Opinion
DOCKET NO. A-1838-13T2
05-14-2015
ROBERT J. TRIFFIN, Plaintiff-Appellant, v. CREAMY DREAMY FROZEN YOGURT LLC, Defendant-Respondent, and SST GROUP, a/d/b/a SST RENOVATION, INC., a/k/a ARTUR PRIBLUDA, Ind. and t/a SST GROUP, Defendant.
Robert J. Triffin, appellant, argued the cause pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. DC-8458-13. Robert J. Triffin, appellant, argued the cause pro se. Respondent has not filed a brief. PER CURIAM
Plaintiff Robert Triffin ("Triffin") appeals from an order from the Special Civil Part dismissing his complaint with prejudice after Triffin failed to appear for trial. Because the record in this matter does not warrant the ultimate sanction of dismissal with prejudice, we reverse and remand for reinstitution of Triffin's complaint and further proceedings.
We discern the following facts and procedural history from the record. On May 2, 2013, Triffin filed a Special Civil Part complaint to recover on a $1,500.00 check that was dishonored. The complaint alleges that on April 4, 2013, defendant Creamy Dreamy Frozen Yogurt LLC ("CDFY") issued the $1,500.00 check to defendant SST Group, also alleged to be doing business as or known as SST Renovation, Inc. or Artur Pribluda ("SST Group"). On April 9, 2013, the check was cashed at Friendly Check Cashing Corporation ("Friendly"), a licensed New Jersey check casher. When Friendly sought to redeem the check, the check was not honored by CDFY's bank because CDFY had placed a stop payment on the check. On April 19, 2013, Friendly assigned the check to Triffin, who is in the business of purchasing dishonored checks.
In its answer, CDFY alleged that it issued the check to SST Group as payment for a "topping bar." CDFY went on to allege that SST Group had informed it that SST Group could not obtain the topping bar and, therefore, those entities agreed that the check would not be cashed. CDFY then put a stop payment on the check on April 8, 2013. CDFY also filed a counterclaim against Triffin contending that SST Group did not have a corporate profile or resolution on file with Friendly and, therefore, Friendly cashed the check in violation of the Check Cashers Regulatory Act of 1993 ("Check Cashing Act"), N.J.S.A. 17:15A-30 to -52, specifically N.J.S.A. 17:15A-47. CDFY further contended that Triffin as Friendly's assignor is not a holder in due course and Triffin's complaint should be dismissed with prejudice. CDFY also filed a cross claim against SST Group for alleged misrepresentations and fraud in cashing the check.
In answer to CDFY's counterclaim, Triffin alleges that SST Group did have a corporate profile or resolution on file with Friendly. Triffin also contended that CDFY, as a maker or drawer of the check, did not have standing to seek relief under the Check Cashing Act.
The Special Civil Part action in this matter was listed for trial on November 1, 2013. Triffin did not appear. A representative of CDFY and its legal counsel did appear. Apparently, no one appeared for SST Group. The trial court noted that the matter had "apparently" been listed for trial by consent of the parties. The trial court further noted that on October 30, 2013, Triffin had sent the court a faxed letter requesting that the complaint be dismissed without prejudice. That letter had been copied to counsel for CDFY. Counsel for CDFY acknowledged that "there was some miscommunication" concerning whether Triffin had to appear to dismiss the complaint. Counsel for CDFY then requested the trial court to dismiss the complaint with prejudice arguing that Triffin's claims were barred under the Check Cashing Act because Friendly had cashed the check after the stop payment had been issued and SST Group did not have a resolution on file with Friendly. There was no testimony taken nor was any evidence offered or received at the proceedings on November 1, 2013.
The trial court stated that Triffin was in violation of the "rule" and went on to reason that even if the matter was refiled, the claim would be barred by the Check Cashing Act, N.J.S.A. 17:15A-47. Consequently, in the interest of "judicial economy," the trial court dismissed Triffin's complaint with prejudice. The trial court also granted CDFY's application to dismiss without prejudice its counterclaim.
Triffin now appeals. CDFY did not file a brief or participate in the appeal.
The trial court was apparently referring to Rule 4:37-1(b) when it stated that Triffin needed leave of court to dismiss its complaint without prejudice. That rule addresses "Voluntary Dismissal" and states: "[u]nless otherwise specified in the order, a dismissal under this paragraph is without prejudice." Ibid. The dismissal with prejudice here was not voluntary and was at defendant's request without formal motion or notice to Triffin.
We read the trial court order to be a dismissal for failure to appear. A dismissal for failure to appear is generally addressed under Rule 1:2-4(a) or Rule 4:37-2. Rule 1:2-4(a) and Rule 4:37-2, as well as the case law interpreting those rules, make it clear that dismissal with prejudice is the harshest sanction and that sanction is generally reserved for gross or persistent failures or abuses. Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115-16 (2005); Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995); Zaccardi v. Becker, 88 N.J. 245, 253 (1982); Burke v. Cent. R.R. Co., 42 N.J. Super. 387, 396 (1956) (quoting Mayflower Indus. v. Thor Corp., 17 N.J. Super. 505, 509 (Ch. Div.), appeal dismissed, 20 N.J. Super. 39 (App. Div. 1952)). Indeed, Rule 1:2-4 lists several examples of potential sanctions, including requiring the delinquent party to pay the reasonable costs of the party that did appear. R. 1:2-4(a)(b).
The record in this case does not warrant the imposition of the ultimate sanction of dismissal with prejudice. Triffin failed to appear once for trial. While we fully appreciate that busy trial courts need to hold litigants accountable, here there is no record that Triffin had failed to appear on other occasions or had ignored prior court orders or discovery obligations. Nor does the record reflect that CDFY suffered prejudice because Triffin failed to appear. CDFY did not ask for the costs it incurred as a result of Triffin's failure to appear. Such a request for costs might have been a more appropriate sanction given the record in this case. See R. 1:2-4(a)(allowing, in appropriate situations, the awarding of such costs as a lesser sanction to dismissal).
Indeed, in this matter there was an acknowledged "miscommunication" as Triffin apparently believed that he need not appear and that the complaint would be dismissed without prejudice. Two days before trial, Triffin had sent a letter to the court and counsel for CDFY asking for a dismissal without prejudice. There is nothing in the record indicating that either the court or counsel contacted Triffin to inform him that his request would not be granted and that he needed to appear. Again, we appreciate that it is not the responsibility of the court to inform litigants of court rules, but on the record on this appeal there is also nothing warranting the extreme sanction of a dismissal with prejudice.
It appears the trial court was taking a practical view of the overall case and that the court believed that Triffin's claims would be barred by the Check Cashing Act. That practical view, however, may not be correct. We make no rulings on this issue since it was not fully addressed at the trial court. Nevertheless, we point out some considerations. The trial court took no evidence to support a ruling on the Check Cashing Act issue. There was no trial or motion on the counterclaim. Instead, counsel for CDFY merely made statements and arguments, which are not evidence. Triffin disputes that the Check Cashing Act bars his claim. Triffin filed an answer to the counterclaim attaching a resolution from SST Group and filed with Friendly that arguably would have allowed Friendly to cash the check without violating the Check Cashing Act. Moreover, Triffin contends, with some legal support, that CDFY, as the maker of the check, is not within the ambit of the private parties protected by the Check Cashing Act. See Valley Nat'l Bank v. P.A.Y. Check Cashing, 378 N.J. Super. 406, 413-15 (Law Div. 2004) (holding that the maker of a check is not among the private parties protected by the Act and, therefore, a maker cannot seek redress under the Act), aff'd o.b., 378 N.J. Super. 234 (App. Div. 2005).
In conclusion, the record in this matter does not support the dismissal of Triffin's complaint with prejudice. Accordingly, the portion of the court's order of November 1, 2013, dismissing Triffin's complaint with prejudice is reversed and this matter is remanded for restatement of Triffin's complaint and further proceedings. This reversal is without prejudice to CDFY refiling its counterclaim and cross claim. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Rule 4:37 is made applicable to the Special Civil Part by operation of Rule 6:5-1.