PIO A/K/A PETER TARQUINIO VS. CLAUDIO TARQUINIO (C-012069-11, SOMERSET COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1116-16T3
A-3902-16T3
PIO, a/k/a PETER TARQUINIO,
Plaintiff-Respondent/
Cross-Appellant,
v.
CLAUDIO TARQUINIO; TAMMY TARQUINIO;
EVEX, INC.; EVEX ANALYTICAL
INSTRUMENTS, INC.; 2486 ROUTE 206,
LLC; CTTK, LLC; and EVEXGLOBAL, LLC,
Defendants-Appellants/
Cross-Respondents.
_________________________________________
PETER TARQUINIO,
Plaintiff-Respondent,
v.
CLAUDIO TARQUINIO; EVEX, INC.;
EVEX ANALYTICAL INSTRUMENTS, INC.;
and 2486 ROUTE 206, LLC;
Defendants,
and
TAMMY TARQUINIO; CTTK, LLC;
and EVEXGLOBAL, LLC,
Defendants-Appellants.
______________________________________
Argued September 12, 2018 – Decided September 19, 2018
Before Judges Sabatino, Haas and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Somerset County, Docket No. C-
012069-11.
Daniel L. Grossman argued the cause for
appellants/cross-respondents (in A-1116-16).
Douglas A. Stevinson argued the cause for
respondent/cross-appellant (in A-1116-16) and
respondent (in A-3902-16) (Windels Marx Lane &
Mittendorf, LLP, attorneys; Douglas A. Stevinson, on
the brief).
Russell M. Woods argued the cause for appellants (in
A-3902-16)(Bramnick Rodriguez Grabas Arnold &
Mangan, LLC, attorneys; Russell M. Woods, on the
brief).
PER CURIAM
In these appeals, calendared back to back and consolidated for purposes
of this opinion, defendants Claudio Tarquinio (Claudio); 1 Tammy Tarquinio
1
Several of the parties share the same surname. To avoid confusion, we refer
to defendants Claudio and Tammy Tarquinio by their first names. In doing so,
we intend no disrespect.
A-1116-16T3
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(Tammy); Evex, Inc.; Evex Analytical Instruments, Inc.; 2486 Route 206, LLC;
CTTK, LLC; and EvexGlobal, LLC, appeal from the March 10, 2017 Chancery
Division judgment entered in favor of plaintiff Pio a/k/a Peter Tarquinio
(plaintiff) in this long-running litigation involving businesses owned and
operated by plaintiff, Claudio, and Tammy. Plaintiff has filed a cross-appeal
from a portion of that same judgment. In her separate appeal, Tammy challenges
an April 10, 2017 order directing her to pay plaintiff counsel fees an d other
costs, after she failed to appear at a post-judgment deposition scheduled in
connection with plaintiff's efforts to enforce the judgment. We affirm.
I.
The history of this litigation and the facts relevant to this appeal are set
forth at length in the comprehensive and detailed seventy-five-page written
opinion rendered by Judge Margaret Goodzeit on September 27, 2016, and need
not be repeated at length here. Plaintiff and Claudio are brothers, who went into
business together in 1994 by incorporating a company known as Evex Analytical
Instruments, Inc. (EAI). Plaintiff and Claudio's wife Tammy were named as
directors of the corporation and both brothers served as the company's officers.
In 2000, the brothers formed a second company called Evex, Inc. (Evex, known
collectively with EAI as the Evex Companies). While operating these
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businesses, the brothers invented, developed, and sold various types of
microscopes and related devices and equipment to the government, educational
institutions, scientific entities, and manufacturers. The companies were very
successful.2
In 2011, plaintiff became engaged to his future wife. Claudio and other
members of the Tarquinio family did not approve of this relationship.
Thereafter, Claudio and Tammy took a series of steps against plaintiff to freeze
him out of the business. Among other things, Claudio directed the banks used
by the Evex Companies to remove plaintiff from all of the business accounts;
changed online banking passwords; removed plaintiff from the company's
business line of credit, even though plaintiff had personally guaranteed the loan;
and created new accounts in which he deposited the Evex Companies' profits.
Claudio also removed $95,000 from a bank account held by 2486 Route 206,
2
The brothers also formed an entity named 2486 Route 206, LLC, which owned
property at that location. The parties' operating agreement stated that plaintiff
and Claudio were 50% owners of this entity and were to share all profits and
losses as they did with the Evex Companies.
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LLC;3 told customers that plaintiff had left the businesses; fired plaintiff's sales
staff; and directed all remaining employees not to communicate with plaintiff.
