ONYX LEASING SYSTEMS INC v. LAKRISHA STEVENS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2550-11T1

DOCKET NO. A-2552-11T1

ONYX LEASING SYSTEMS, INC.,

Plaintiff-Respondent,

v.

LAKRISHA STEVENS,

Defendant,

and

SHERIFF OF MIDDLESEX COUNTY,

Appellant.

________________________________________

M&R AUTO SALES, INC.

Plaintiff-Respondent,

v.

SHAREFF J. BRAXTON,

Defendant,

and

SHERIFF OF MIDDLESEX COUNTY,

Appellant.

___________________________________________

December 28, 2012

Submitted November 27, 2012 - Decided

Before Judges Messano, Ostrer and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil, Middlesex County, Docket Nos. DC-4142-08 and DC-4840-03.

Thomas F. Kelso, Middlesex County Counsel, attorney for appellant Sheriff of Middlesex County (Benjamin D. Liebowitz, Deputy County Counsel, of counsel and on the brief).

Donna L. Thompson, attorney for respondents Onyx Leasing Systems, Inc. and M&R Auto Sales, Inc.

PER CURIAM

We issue a single opinion disposing of these two appeals, which present the same legal issues and were calendared back-to-back. In A-2550-11, the Sheriff of Middlesex County (the Sheriff) appeals from the Law Division's order that, among other relief provided, converted the "amercement petition" of plaintiff Onyx Leasing Systems, Inc. (Onyx) into a complaint in lieu of prerogative writs seeking mandamus; "ordered and directed" the Sheriff to "levy upon . . . the title of" a certain motor vehicle, as well as "the motor vehicle itself"; ordered the Sheriff to transmit certain forms to the Motor Vehicle Commission (the MVC); and ordered the MVC to "process the levy . . . and provide the appropriate documentation to the Sheriff . . . ." In A-2552-11, the Sheriff appeals from the Law

Division's order that granted plaintiff M&R Auto Sales, Inc. (M&R) the same relief.

We set forth the factual and procedural history of the litigation, which is undisputed. Onyx and M&R (hereafter, collectively referred to as plaintiffs) obtained judgments in the Special Civil Part against Lakrisha Stevens and Shareef J. Braxton respectively. Plaintiffs obtained writs of execution and forwarded them to the Sheriff requesting that she levy upon vehicles owned by Stevens and Braxton, and providing a description of the cars and their vehicle identification numbers.

As to both requests to levy, the Sheriff reported that service was ineffective because, as to Stevens, the officer "did not see [any] cars," and, as to Braxton, "no vehicles [were] present on any attempt." Plaintiffs' counsel thereafter wrote the Sheriff:

It [was] not necessary for your officer to physically see the motor vehicle in order to levy. A constructive levy may be accomplished by sending the CO-55 [form] to [the MVC] and informing them of the levy and they will issue an appropriate stop on the title. After the stop is issued on the title if you are still unable to locate the vehicle I will hire the services of a repossession company to locate and seize the vehicle for sale. Please send the appropriate paperwork to motor vehicle to effectuate the levy.

Less than two weeks later, plaintiffs' counsel again wrote to the Sheriff, noting that the Sheriff's "refus[al] to accomplish the constructive levy . . . by posting at the premises and sending the appropriate paperwork to the [MVC]," left her with no alternative but to file litigation "to compel appropriate action . . . ."

On November 15, 2011, plaintiffs filed ex parte motions "for an [o]rder of [a]mercement, pursuant to N.J.S.A. 40A:9-109." Plaintiffs sought "to compel . . . [the Sheriff] to file [MVC] Form OS/SS 55 . . . with [the MVC] . . . ." The motions were apparently made returnable for December 2.

On November 30, the Sheriff sought an adjournment and, alternatively, advanced two arguments in opposition to plaintiffs' motions. First, the Sheriff "contend[ed] that th[e] action [was] not properly an amercement under N.J.S.A. 40A:9-109." Second, the Sheriff "contend[ed] that plaintiffs' motion[s] for entry of an order that compels [the Sheriff] to file the[] [OS/SS 55] forms when they do not actually see the subject vehicle is unsound and not legally compelled."

