THE LAW OFFICES OF BRUCE E BALDINGER, LLC v. THE HAMBURGER LAW FIRM

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3995-08T3

THE LAW OFFICES OF BRUCE E.

BALDINGER, LLC and BRUCE

BALDINGER,

Plaintiffs-Appellants,

v.

THE HAMBURGER LAW FIRM, MARKET

COUNSEL, LLC, and RAFFERTY

CAPITAL MARKETS,

Defendants-Respondents.

_________________________________

October 15, 2010

 

Submitted September 15, 2010 - Decided

 

Before Judges Axelrad and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-021105-08.

 

Howard A. Teichman, attorney for appellants.

 

Hamburger Law Firm, attorneys for respondents (Robert K. Ross, on the brief).

PER CURIAM

The Law Offices of Bruce E. Baldinger, LLC and Bruce Baldinger (collectively plaintiff), appeal from an order dismissing the Special Civil Part collection complaint, a second order awarding defendant attorney's fees and costs, and "the determinations . . . resulting in the [o]rder" of dismissal. Plaintiff argues the trial court erred in dismissing the litigation when a less extreme remedy was available, and abused its discretion in entering the fee award. Plaintiff's arguments highlight several procedural flaws in the court's handling of motion practice.

Following our review, we conclude the trial court erred in dismissing plaintiff's complaint, as it should have undertaken a review of the pending summary judgment motions. Additionally, we reverse the award of attorney's fees, not only because defendant's motion failed to comply with the procedural requirements of Rule1:4-8(b), but also because a pro se attorney litigant is not entitled to a fee award.

Plaintiff is an attorney licensed to practice in New Jersey. In 2002, and continuing into 2006, defendant, the Hamburger Law Firm, agreed to hire plaintiff in an "of counsel" role with the firm to perform specific legal services for one of its clients, defendant Rafferty Capital Markets and its subsidiaries. Defendant Market Counsel is a securities advisory company, which operates from the Hamburger Law Firm's office. The action alleges no claims against Market Counsel. Because plaintiff's complaint seeks fees for the legal services he provided at the request of the Hamburger Law Firm, and not the other named defendants, we have chosen to use the singular designation of defendant, which will refer to the firm.

On July 18, 2008, plaintiff filed a Special Civil Part complaint to collect unpaid fees for legal services rendered, alleging claims for breach of contract, payment due on a book account, and unjust enrichment. The complaint specially stated plaintiff submitted invoices to defendant for services he performed, yet defendant "failed to make the final payment." Plaintiff sought compensatory damages of $15,000, along with interest, attorney's fees and costs of suit. Defendant admitted it had a "working relationship" with plaintiff from 2002 until approximately September 2006. Further, defendant did not dispute plaintiff had submitted invoices for the work he had performed, but denied owing any fees, averring plaintiff was paid for what he was due and otherwise "invoices were submitted untimely, [were] inaccurate and [were] bills for substandard work."

During discovery, plaintiff served defendant with interrogatories. When thirty days passed and no responses were transmitted, plaintiff advised defendant its discovery was past due. Defendant stated it needed more time to comply. Plaintiff rejected the request for an extension and moved to suppress defendant's answer. The court denied plaintiff's motion, citing a deficiency. Plaintiff cured the omission and re-filed the motion seeking to suppress defendant's answer. Plaintiff's supporting certification stated the relief should be granted without prejudice; however, the form of order provided to the court sought to suppress defendant's answer with prejudice.

On December 19, 2008, prior to the motion's return date, defendant transmitted its responses to plaintiff's interrogatories and requested plaintiff withdraw his motion. Plaintiff declined. Defendant then notified the court, stating in its letter that it had complied with the discovery requests and asked the court to deny plaintiff's motion entirely. In reply correspondence, plaintiff challenged defendant's assertion, advising defendant's discovery was "woefully deficient, evasive and [did] not provide the critical documents" he sought. Plaintiff requested the court strike the answer, or alternatively, enter an order compelling more specific responses.

At some point the parties were informed trial had been scheduled for January 22, 2009. After he received defendant's discovery and while the motion to suppress was pending, plaintiff moved for summary judgment. Defendant responded and filed a cross-motion for summary judgment.