In May 2011, plaintiff filed a complaint against Claudio, seeking to
restrain him from continuing to operate the businesses without his input, and to
account for all of the brothers' assets. 4 Despite the court's issuance of a
temporary restraining order against him, and the parties' agreement to a consent
order specifying how the businesses should be conducted during the pendency
of the lawsuit, Claudio continued to interfere with plaintiff's rights. He removed
additional funds from the companies, and prevented plaintiff from accessing
business records.
In May 2012, the court appointed a Special Fiscal Agent (SFA) to take
control of the businesses. Claudio refused to comply with any of the SFA's
directives, including orders to provide business records for revie w. The court
issued several orders imposing sanctions upon Claudio for his recalcitrance. In
2013, plaintiff learned that Claudio and Tammy had created a similarly-named
3
After litigation commenced between the brothers, plaintiff alleged that
Claudio created CTTK, LLC and improperly transferred the title to the property
owned by 2486 Route 206, LLC to that company.
4
As the litigation progressed, plaintiff amended the complaint to add Tammy
and the brothers' businesses as defendants, and he made additional claims and
requests for relief.
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company, EvexGlobal, LLC, which began to sell the Evex Companies' products
through that entity to the brothers' former customers.
Claudio next filed a motion for summary judgment in which he alleged
that Tammy was the sole owner of the Evex Companies, and that plaintiff had
no ownership interest at all. Plaintiff filed a cross-motion for summary
judgment, and asserted that he and his brother each owned 50% of the business.
On September 27, 2013, Judge Edward M. Coleman granted plaintiff's motion
and concluded, in a thorough written opinion, "that there are no genuine issues
of material fact to refute that Claudio Tarquinio and Peter Tarquinio are each
50% owners of both EAI and Evex, Inc."
Thereafter, Claudio, Tammy, and the other defendants failed to provide
discovery to plaintiff despite the court's repeated orders requiring them to do so.
On May 8, 2015, the court suppressed defendants' pleadings and counterclaims
without prejudice pursuant to Rule 4:23-5(a)(1).
Over the next six months, defendants failed to move to reinstate their
pleadings and did not provide the outstanding discovery to plaintiff.
Accordingly, plaintiff filed a motion for summary judgment, and included a
request that defendants' pleadings now be suppressed with prejudice as
permitted by Rule 4:23-5(a)(2). On January 25, 2016, Judge Thomas C. Miller
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granted plaintiff's motion to suppress defendants' responsive pleadings for
failure to provide discovery, and delivered an extensive written opinion fully
explaining his reasons for directing this relief.
With defendants' answer and counterclaims suppressed, the matter moved
to the proof hearing. On April 21, 2016, Judge Goodzeit issued an order and
accompanying seventeen-page written decision setting forth the procedures to
be followed at the hearing. After conducting a five-day hearing, the judge
rendered her comprehensive written decision on September 27, 2016, and set
forth detailed findings of fact and conclusions of law on all of the matters at
issue between the parties.
Judge Goodzeit granted plaintiff $1,605,258.68 in compensatory
damages, and an additional $1.6 million in punitive damages. In awarding these
damages to plaintiff, the judge considered, but rejected, his request for certain
"alternative remedies, such as provision of a constructive trust, equitable
subrogation and/or the imposition of an equitable lien in connection" with
certain properties owned by defendants. As was the case with all of the judges
involved in shepherding this matter to its conclusion, Judge Goodzeit fully
explained her rationale for rejecting plaintiff's claim in her written decision.
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Judge Goodzeit further restrained defendants "from transferring,
dissipating, and/or encumbering Claudio and Tammy Tarquinio's interests in,
and the assets owned by," the business entities involved in this case, and made
provision for the dissolution of the brothers' companies. The judge also granted
plaintiff's request for counsel fees and costs. However, she issued the September
27, 2016 order without first determining the amount of those fees in order to
ensure that Claudio, Tammy, and the other defendants did not continue to hide
and deplete their assets before plaintiff's attorney could submit an affidavit of
services.
Tammy was mistakenly not included in the paragraph of the September
27, 2016 order directing the payment of compensatory and punitive damages to
plaintiff. On October 14, 2016, Judge Goodzeit entered an amended judgment
that stated that Tammy was jointly and severally liable with Claudio and the
other defendants for the judgment.
