Rosenberg v. Koon

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. SC-1931-12.

Leonard Rosenberg, appellant, argued the cause pro se.

Respondent has not filed a brief. PER CURIAM

Plaintiff Leonard Rosenberg appeals the Special Civil Part's July 12, 2012 order dismissing his complaint against defendants Estate of Joseph Koon and Millie Koon. We reverse in part, affirm in part, and remand to the Special Civil Part for entry of a judgment consistent with this opinion.

Joseph Koon, who is deceased, was initially named as a defendant. His estate was eventually substituted as a defendant. As will be seen, Joseph Koon was not involved in the events that gave rise to the litigation, having died before they occurred.

I.

We discern the following facts and procedural history from the record on appeal.

Rosenberg is the landlord of an apartment building located on Garside Street in Newark. On May 2, 2012, he obtained a default judgment of possession against a tenant at that location. Rosenberg requested a warrant for possession, which was issued on May 10.

Rosenberg paid the court clerk the required $19, consisting of the $15 fee for the issuance, service, and execution of the warrant, and the related mileage. He was given a list of Special Civil Part officers who could serve the warrant, and selected Joseph Koon because his office was closest to the apartment building. Although Joseph Koon was no longer living, the clerk forwarded the warrant to Millie Koon (Koon), his wife, who had become a Special Civil Part officer and continued to operate the business.

Koon's office received the warrant on May 10. Someone from the office called Rosenberg to inform him that an officer would not serve the warrant until he paid an additional $50 fee. Rosenberg questioned the additional fee and asked to speak to the court officer, but his call was not returned. He called the office again on May 14 and spoke with Koon, who told him he needed to bring the $50 fee to the office or mail it in before the warrant could be served. Rosenberg inquired whether the office charged any other fees or provided additional services, and Koon informed him that there was no additional fee for a lock-out, and that the office did not provide any additional services.

On May 17, Rosenberg delivered a $50 check to Koon's office. The check was accompanied by a letter stating that the refusal to serve the warrant without the $50 fee was a violation of law and that he was making payment "under duress." The warrant was served that day. Rosenberg subsequently cancelled the lock-out because the tenant voluntarily surrendered possession.

On June 14, Rosenberg filed his complaint in the Special Civil Part, alleging that Koon charged him a fee greater than authorized by statute to serve the warrant of possession. He sought to recover the $50 fee. In addition, he sought consequential damages of $210 for loss of use of his property caused by the one-week delay in serving the warrant and treble damages under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -195 (CFA).

Rosenberg testified on his own behalf at the trial on July 12. He argued that N.J.S.A. 22A:2-37.1(a)(8) and Administrative Directive #13-06 (Special Civil Part Officers - Fees for Evictions) authorized only a $15 fee, plus mileage, for serving a warrant of possession. Rosenberg proposed to testify about conversations he had with court employees and to introduce correspondence with the vicinage assignment judge and the Administrative Office of the Court (AOC), but the trial judge held that the proffered testimony and documents were hearsay and not relevant to the case. The judge also declined Rosenberg's suggestion that he request the assignment judge to testify.

Koon testified on her own behalf. She asserted that the statute permitted her to charge up to $50 to serve the warrant of removal. Koon further testified that she waited to serve the warrant until she received the money from Rosenberg because she was unsure whether he would pay the fee and whether he still wanted the warrant served in light of the fee.

The trial judge found that the $50 fee was permitted by Directive #13-06. He also expressed his view that the CFA did not apply to the service of a warrant of possession. This appeal followed.

II.

On appeal, Rosenberg argues that the trial judge erred in (1) finding that the additional $50 fee was permitted, (2) refusing to permit the disputed testimony, and (3) finding that the CFA was inapplicable.

When reviewing a decision resulting from a bench trial, "[t]he general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings of the trial judge unless we are "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484) (internal quotation mark omitted); see also Beck v. Beck, 86 N.J. 480, 496 (1981).

It is also well-established that our review of a judge's conclusions of law is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

A.

N.J.S.A. 22A:2-37.1(a) provides that "only the following fees shall be charged by the clerk [of the Special Civil Part] and no service shall be performed until the specified fee has been paid." Subsection (a)(8) establishes a $15 fee for the issuance and service of a warrant for possession. Subsection (a)(6) establishes the mileage fee for court officers "serving or executing any process, writ, order, execution, notice, or warrant" at the applicable mileage-reimbursement rate for government employees. N.J.S.A. 22A:2-37.2 sets fees to be paid by the clerk to "officers designated by [the] Assignment Judge to serve process." Subsection (a)(8) requires payment of $10 for "[s]erving and executing warrant for possession." The officer is also paid the applicable mileage.

Directive #13-06, which was issued July 31, 2006, addressed the issue of the additional fees charged by Special Civil Part officers who serve warrants for possession. Noting that varying fees were being charged for additional services in different counties, the directive established the following uniform procedures:

1. The court shall charge a landlord $15.00 for issuance of the warrant for possession
in tenancy actions, plus mileage to serve the warrant.
2. The court shall pay the Special Civil Part Officer $10.00 plus mileage for service of the warrant.
3. For each execution of a warrant of possession in tenancy, the Special Civil Part Officer, pursuant to prior arrangement of the landlord, may charge up to a maximum of $50.00, plus mileage, for any services relating to execution of the warrant, the eviction of the tenant, and the restoration of the landlord to possession. The fees for additional services and mileage shall be paid by the landlord directly to the Special Civil Part Officer and the Officer must indicate the amounts thus received in the spaces designated for that purpose on the warrant. If the landlord does not agree to pay for additional services, the Special Civil Part Officer shall execute the warrant upon payment of the mileage by the landlord, but without performing any additional services.
4. Mileage is allowed only for travel actually incurred in serving or executing the warrant. In no event is mileage to be collected by the clerk or the Special Civil Part Officer for an "anticipated" execution, since the execution in many instances may prove not to be necessary.
[(Emphasis added).]

