GERALD ROTUNDA v. JOAQUIN E. CORREIRA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3913-08T3

GERALD ROTUNDA,

Plaintiff-Respondent,

v.

JOAQUIN E. CORREIRA and

MARIA C. CORREIRA,

Defendants-Appellants.

_________________________________________________________

 

Argued October 15, 2009 - Decided

Before Judges Stern and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Special Civil Part,

Docket No. DC-37564-08.

Glenn L. Cavanagh argued the cause for appellants

(Cavanagh & Associates, P.C., attorneys; Mr.

Cavanagh, on the brief).

Francis M. Taylor argued the cause for respondent

(O'Brien & Taylor, attorneys; Mr. Taylor, on

the brief).

PER CURIAM

Defendants Joaquin and Maria Correira are former clients of plaintiff Gerald Rotunda, an attorney. They appeal from an order dated April 3, 2009, dismissing plaintiff's complaint for unpaid legal fees without prejudice. Defendants contend the trial court erred in denying their request to dismiss plaintiff's complaint with prejudice because plaintiff's pre-action notice letter and plaintiff's complaint failed to comply with Rule 1:20A-6. In addition, defendants claim the court erred in denying their request for counsel fees under Rule 1:4-8. We affirm.

Pursuant to Rule 1:20A-2, District Fee committees have jurisdiction to arbitrate fee disputes between clients and attorneys. Rule 1:20A-6 (the Rule) requires an attorney to provide former clients with notice of their right to request fee arbitration, and it further provides that no lawsuit to recover a fee may be filed prior to the expiration of the thirty-day period mandated by the Rule. In addition, the Rule provides that "[t]he attorney's complaint shall allege the giving of the notice required by this rule or it shall be dismissed."

On April 29, 2008, plaintiff mailed defendants a letter purporting to satisfy the pre-action notice requirements of the Rule. Thereafter, plaintiff retained a law firm and on October 3, 2008, plaintiff's counsel filed a complaint to recover the sum of $8,423.76, plus $463.31 in interest, for legal services rendered by plaintiff to defendants. Defendants retained counsel and filed a timely answer.

In a letter dated November 11, 2008, defendants' counsel notified plaintiff's attorney that the pre-action notice sent to defendants on April 29, 2008, was defective, and that plaintiff's complaint was also defective:

The Notice filed by Mr. Rotunda misstates the time period for the filing of the arbitration request as 21 days, when it should be 30 days; in addition, the Notice fails to identify by either name or address the Secretary of the Bergen County Fee Arbitration Committee and does not instruct the clients to request the arbitration forms from the Secretary. Lastly, because the complaint fails to allege that proper pre-action notice was given the complaint is fatally defective.

In any event, I have advised my clients as to the defective nature of both the Notice and the complaint itself; they have advised that should the complaint be pursued (or be amended and pursued) they will file an ethics complaint against the O'Brien & Taylor Firm (for failure to investigate whether the proper Notice was prepared and filed and failure to allege in the complaint that the proper Notice was sent) and against Mr. Rotunda for preparing and transmitting a defective and misleading Notice.

In another letter dated November 17, 2008, defendants' counsel stated that plaintiff's complaint violated "both the spirit and letter of R. 1:4-8" and demanded the complaint be withdrawn with prejudice because it failed to allege that the notice required by the Rule had been provided. In a responsive letter dated November 26, 2008, plaintiff's counsel offered to "dismiss the pending action without prejudice, serve the pre-action notice that complies with the Rules, and then if [defendants] do not respond within thirty days, file a new suit." When defendants' attorney failed to respond, plaintiff's counsel sent a revised pre-action notice to defendants' attorney on December 23, 2008. Defendants moved to dismiss the complaint with prejudice on January 20, 2009, and plaintiff cross-moved to amend the complaint to include the language required by the Rule. On January 22, 2009, plaintiff's counsel sent a revised pre-action notice directly to defendants.

On February 20, 2009, the court entered three orders. The first order denied plaintiff's cross-motion to amend his complaint because the complaint was filed prior to the pre-action notice sent to defendants on January 22, 2009. The second order dismissed plaintiff's complaint without prejudice, and the third order dismissed the complaint with prejudice. Thereafter, on February 27, 2009, the court vacated the order that dismissed plaintiff's complaint without prejudice, which resulted in a dismissal with prejudice.

On March 5, 2009, plaintiff's counsel filed a motion for clarification, requesting a dismissal without prejudice, and defendants filed a cross-motion for counsel fees under Rule 1:4-8. On April 3, 2009, the court entered an order dismissing plaintiff's complaint without prejudice. The court also required plaintiff to send another pre-action notice directly to defendants and denied defendants' request for counsel fees. Plaintiff's counsel mailed a conforming pre-action notice to defendants the same day.

"[A] general principle of law is that procedural dismissals are not favored." Yancsek v. Hull Corp., 204 N.J. Super. 429, 433 (App. Div. 1985). Moreover, "[a]s a general rule, a dismissal on the merits is with prejudice while a dismissal based on the court's procedural inability to consider a case is without prejudice." Pressler, Current N.J. Court Rules, comment 4 on R. 4:37-2 (2010) (citing Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 415-16 (1991)). See also Audubon Volunteer Fire Co. v. Church Constr. Co., Inc., 206 N.J. Super. 405, 407 (App. Div. 1986) ("Until courts have exhausted means of performing their shepherding function which do not terminate or deeply affect the outcome of a case, they ought not to bar a litigant's way to the courtroom.").

Here, in denying defendants' motion to dismiss with prejudice, the court reasoned as follows: "[T]here is nothing that . . . says the intent of [the Rule] is that if you don't do it, you lose the ability forever to sue. It does say that if you don't do it you lose the ability to maintain the lawsuit. But not forever." We agree with the trial court's analysis. See Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982), rev'd on other grounds, State v. Fusco, 93 N.J. 578 (1983) ("[T]he real business of the courts . . . is to dispense substantial justice on the merits.").

The decision to deny an award of counsel fees under Rule 1:4-8 was also correct. That rule is intended to assure that all pleadings, motions, and other papers signed or filed by an attorney or pro se party are "not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." R. 1:4-8(a)(1). "Fee determinations by trial courts will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). A trial court's determinations on the amounts and availability of fees and costs for frivolous litigation are reviewed under the "abuse of discretion" standard. Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). Abuse of discretion is demonstrated and reversal is warranted "if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Ibid. That did not happen here.

In the present matter, there is nothing in the record to establish that either plaintiff or his attorney acted in bad faith or for an improper purpose, or that plaintiff's complaint was frivolous in violation of Rule 1:4-8. Under these circumstances, there was no abuse of discretion by the motion judge.

 
Affirmed.

(continued)

(continued)

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A-3913-08T3

April 9, 2010