ROBERT J. TRIFFIN v. WACHOVIA BANK, N.A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5299-04T55299-04T5

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

WACHOVIA BANK, N.A.,

Defendant-Respondent,

and

CITY OF NEWARK, BRIAN BARNES,

LOUIS HADLEY, NATHANIEL BACON,

EILEEN ABRAHAM, WILLIS BOWMAN,

and JANICE GREEN,

Defendants.

____________________________________________________________

 

Argued January 25, 2006 - Decided February 9, 2006

Before Judges Wefing and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Essex

County, DC-27729-04.

Robert J. Triffin, appellant, argued the cause

pro se.

Judi L. Rosenberg argued the cause for

respondent (Greenbaum, Rowe, Smith & Davis,

attorneys; Ms. Rosenberg, on the brief).

PER CURIAM

Plaintiff Robert J. Triffin appeals from an order of April 1, 2005, granting a motion for sanctions filed by defendant Wachovia Bank, N.A. (Wachovia or the bank), and a second order requiring plaintiff to pay a sanction in the amount of $500 dated April 27, 2005. We reverse and remand for further proceedings.

Plaintiff's Special Civil Part complaint named Wachovia as a defendant; however, the summons specifically states that plaintiff was not requesting service of the complaint upon Wachovia, plaintiff did not pay for service of the complaint and summons upon Wachovia, and the complaint does not allege a claim against Wachovia Bank. In a certification in opposition to defendant's motion for sanctions, plaintiff explained that Wachovia was named as a defendant due to clerical error:

Upon plaintiff's inquiry of his clerical staff as to why Wachovia was named as a defendant in this action when no claim was asserted against Wachovia; the best that plaintiff could determine is that, due to clerical error of an overworked computer operator, Wachovia's name was not purged from a prior summons that plaintiff's staff had prepared with Wachovia's name.

It is not clear from the record how Wachovia learned of the complaint. In any event, Wachovia's attorney sent the following letter to plaintiff on February 8, 2005:

This letter is a request to you to dismiss the above-referenced matter as to Wachovia within 28 days, pursuant to R. 1:4-8. Wachovia Bank, N.A. is named as a defendant, however, the complaint does not allege any claims against Wachovia. In addition, you have not requested service on Wachovia. The summons indicates as to Wachovia: "No Service Requested At This Time/Present Verifiable Address Unknown." We believe it is frivolous for you to name Wachovia as a defendant in this matter.

If you do not withdraw the foregoing claim within 28 days, and provide notice to Wachovia of the withdrawal, we will move for sanctions, including attorneys fees, pursuant to R. 1:4-8.

In an e-mail dated February 25, 2005, plaintiff advised the bank's attorney "you have nothing to worry about," and confirmed that the complaint, which had not been served, did not assert any claims against the bank.

When plaintiff failed to comply with defendant's request to dismiss the complaint, Wachovia filed a motion for sanctions pursuant to R. 1:4-8. Defendant's attorney argued to the trial court that "[e]ven though the [c]omplaint does not contain any allegations against Wachovia, Wachovia is a named defendant and has gone through the effort and expense of hiring outside counsel to monitor the litigation." Plaintiff, on the other hand, argued that there was no basis for an award of sanctions because Wachovia had not been served, and the complaint did not assert a claim against the bank.

On April 1, 2005, the trial court entered an order granting the bank's motion for sanctions. The order contains the following handwritten note: "Certification as to attorney's fees to be submitted to court with service on plaintiff by April 15, 2005." The subsequent order, dated April 27, 2005, provided as follows: "Within ten (10) days of the date of this [o]rder, plaintiff, Robert J. Triffin, shall pay to defendant Wachovia Bank, N.A., the sum of $500.00."

"Rule 1:7-4 requires a judge to provide findings of fact and conclusions of law on every motion decided by a written order that is appealable by right." Fodero v. Fodero, 355 N.J. Super. 168, 170 (App. Div. 2002). Despite plaintiff's certification and brief in opposition to Wachovia's motion for sanctions and plaintiff's letter in opposition to Wachovia's request for a sanction in the amount of $1,090 to cover counsel fees and disbursements, both orders were entered without any findings of facts and conclusions of law in violation of R. 1:7-4. Our Supreme Court previously noted that a trial court's failure to make findings of fact and conclusions of law "constitutes a disservice to the litigants, the attorneys, and the appellate court. Naked conclusions do not satisfy the purpose of R. 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (citation and internal quotation marks omitted).

In addition, Rule 1:4-8(d) contains the following mandate: "In the order imposing sanctions, the court shall describe the conduct determined to be a violation of this rule and explain the basis for the sanction imposed." This is necessary and appropriate because the frivolous claims statute and the frivolous litigation rule "must be interpreted restrictively so as not to discourage creative advocacy or access to the courts." Port-o-San Corp. v. Teamsters, Local 863, 363 N.J. Super. 431, 440 (App. Div. 2003). The order awarding a sanction in this case neither describes the conduct determined to be a violation nor does it explain the reasons for the sanction imposed. We, therefore, have no way of knowing what facts the trial court found and relied upon in reaching its conclusion, and we will not speculate as to what the judge may have had in mind.

Although we have the authority to make the necessary findings of fact "pursuant to the constitutional grant of necessary original jurisdiction and R. 2:10-5," Pressler, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2006), we are satisfied that the general administration of justice will be better served in these circumstances by requiring the trial court to carry out its functions in the appropriate manner.

Reversed and remanded for further proceedings consistent with this opinion.

 

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6

A-5299-04T5

February 9, 2006