Rosenberg argues that the trial judge incorrectly interpreted N.J.S.A. 22A:2-37.1 and Directive #13-06 as allowing Special Civil Part officers, such as Koon, to collect an additional fee of $50 without providing "additional services" beyond serving and executing the warrant. We agree.

In interpreting a statute, "a court begins with the words of the statute and ascribes to them their ordinary meaning." Ryan v. Renny, 203 N.J. 37, 54 (2010). The statutory scheme governing this case, as outlined above, quite clearly provides that the landlord pays the clerk $15 for issuance and service of a warrant for possession, $10 of which the clerk pays to the Special Civil Part officer for service and execution of the warrant. The remaining $5 is retained by the clerk. The entire amount paid by the landlord to the clerk for mileage is transferred to the officer. That interpretation is mirrored in Directive #13-06. While the directive permits an additional fee, it does so only for "additional services" beyond the "serving and executing" of the warrant, such as changing the locks.

Because we have ruled in Rosenberg's favor on the interpretation of the applicable statute and administrative directive, we need not consider his arguments with respect to the disputed evidence.

B.

We reach a different conclusion with respect to Rosenberg's argument that he is entitled to consequential damages and the trebling of damages pursuant to the CFA.

The CFA provides that

[t]he act, use or employment by any person of any unconscionable commercial practice,
deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice . . . .
[N.J.S.A. 56:8-2.]

The term "merchandise" is defined to "include any objects, wares, goods, commodities, services or anything offered, directly or indirectly to the public for sale." N.J.S.A. 56:8-1. If a violation of the CFA is found, the court shall "award threefold the damages sustained by any person in interest." N.J.S.A. 56:8-19.

"The [CFA] is remedial legislation that [courts] construe liberally to accomplish its broad purpose of safeguarding the public." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 11-12 (2004). "[T]he Act is designed to protect the public even when a merchant acts in good faith." Cox v. Sears Roebuck & Co., 138 N.J. 2, 16 (1994). "When the alleged consumer-fraud violation consists of an affirmative act, intent is not an essential element and the plaintiff need not prove that the defendant intended to commit an unlawful act." Id. at 17-18.

Although unconscionable commercial practices are not defined by statute, the Supreme Court has described unconscionability as "'an amorphous concept obviously designed to establish a broad business ethic'" and noted that "[t]he standard of conduct that the term 'unconscionable' implies is lack of 'good faith, honesty in fact and observance of fair dealing.'" Id. at 18 (quoting Kugler v. Romain, 58 N.J. 522, 543-44 (1971)).

Nevertheless, the CFA does not cover every transaction, and its "applicability hinges on the nature of a transaction, requiring a case by case analysis." Papergraphics Int'l, Inc. v. Correa, 389 N.J. Super. 8, 13 (App. Div. 2006). "In determining whether the existence of other regulations creates an exemption to the CFA . . . , it should ordinarily be assumed that the CFA applies to the covered practice." Lemelledo v. Benefit Mgmt. Corp., 150 N.J. 255, 268 (1997). However, exceptions have been found for certain practices, such as billing by a utility company where a state agency exercised such "pervasive control" over utility rates that the billing fell outside the fraudulent or deceptive sales and advertising practices targeted by the CFA. Id. at 266 (citing Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 271 (1978)). An exception also exists for services rendered by learned professionals, "so long as they are acting in their professional capacities." Manahawkin Convalescent v. O'Neill, 426 N.J. Super. 143, 154 (App. Div.) (quoting Macedo v. Dello Russo, 178 N.J. 340, 345-46 (2004)) (internal quotation marks omitted) (finding CFA inapplicable to nursing home billing in light of "learned professional" exception and strict regulation of nursing homes), certif. granted, 212 N.J. 431 (2012). "The initial rationale for the [learned professional] exception is premised on the nature of the professional's activity as 'something beyond the ordinary commercial seller of goods or services.'" Ibid. (quoting Neveroski v. Blair, 141 N.J. Super. 365, 379 (App. Div. 1976)). The "exception has been extended to recognize that 'uniform regulation of an occupation, where such regulation exists, could conflict with regulation under the CFA.'" Ibid. (quoting Lee v. First Union Nat'l Bank, 199 N.J. 251, 264 (2009)).

Koon, who was appointed by the vicinage assignment judge to act as a Special Civil Part officer, was performing a quasi-official function in serving the warrant for possession. As we have held, the fees for the officer's services are highly regulated, both by statute and court directive. The relationship between a landlord and a Special Civil Part officer is significantly different from the relationship between "the ordinary commercial seller of goods or services," Neveroski, supra, 141 N.J. Super. at 379, and its customer. Although we have held, under the circumstances of this case, that Koon was not entitled to the $50 additional fee because she was never asked or required to perform any additional services beyond the service of the warrant, we nevertheless hold that the CFA is not applicable in the context of a Special Civil Part officer whose fees are closely regulated by the Legislature and Judiciary.

Because we hold the CFA inapplicable, we need not reach the issue of whether Rosenberg was entitled to consequential damages. However, we note our doubt that the proofs at trial would warrant such damages in any event.
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III.

Consequently, we reverse the order on appeal to the extent it dismissed Rosenberg's claim for the return of the $50 additional fee. We affirm the order to the extent it dismissed his claims under the CFA. We remand to the Special Civil Part for entry of an order consistent with this opinion, including an award of court costs.

Reversed in part, affirmed in part, and remanded.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION