                            NOT FOR PUBLICATION WITHOUT THE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-0387-17T4

ROBERT J. TRIFFIN,

       Plaintiff-Appellant,

v.

UNITED STATES FIRE
INSURANCE CO., individually
and d/b/a CRUM & FORSTER,

       Defendant-Respondent,

and

JUAN PINERO,

     Defendant.
_____________________________

                Argued telephonically January 31, 2019 –
                Decided June 5, 2019

                Before Judges Simonelli and O'Connor.

                On appeal from Superior Court of New Jersey, Law
                Division, Camden County, Docket No. DC-002147-13.

                Robert J. Triffin, appellant, argued the cause pro se.
              Respondent has not filed a brief.

PER CURIAM

      Plaintiff Robert Triffin appeals from the August 18, 2017 Law Division

order, which denied his motion to recover his trial and appellate costs pursuant

to Rule 4:42-8. We affirm, but for reasons other than those expressed by the

trial court. Aquilio v. Cont'l Ins. Co. of N.J., 310 N.J. Super. 558, 561 (App.

Div. 1998).

      The procedural history and facts of this case are set forth in Triffin v.

United States Fire Insurance Co., No. A-0607-15 (June 12, 2017) (slip op. at 1-

4) and are incorporated herein. The following facts inform our review.

      Plaintiff sued defendant United States Fire Insurance Co. (USFI) to

recover on a dishonored check for $848 that USFI issued to defendant Juan

Pinero. Id. at 1-2. USFI filed a motion to sanction Triffin for failure to provide

discovery. Id. at 3. In an April 2, 2015 order, the trial court dismissed Triffin's

complaint without prejudice, directed him to serve the outstanding discovery by

June 1, 2015, and ordered him to pay a $300 restoration fee. Id. at 3-4. In an

April 24, 2015 order, the court denied Triffin's motion for reconsideration. Id.

at 4. Triffin subsequently served the discovery, paid the $300 restoration fee,




                                                                            A-0387-17T4
                                         2
and filed a motion to restore the complaint. The complaint was restored on June

5, 2015. Ibid.

        In a July 24, 2015 order, the court granted USFI's motion for summary

judgment and denied Triffin's cross-motion for summary judgment. Ibid. The

court held that Triffin could not enforce the dishonored check because he was

neither a holder nor a non-holder in possession with the rights of a holder. Id.

at 7-8. In a September 4, 2015 order, the court denied Triffin's motion for

reconsideration. Id. at 4. Triffin appealed, challenging both the $300 restoration

fee and the court's rulings on the summary judgment motions. Id. at 8.

        We reversed the $300 restoration fee finding the fee should have been $25

pursuant to Rule 6:4-61 because Triffin timely filed his motion to restore the

complaint. Id. at 8-9. We found no merit in Triffin's remaining arguments and




1
    Rule 6:4-6 provides as follows, in pertinent part:

               The provisions of [Rule] 4:23 (sanctions for failure to make
               discovery) shall apply to actions in the Special Civil Part,
               except that:

                      ....

               (b) Restoration Fees. The amounts of the restoration fees of
               $100 and $300 specified in [Rule] 4:23-5 (a) are reduced to
               $25 if the motion is made within 30 days and $75 thereafter.
                                                                              A-0387-17T4
                                              3
affirmed the grant of summary judgment to USFI for substantially the same

reasons the trial court expressed in its oral opinion. Id. at 9. We held:

               In the final analysis, in order for [Triffin] to enforce this
               negotiable instrument under these circumstances,
               [Triffin] must either be a "holder" of the instrument or
               a "nonholder" in possession of the [negotiable]
               instrument . . . [with] the rights of a "holder." There is
               no evidence [Triffin] was either.

               [Id. at 9 (alterations in original) (citing N.J.S.A. 12A:3-
               301).]

We also held: "To the extent we have not addressed any specific argument

advanced by [Triffin], it is because we found such argument without sufficient

merit to require discussion in a written opinion." Id. at 9-10 (citing R. 2:11-

3(e)(1)(E)).

      Triffin filed a motion with the trial court for a refund of $275 of the

restoration fee. In a June 12, 2017 order, the trial court ordered that "the

Superior Court of New Jersey shall process a refund of the amount of $275 to

[Triffin], said amount to be paid to [Triffin] by the Treasurer, within [sixty] days

of this [o]rder[.]"     Triffin subsequently filed a motion to assess trial and

appellate costs in the amount of $622 based solely on our June 12, 2017 opinion

reversing the restoration fee. In an August 18, 2017 order, the court denied

Triffin's motion, finding no legal basis to award costs.


                                                                               A-0387-17T4
                                            4
      In this appeal, Triffin raises the following argument:

            POINT ONE

            PURSUANT TO THIS COURT'S PRIOR DECISION
            OF JUNE 12, 2017 TRIFFIN IS THE PRE[V]AILING
            PARTY, AND IN ACCORD WITH COURT [RULE]
            4:42-8, TRIFFIN IS ENTITLED TO RECOVER HIS
            COURT AND APPELL[ATE] COSTS[.]

We reject this argument.2

      Rule 4:42-8(a) provides: “Unless otherwise provided by law, these rules

or court order, costs shall be allowed as of course to the prevailing party.” Our

Supreme Court adopted the United States Supreme Court's definition of

prevailing party status as follows:

            The plaintiff must obtain an enforceable judgment
            against the defendant from whom fees are sought, or
            comparable relief through a consent decree or
            settlement. Whatever relief the plaintiff secures must
            directly benefit him at the time of the judgment or
            settlement. Otherwise the judgment or settlement
            cannot be said to "affec[t] the behavior of the defendant
            toward the plaintiff."



2
  We decline to address Triffin's additional argument that he is entitled to trial
and appellate costs because USFI invited reversible error by urging the court to
sanction him $300 to reinstate his case when Rule 6:4-6 only permitted a $25
sanction. Triffin did not raise this issue before the trial court, it is not
jurisdictional in nature, and it does not substantially implicate the public
interest. Zaman v. Felton, 219 N.J. 199, 226-27 (2014).


                                                                           A-0387-17T4
                                        5
             [Tarr v. Ciasulli, 181 N.J. 70, 86 (2004) (alteration in
             original) (quoting Farrar v. Hobby, 506 U.S. 103, 111-
             12 (1992)).]

Accordingly, our Supreme Court held that a plaintiff is deemed a prevailing

party where the plaintiff "is awarded some affirmative relief by way of an

enforceable judgment against defendant or other comparable relief through a

settlement or consent decree." Id. at 86-87 (emphasis added).

      Triffin was not awarded affirmative relief by way of an enforceable

judgment against USFI or other comparable relief through a settlement or

consent decree. Neither this court, nor the trial court, ordered USFI to refund

$275 to Triffin and there was no settlement or consent decree between the parties

regarding the refund. In addition, Triffin lost his appeal on his substantive claim

against USFI for recovery on the dishonored check. Thus, Triffin was not the

prevailing party in his prior appeal and is not entitled to trial court and appellate

costs under Rule 4:42-8(a). Triffin's arguments to the contrary are without

sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                              A-0387-17T4
                                          6