On November 15, 2016, Judge Goodzeit entered a judgment ordering
defendants to pay plaintiff $356,063.17 in counsel fees and costs. Unbeknownst
to the court or plaintiff, however, Claudio had filed for bankruptcy after the
entry of the September 27, 2016 judgment. Therefore, the judge entered an
amended order on December 5, 2016 to remove Claudio from the November 15
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order. After the bankruptcy court lifted the automatic stay engendered by
Claudio's bankruptcy filing, the judge entered the March 10, 2017 order that
again made Claudio jointly and severally liable for the fees.
One other procedural matter must be addressed at this juncture. On
November 17, 2016, defendants filed a notice of appeal from the court's October
14, 2016 judgment. As discussed above, the issue of counsel fees had not been
finalized at that time and, accordingly, our clerk's office asked the parties to
address whether the October 14 order was final or interlocutory for purposes of
appeal. While the parties were responding to this inquiry, plaintiff proceeded in
the Chancery Division as permitted by Rule 2:9-1(a) to enforce the October 14,
2016 judgment, and obtained a discovery order on December 15, 2016 against
all defendants other than Claudio, requiring them to produce documents and
appear for a deposition on January 4, 2017.
On that date, Tammy failed to appear for her scheduled deposition, and
plaintiff had to pay $159.60 to the court reporter. Tammy then filed a motion
to stay discovery until the appellate clerk's office determined whether
defendants' appeal could proceed as a direct appeal or whether they were
required to file a motion for leave to appeal. Plaintiff responded to the stay
motion by providing notice to Tammy that her motion was frivolous under Rule
A-1116-16T3
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1:4-8 because regardless of how the appeal from the November 14, 2016 order
thereafter proceeded, he was permitted to enforce that order and take discovery
to assist him in doing so. When Tammy refused to withdraw her pleading,
plaintiff filed a motion to enforce the December 15, 2016 discovery order.
Defendants thereafter filed an amended notice of appeal from the March
10, 2017 judgment. 5 Tammy then withdrew her motion for a stay of discovery.
On March 24, 2017, Judge Goodzeit granted plaintiff's motion to enforce the
discovery order and required Tammy to appear for a deposition on April 27,
2017. The judge also ordered Tammy to pay plaintiff's counsel fees and costs
in connection with the motion. After reviewing the attorney's certification of
services, Judge Goodzeit entered an order on April 10, 2017, granting plaintiff
$1836 in counsel fees and costs, and directing defendants to also reimburse
plaintiff $159.60 for the court reporter. Tammy then filed a notice of appeal
from this order.
II.
Defendants raise three issues in their appeal from the March 10, 2017
judgment. They assert that: (1) Judge Miller erred in dismissing their pleadings
5
On March 23, 2017, plaintiff filed his cross-appeal from the March 10, 2017
judgment.
A-1116-16T3
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with prejudice; (2) Judge Coleman incorrectly granted plaintiff summary
judgment on the issue of whether he and Claudio each owned 50% of the Evex
Companies; and (3) Judge Goodzeit did not properly conduct the proof hearing
and should not have included punitive damages in her award of damages to
plaintiff.
Having considered defendants' contentions in light of the record and
applicable law, we conclude they are without sufficient merit to warrant
extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore
affirm substantially for the reasons stated by the three judges in their respective
written opinions addressing defendants' arguments. We add the following
comments.
A.
In Point I, defendants argue that Judge Miller erred in suppressing their
responsive pleadings with prejudice in his January 25, 2016 order and decision.
In making this argument, defendants do not seriously dispute that they failed to
respond to plaintiff's discovery requests, were sanctioned for this failure, and,
on May 8, 2015, had their pleadings suppressed without prejudice under Rule
4:23-5(a)(1). Instead, they assert that the judge should not have considered
plaintiff's request to suppress their pleadings with prejudice pursuant to Rule
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4:23-5(a)(2) after they failed to correct their discovery deficiencies because
plaintiff allegedly did not provide them with notice of his dismissal request.
Defendants made this identical argument to Judge Miller, who found their
"claim of ignorance to be disingenuous." We agree.
"A trial court has inherent discretionary power to impose sanctions for
failure to make discovery, subject only to the requirement that they be just and
reasonable in the circumstances." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139
N.J. 499, 513 (1995). A decision to impose discovery sanctions is reviewed
under the abuse of discretion standard. Id. at 517. Applying this standard, we
discern no basis for disturbing Judge Miller's decision, and we adopt the
reasoning he set forth in his comprehensive decision of January 25, 2016.
