ROBERT J. TRIFFIN v. ELITE PERSONNEL, INC.

NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0211-09T1



ROBERT J. TRIFFIN,

         Plaintiff-Appellant,

v.

ELITE PERSONNEL, INC.,

         Defendant-Respondent,

and

DEUS DAJUSTE,

         Defendant.

_________________________________________________

                                            May 13, 2010
         Argued March 24, 2010 - Decided

         Before Judges Payne and Miniman.

         On appeal from Superior Court of New Jersey,
         Law Division, Essex County, Docket No. DC-
         9454-09.

         Robert J. Triffin, appellant, argued the
         cause pro se.

         Hector M. Negron (Kranjac Manuali & Viskovic
         LLP) argued the cause for respondent (Mr.
         Negron, attorney; Mario M. Kranjac, on the
         brief).

PER CURIAM

    Plaintiff, Robert J. Triffin, appeals from an order of a

judge of the Law Division, Special Civil Part, dismissing his

complaint against Elite Personnel, Inc. and Deus Dajuste with

prejudice.    We reverse.

    This matter has a history.       Triffin is "in the business of

purchasing dishonored checks and taking assignments from the

sellers by which he seeks to recover as holder in due course

from banks and others in the collection process."      Triffin v.

Automatic Data Processing, Inc., 
394 N.J. Super. 237, 241 (App.

Div. 2007).   As the just-cited case suggests, ADP is among those

companies from which recovery was sought.      It resisted payment,

and in the course of discovery in the lawsuit that ensued, ADP

determined that the purported assignors never signed the

individual assignments that Triffin attached to the complaint.

Id. at 244.   Further, Triffin "acknowledged he had scanned the

individuals' signatures into his computer and then using his

computer 'pasted' them on to assignment forms he had on his

                      Discovery revealed, as well, that the
computer."    Ibid.

purported assignors had not agreed to the specific terms

contained in the assignments.    Id. at 245.    When this evidence

became known, ADP filed a counterclaim alleging common-law

fraud, RICO violations, and negligence.      Following an eight-day

trial before Judge Goldman, a jury held Triffin liable for




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common-law fraud.    However, its award of damages in ADP's favor

was substantially reduced by the trial court on various

theories.

      The parties cross-appealed.        On appeal, we found that the

trial record clearly supported the conclusion that Triffin had

knowingly and materially misrepresented a presently existing or

past fact in connection with the assignments with the intent

that ADP rely upon the authenticity of those agreements and,

therefore, recognize Triffin as a holder in due course and make

payment on the dishonored checks.        Id. at 247.   However, we

found that the record did not demonstrate that ADP either took

or refrained from taking steps to protect its interests as the

result of Triffin's misrepresentation that the assignments were

authentic.    Accordingly, we held that ADP had not established

all elements of common-law fraud, and we reversed the judgment

                    Id. at 248-49.
in ADP's favor.

      Nonetheless, we condemned Triffin's conduct, recognizing it

as constituting a potential fraud on the court -- as to which

reliance need not be demonstrated.        Id. at 249-51.   We therefore

remanded the matter to the trial judge for further proceedings.

Id.    We stated:

            Following a hearing, the trial court may
            impose sanctions on plaintiff on its own
            motion or on the application of defendant,
            or both. In determining whether sanctions


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          are appropriate, the trial court shall
          exercise reasonable discretion, recognizing
          the caution which must be exercised in
          invoking its powers and complying with the
          mandates of due process.

          [Id. at 253.]

    On remand, Judge Goldman found, by clear and convincing

evidence, that Triffin had committed a fraud on the court in the

matter.   Accordingly, he entered an order assessing ADP's

counsel fees and costs in the amount of $44,000 against Triffin.

On appeal from that aspect of the opinion, we affirmed.      Triffin

v. Automatic Data Processing, Inc., 
411 N.J. Super. 292 (App.

Div. 2010).   Additionally, Judge Goldman entered sanctions in

favor of the court in the form of an injunction, applicable

statewide to civil proceedings, that required, for a period of

one year commencing on September 1, 2008, that Triffin attest to

the unaltered form of documents submitted to the court and to

the authenticity of signatures contained on them in one of three

fashions, depending on whether the signatures, as submitted,

were original, copies or facsimiles, or both.    The order

further provided for enforcement either by the judge before whom

a violation occurred or by Judge Goldman.