On January 7, 2009, without benefit of oral argument and unaccompanied by a statement of reasons, the court granted plaintiff's motion to strike and suppressed defendant's answer with prejudice. Apparently, the court did not transmit the order to either party. Defendant learned its answer had been suppressed when it telephoned the judge's chambers to inquiry whether the court had assigned a return date to consider the cross-motions for summary judgment. After learning of the suppression order, defendant sent a letter to the trial judge on January 21, 2009, seeking an opportunity to be heard on plaintiff's motion to suppress its answer with prejudice, as it believed the court's was inadvertently entered and should be vacated. Defendant also requested the court review its application for summary judgment dismissal.

That same day, the court vacated the January 7, 2009 order and required the parties to appear for trial the next day. During the pre-trial argument, the court stated that in addition to the fact defendant had answered the interrogatories, the order was vacated because the form of order submitted "improperly included the 'with prejudice' language." When the court realized the error, it vacated the order.

Plaintiff voiced his objection in another letter to the court. Summarizing the disputed discovery events, plaintiff explained the need for the omitted documents, and objected to the commencement of trial without the benefit of completed discovery. The court notified the parties that trial would proceed as originally scheduled.

On January 22, 2009, the parties appeared before the designated trial judge, who also had been handling the prior motions. She told them to return at 1:30 p.m. for trial. Not satisfied, plaintiff sought review of his adjournment request from the Supervising Special Civil Part Judge (SSCPJ). Plaintiff informed his adversary of his intention to request a continuance. Defendant chose not to appear, leaving the courthouse. After plaintiff apprised the SSCPJ of the status of the case and his need for adjournment of trial, the judge told plaintiff to return at 1:30 p.m. with his adversary. The transcript of the resumed proceeding before the trial judge reveals the SSCPJ referred plaintiff's adjournment request to her for review.

That afternoon plaintiff appeared represented by counsel, and defendant appeared pro se and as counsel for the other named defendants. Plaintiff renewed his request for an adjournment, arguing that he would be unable to present his case without further discovery of the billing records he submitted during the course of his association with defendant.

During the colloquy with counsel, the court stated:

[W]hat I'm hearing from you is that if you want all of these bills, then that's really when you're going to gather the information to be able to make a decision as to whether or not you should [have] even file[d] suit. What if . . . it turns out that you get all these bills from [] defendant, and . . . you know what, I've made a mistake, I've been paid[.] So that full accounting should have been requested before you filed a complaint [to] see if you have a viable cause of action.

 

Now I'm hearing [] well, perhaps I really don't have a cause of action, and I won't know until I get this full accounting, or get all these bills that may or may not exist at this law firm[.]

 

Plaintiff responded that absent the requested discovery, he was "not ready for trial" and suggested he would suffer severe prejudice if forced to go forward.

In response, defendant asserted the initial entry of the order to strike was inappropriate in light of the fact it had responded to interrogatories, albeit after they were due. Defendant noted plaintiff had not filed a motion challenging the sufficiency of the responses; instead, he requested summary judgment. Arguing the court should rely on the summary judgment pleadings, defendant noted plaintiff's complaint did not identify the specific basis of the $15,000 damage demand, but did mention defendant allegedly "failed to make the final payment." It suggested plaintiff's summary judgment submission sought payment for identified time entries. Both parties apparently attached a copy of relevant documents on this issue to their respective summary judgment pleadings. Defendant noted it had produced cancelled checks corresponding to the thirty entries plaintiff maintained were unpaid. Because the facts were uncontested, defendant believed judgment should have been granted in its favor.

Defendant also objected to what it viewed as plaintiff's attempt to expand discovery for the purpose of delaying trial. Defendant contended plaintiff was bound by the narrow issues presented in his summary judgment motion focusing on the final invoice, making it improper to request "a full accounting over the entire time that he ever worked with [defendant]."

