RENAISSANCE TOWERS CONDOMINIUM ASSOCIATION INC v. KEITH DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RENAISSANCE TOWERS

CONDOMINIUM ASSOCIATION,

INC.,

Plaintiff-Appellant,

v.

KEITH DAVIS,

Defendant.

_______________________________________

January 10, 2017

Submitted December 8, 2016 Decided

Before Judges Hoffman and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1938-11.

Cutolo Mandel LLC, attorneys for appellant (Jeffrey S. Mandel, of counsel and on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent New Jersey Transit Bus Operations, Inc. (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michael S. Rubin, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Renaissance Towers Condominium Association, Inc., appeals from an October 23, 2015 order denying its motion to hold defendant Keith Davis's employer, New Jersey Transit (NJT), in contempt and to award plaintiff damages because NJT failed to garnish defendant's wages. After reviewing the record and applicable legal principles, we reverse and remand for further proceedings.

I

In 2011, plaintiff obtained a judgment against defendant in the amount of $30,595.04, plus post-judgment interest. On May 7, 2014, the court entered an order for wage execution (order). The order directed execution issue against the salary defendant earned at NJT in accordance with the formula set forth in such order. The order also compelled plaintiff to serve defendant with the order within seven days.

On August 8, 2014, the court entered a writ of wage execution (writ). On October 15, 2014, the Essex County Sheriff's Office served NJT with the writ and a copy of the order. The writ ordered NJT to garnish defendant's weekly earnings in accordance with the formula in the writ. The writ further directed NJT to immediately provide defendant with a copy of the writ; the writ explicitly stated defendant could object to the wage execution by filing a written statement with the court clerk. There is no evidence defendant filed an objection to the wage execution.

In addition to serving NJT with the writ and a copy of the order, the Sheriff's Office also served NJT with a letter from the Sheriff (Sheriff's letter), which contained various instructions about, for example, where to send defendant's garnished salary and to whom the check should be payable. Significantly, the Sheriff's letter included what was purported to be defendant's social security number. It is not disputed this number was not in fact his social security number.

By letter dated November 3, 2014, NJT notified the Sheriff's Office defendant was not one of its employees. At that time, plaintiff did not take any action to enforce the writ or challenge NJT's claim defendant was not its employee.

On July 3, 2015, defendant filed a petition for bankruptcy in the United States Bankruptcy Court. The precise relief defendant sought in this petition was not provided in the record, but it is uncontested the judgment plaintiff secured against defendant is no longer collectible as a result of the Bankruptcy Court action.

On September 22, 2015, plaintiff filed a motion to hold NJT "in contempt of court" and for the entry of judgment against NJT for its failure to garnish defendant's wages. Plaintiff asserted N.J.S.A. 2A:17-54 entitled it to a judgment against NJT for the full amount of the underlying judgment plaintiff secured against defendant.

In response to plaintiff's motion, NJT's manager of Payroll Deductions and Pensions certified that, when NJT was served with the order and writ, its staff searched its records but could not find an employee whose social security number matched the one provided by the Sheriff's Office. NJT then notified the Sheriff's Office defendant was not one of its employees.

The manager explained NJT identifies an employee solely by his or her social security number because, while a person may have the same name as another, a person's social security number is unique. The manager noted when NJT was served with the order and writ, it had only one employee by the name of Keith Davis, but at one time had two employees by this name. Thus, when the social security number provided in the Sheriff's letter did not match that of then employee Keith Davis, NJT declined to garnish his wages. The last time NJT had more than one employee by the name of Keith Davis was in 2007.

The trial court found in favor of NJT and denied plaintiff's motion, stating

DENIED because NJ Transit was not on notice of Defendant's identity; the social security number provided to NJ Transit does not match the SSN listed on [defendant]'s Bankruptcy Petition.

The trial court referenced the Bankruptcy petition because the last four digits of defendant's social security number appear on the petition, and enabled the trial court to compare those numbers to the last four digits of the social security number provided by the Sheriff's Office. There is no dispute the last four digits of defendant's social security number do not match those in the social security number supplied by the Sheriff's Office.

II

On appeal, plaintiff argues the court erred by failing to grant the relief it requested, but now concedes it would not be entitled to the full amount of the underlying judgment it had obtained against defendant, because the judgment became unenforceable as a result of the bankruptcy matter. This concession is in response to NJT's argument that, even if the remedy for failing to garnish an employee's wages is an employer becoming liable for the entire amount of the underlying judgment against the employee, an employer's liability is limited to only those wages the employer could have garnished before the judgment became uncollectible.

Plaintiff also clarifies it did not seek to have NJT sanctioned for contempt. Rather, "[w]hile the initial motion employed the word 'contempt,' plaintiff sought enforcement of N.J.S.A. 2A:17-54. The issue is liability pursuant to the statute and not sanctions based on a finding of contempt." We understand plaintiff to mean it sought to hold NJT in contempt because it violated N.J.S.A. 2A:17-54, and plaintiff does not seek as a remedy the kind of sanction that might be imposed when one is found in contempt of court.

Under N.J.S.A. 2A:17-54, any "person, agent or officer failing or refusing" to make the payments required under an execution against the wages of a debtor will be "liable to an action therefor by the judgment creditor named in the execution." That is, N.J.S.A. 2A:17-54 allows a direct action to be brought against an employer if the employer refuses to honor a wage execution. Snelling & Snelling v. Goyden, 181 N.J. Super. 479, 481 (App. Div. 1981).

We defer to a trial court's factual findings, but only when those findings are supported by adequate, substantial and credible evidence. Zaman v. Felton, 219 N.J. 199, 215 (2014) (citing Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). We review de novo the "trial court's interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Here, the trial court declined to find NJT failed or refused to garnish defendant's wages. Essentially, the trial court determined NJT's conduct defensible because NJT had grounds to believe its employee was not the judgment debtor identified in the writ. We respectfully disagree with the trial court's conclusion.

First, NJT was served with an order for wage execution directing "execution issue against the salary of the Judgment-Debtor Keith Davis located at NJ Transit." The order established the judgment debtor was the Keith Davis employed at NJT. Further, the order explicitly instructed plaintiff to serve defendant with the order. There was no evidence defendant was not served. Defendant never challenged the order.

Second, NJT was served with a writ of wage execution directing it to garnish the wages of "Keith Davis." A writ is "[a] court's written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act." Black's Law Dictionary 1602 (7th ed. 1999). The writ settled any question of NJT's obligations under the writ. NJT was not at liberty to disobey the writ because it questioned whether employee Davis was the same person as the defendant in the writ.

Third, the writ directed NJT to furnish a copy of the writ to employee Davis. The writ informed Davis he had the option of contesting the wage execution. Davis was the person affected by the writ yet never challenged it.

Further, although it obtained information from the Sheriff's Office suggesting the debtor identified in the writ and employee Davis were not the same person, NJT did not have the option of disregarding the writ. If there was any error in the writ, it was defendant's -- not NJT's -- responsibility to correct the error.

We appreciate NJT's motives may have been sincere and well-meaning. NJT did not wish to garnish the wages of an employee who may have been erroneously named as the debtor in a writ of wage execution. Nevertheless, in this context, NJT's concern was misplaced. The writ was clear and NJT was compelled to honor it.

Accordingly, the October 23, 2015 order is reversed and the matter remanded so the trial court may determine the appropriate remedy to impose because NJT failed to garnish defendant's salary in accordance with the writ.

Reversed and remanded. We do not retain jurisdiction.