ROY PUTRINO v. KENNETH J. RIZZO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3228-08T13228-08T1

ROY PUTRINO,

Plaintiff-Respondent,

v.

KENNETH J. RIZZO,

Defendant-Appellant,

and

KRIS-TAL CORPORATION (a New

Jersey corporation), TOTAL

HOME CARE CORPORATION (a

New Jersey corporation) and

KENRO, LLC,

Defendants.

and

KENNETH J. RIZZO,

Third-Party Plaintiff,

v.

BASIC HOME CARE, INC. (a

New Jersey corporation)

and EILEEN PUTRINO,

Third-Party Defendants.

_____________________________________________

IN THE MATTER OF FRANK M. COSCIA, ESQ.,

Appellant.

_____________________________________________

 

Argued April 12, 2010 - Decided

Before Judges Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-6733-05.

Frank M. Coscia argued the cause for appellant (Schenck, Price, Smith & King, LLP, attorneys; Mr. Coscia, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendants Kenneth Rizzo and his attorney, Frank M. Coscia, appeal from an order dated January 23, 2009. The dispositive issue on appeal is whether the trial judge properly made a Rule 1:10-3 determination that defendant Kenneth Rizzo and his attorney were in "willful violation" of an order at a time when the determination could not serve as a coercive measure to facilitate the enforcement of a court order.

These are the relevant facts. The attorneys in this complex litigation informed the trial judge that they had reached a settlement. Despite reporting that agreement, the attorneys continued to disagree as to its particulars. Ultimately, on October 17, 2008, the judge issued an order requiring Rizzo to pay $250,000 to Putrino as part of the settlement. When Rizzo and his attorney failed to comply with that order, further proceedings ensued, resulting in an order of November 21, 2008, finding Rizzo and his attorney "in contempt of Court" for violating the order of October 17, 2008. The money was finally paid on December 5, 2008.

Thereafter, Rizzo and his attorney sought relief from the order of November 21, 2008. That resulted in the order under appeal, which is dated January 23, 2009. It provided that the contempt-of-court language contained in the November 21 order is "hereby stricken," and that the order is "hereby amended" to state that Rizzo and his attorney "are hereby found to be in willful violation of the Order of October 17, 2008[.]" The sole subject of this appeal is the validity of this amended finding.

Rizzo and his attorney argue, first, that there was no basis for the subsequent finding of "willful violation" because they had a valid excuse for their noncompliance; namely, that the order was invalid. But "[i]t is no excuse that the trial judge may be in error . . . . One who is dissatisfied with the action of a court must obtain a stay or obey the order." In re Carton, 48 N.J. 9, 16 (1966); see also In re Mandell, 250 N.J. Super. 125, 129 (App. Div. 1991) (meritorious legal defense to a court order is no defense to a finding of contempt for willful disobedience of that order). Thus, we are obliged to reject that argument offered by Rizzo and his attorney, and turn, instead, to the dispositive issue.

In his written opinion of January 23, 2009, the trial judge observed that although there is no question that there was a willful failure to abide by a court order, "this Court does agree that the word 'contempt' inaccurately describes the behavior of [Rizzo and his attorney] without a contempt hearing[.]"

We agree completely with the judge's recognition that the language of contempt did not belong in the order of November 21 and therefore affirm that portion of the order of January 23 striking the reference to contempt in the earlier order. Nonetheless, a modification is in order with respect to the substituted language; not because it inaccurately described what had occurred before November 21, but because its insertion in the order of January 23 was unnecessary and therefore improper.

The principle guiding our determination was set forth in P.T. v. M.S., 325 N.J. Super. 193, 220 (1999), in this manner:

Relief by way of motion to enforce litigants' rights under R. 1:10-3 is "not for the purpose of punishment, but as a coercive measure to facilitate the enforcement of [a] court order."

[(alteration in original) (quoting Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997)).]

By January 23, Rizzo and his attorney had fully complied with the order of November 21. Since the order of January 23 was thus not issued as a coercive measure to obtain enforcement of an order, there was no reason for including therein as an amendment to the earlier order a finding of "willful violation." Therefore, we are satisfied that the order should be modified so as to not to include that language.

Affirmed as modified.

 

Although Mr. Coscia's name is not listed on the Notice of Appeal, we have joined him as an appellant sua sponte because it is necessary to resolve the appeal as it pertains to his violation of a court order. R. 4:28-1.

(continued)

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A-3228-08T1

May 7, 2010