ELEANOR CAPOGROSSO v. RUANE & ZUBER, L.L.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4529-07T34529-07T3

ELEANOR CAPOGROSSO,

Plaintiff-Appellant,

v.

RUANE & ZUBER, L.L.C.,

EDWARD P. RUANE, and

JEFFREY M. ZUBER,

Defendants-Respondents.

_______________________________________

 
Argued telephonically March 26, 2009 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3401-06.

Ronald Kurzeja argued the cause for appellant (Eleanor Capogrosso, on the pro se brief).

Edward P. Ruane argued the cause for pro se respondents.

PER CURIAM

Plaintiff Eleanor Capogrosso appeals from an order entered on March 18, 2008, which dismissed her complaint without prejudice, required defendants to serve and file a certification of services for the time devoted to the litigation by March 28, 2008, and provided that, if plaintiff failed to pay defendants the amount shown in defendants' certification within forty-five days, her complaint would be dismissed with prejudice. Plaintiff also appeals from an order entered on April 25, 2008, which denied her motion for reconsideration. For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings.

This appeal arises from the following facts. On July 10, 2006, plaintiff filed a complaint in the Law Division seeking the partial return of a $7,500 retainer she had provided to defendants in connection with a lawsuit in which defendants had agreed to represent her. The matter was first scheduled for trial on December 5, 2007, but was adjourned at the request of defendants, with plaintiff's consent. The court re-scheduled the trial for March 4, 2008.

On March 4, 2008, plaintiff's attorney phoned the court and asked for an adjournment because plaintiff was ill. The court adjourned the matter until March 5, 2008. On that date, plaintiff's counsel informed the court that plaintiff was still ill. The court re-scheduled the matter for trial on March 18, 2008. On that date, plaintiff's attorney appeared and requested that the court enter an order dismissing the complaint without prejudice.

In support of the application, counsel provided the court with a hand-written note in which plaintiff stated that she could not appear for two reasons. Plaintiff stated that it was physically impossible for her to prepare for trial. She also stated that she had to be in court in Queens, New York, representing a client in other matters.

The trial court noted that there was an inconsistency in plaintiff's assertion that it was "physically impossible" for her to prepare for trial and her statement that she had to appear in another court on the scheduled trial date. Plaintiff's counsel stated that plaintiff's illness had "incapacitated her" for several weeks and she had been "overwhelmed by her own work, in her own office."

Defendants opposed plaintiff's request and sought the dismissal of the complaint with prejudice. Defendants argued that dismissal of plaintiff's complaint without prejudice was "completely improper" because it appeared she was seeking to delay the trial in order to re-draft her complaint and "start discovery all over again." Plaintiff's counsel noted that the court could impose conditions for the dismissal of the complaint without prejudice but he urged the court not to impose any such conditions.

The trial court granted plaintiff's application, but ordered that the matter would be dismissed with prejudice unless plaintiff paid all of the counsel fees and costs incurred by defendants in connection with the litigation. The court stated that this would address defendants' concern "about the time that's been expended in connection with the litigation, and the need to redo that if the case is refiled."

The court entered an order on March 18, 2008, which memorialized its determination. The order required defendants to file a certification stating all of the fees and expenses incurred in this litigation by March 28, 2008. The order further provided that the matter would be dismissed with prejudice if plaintiff failed to pay the amounts set forth in the certification within forty-five days.

On March 24, 2008, defendants submitted an affidavit of services by Edward P. Ruane (Ruane), in which Ruane indicated that 48.74 hours had been devoted to the representation of defendants in the matter. Ruane stated that his hourly rate is $275. He also stated that defendants had incurred expenses in the amount of $255.87. He sought reimbursement of a total of $13,659.37 in fees and costs incurred in the case.

Plaintiff did not pay the amounts set forth in Ruane's affidavit. On April 3, 2008, plaintiff filed a motion for reconsideration. In support of that motion, plaintiff submitted a certification from her attorney.

Plaintiff's attorney stated that the court had only required plaintiff to pay defendants' costs. Plaintiff's attorney further asserted that, since defendants represented themselves and did not retain counsel for the case, they did not incur and were not entitled to attorneys fees. Counsel also pointed out that Ruane's certification included entries for "future" services on April 3, 2008, April 11, 2008, May 8, 2008 and May 9, 2008. Counsel said that the court should only permit costs and, if it were inclined to award defendants counsel fees, the court should conduct a hearing on the request.

Ruane responded in a certification dated April 17, 2008. Ruane stated even though defendants did not retain outside counsel for the defense of the case, defendants were entitled to counsel fees because he had "expended much time and energy in defense of this matter that is patently frivolous." He added that defendants "are a small firm and the time [they] have spent on this case has taken [them] away from representing [their] other clients."

Ruane also acknowledged that his earlier affidavit of services had erroneously included entries for certain "future" services. He stated that he had incorrectly entered the wrong year for those particular entries. Ruane submitted a revised affidavit of services, which corrected those errors and included additional time devoted to the matter since the previous affidavit had been filed. The revised affidavit sought attorneys fees in the amount of $14,863.76, plus costs of $265.87 for a total of $15,129.63.