The judge adjourned the motions and the Sheriff submitted additional written arguments in opposition. Since plaintiffs did not allege "any actual damages," a necessary element of an amercement action, the Sheriff contended the motions should be denied. The Sheriff also argued that the order submitted by plaintiffs sought to compel the Sheriff "to take certain action" and "properly should have been the subject of a complaint in lieu of prerogative writ[s] as . . . mandamus . . . ."

On December 12, plaintiffs' counsel sent a letter to the motion judge. She enclosed a copy of an order entered on December 2 by another Law Division judge in a different case seeking similar relief. Counsel wrote:

In short, the enclosed is respectfully submitted so as to offer the court guidance in a similar fact pattern, and to further request that this . . . court treat the pending motions as a request for prerogative writ in lieu of mandamus, in similar fashion, in that the relief requested is in the nature of compelling the Sheriff to do something it [sic] is obligated to do, rather than an amercement action[,] as at this point, no damages have been incurred by Plaintiff[s] as a result of the failure to locate the chattels identified in the Writ of Execution.

Plaintiffs' counsel submitted two new proposed form orders.

On December 13, the Sheriff filed written opposition to plaintiffs' request, noting that, "in obvious acknowledgment that the amercement motion is without merit," plaintiffs "without proper notice of motion, or timely filing, request[] . . . that this court amend the motion . . . to a complaint in lieu of prerogative writ[s] . . . ." Among other things, the Sheriff noted that plaintiffs' proposed order "direct[ed] the [MVC] to process the levy on the title[,]" yet, the MVC was not a party to the case. The Sheriff argued that the relief should have been sought "in a properly filed complaint in lieu of prerogative writ[s], or [c]ould be done . . . in a third[-]party complaint to join the MVC as a party to the proceeding."

Even though the Sheriff requested oral argument when opposition was first filed, on December 16, 2011, the judge entered the proposed orders submitted by plaintiffs without any argument and without any statement of reasons. On December 27, the Sheriff asked the judge to supply a statement of reasons. On January 24, 2012, the judge responded in a brief letter, explaining that he "deemed the . . . petitions for amercement to be requests for prerogative writ [sic] in lieu of mandamus." As to the substantive relief, the judge explained that "visual inspection was only necessary for levy on the vehicle itself, not levy of the title; title could be confirmed through the [MVC]. Accordingly, the Court granted the Motions . . . ." This appeal followed.

Before us, the Sheriff argues that the motion judge erred both substantively and procedurally. In particular, the Sheriff contends that plaintiffs' motions should have been denied because they failed to prove "an essential element of an amercement claim," i.e., that plaintiffs suffered damages as a result of the Sheriff's failure to perform a duty. Additionally, the Sheriff argues that she was "unduly prejudiced" because the judge treated plaintiffs' amercement motions as "complaint[s] in lieu of prerogative writ[s] of mandamus" without requiring plaintiffs to file a complaint seeking such relief.1

We have considered these contentions in light of the record and applicable legal standards. We agree with both arguments and, therefore, reverse.

Rule 4:69-1 clearly requires that any application seeking "[r]eview, hearing and relief heretofore available by prerogative writs . . . shall be afforded by an action in the Law Division, Civil Part, of the Superior Court. The complaint shall bear the designation 'In Lieu of Prerogative Writs[.]'" (Emphasis added). Once properly filed, our Court Rules provide for the procedural management of the litigation. See R. 4:69-4 (providing for a mandatory case management conference within thirty days of the filing of the complaint).

Plaintiffs requested, in part, an order compelling the Sheriff to file certain forms with the MVC. As such, the essential relief sought was in the nature of mandamus. See, e.g., Twp. of Neptune v. State, Dept. of Env. Prot., 425 N.J. Super. 422, 434 (App. Div. 2012) (noting mandamus is "appropriate where the party seeks to compel a governmental agency to perform a duty [that] is ministerial and wholly free from doubt or to compel the exercise of discretion, but not in a specific manner") (quotation marks and citation omitted) (alteration in original). Therefore, to the extent the relief was appropriate, any request for same was only cognizable pursuant to a complaint filed in the Law Division.