Defendants correctly point out that plaintiff filed a motion for summary
judgment and this was the only relief specifically requested on the face of the
motion. However, plaintiff's motion was inextricably tied into their request that
the court suppress defendants' pleadings because they failed to provide
discovery. That request, as Judge Miller found, was plainly stated in plainti ff's
motion brief. Indeed, plaintiff argued in a separate point heading in that brief
that defendants' "responsive pleading should be dismissed with prejudice under
[Rule] 4:23-5(b) due to their failure to provide outstanding discovery."
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Plaintiff's brief concluded by asking "that the [c]ourt grant his motion for
summary judgment in full by dismissing with prejudice all remaining
counterclaims asserted by Claudio and Tammy Tarquinio both due to their
failure to provide the outstanding discovery and on the merits."
In addition, plaintiff included this requested relief in the draft order
accompanying his motion, and Judge Miller addressed this request in a written
"tentative decision" he provided to the parties in advance of oral argument on
the motion. Even though defendants' attorney argued that he did not notice any
of these references to plaintiff's request prior to the oral argument, he never
asked for an adjournment to give him time to address the matter. And, as stated
above, defendants have never provided the full discovery plaintiff sought for
months during the pendency of this litigation, and never made a motion to
reinstate their pleadings.
Under these circumstances, we conclude that defendants had ample notice
of plaintiff's request to dismiss their responsive pleadings with prejudice, and in
light of defendants' continued non-compliance, Judge Miller did not abuse his
discretion by granting this motion.
B.
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In Point II, defendants argue that Judge Coleman erred by granting
plaintiff partial summary judgment in his September 27, 2013 written decision
and order, and determining that plaintiff and Claudio were "each 50% owners of
both EAI and Evex, Inc.[,]" the Evex Companies. Again, we disagree.
Our review of a ruling on summary judgment is de novo, applying the
same legal standard as the trial court, namely, the standard set forth in Rule 4:46-
2(c). Conley v. Guerrero, 228 N.J. 339, 346 (2017). Thus, we consider, as Judge
Coleman did, whether "the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If there is no
genuine issue of material fact, we must then "decide whether the trial court
correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super.
486, 494 (App. Div. 2007) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan,
307 N.J. Super. 162, 167 (App. Div. 1998)). We accord no deference to the trial
judge's conclusions on issues of law and review issues of law de novo. Nicholas
v. Mynster, 213 N.J. 463, 478 (2013).
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Having considered plaintiff's contentions in light of the record and
applicable legal principles, we are satisfied that Judge Coleman properly granted
partial summary judgment to plaintiff on the question of whether he and Claudio
each owned 50% of the Evex Companies. Defendants raise the same arguments
in Point II that they unsuccessfully raised before Judge Coleman, and we affirm
substantially for the reasons expressed in the judge's detailed September 27,
2013 written opinion.
All of the competent documentary evidence submitted by the parties
supports the judge's conclusion that the brothers were joint owners of their
companies. Plaintiff and Claudio filed tax returns listing themselves as each
owning 50% of the businesses, and they obtained insurance indicating they were
equal partners in these entities. Claudio even submitted a certification earlier in
the litigation admitting that he and his brother shared the profits of the
businesses. The SFA reviewed the available books and records and also
"concluded that the businesses are properly characterized as belonging 50% to
[plaintiff] and 50% to Claudio, and as such, [the SFA] directed that amended tax
returns for 2007 to 2012 be prepared to reflect such."
In response, defendants assert that plaintiff had no ownership interest in
the companies because Tammy issued herself all of the shares of stock in the
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businesses after an alleged director's meeting attended only by herself and
Claudio. They also claim that Tammy sent a memo to plaintiff terminating him
from the companies.
However, Judge Coleman properly rejected both arguments. As stated
earlier, plaintiff and Tammy were the two directors for the companies. Under
N.J.S.A. 14A:6-7.1(3), corporations like the Evex Companies can only act on a
matter if a quorum is present. Thus, the unilateral actions allegedly taken by
Tammy were of no legal force or effect because plaintiff's presence was required
to establish a quorum. Thus, defendants' claims fail as a matter of law.
Defendants also allege there was a dispute of facts preventing summary
judgment because plaintiff once sent a letter to his attorney disavowing a stake
in the Evex Companies as a means of avoiding personal liability in a dispute
between Citicorp and the companies over a domain name. However, plaintiff
never resigned from the companies and, as stated above, could not take unilateral
action to do so.
