MARINA DISTRICT DEVELOPMENT CO., LLC, ETC. VS. MICHAEL TSEYTIN (L-2720-12, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0920-17T3
MARINA DISTRICT
DEVELOPMENT CO., LLC
t/a BORGATA,
Plaintiff-Appellant,
v.
MICHAEL TSEYTIN,
Defendant-Respondent.
____________________________
Submitted December 19, 2018 – Decided March 13, 2019
Before Judges Vernoia and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-2720-12.
Josiah Knapp, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Plaintiff Marina District Development Co., LLC t/a Borgata appeals from
the trial court's order denying plaintiff's motion for reconsideration of an order
denying its motion to hold defendant in contempt for failing to appear for a
court-ordered supplementary proceedings deposition, R. 4:59-1(f), following
the entry of a $202,332.60 judgment, plus costs, against defendant. Plaintiff
argues the trial court erred by requiring that plaintiff first file an order to show
cause to commence contempt proceedings. Because plaintiff requested that
defendant be held in contempt, the trial court correctly ruled such relief is
available only if proceedings are instituted by order to show cause; 1 thus, we
affirm.
We conduct a de novo review of the applicable Court Rules, according no
special deference to the "trial court's interpretation of the law." Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Plaintiff,
as a judgment-creditor, had the option of taking defendant's deposition or
proceeding as provided by Rule 6:7-2. R. 4:59-1. If, as here, the judgment-
debtor fails to obey an order for discovery, the judgment-creditor could
commence proceedings seeking relief pursuant to Rule 1:10-3 by filing a
supported notice of motion. R. 6:7-2(e). The notice of motion must set forth a
return date and the relief the judgment-creditor seeks, and include an order:
1
Contempt proceedings can also be commenced by the court upon an order for
arrest, an avenue unavailable to a party. R. 1:10-2(a).
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(1) adjudicating that the judgment-debtor has violated
the litigant's rights of the judgment-creditor by failing
to comply with the order for discovery or information
subpoena;
(2) compelling the judgment-debtor to furnish answers
immediately as required by the order for discovery or
information subpoena;
(3) directing that if the judgment-debtor fails to appear
in court on the return date or to furnish the required
answers, he or she shall be arrested and confined to the
county jail until he or she has complied with the order
for discovery or information subpoena;
(4) directing the judgment-debtor, if he or she fails to
appear in court on the return date, to pay the judgment-
creditor's attorney fees, if any, in connection with the
motion to enforce litigant's rights; and
(5) granting such other relief as may be appropriate.
[Ibid.]
Rule 6:7-2(f) provides an enforcement mechanism:
If the judgment-debtor has failed to appear in court on
the return date and the court enters an order to enforce
litigant's rights, [the order, in prescribed form] shall
state that upon the judgment-debtor's failure, within 10
days of the certified date of mailing or personal service
of the order, to comply with the information subpoena
or discovery order, the court may issue an arrest
warrant.
The Rule pursuant to which such relief is sought, R. 1:10-3, provides,
"[n]otwithstanding that an act or omission may also constitute a contempt of
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court, a litigant in any action may seek relief by application in the action." The
relief available in a Rule 1:10-3 motion – commonly known as a motion to
enforce, or in aid of, litigant's rights 2 – is limited in scope "to remediation of the
violation of a court order." Burke, 206 N.J. at 371. Neither Rule 6:7-2 nor Rule
1:10-3 provides for contempt as an available form of relief to a litigant seeking
to enforce a court's supplementary-proceedings discovery order. The sanctions
against a non-compliant judgment-creditor available under Rule 1:10-3 are
intended to be coercive. Milne v. Goldenberg, 428 N.J. Super. 184, 198 (App.
Div. 2012). Likewise, the express relief provided in a Rule 6:7-2 order is
coercive, not punitive, in nature.
Conversely, contempt proceedings are penal. Zoning Bd. of Adjustment
v. Datchko, 142 N.J. Super. 501, 509 (App. Div. 1976). Proceedings "to punish
for contempt [except for contempt in the court's presence] shall be on notice and
instituted only by the court upon an order for arrest or an order to show cause."
R. 1:10-2. As we said in Datchko, 142 N.J. Super. at 509-10, a person charged
with contempt
must be afforded all of the rights of one charged with a
crime except the right to indictment and to trial by jury.
This includes the right to have the order to show cause
2
See Abbott v. Burke, 206 N.J. 332, 359 (2011); see also Manalapan Realty,
140 N.J. at 392.
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itself specify the acts or omissions alleged to have been
contumacious. Moreover, the order to show cause must
clearly indicate that it involves a true contempt
proceeding and not, as here, supplementary relief to the
litigant.
Although plaintiff could have availed itself of the panoply of remedies
available under Rules 6:7-2 and 1:10-3, it chose to seek to hold defendant in
contempt.3 As the trial court noted, contempt proceedings must be initiated by
order to show cause. The court, therefore, did not express "its decision based
upon a palpably incorrect or irrational basis" or fail to consider or "appreciate
the significance of probative, competent evidence" to justify reconsideration of
its prior ruling. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)
(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).
Affirmed.
3
Plaintiff's moving papers were not included in the record. In its merits brief,
plaintiff states it "filed a [m]otion . . . to hold [defendant] in contempt of court
for his failure to attend a court-ordered deposition."
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