The court entered an order on April 25, 2008, which denied plaintiff's motion for reconsideration. The court noted on the order that the moving papers disclosed no basis for reconsideration of the court's March 18, 2008 order. Plaintiff filed her notice of appeal on May 23, 2008.

Plaintiff raises the following issues for our consideration:

I. THE TRIAL COURT SHOULD HAVE GRANTED PLAINTIFF AN ADJOURNMENT, OR IN THE ALTERNATIVE, DISMISSED [THE COMPLAINT] WITHOUT PREJUDICE

A. The Court Should Have Granted Plaintiff An Adjournment

B. The Court's Dismissal Should Have Been Without Prejudice

II. THE TRIAL COURT SHOULD NOT HAVE PERMITTED PRO SE DEFENDANTS TO SUBMIT A CERTIFICATION OF SERVICES

A. An Award Of Attorney's Fees Serves A Punitive Function, And Is Inapposite Where Defendants Have Not Prevailed On The Merits

B. The [Certification] Filed Far Exceeds "Reasonable Attorney's Fees"

We note initially that, while plaintiff now asserts that the trial court should have granted her an adjournment of the trial date on March 18, 2008, that is not the relief that she requested. The transcript of the proceedings of March 18, 2008, makes clear that plaintiff's counsel only sought the voluntary dismissal of plaintiff's complaint without prejudice. Thus, plaintiff's argument on appeal that the trial court erred by failing to adjourn the matter is patently without merit.

Plaintiff also argues that the court's dismissal should have been without prejudice. As stated previously, the court's March 18, 2008 order dismissed plaintiff's complaint without prejudice. The order provided, however, that the complaint would be dismissed with prejudice in the event that plaintiff failed to pay within forty-five days all of the counsel fees and costs incurred by defendants in this litigation. Plaintiff has not paid defendants' counsel fees and costs. The trial court has not entered an order dismissing the complaint with prejudice.

Rule 4:37-1(b) provides in pertinent part that, once an answer has been served, a plaintiff may voluntarily dismiss an action "only by leave of court and upon such terms and conditions as the court deems appropriate." The rule further states that, "Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice." We are convinced that the court did not err by dismissing plaintiff's complaint without prejudice.

As the record shows, plaintiff failed to appear for trial on March 4, 5 and 18, 2008. Plaintiff asserted that she had been ill and was physically incapable of preparing for the trial with her attorney. Under these circumstances, the court properly exercised its authority under Rule 4:37-1(b) in ordering the dismissal of the complaint without prejudice. We are convinced, however, that that the court erred by ordering that the complaint would be dismissed with prejudice unless plaintiff reimbursed defendants for all of the attorneys fees and costs they had incurred in this litigation.

The record shows that the court imposed these conditions after defendants expressed their concern that plaintiff was seeking voluntary dismissal of her complaint without prejudice in order to extend discovery and delay the trial date. The court observed that plaintiff should be required to reimburse defendants for all of their counsel fees and costs because plaintiff could file a new complaint and defendants would have to conduct another round of discovery.

There is, however, no evidence that plaintiff intended to file an amended complaint. In addition, we were advised at argument that the parties only engaged in minimal pre-trial discovery. Furthermore, the court required plaintiff to pay defendants' attorneys fees and costs in the amount of more than $15,000, when her claim was only for about $7,500.

We are convinced that, under the circumstances, the trial court should have ordered that plaintiff's complaint would be dismissed with prejudice unless plaintiff reimbursed defendants for the reasonable attorneys fees and costs that defendants had incurred in preparing for and appearing on the scheduled trial dates in March 2008.

Plaintiff argues that the "award" of counsel fees and costs is inappropriate because defendants have not prevailed on the merits. She argues that the "award" of counsel fees in this matter serves a punitive function. In our view, these contentions are without sufficient merit to warrant comment in this opinion. R. 2:11-3(e)(1)(E).

Accordingly, we affirm the dismissal of plaintiff's complaint without prejudice, but reverse the conditions imposed in the March 18, 2008 order on said dismissal.

We remand the matter to the trial court for entry of an order requiring defendants to file an affidavit or certification setting forth the attorneys fees and costs that they incurred to prepare for and appear on the scheduled trial dates in March 2008; permitting plaintiff an opportunity to file objections to the affidavit or certification; establishing a date for argument on the matter, if requested; requiring plaintiff to pay by a specified date the attorneys fees and costs found by the court to be reasonable; and providing that plaintiff's complaint will be dismissed with prejudice upon application of defendants if plaintiff fails to pay defendants the amount determined by the court, by the date specified by the court.

Affirmed in part, reversed in part, and remanded to the trial court for further proceedings in conformance with this opinion. We do not retain jurisdiction.

 

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A-4529-07T3

April 13, 2009