    In the present matter, Triffin did not comply with Judge

Goldman's order in accordance with the judge's clear intent.

Rather, he offered an omnibus certification that set forth the




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language concerning original signatures, copies or facsimiles,

or both without specifying which was applicable, thereby

reducing the court's ability to recognize a violation by Triffin

and order sanctions.   After finding noncompliance with Judge

Goldman's order, the trial judge dismissed the matter with

prejudice.

    Triffin has appealed.    On appeal, Triffin denominates Judge

Goldman's statewide injunction as a procedural rule, entered

without the proper constitutionally derived authority.     We

disagree, regarding the injunction to have been a prophylactic

disciplinary measure that appropriately addressed a course of

conduct that had been found to have constituted fraud on the

court.    In this regard, we note that Judge Goldman's

certification requirement was limited in time.    Further, it did

not in any material fashion prohibit access by Triffin to the

courts.   It simply provided a policing mechanism, designed to

insure that pleadings and evidence in Triffin's matters properly

and truthfully reflected the underlying facts of those matters.

We have been offered nothing to suggest that Judge Goldman

lacked the inherent power to issue such an injunction, which

regulated only Triffin's conduct.    Indeed, in a related context,

the entry of court-wide injunctions against the filing of

frivolous actions is frequently recognized as a lawful exercise




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                                 5

of judicial power, so long as principles of due process are

honored.   See, e.g., Rosenblum v. Borough of Closter, 
333 N.J.

Super. 385 (App. Div. 2000); see also Gilgallon v. Carroll, 
153 Fed. Appx. 853 (3d Cir. 2005); Perry v. Gold & Laine, P.C., 
371 F. Supp. 2d 622 (D.N.J. 2005).   Moreover, although in the course

of his order Judge Goldman recognized the power of his

colleagues to impose judicial sanctions upon Triffin should he

violate the order' provisions, Judge Goldman did not mandate

that his colleagues employ any such sanctions.

    We also reject Triffin's contention that the trial judge in

this matter lacked jurisdiction under Judge Goldman's order to

sanction Triffin's violation of the judge's order.     Such

jurisdiction was specifically authorized by paragraph 4 of the

order, which recognized the court in which the violation

occurred as a proper venue for sanction proceedings.    Moreover,

we read Judge Goldman's order, as did the trial judge, to

require Triffin, not the court, to make an initial determination

as to which of the three certifications of authenticity and lack

of alternation was applicable to the present matter and to offer

that certification in connection with his complaint in the case.

    We find, however, that the judge's imposition of the

sanction of a dismissal with prejudice, without setting forth a

sufficient basis, or indeed any articulated basis for that




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relief, was a mistaken exercise of his discretion.    In all cases

in which sanctions may be imposed, the court must assess the

facts, including the willfulness of the violation, the prejudice

to the adversary, the proximity of trial, and the availability

of a cure in determining the appropriate remedy.     Casinelli v.

Manglapus, 
181 N.J. 354, 365 (2004).   Further, the court must

bear in mind the fact that a dismissal with prejudice "'is

drastic punishment and should not be invoked except in those

cases where the actions of the party show a deliberate and

contumacious disregard of the court's authority.'"     Kosmowski v.

Atlantic City Med. Ctr., 
175 N.J. 568, 575 (2003) (quoting

Allegro v. Afton Village Corp., 
9 N.J. 156, 160-61 (1952)).

Thus, a dismissal with prejudice should be issued "'only

sparingly.'"   Ibid. (quoting Zaccardi v. Becker, 
88 N.J. 245,

253 (1982)).   In the present matter, the judge did not engage in

the fact-finding necessary to sustain a conclusion that the

ultimate sanction of a dismissal with prejudice was warranted or

discuss whether, in the circumstances presented, some lesser

sanction would be appropriate.   Accordingly, we reverse the

order requiring such relief and remand the case to the trial

court for further proceedings consistent with this opinion.

    Reversed and remanded.




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