Claudio and Tammy each filed certifications, claiming that plaintiff was
not a 50% owner, and obtained certifications from the brothers' mother, and their
sister's boyfriend stating that they heard Peter say that Tammy was the sole
owner of the companies. Judge Coleman properly rejected these certifications,
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not because he found them to lack credibility, but because the documentary
evidence was "so one-sided" that it left no room for doubt as to the fact the
brothers each owned 50% of the companies they started together. Brill, 142 N.J.
at 523. Therefore, we affirm Judge Coleman's reasoned determination on the
issue of plaintiff's and Claudio's ownership of the Evex Companies.
C.
Defendants argue in Point III that "the result of the proof hearing was
unjust" because Judge Goodzeit did not give them a sufficient opportunity to
participate at that proceeding. This argument also fails.
Judge Goodzeit provided a full description of the governing law in her
April 21, 2016 written decision establishing the parameters for the proof
hearing, and there is no need to repeat that detailed discussion here. As the
judge noted, while defaulted defendants may engage in cross-examination, they
"may not admit independent evidence, offer [their] own liability witnesses, or
admit independent documents at the proof hearing, unless the [c]ourt, in its
discretion, deems otherwise."
Judge Goodzeit followed this principle by permitting defendants to cross -
examine witnesses at the proof hearing, while barring them from presenting
evidence of their own, including evidence which they failed to produce in
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response to plaintiff's repeated discovery requests. The judge explained the
basis for her decision as follows:
In light of the dismissal of defendant[s'] pleadings, with
prejudice, for their continued failure to provide
discovery, the [c]ourt finds that there is no reason to
depart from the sanctions imposed upon similarly
situated defendants. Defendants by their actions, have
forfeited their rights to present any direct evidence in
support of their case and are not permitted to make
opening or closing statements.
Judge Goodzeit did not abuse her discretion in establishing the procedures to be
followed at the proof hearing and, therefore, we affirm her determination.
Defendants argue that Judge Goodzeit should not have considered the
imposition of punitive damages in this case. We disagree.
In her September 27, 2016 written decision, Judge Goodzeit made detailed
findings of fact and conclusions of law on the question of punitive damages. As
the judge noted, in order to receive punitive damages, a plaintiff must show
through "clear and convincing evidence" that any "harm suffered was the result
of the defendant's acts or omissions, and such acts or omissions were actuated
by actual malice or accompanied by a wanton and willful disregard of persons
who foreseeably might be harmed by those acts or omissions." N.J.S.A. 2A:15-
5.12(a).
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After applying this test, Judge Goodzeit properly found that "it could not
be more clear that Claudio was well aware that serious harm would arise from
his conduct inasmuch as he removed, entirely, [plaintiff's] value in the Evex
Companies by virtue of all of the conduct which" the judge summarized in her
seventy-five-page decision. The judge also correctly found that there was "clear
and convincing evidence that Claudio was aware that serious harm would be
caused" to plaintiff. "Indeed, Claudio's and Tammy's conduct wantonly and
recklessly harmed" plaintiff because Claudio and Tammy "violated their
fiduciary duties to" plaintiff, "defrauded him, converted assets and oppressed"
him. In addition, the judge found that Claudio "went to great lengths to hide
this conduct" from plaintiff and the SFA, and "then failed to comply with
discovery demands and [o]rders[.]" Therefore, the judge properly granted
punitive damages to plaintiff.
In sum, Judge Goodzeit's findings and conclusions are fully supported by
the record developed at the proof hearing. Because we discern no basis for
disturbing them, we affirm the March 10, 2017 order that resulted from the
judge's September 27, 2016 order and decision.
III.
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In his cross-appeal, plaintiff argues that Judge Goodzeit erred in her
September 27, 2016 decision by declining to impose a constructive trust on
certain property in Surf City, and an equitable lien or "equitable subordination"
over another parcel of property known as the "857 State Road property." Judge
Goodzeit denied plaintiff's request and fully explained her reasons for doing so
in her exhaustive opinion. We affirm her determination substantially for the
reasons set forth in that opinion and provide the following brief comments.
As to the 857 State Road property, Claudio took money from the Evex
Companies and used it to pay off the only mortgage on this property, which he
owned. As the judge explained, a court may apply the doctrine of equitable
subordination to "re-order lien priority by inserting a third-party lender into the
shoes of the lien holder whose debts its loan was to pay off." Because Claudio
paid off the bank debt, there was "no other debt which need[ed] to be subrogated,
and no priority issue." We agree with the judge that, under these circumstances,
equitable subordination was not appropriate.
