ROBERT J. TRIFFIN VS. WILLIAM J. BERRY, JR. (DC-001423-17, MORRIS COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2758-17T2
ROBERT J. TRIFFIN,
Plaintiff,
v.
WILLIAM J. BERRY, JR.,
JAMES L. STANKO, CHAMPION
PUMPING AND PAVING, INC.,
CHAMPION PAVING, and
DURATECH,
Defendants,
and
WILLIAM J. BERRY, JR.,
Third-Party Plaintiff-Appellant,
v.
ALAN STANKO, DURATECH,
JOSEPH GILK, RICKY GILK,
and HARDDRIVES LLC,
Third-Party Defendants-Respondents.
____________________________________
Submitted February 27, 2019 – Decided March 25, 2019
Before Judges Koblitz, Currier, and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Docket No. DC-001423-17
Fran J. Garb, attorney for appellant.
Respondents have not filed briefs.
PER CURIAM
Third-party plaintiff William J. Berry, Jr. appeals from a September 13,
2017 order entering default judgment against third-party defendants Alan
Stanko, Duratech, Joseph Gilk, Ricky Gilk, and Harddrives, LLC. Berry also
appeals from a January 12, 2018 order denying reconsideration of the judgment.
We affirm.
Plaintiff Robert J. Triffin obtained a judgment, in the amount of $4426.32,
against Berry for a dishonored check. Berry simultaneously obtained a
judgment against third-party defendants for $7514. Berry's judgment is the
subject of this appeal.
Plaintiff purchases dishonored checks and then sues the non-paying party
to enforce payment. In this matter, Berry issued a check to third-party
defendants in the amount of $3800. The check was cashed at a licensed check
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cashing agency. However, the check was dishonored by Berry's bank for
insufficient funds.
Plaintiff purchased the right to the dishonored check and demanded
payment of the face amount from Berry in accordance with N.J.S.A. 2A:32A-1.
After Berry refused to pay, plaintiff filed suit to collect the $3800 dishonored
check amount, plus interest and costs.
In connection with plaintiff's suit to collect the dishonored check, Berry
filed a third-party complaint against third-party defendants alleging fraud,
misrepresentation, breach of contract, and violation of the Consumer Fraud Act
(CFA), N.J.S.A. 56:8-1 to -195, seeking "the amount of $1,800 together with
treble damages . . . ."
According to the allegations in the third-party complaint, in June 2016,
Berry wrote a check for $3800 payable to Duratech for paving work done in
2015. Subsequently, Duratech, through Stanko and the Gilks, claimed Berry
still owed the $3800 for paving work. Berry issued another check on June 29,
2016, but Berry disputed $3800 remained due. According to Berry, the parties
then negotiated a different amount for the 2015 paving work. Berry instructed
Duratech, Stanko, and the Gilks to destroy the $3800 check. With the
understanding that the $3800 check would be destroyed, on June 30, 2016, Berry
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issued a check for $1800 payable to Duratech. That check was cashed on July
1, 2016.
After receiving plaintiff's complaint, Berry reviewed his financial records.
He discovered an April 11, 2015 contract with the Gilks and Harddrives, LLC,
for the 2015 paving work and realized he had no contract with Stanko or
Duratech. The contract price for the paving work was $4350, which Berry paid
in full.
When he was served with plaintiff's complaint, Berry learned the $3800
check was not destroyed and was presented to Berry's bank for payment.
Berry claimed Stanko and Duratech fraudulently misrepresented that he
still owed money for the 2015 paving work. Additionally, Berry asserted
Duratech, Stanko, and the Gilks violated the CFA by making "an
unconscionable, deliberate and knowing act of fraudulent misrepresentation"
that Berry owed additional money for paving work. In his third-party complaint,
Berry demanded "$1,800 together with treble damages, attorney fees, pre- and
post-judgment interest and costs of suit . . . ."
Plaintiff and Berry each filed motions for summary judgment in support
of their claims. Plaintiff sought $4924.88 from Berry for the dishonored check,
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including interest and costs. Berry filed a motion for summary judgment as to
liability on his third-party claims.
