Vitale v. Hotel California, Inc.

• Citation: 184 N.J.Super. 512,446 A.2d 880
• Parties: David J. VITALE, Plaintiff, v. HOTEL CALIFORNIA, INC., t/a Hotel California, Defendant. (Civil), Cape May County
• Decision Date: 18 March 1982
• Court: Superior Court of New Jersey

Page 512

184 N.J.Super. 512

446 A.2d 880

David J. VITALE, Plaintiff, v. HOTEL CALIFORNIA, INC., t/a Hotel California, Defendant.

Superior Court of New Jersey, Law Division (Civil), Cape May County.

Decided March 18, 1982.

Jeffrey K. Israelow, Wildwood, for plaintiff (Rubins & Waldron, Wildwood, attorneys).

John A. Giunco, Freehold, for defendant (Richard T. O'Connor, Monmouth County Counsel, Freehold, attorney).

STALLER, J. S. C.

Plaintiff David J. Vitale, Jr. brings this motion pursuant to N.J.S.A. 40A:9-109 to amerce, that is, hold liable the Sheriff of Monmouth County, William Lanzaro, for failing to execute a writ based on a judgment against defendant Hotel California, Inc. (California) ¹. Although amercement of a sheriff has not been the topic of any reported decision in New Jersey since 1907, see Brockhurst v. Kaiser, 75 N.J.L. 162, n. 1, 67 A. 75, and infrequently reported elsewhere, a Vermont court recently decided such a case, Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588 (Sup.Ct.1979).

The chronology of events is as follows: Vitale obtained a final judgment against California in the amount of $6,317 plus costs on August 12, 1980 ² and thereafter learned that California held the liquor license for "The Fast Lane," a bar featuring "punk rock" entertainers, located in Asbury Park, New Jersey. A writ of execution issued on June 23, 1981, and on July 9 the sheriff received the writ along with a cover letter from plaintiff instructing him to levy upon all monies and personal property at The Fast Lane. A check to cover the sheriff's costs up to $50 was enclosed.

Then began plaintiff's travail with the sheriff's office which gave rise to this proceeding. On July 27 the office indicated to plaintiff's attorney, Jeffrey K. Israelow, that a levy was not possible since the bar was only open late in the evening, from about 10 p. m. to 2 a. m., and that the writ would be returned unsatisfied. Israelow thereupon advised a deputy sheriff that it was absolutely necessary to proceed to make the levy during the open hours.

The writ was turned over to a deputy sheriff by the name of Guinan whom Israelow persuaded to make the levy during those late weekend hours when the bar was primarily open for business. Guinan reported to Israelow that he went to The Fast Lane on July 31 accompanied by an Asbury Park police officer, identified himself and announced his purpose at the door, but was denied access by the bar's "bouncers." Fearing that violence might ensue, the officers left. Lanzaro confirmed this fact by a letter dated August 3 in which he asked plaintiff for further instructions. Israelow then advised Guinan to make the levy and arrest anyone interfering with execution, pursuant to the officer's authority under N.J.S.A. 2C:29-1 and other statutes. After conferring with his superiors, Guinan informed Israelow that a court order would be necessary to gain access to the establishment!

On August 5, on plaintiff's application reciting the above facts, this court ordered that the sheriff be permitted access to the bar and to arrest anyone who interfered with the levy to show cause before the court why such person should not be held in contempt of the order. Israelow immediately transmitted the order to the sheriff's office with a letter instructing him to levy first upon the cash registers or places where cash might be held and advising him to be accompanied by sufficient personnel to effectuate any arrests that might become necessary. Guinan then went to the bar on the weekend of August 8, but found it had closed early. After speaking with Israelow he again went on the morning of August 15 and was able to seize $714 in cash and other personal property. Guinan reported back to Israelow the same day and indicated his belief that additional money may have been secreted before he was able to levy upon it. When Israelow instructed Guinan to make further levies until the writ was satisfied, Guinan told Israelow that he would have to consult with his superiors before taking further action.

On or about August 17 or 18 Israelow again instructed the Sheriff's office to make successive levies and then was informed of the sheriff's contention that only one levy need be made under a writ of execution. After telephoning but not getting through to Lanzaro, Israelow forwarded him a letter dated August 19 and a mailgram dated August 20, again requesting the additional levies. Lanzaro telephoned Israelow on August 21 to tell him that he would consult with Monmouth County counsel, Richard O'Connor. Later that day O'Connor's office informed Israelow that the sheriff had been instructed not to make any additional levies under the writ.

Unable to reach O'Connor by phone, Israelow wrote a letter to him on August 24 detailing plaintiff's position and threatening to seek amercement. On August 31 Israelow made good the threat by filing this motion. The hearing on the motion was continued several times until January 14, 1982 at the request of the parties who were trying to negotiate a solution.