The trial judge agreed with defendant, commenting, "But to file a cause of action and not have any idea as to whether or not you're going to be able to prove your case, I mean that's frivolous. That's frivolous." The judge determined plaintiff's investigation of the outstanding payments should have preceded the complaint's filing and further, plaintiff should have sought an adjournment to conduct depositions or require more responsive answers to his discovery requests before the trial date. Concluding plaintiff suffered no prejudice, the court denied the request to delay the proceeding, but provided a short recess to allow the parties one last opportunity to discuss settlement.

When the hearing resumed, plaintiff advised that based on the court's rulings, "it would be a waste of the [c]ourt['s] and counsel's time to proceed with judgment in the absence of the discovery which [had] not been received. Therefore, we will not proceed with trial. We understand what the consequences of that will be, and that is our conclusion[.]" The trial court dismissed plaintiff's case with prejudice, precluding plaintiff "from filing any further or subsequent legal action against any of the [d]efendants for any issues related to compensation, payment for services, employment, or legal work allegedly performed by [p]laintiff for any of the [d]efendants[.]"

On February 12, 2009, defendant moved for payment of attorney's costs and fees, maintaining the litigation was frivolous. Plaintiff argued defendant's application was procedurally defective because it failed to provide notice of the request as required by Rule 1:4-8. Moreover, plaintiff argued fees should not be granted unless "bad faith is shown, not simply [because] the court did not agree with a party's position[.]"

The trial court granted defendant's motion and awarded it $3,740. In its memorandum of explanation appended to the order, the court stated

[P]laintiff is not permitted to use the discovery process to embark on a fishing expedition to see if bills have not been paid . . . .

 

Plaintiff, as an experienced attorney, should have kept an accurate accounting of the work he performed for the [d]efendant while acting in the "of Counsel" role for the Hamburger Law Firm.

 

Plaintiff's appeal not only challenges the court's February 17, 2009 dismissal of his action and the March 6, 2009 award of attorney's fees, but also argues certain discretionary judicial determinations in the management of the matter prior to dismissal were in error. Plaintiff maintains the court "inappropriately vacated the order suppressing" defendant's answer and denying his request for an adjournment. As to the former, he asserts the court erroneously failed to provide notice of its intended action and did not consider less prejudicial alternatives. Regarding the latter, plaintiff argues the order reinstating defendant's answer immediately followed by commencement of trial denied him the opportunity to properly prepare and present his case.

Our Rules of Court delineate a trial court's supervisory power, which are designed to balance a number of concerns including "to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." R. 1:1-2; see also Brunson v. Affinity Federal Credit Union, 199 N.J. 381, 405 (2009). Further, a court retains the power, on its own motion, to correct any order, which was improvidently granted. See, N. C. Hous. Assocs. v. Hightower-Cooper, 281 N.J. Super. 317, 322 (Law Div. 1995) (court has inherent power on its own to vacate judgment when it has made a mistake); cf. Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 283 (1994) (holding a trial judge, guided by principles of equity, has the sound discretion to grant a motion to vacate a judgment); R. 4:49-2 (providing that upon motion, a court may reconsider an order because "it has erred").

Without a doubt, the administration of this matter was fraught with confusion, frustrating its smooth administration. For example, we note the motion judge failed to articulate a statement of reasons for the entry of the order suppressing defendant's answer with prejudice, notwithstanding the court's factfinding obligation set forth in Rule 1:7-4(a) (denoting a trial court's obligation to make findings of facts and state conclusions of law "on every motion decided by a written order that is appealable as of right"). Similarly, no explanation accompanies the January 21, 2009 order vacating the prior determination. Additional difficulty resulted from the court's sua sponte reconsideration, after receipt of defendant's informal letter objection in lieu of filing a motion, and the court's delayed transmission of the second order reinstating defendant's pleading. The record is silent on whether the parties' cross-motions for summary judgment were considered. Finally, oral argument was not used to sort out the procedural muddle.

We emphasize a trial court's obligation to make findings of fact and conclusion of law on every order is critical to our "meaningful review." Ronan v. Adely, 182 N.J. 103, 110-11 (2004). Generally, when a trial court has not made adequate findings of fact, we remand for the court to make the necessary factual findings. Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005); Barnett & Herenchak, Inc. v. State of New Jersey, Dep't of Transp., 276 N.J. Super. 465, 470-73 (App. Div. 1994). In this matter, however, no harm inured to plaintiff by the trial judge's omission, as the January 7, 2009 order was clearly erroneous.

