An Unpublished Appellate Division Decision is Binding on the Parties to that Ruling

Triffin v. Capital One, 2011 WL 2848271 (App. Div. July 20, 2011).  Under Rule 1:36-3, “[n]o unpublished opinion shall constitute precedent,” and “except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court.”  Unpublished decisions involving the same party who is involved in a subsequent case can, however, have res judicata, collateral estoppel, or other preclusive effect on that party.  This case is an example.

Plaintiff Triffin is in the business of buying dishonored checks and attempting to collect on them.  In a prior case, where Triffin sued Automatic Data Processing, Inc. (“ADP”), Triffin was found to have committed a fraud on the court.  He had sued on purported assignment agreements that had not actually been signed by the sellers’ representatives.  Triffin had scanned the signatures of those representatives onto his computer and then copied the signatures onto assignment forms.  

The Law Division judge who found fraud on the court awarded ADP its counsel fees and costs in the case.  Recognizing, however, that such an award would have no deterrent effect in the future, the judge also entered an injunction that “required Triffin to provide a certification, under oath, to indicate whether or not he possesses a document with original signatures whenever he submits a document to a trial court,” whether as a pleading, in a motion, or at trial.  Triffin was to select one of three possible certifications, depending on whether he sought to file a document with an original signature, a copy of an original signature, or both.  On Triffin’s appeal in ADP, the Appellate Division affirmed the award of fees and costs, but did not reach the issue of the injunction.

In Capital One, Triffin filed a Special Civil Part complaint with all three certifications attached.  Thus, defendant could not determine whether Triffin had an original signature, which defeated the purpose of the injunction.  When Triffin later sought to amend the complaint to add a party, he did not append any of the certifications to his motion papers or to the proposed amended complaint.  Triffin also resisted discovery.  As a result of all that, Capital One moved for attorneys’ fees and dismissal of the complaint with prejudice.  The Law Division granted that motion.

Triffin appealed.  He tried to overturn the injunction using three different legal arguments.  The appellate panel, Judges Carchman and Waugh, noted that Triffin had made those same arguments in yet another prior appeal, involving Elite Personnel, Inc., and that the Appellate Division had rejected those contentions in an unpublished opinion.  Quoting the language of Rule 1:36-3 about res judicata and collateral estoppel, the panel stated that “Triffin was a party to Elite Personnel and is bound by its holding.”  As a result, “Triffin cannot relitigate any of those issues on this appeal.”

The Appellate Division did, however, reverse the dismissal with prejudice.  The Special Civil Part had not given reasons for that action or considered whether lesser sanctions would have sufficed.  The panel found that Triffin’s conduct was sanctionable, but reversed the fee award as well because the Special Civil Part had not given reasons for the amount of that award. 

At least temporarily, Triffin dodged a bullet because the busy Special Civil Part judge had not followed Rule 1:7-4 and made findings.  If, on remand, sufficient findings are made, Triffin will likely not receive much sympathy from the Appellate Division on any appeal that he might take from that eventual ruling.