows that the Department has already transferred several installments from defendant's account to plaintiff's account, consistent with our interpretation of N.J.A.C. 10A:4-4.1(a).752.

 
Affirmed, with instructions to the trial court to enter an amended judgment reflecting the accrual of post-judgment interest consistent with this opinion. Jurisdiction is not retained.

(continued)

(continued)

5

A-2550-05T2

June 29, 2006