Judge Goodzeit also declined to impose a constructive trust or equitable
lien over either property because plaintiff had "other remedies to [recover] the
inappropriately acquired funds" that Claudio put into the two properties. Those
remedies were fully detailed in her written decision. We discern no basis for
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questioning the exercise of the judge's discretion on this issue and, therefore, we
reject plaintiff's contentions on this point.
IV.
We now turn to Tammy's appeal from Judge Goodzeit's April 10, 2017
order, imposing frivolous litigation sanctions against her under N.J.S.A. 2A:15-
59.1 for her motion for a stay of discovery because of a question our clerk's
office raised about whether the October 14, 2016 was a final determination
appealable as of right, or an interlocutory order requiring the filing of a motion
for leave to appeal. We reject Tammy's contentions on this point and affirm
substantially for the reasons set forth in Judge Goodzeit's March 24, 2017
written decision. We add the following comments.
A trial judge's decision whether to award sanctions under Rule 1:4-8 for
frivolous litigation is reviewed for abuse of discretion. McDaniel v. Man Wai
Lee, 419 N.J. Super. 482, 497 (App. Div. 2011). Reversal is warranted "only if
[the trial judge's decision] 'was not premised upon consideration of all relevant
factors, was based upon consideration of irrelevant or inappropriate factors, or
amounts to a clear error in judgment.'" Id. at 498 (quoting Mason v. Levine, 382
N.J. Super. 181, 193 (App. Div. 2005)).
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Here, there was simply no basis for Tammy's motion on the only grounds
she asserted in support of it. Tammy did not file a motion for a stay of the
October 14, 2016 judgment itself with the Chancery Division or this court.
Instead, she failed to appear at a required post-judgment discovery deposition,
and then asserted that the discovery should be stayed because of the question
raised about the finality of the October 14 judgment. However, the resolution
of that question had no impact whatsoever on the trial court's ongoing
jurisdiction under Rule 2:9-1(a) to enforce that judgment by ordering Tammy to
participate in post-judgment discovery.
Plaintiff's attorney sent a letter to Tammy's counsel pointing this out and
demanding that the motion be withdrawn. However, Tammy refused to do so,
continued to avoid her discovery responsibilities, and forced plaintiff to expend
further counsel fees to enforce the court's December 15, 2016 discovery order.
Under these circumstances, Judge Goodzeit properly exercised her discretion to
impose reasonable sanctions upon Tammy by ordering her to pay plaintiff $1836
in counsel fees and costs, together with $159.60 for the court reporter for the
deposition Tammy did not attend.
As was the case with all of her prior orders in this case, Judge Goodzeit
fully explained the reasons for her decision. The judge stated:
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The [c]ourt finds that defendants' motion was
frivolously pursued as to cause delay and to thwart
[plaintiff's] post-judgment rights. While the defendants
were served with the Order of Discovery on December
[15,] 2016, they nevertheless waited until January 4,
2016 –- the day the deposition was to be held –- to file
their motion with the [c]ourt seeking to stay all
enforcement proceedings as to all defendants. Because
of the extremely late notice, plaintiff incurred fees in
the amount of $159.60 for the court reporter's
attendance. Even after receiving plaintiff's frivolous
litigation letter, defendants continued to pursue their
position that the entirety of the enforcement
proceedings as to all defendants were to be stayed
because the Appellate Division questioned the finality
of certain judgments entered by this [c]ourt.
Above all, the [c]ourt rejects defendants'
contention that their motion was filed for any other
purpose than to delay enforcement proceedings;
particularly their assertion that such motion was
necessary to resolve the "sea of confusion" as to the
finality of the [c]ourt's underlying judgments against
the defendants. This [c]ourt's inherent jurisdiction to
permit discovery related to enforcement of its [o]rder
would not have been stayed in any way by the filing of
a motion for leave to appeal or a notice of appeal, unless
this [c]ourt or the appellate court grants such a stay.
See R. 2:9-5(a).
....
More importantly, however, defendants' alleged
confusion with respect to the [c]ourt's underlying
judgments' finality in no way impaired [plaintiff's]
ability to pursue the remaining defendants through
enforcement proceedings. See R. 2:9-1. As a result,
the [c]ourt finds that defendants' motion lacked any
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basis whether in law or in fact, and was frivolously
pursued on the eve of their [c]ourt-ordered] deposition
to cause delay and frustrate [plaintiff's] enforcement
rights.
We agree with the judge's cogent analysis of this issue. Therefore, we
affirm the April 10, 2017 order in all respects.
Affirmed.
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