TOLL BROTHERS, INC. v. TOWNSHIP OF WEST WINDSOR, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5785-04T25785-04T2

TOLL BROTHERS, INC.,

Plaintiff,

v.

TOWNSHIP OF WEST WINDSOR,

MAYOR AND COUNCIL OF THE

TOWNSHIP OF WEST WINDSOR,

and THE PLANNING BOARD OF

THE TOWNSHIP OF WEST WINDSOR,

Defendants-Respondents.

___________________________________

AFFORDABLE LIVING CORPORATION,

Plaintiff,

and

MANEELY, INC.

Intervenors,

and

DR. AND MRS. CHARLES AKSELRAD,

Intervenors-Appellants,

v.

WEST WINDSOR TOWNSHIP,

Defendant.

_________________________________________________________

 

Argued June 6, 2006 - Decided June 26, 2006

Before Judges Coburn, Collester and S.L. Reisner.

On appeal from the Superior Court of New Jersey,

Law Division, Mercer County, L-2123-93 and

L-17812-84.

Paul A. Sandars, III, argued the cause for appellants

(Lum, Danzis, Drasco & Positan, attorneys; Colin M. Danzis and Mr. Sandars, of counsel and on the brief).

Karen L. Cayci and Gerald J. Muller argued the cause for respondents (Herbert, Van Ness, Cayci & Goodell,

attorneys for respondents, Township of West Windsor and Mayor and Council of the Township of West Windsor; Miller, Porter & Muller, attorneys for respondent, The Planning Board of West Windsor; Ms. Cayci and Mr. Muller, of counsel and on the joint brief).

PER CURIAM

Pursuant to N.J.S.A. 2A:15-59.1, the so-called frivolous litigation statute, the Akselrads asked the trial judge for an award of counsel fees and costs against the Township of West Windsor and its mayor, council, and planning board. The trial judge ruled in favor of the public entities on the sole ground that the statute applies only to private parties. The Akselrads appeal. We affirm because of the Akselrad's failure to comply with the notice requirements of Rule 1:4-8(b). Consequently, we need not reach the substantive issue.

There is no need to describe the long and complex litigation history of these consolidated cases. It is enough to note that when they were consolidated, which was in December 1997, the Akselrads became parties to the litigation in opposition to the public entities. On January 3, 2005, the trial judge issued a final order denying the relief sought by the public entities and granting the relief sought by the Akselrads. On January 24, 2005, the Akselrads, without any prior formal notice, filed the motion for counsel fees and costs to be assessed against the public entities.

The frivolous litigation statute, N.J.S.A. 2A:15-59.1, provides as follows:

a. (1) A party who prevails in a civil action, either as plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the nonprevailing person was frivolous.

(2) When a public entity is required or authorized by law to provide for the defense of a present or former employee, the public entity may be awarded all reasonable litigation costs and reasonable attorney fees if the individual for whom the defense was provided is the prevailing party in a civil action, and if there is a judicial determination at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim, or defense of the nonprevailing party was frivolous.

b. In order to find that a complaint, counterclaim, cross-claim or defense of the nonprevailing party was frivolous, the judge shall find on the basis of the pleadings, discovery, or the evidence presented that either:

(1) The complaint, counterclaim, cross-claim or defense was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or

(2) The nonprevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

c. A party or public entity seeking an award under this section shall make application to the court which heard the matter. The application shall be supported by an affidavit stating in detail:

(1) The nature of the services rendered, the responsibility assumed, the results obtained, the amount of time spent by the attorney, any particular novelty or difficulty, the time spent and services rendered by secretaries and staff, other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, an itemization of the disbursements for which reimbursement is sought, and any other factors relevant in evaluating fees and costs; and

(2) How much has been paid to the attorney and what provision, if any, has been made for the payment of these fees in the future.

The Akselrads' motion was properly denied because of their failure to comply with Rule 1:4-8. That rule provides in relevant part that "[t]o the extent practicable, the procedures prescribed by [the] rule shall apply to the assertion of costs and fees against a party other than a pro se party pursuant to N.J.S.A. 2A:15-59.1." R. 1:4-8(f). And another section of the rule, concerning procedure, provides that no motion for sanctions may be filed unless the moving party first "served written notice and demand" that the offending pleading be withdrawn, giving the other side twenty-eight days to comply with the request. R. 1:4-8(b)(1). In Trocki Plastic Surgery Center v. Bartkowski, 344 N.J. Super. 399, 406 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002), we held that the failure to give such notice requires rejection of a motion made pursuant to N.J.S.A. 2A:15-59.1; and in Community Hospital v. Blume Goldfaden, 381 N.J. Super. 119, 127-28 (App. Div. 2005), we reaffirmed that view. No practical impediment or prejudice arises from requiring the moving party to comply with this notice requirement, and the failure to so require would prejudice the non-moving party. Therefore, we again hold that a motion under N.J.S.A. 2A:15-59.1 must comply with the procedural requirements of Rule 1:4-8.

Affirmed.

 

(continued)

(continued)

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A-5785-04T2

June 26, 2006