ROBERT J. TRIFFIN v. WAL-MART STORES, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6327-08T26327-08T2

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

WAL-MART STORES, INC.,

Defendant-Respondent,

and

VERA WILSON, EBONY C. FORD, and

JOHN L. GREEN,

Defendants.

________________________________________________________________

 

Argued May 4, 2010 - Decided

Before Judges Carchman, Lihotz and

Ashrafi.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Docket No. DC-6625-09.

Robert J. Triffin, appellant, argued the

cause pro se.

Mariah Murphy argued the cause for

respondent (Ballard Spahr, LLP, attorneys;

Ms. Murphy and Kristen L. Ross, on the

brief).

PER CURIAM

Plaintiff Robert Triffin appeals from a July 14, 2009 order of the Law Division, Special Civil Part, granting defendant Wal-Mart Store, Inc.'s motion for summary judgment and dismissing plaintiff's complaint with prejudice. We reverse and remand.

The factual underpinnings giving rise to the issues on this appeal are found in our decision in Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292 (App. Div. 2010), wherein we affirmed a finding by the Law Division that plaintiff, a purchaser of dishonored checks who obtains assignments from sellers and then seeks to collect on such checks, had committed a fraud on the court by altering documents utilized to perfect his claims. As a result, the Law Division judge entered an order on July 1, 2008 (the order) requiring plaintiff, for a period of one year commencing September 1, 2008, to certify as to the authenticity of documents utilized to prosecute his various claims. The order provides:

a. Beginning on September 1, 2008 and, unless extended, ending on August 31, 2009, Triffin is hereby ENJOINED from filing with any pleading, motion, or other paper or submitting for admission into evidence at any trial or other proceeding in a trial court any document that contains a copy of a purportedly signed document UNLESS Triffin also attaches to each such document an original certification signed by him that states one of the following as set forth in subparagraphs b, c, and d. below and, where applicable, provides an explanation for the exception claimed.

b. If Triffin files with any pleading, motion, or other paper or submits for admission into evidence at any trial or other proceeding in a trial court any document that contains what purports to be a copy or facsimile of an original signature or signatures, Triffin must attach to each such document an original certification signed by Triffin that states the following and explains the exception claimed:

i. "I hereby certify under penalty of perjury that I possess an original of this document that contains the original signature or signatures signed by the hand of the individual or individuals who are named as the signatory or signatories of the document and that the document was in the same form as it now appears before the court when it was signed except as follows:"

c. If Triffin files with any pleading, motion, or other paper or submits for admission into evidence at any trial or other proceeding in a trial court any document that actually contains original signatures, Triffin must attach to each such document an original certification signed by Triffin that states the following:

i. "I hereby certify under penalty of perjury that the attached document contains the original signature or signatures signed by the hand of the individual or individuals who are named as the signatory or signatories of the document and that the document was in the same form as it now appears before the court when it was signed."

d. If Triffin files with any pleading, motion, or other paper or submits for admission into evidence at any trial or other proceeding in a trial court any document that actually contains both copies of purported signatures as well as original signatures, Triffin must attach to each such document an original certification signed by Triffin that states the following and explains the exception claimed:

i. "I hereby certify under penalty of perjury that the attached document contains the original signature or signatures signed by the hand of the individual or individuals who are named as the signatory or signatories of the document and to the extent that any signatures are copies, I possess an original of this document that contains the original signature or signatures signed by the hand of the individual or individuals who are named as the signatory or signatories of the document and that the document was in the same form as it now appears before the court when it was signed except as follows:"

In the present action, plaintiff failed to comply with the order. Instead, plaintiff filed his own form of omnibus certification incorporating all three of the provisions set forth in the order together with exceptions and then a separate certification qualifying the authenticity of the documents appended to the complaint. On defendant's motion for summary judgment, the motion judge concluded that the failure to comply with the July 1, 2008 order was fatal, and he dismissed the complaint with prejudice.

On appeal, plaintiff asserts that: a) the order is unconstitutional as the Law Division did not have authority to promulgate a statewide procedural rule; b) the motion judge did not have the authority to consider an alleged violation of the order; c) the motion judge erred when he refused to determine which of the certification options applied to plaintiff's documents; and lastly, d) the motion judge erred in dismissing plaintiff's complaint with prejudice.

As to a, b and c, we have carefully reviewed the record and conclude that plaintiff's arguments are without merit. R. 2:11-3(e)(1)(E). Moreover, in a recent decision involving plaintiff and his failure to comply with the order, another panel of the court addressed and resolved these same issues adverse to plaintiff. See Triffin v. Elite Personnel, Inc., No. A-211-09T1 (App. Div. May 13, 2010).

We add the following comments. The ability of a court to adequately address and protect against established fraudulent conduct cannot be questioned. This is especially true where the fashioned remedy allows access to a miscreant litigant with conditions that are designed to protect other litigants against such conduct. That is the course of action mandated in the order. We conclude there is no error.

We also reject plaintiff's argument that it is the judge's obligation to determine which of the alternative certifications apply. The argument is fatuous. Plaintiff must determine the genuineness of the documents that he proffers and must certify appropriately as to each document. It is his burden, not one to impose on the court.

We now address the dismissal with prejudice. We recognize that dismissals with prejudice must be granted sparingly. Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005); R. 4:23-5(a)(2). This is especially true where the dismissal is prompted by procedural defects as opposed to a resolution of the dispute on the merits. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 243 (1998). We recognize that plaintiff's persistent refusal to comply with the order borders on the contumacious, see Gonzalez, supra, 185 N.J. at 115; Kosmowski v Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003); Rabboh v. Lamattina, 312 N.J. Super. 487, 492 (App. Div. 1998) (citations omitted), certif. denied, 160 N.J. 88 (1999); however, we also recognize that there are less draconian sanctions that must be considered before imposition of a dismissal with prejudice. In dismissing the complaint with prejudice, we find no indication in the record that the judge considered any alternatives.

We note that the primary objective of the order was to insure the authenticity of the proffered documents. We observe that this objective can be achieved by a dismissal without prejudice conditioned on compliance with the order prior to any reinstatement. In that instance, the judge will be serving as gatekeeper. We do not mandate this result but offer it as a viable alternative consistent with the judge's factfinding as to the appropriate remedy.

We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

This is an unpublished opinion and generally may not be cited by a court. R. 1:36-3. However, as we have noted, we cite the opinion since it involves the same plaintiff and same issues now before us here. See Mantilla v. NC Mall Assocs., 167 N.J. 262, 267-68 n.1 (2001).

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A-6327-08T2

 

May 21, 2010