When a party fails to remit discovery, the court is permitted to order the dismissal of that party's pleadings without prejudice. See R. 6:4-6(a) (applying the provisions of R. 4:23-5, as modified). Subsection (b) of Rule 4:23-5 permits entry of an order suppressing a party's pleadings with prejudice following the appropriate opportunity to cure the discovery lapses, along with the payment of restoration fees, both of which are modified by Rule 6:4-6(b) and (c). Had the court found defendant's failure to comply with necessary discovery, it could only strike its answer without prejudice.

Plaintiff does not dispute the order's language was inartful. He argues, however, that the error should have been corrected by a mere modification of the verbiage, providing suppression of defendant's answer without prejudice. We disagree.

During the January 22, 2009 hearing, the trial judge considered and rejected this position. She noted defendant had complied with the discovery requests by supplying its responses to the initial and supplemental interrogatories on December 19, 2009. Further, in her review of those responses, in light of plaintiff's correspondence challenging their completeness, the trial judge stated the interrogatory answers "were more than detailed with [the necessary] information."

Although we could quarrel with the procedures utilized by the trial judge in vacating her initial order and rejecting plaintiff's alternative suggestion to compel more sufficient answers, we determine no due process deprivation is presented. Plaintiff was given the opportunity to fully air his position, which the court reviewed and rejected because the relief provided in the order was unwarranted. We discern no error in the court's analysis of this issue and conclude no abuse of discretion occurred in vacating the January 7, 2009 order.

We also note that many of these problems could have been avoided had the parties adhered to motion practice rather than resorting to the transmission of disapproving correspondence. For example, plaintiff could have filed a motion to compel discovery rather than launching a request for dismissal. See R. 6:4-6 (incorporating the provisions of R. 4:23-1). That application could have been accompanied by a timely request to continue the trial. R. 6:4-7(b). Likewise, defendant could have moved for an extension of time to submit its discovery responses. R. 4:23-5(a). We discern the choice exercised to fax letters objecting to the court's anticipated or actual actions deprived the trial court's formal, deliberate disposition of the parties' demands.

Next, we examine plaintiff's challenge to the trial judge's refusal to continue the trial, which is tied to the resultant order of dismissal. Plaintiff asserts the court changed the procedural posture of the case by vacating its January 7, 2009 order. Therefore, it should have given the parties more time to prepare for trial. He states: "By vacating the [o]rder and then demanding the [p]laintiff[] prove [his] case the very next day, the [c]ourt precluded the ability . . . to do exactly what the [c]ourt said was necessary -- to file a motion to compel discovery" or request an order for depositions. When plaintiff's adjournment request was denied, he declined to proceed to trial and his complaint was dismissed.

The grant or denial of an adjournment request rests within the discretion of the trial court. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J.499, 513 (1995). "Postponement requests must be considered, in part, in the light of preparation efforts. If they are not, parties will have no incentive to prepare." In re Segal, 130 N.J. 468, 482 (1992) (quoting State v. Perkins, 219 N.J. Super. 121, 127 (1987)). We do "not interfere unless an injustice has been done." Allegro v. Afton Vill. Corp., 9 N.J.156, 161 (1952).

Among the tools assuring orderly administration is the court's discretion to dismiss a complaint when plaintiff declines to present his evidence at trial. R.1:2-4(a)(c). While we recognize the importance of maintaining the integrity of trial dates, that goal should not be exalted above the trial court's "ultimate responsibility for ensuring the fairness of the proceedings[,]" assuring litigants are provided their day in court. Brunson, supra, 199 N.J. at 407.

"We appreciate the desirability of the prompt disposal of cases" but note the court's "shepherding function . . . is abused by unnecessarily closing the courtroom doors to a litigant[.]" Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 406 (App. Div. 1986). "Eagerness to move cases must defer to our paramount duty to administer justice in [each] individual case." Ibid. "'Since dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will erase the prejudice suffered by the non-delinquent party.'" Irani v. K-Mart Corp., 281 N.J. Super. 383, 387 (App. Div. 1995) (quoting Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 345 (1984)). Accordingly, "'[c]ases should be won or lost on their merits and not because litigants have failed to comply precisely with particular court schedules, unless such noncompliance was purposeful and no lesser remedy was available.'" Irani, supra, 281 N.J. Super. at 387 (quoting Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 395 (App. Div. 1994)).

Although we do not find plaintiff's arguments as framed particularly persuasive, we do agree the court's actions were taken in haste, principally because an alternative to dismissal was available. Most notable here is the fact that the parties' cross-motions for summary judgment were pending. If the parties' pleadings stipulated the factual underpinnings of plaintiff's actions, the court's review of the motions may have been dispositive.

We have instructed, "'[t]here are ways short of dismissal or default to deal with slowdowns which cost a party money, waste the lawyers' time, prejudice a plaintiff's ability to collect a judgment or a defendant's ability to defend against one, or unjustifiably consume judicial resources.'" Ghandi v. Cespedes, 390 N.J. Super. 193 (App. Div. 2007) (quoting Audubon Volunteer Fire, supra, 206 N.J. Super. at 407).

Plaintiff initiated the summary judgment process. Curiously, there is no evidence the court reviewed the summary judgment pleadings and neither party provided them in the respective appendices. However, a review of comments by the court and counsel, during pre-trial argument and the subsequent motion for attorney's fees, inferentially incorporate the facts apparently articulated in those pleadings. Because we do not have his pleadings, we can only speculate from the comments that no factual contentions were disputed. If these assertions are accurate, the trial court's review of the summary judgment motions should have resulted in a final determination, ending the litigation. In our view, the trial court's failure to review the summary judgment pleadings, but instead order dismissal of plaintiff's action because he was unprepared to commence trial, was a mistaken exercise of discretion.

Plaintiff's motion seeking judgment narrowed the facts to a finite number of alleged unpaid invoices for which defendant had not produced evidence of remittance. Defendant responded to these assertions by producing its documentary evidence of payment. In light of these positions, the court's review of the motions first would have better defined whether discovery lapses existed and, if so, what further discovery was warranted. Using the facts stipulated by plaintiff, the court should have then determined whether no material dispute was presented, warranting judgment.

We conclude the court should have undertaken full review of whether summary judgment was appropriate, rather than backing the parties into an unanticipated trial and then dismissing plaintiff's complaint with prejudice when he was unprepared to proceed. We reverse the order of dismissal and remand the matter for consideration of the cross-motions for summary judgment. If the court determines summary judgment is inappropriate, it may proceed as warranted to schedule the matter for trial.

We additionally reverse the order awarding defendant counsel fees and costs. Defendant's moving papers and the court's order recite as the basis supporting the award that plaintiff's complaint was frivolous. We conclude that neither Rule1:4-8 nor N.J.S.A.2A:15-59.1, both of which are designed to curb frivolous litigation, are applicable to the facts of record.

Rule 1:4-8 is designed to ensure attorneys and parties do not initiate or pursue litigation that is frivolous. "For purposes of imposing sanctions under Rule 1:4-8, an assertion is deemed frivolous when no rational argument can be advanced in its support, or it is not supported by any credible evidence, or it is completely untenable." United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 389 (App. Div.) (internal quotations and citations omitted), certif. denied, 200 N.J. 367 (2009).

The Rule's comprehensive provisions

impose[] an obligation on the attorney or party pro se to certify, based on a reasonable inquiry, that the pleading "is not being presented for any improper purpose," that the assertions "are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law," and that there is "evidentiary support" for the allegations being made. R. 1:4-8(a)(1), (2), (3). [T]he Rule imposes a continuing duty on the attorney or party pro se who filed the pleading to correct or withdraw the allegations or the denials contained therein based upon further investigation and discovery. R. 1:4-8(a)(3), (4). [I]t creates an enforcement mechanism by which a party who believes that a pleading or filing violates the Rule may so advise the adversary, giving the adversary the opportunity to withdraw the pleading without penalty, failing which, that party may seek or the court may impose a variety of sanctions. R. 1:4-8(b)(1).