Although Rule 4:69-2 permits a plaintiff to immediately move for summary judgment "[i]f the complaint demands the performance of a ministerial act or duty," in this case, the Sheriff contested the existence of such a duty in the first instance.2 We discern no reason why the Sheriff should have been denied the opportunity to file an answer and potentially engage in discovery. See R. 4:69-4 (providing for a case management order setting forth "[t]he scope and time to complete discovery, if any"). While our Rules provide for the liberal amendment of pleadings, see R. 4:9-1 (permitting amendment of the complaint "as a matter of course at any time before a responsive pleading is served"), there simply is no authority for the trial judge to transform plaintiffs' motions seeking amercement into complaints in lieu of prerogative writs seeking mandamus. Additionally, we see no basis upon which the judge ordered the MVC to "process the levy" and notify the Sheriff; the MVC was not a party to this case, nor does the record show it was ever put on notice. See City of East Orange v. Kynor, 383 N.J. Super. 639, 647 (App. Div.) (noting that due process requires notice and an opportunity to respond) (citation omitted), certif. denied, 188 N.J. 352 (2006).

We also agree that plaintiffs failed to establish a claim for amercement. Amercement is an ancient remedy, recognized in New Jersey at least since the late 1700s. See, e.g., Watson v. Hoel, 1 N.J.L. 158 (Sup. Ct. 1792). Since 1971, the remedy has been codified at N.J.S.A. 40A:9-109 which provides:

If a sheriff . . . fails to perform any duty imposed upon him by law in respect to writs of execution resulting in loss or damage to the judgment creditor, he shall be subject to amercement in the amount of such loss and damage to and for the use of the judgment creditor. Such amercement may be made by the court having jurisdiction of the judgment and proceedings for the enforcement thereof in an action or proceeding for amercement or in the nature of an amercement brought for the purpose. The court may proceed in a summary manner or otherwise.

[Ibid. (emphasis added).]

We have said that "[a]mercement is [a] money penalty in the nature of a fine imposed upon an officer for some misconduct or neglect of duty." Sears, Roebuck and Co. v. Braney, 265 N.J. Super. 362, 364 (App. Div.) (quotation marks and citation omitted) (second alteration in original), certif. denied, 134 N.J. 561 (1993).

In an amercement action, the burden of proof is on the plaintiff, who "must clearly establish some default of duty." Vitale v. Hotel California, Inc., 184 N.J. Super. 512, 527 (Law Div.), aff'd o.b. 187 N.J. Super. 464 (App. Div. 1982). The plaintiff must also "show that the officer s conduct has deprived [him] of a 'substantial benefit to which he was entitled' under the writ; that but for the officer s conduct, [the plaintiff] would have received such benefit through the execution." Vitale, supra, 184 N.J. Super. at 5313.

It is clear that plaintiffs could not satisfy this second requirement. Indeed, the orders under review, the proposed form of which was supplied by plaintiffs and unaltered by the judge, states, "[T]he Court finds no damages have been incurred . . . as a result of the failure to locate the chattels identified in the Writ of Execution." Therefore, the judge should have denied the motions.

In light of our holding, we need not consider the balance of the arguments raised by the Sheriff.

Reversed.

1 Although the issue is not expressly raised on appeal, we note that the judge erred in not permitting oral argument on plaintiffs' motions. See R. 1:6-2(d) (granting oral argument "as of right" in non-discovery motions in the Civil Part).

2 We hasten to add that we express no opinion on the merits of plaintiffs' arguments that the Sheriff had a duty to file the appropriate forms with the MVC.

3 Given our disposition, we do not address whether amercement is properly sought by a motion, as opposed to commencement of a summary action. Compare Vitale, supra, 185 N.J. Super. at 515, n.1 (stating "[i]t appears" amercement may be sought by motion, citing Brockhurst v. Kaiser, 75 N.J.L. 162 (Sup. Ct. 1907) and Howard W. Middleton Co. v. Souder, 74 N.J.L. 87 (Sup. Ct. 1906), both of which rely on section 22 of the old Sheriff's statute, which expressly referred to a motion for amercement), with N.J.S.A. 40A:9-109 (referring to "an action or proceeding for amercement" and stating "[t]he court may proceed in a summary manner or otherwise.")