The sheriff does not refute the facts outlined above but maintains that "it is unreasonable to expect any Sheriff, to command his officers or deputies to go forth on an unknown number of occasions, at an unreasonable hour, to seize proceeds of an establishment such as The Fast Lane." The sheriff suggests that plaintiff pursue other "reasonable, speedy and inexpensive measures" to satisfy the judgment, to wit, obtaining an order that defendant pay over proceeds of the operation, conducting proceedings to determine where the proceeds are deposited, or locating and seizing other assets of the judgment debtor.

At argument Israelow described his difficulty in collecting the judgment debt: The personal property levied on at The Fast Lane on August 15 was verified as belonging to the landlord of the establishment. Upon this discovery that California was only a tenant, a scheduled sheriff's sale was necessarily cancelled. Also, California's president made a complete disclosure of assets after she had been arrested on an order to show cause, but an attempted levy on the corporate bank account was unsuccessful because the account was overdrawn.

The sheriff further argues that upon seizure of money on August 15 the writ of execution was satisfied and should have been returned, although no return in fact was ever made within the three-month life of the writ. Lack of proof as to loss or damage to plaintiff resulting from the sheriff's [in]action is also raised as a defense. Lastly, the sheriff maintains that the pleading is deficient for failure to specifically state the basis for amercement.

Three basic, interrelated questions are presented for resolution: (1) Are successive levies possible under one writ of execution? (2) When may a sheriff refuse to levy as instructed by a plaintiff, on the basis that the request is unreasonable or onerous? (3) Was the conduct of Sheriff Lanzaro and his office in respect to the writ such as to subject him to amercement?

Before proceeding to answer the first question, a brief overview of execution procedure would be beneficial. A successful plaintiff who obtains a judgment against a defendant may cause the personal property of the defendant/judgment debtor to be seized and sold and the proceeds applied to the judgment and costs by way of execution. N.J.S.A. 2A:17-1 et seq. To do this, plaintiff obtains a writ of execution, directing the sheriff to levy and make a return within three months after the date of issuance. R. 4:59-1(a). (A "return" is the physical return of the original writ to the court clerk, endorsed with the executing officer's brief description of what was done. 20 N.J.Practice (Ackerson, Fulop and Lodge, Skills and Methods) (2 ed. 1973), § 1898 at 613. In addition, the officer must file a verified statement of when and how much money was collected and the balance due on execution fees or costs. N.J.S.A. 2A:17-9).

The writ must be promptly executed upon and returned, N.J.S.A. 2A:15-20. The writ may be returned before the return date if, notwithstanding diligent effort, the judgment cannot be satisfied any further. See 33 C.J.S. Executions § 318 at 618. Once an execution has been returned, a sheriff cannot thereafter levy upon any property under the writ. Cook v. Wood, 16 N.J.L. 254, 257 (Sup.Ct.1837). Nor can a valid levy be made after the return date. Fredd v. Darnell, 107 N.J.Eq., 249, 251, 152 A. 236 (Ch.1930). Successive executions upon the same judgment are possible. N.J.S.A. 2A:17-3; R. 4:59-1(a). Therefore, if the first seizure is insufficient, the creditor may seek an alias writ for levy upon other goods. See Matthews v. Warne, 11 N.J.L. 295, 309 (Sup.Ct.1830); e.g., Millville Nat'l Bank v. Shaw, 42 N.J.L. 550 (Sup.Ct.1880). Thereafter, the plaintiff may seek an unlimited number of pluries writs until the judgment is satisfied. 20 N.J.Practice, supra, § 1872 at 586. The proceeds from the sheriff's sale of seized property are paid to the judgment creditor or to his or her attorney or to the court clerk. Id., § 1884 at 599; see R. 4:59-1(a); N.J.S.A. 2A:18-26 (county district court rule).

Throughout the process plaintiff plays a crucial role. Plaintiff must prepare the writ, have it entered by the court clerk and see that it is delivered to the sheriff with instructions as to levying. 20 N.J.Practice, supra, § 1878 at 588, 589. If necessary, plaintiff should conduct discovery to locate and identify property to be levied upon. Spiegel, Inc. v. Taylor, 148 N.J.Super. 79, 84, 371 A.2d 838 (Cty.D.Ct.1977). Complementary to plaintiff's responsibility is the sheriff's duty to execute the writ according to the plaintiff's instructions. The writ is in the "exclusive control" of the judgment creditor; the sheriff must follow the creditor's reasonable instructions regarding the time and manner of making the levy and must abide by special instructions to make an immediate levy, if...