On June 28, 2017, the motion judge granted plaintiff's motion, entering
judgment against Berry in the amount of $4426.32. The judge also granted
Berry's summary judgment motion, finding liability against third-party
defendants.1 The judge instructed Berry to submit "proofs with respect to the
amount due to him by [third-party defendants] or appear at a proof hearing to
determine the same."
Berry filed a certification in support of his damage claims against third-
party defendants. Berry requested reimbursement for the amount of the
judgment entered in favor of plaintiff ($4426.32) and the $1800 check, and
requested the amount be trebled in accordance with the CFA for a total of
$18,678.96, excluding attorney's fees, costs, and interest. Berry sought
attorney's fees in the amount of $14,304 and costs in the amount of $813.59.
Berry demanded a total of $33,796.55 on his third-party claims.
1
Third-party defendants were in default for failure to answer Berry's third-party
complaint.
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On September 13, 2017, the judge entered default judgment against third-
party defendants in the amount of $7514. 2 The judge noted the relief in the ad
damnum clauses of the third-party complaint demanded "the amount of $1,800
together with treble damages, attorney fees, pre- and post-judgment interest and
costs of suit on all other legal and equitable relief found by the trier of fact."
The judge explained that "[n]owhere does [Berry] demand judgment of both the
$1,800 and the $4,426.32." The judge also determined that Berry never paid
third-party defendants the $3800 because Berry's certification, dated May 11,
2017, stated he "timely instruct[ed] . . . [his] bank on or about June 30, 2016 not
to fund the check #10550 in the amount of $3,800 . . . ." Based on these findings,
the judge concluded, "[t]here is simply no justification to treble the $3,800."
On the issue of Berry's attorneys' fees, the judge stated N.J.S.A. 56:8-19
authorizes the award of "reasonable attorneys' fees," and found Berry's request
for fees in the amount of $14,304 was "not reasonable." In reviewing the
certification of services, the judge determined counsel's certification
was significantly deficient as to the [t]hird [p]arty
[d]efendants. It appears that the majority of the legal
work was for services in defense of the [p]laintiff's
claim which was sustained. The [t]hird [p]arty
2
The judge calculated judgment in favor of Berry for $1800, which the judge
trebled in accordance with the CFA, plus $130 for costs and $1984 for attorney's
fees.
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[d]efendants defaulted and there was no heavy lifting
thereafter. Consequently, the [c]ourt has . . . reviewed
the billing and determined what it considered was a
reasonable fee for the services rendered. Furthermore,
there was no justification for costs totaling $813.59.
The only costs awarded are $130 which pertain to the
[t]hird [p]arty action.
Plaintiff filed a motion for reconsideration, which the judge denied.
On appeal, plaintiff argues the following:
POINT I
THE LOWER COURT ERRED WHEN IT FAILED TO
FULLY APPLY THE CONSUMER FRAUD ACT AS
A BROAD REMEDIAL LEGISLATION ENACTED
FOR THE PROTECTION OF CONSUMERS OF A
VARIETY OF GOODS AND SERVICES.
POINT II
THE LOWER COURT ERRED WHEN IT FAILED TO
ACKNOWLEDGE THAT DEFENDANT DID PAY
THE PLAINTIFF THE DAMAGES AWARDED BY
THE COURT AND THAT THIS PAYMENT IS ALSO
AN ASCERTAINABLE LOSS DEFENDANT
SUSTAINED BY THE CONDUCT OF HIS CO-
DEFENDANTS AND THIRD PARTY
DEFENDANTS.
POINT III
THE LOWER COURT ERRED WHEN IT FAILED TO
AWARD DEFENDANT, AS A PREVAILING
PARTY, ALL REASONABLE ATTORNEY FEES,
FILING FEES AND COSTS OF SUIT INCURRED TO
DEFENDANT THE [sic] PLAINTIFF'S LITIGATION
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AND PURSUE THE DEFENDANT'S LITIGATION
AGAINST CO-DEFENDANTS AND THIRD PARTY
DEFENDANTS.
We review a trial court's legal conclusions de novo, while deferring to all
factual conclusions that have substantial support in credible evidence. Verry v.
Franklin Fire Dist. No. 1, 230 N.J. 285, 294 (2017); Rova Farms Resort v. Inv's
Ins. Co., 65 N.J. 474, 483-84 (1974). Our review of discretionary decisions
focuses on whether the trial court "pursue[d] a manifestly unjust course."
Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div. 1996)
(quoting Gittleman v. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App.
Div. 1967)).
A pleading, whether a complaint, cross-claim, or third-party complaint,
must set forth "the facts on which the claim is based, showing that the pleader
is entitled to relief, and a demand for judgment for the relief to which the pleader
claims entitlement." R. 4:5-2. In asserting a CFA claim, a heightened standard
for pleading applies, requiring "particulars of the wrong, with dates and items if
necessary, . . . insofar as practicable." Hoffman v. Hampshire Labs, Inc., 405
N.J. Super. 105, 112 (App. Div. 2009) (quoting R. 4:5-8(a)).
The purpose of a pleading is to "fairly apprise the adverse party of the
claims and issues to be raised at trial." Spring Motors Distribs., Inc. v. Ford
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Motor Co., 191 N.J. Super. 22, 29 (App. Div. 1983). A pleading need not "spell
out the legal theory upon which it is based" so long as the pleading asserts facts
sufficient to notify the defendant of the conduct at issue and the relief soug ht.
Teilhaber v. Greene, 320 N.J. Super. 453, 464 (App. Div. 1999) (quoting Farese
v. McGarry, 237 N.J. Super. 385, 390 (App. Div. 1989)).
Berry's cross-claim and third-party complaint assert "breach of
obligations" and violations of the CFA. In the counts addressed to "breach of
obligations," Berry claims third-party defendants breached their bargained-for
duties to Berry by cashing the $3800 check. The ad damnum clause seeks
"$1,800 together with pre- and post-judgment interest and costs of suit,
including but not limited to all costs and damages that may be granted in favor
of the plaintiff and against [Berry], and any and all other legal and equitable
damages . . . ."
In the counts alleging a violation of the CFA, Berry claims third-party
defendants defrauded him by falsely promising to destroy the $3800 check in
return for his issuing a new check in the amount of $1800. In alleging a violation
of the CFA, Berry claims, "[a]s a direct result of the actions of [third-party
defendants], . . . Berry suffered a loss in the amount of $1800, in addition to
attorney fees, costs of suit, the loss of interest on said funds, and enormous
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physical stress and repercussions for being sued by the herein [p]laintiff." In
his prayer for relief on the CFA claims, Berry demands $1800, "together with
treble damages, attorney fees pre- and post-judgment interest and costs of suit
on all other legal and equitable relief . . . ."
Having reviewed the record, including the prayers for relief set forth in
Berry's cross-claim and third-party complaint, we are satisfied the trial court
correctly held Berry failed to assert a claim for treble damages for any amount
Berry might be obliged to pay to plaintiff as a result of third-party defendants'
misrepresentations and fraud. The amount to be trebled, per Berry's stated CFA
claim against third-party defendants, is limited to $1800.
We next consider Berry's claim that the trial court erred in failing to award
the full amount of the attorney's fees requested. We review an award of
attorney's fees for a "clear abuse of discretion," and disturb an award "only on
the rarest of occasions." Heyert v. Taddese, 431 N.J. Super. 388, 444 (App. Div.
2013).
The motion judge held Berry was entitled only to the fees associated with
prosecuting his claims against third-party defendants. Since third-party
defendants never answered the third-party complaint, default was entered. The
judge concluded there was "no heavy lifting" involved in Berry obtaining default
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judgment against third-party defendants. In reviewing the certification
submitted by Berry's counsel, the judge observed that most of the legal fees
related to Berry's defense of plaintiff's claim. The judge explained Berry's
litigation with plaintiff did not overlap with his litigation against third-party
defendants and thus discounted most of the attorney's fees on that basis.
We discern no basis to disturb the amount of fees awarded by the judge.
The judge assessed the legal tasks performed by Berry's counsel related to the
third-party claims and the time expended in connection with the prosecution of
the third-party complaint in determining a "reasonable" fee award.
Affirmed.
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