 

[LoBiondo v. Schwartz, 199 N.J.62, 98 (2009).]

 

The Rulecarves an exception to the "American rule," which requires litigating parties to bear their own counsel fees, by providing as a sanction an award of "reasonable expenses and attorneys' fees incurred in presenting or opposing the motion." R.1:4-8(b)(2). An award is conditioned on providing specific written notice which explains there is a violation, the basis of the violation, a demand to withdraw the offending pleading and the assertion that a request for sanctions will be pursued absent remedial action. R.1:4-8(b)(1).

Additionally, sanctions may be imposed for frivolous pleadings, pursuant to N.J.S.A.2A:15-59.1. The statute states in relevant part:

a. (1) A party who prevails in a civil action, . . . 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 . . . of the nonprevailing person was frivolous.

 

. . . .

b. In order to find that a complaint . . . 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 . . . 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 . . . 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.

 

[N.J.S.A.2A:15-59.1.]

We reject defendant's argument suggesting the notice provision is not a prerequisite for relief. In fact, the statute and the Rule work in tandem so that the obligation to give notice is not to be avoided.

The Rule's mandatory notice language states:

No such motion [under the Rule] shall be filed unless it includes a certification that the applicant served written notice and demand pursuant to R. 1:5-2 to the attorney or pro se party who signed the paper objected to. The certification shall have annexed a copy of that notice and demand, which shall [provide the four items of notice].

 

[R. 1:4-8(b) (emphasis added).]

 

We recently addressed the interplay of the statute in light of the Rule's requirements in Community Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C., 381 N.J. Super. 119, 127-28, (App. Div. 2005), certif. denied and remanded on other grounds, 187 N.J. 489 (2006). In Blume, we affirmed the trial court's denial of the defendants' application for frivolous litigation sanctions, pursuant to N.J.S.A. 2A:15-59.1, noting the lack of evidence that the defendants had ever "complied with the notice requirements of Rule 1:4-8(b)(1)[.]" Id. at 127-28. As we explained, the defendants were required to comply with the safe harbor provision of Rule 1:4-8(b)(1).

This holding was reinforced by the Supreme Court in Toll Brothers, Inc. v. Township of West Windsor, 190 N.J. 61, 72 (2007). The Court examined the interplay of the statute and the Rule, specifically addressing the notice requirements, instructing:

By making the safe harbor provision of the Rule apply to lawyers and parties alike, all users of the judicial system are spurred to give prompt warning to those engaged in frivolous litigation activity. Early notice furthers the legislative purposes by providing all opportunity for remediation. Noncompliance places the applicant at risk of forfeiting recompense for defending against allegedly frivolous litigation conduct for which the offending person was not put on notice. The Rule thus does not thwart the legislative policy against frivolous litigation conduct but enhances it.

 

[Id. at 72.]

 

The Court directed trial courts hearing applications for frivolous litigation sanctions "to assess whether it is practicable under all the circumstances to require strict adherence to the requirements of Rule 1:4-8." Ibid. The Court concluded, "[a]lthough the notice requirement may have a limiting impact on the compensation that one may receive for costs and fees, the public policies underlying N.J.S.A. 2A:15-59.1 militate in favor of requiring that claims against parties meet the Rule's procedural requirements to the fullest extent possible." Ibid.

Here, defendant's failure to comply with the notice requirements alone defeats the application for sanctions. The trial court's failure to analyze this deficiency requires the award to defendant be vacated.

Equally important is the need for a sensitive analysis of all facts assuring that "[s]anctions are warranted only when the pleading as a whole is frivolous or of a harassing nature. That some of the allegations made at the outset of litigation later proved to be unfounded does not render frivolous a complaint that also contains some non-frivolous claims." United Hearts, supra, 407 N.J. Super. at 390 (internal quotations and citations omitted). The trial judge reasoned that plaintiff should have voluntarily dismissed his complaint when he received defendant's opposition and cross-motion for summary judgment. Absent actual review of the summary judgment pleadings, the trial judge incorrectly assumed the factual assertions proffered by defendant when awarding fees. That assumption is in error and must be reversed.

For completeness, we also note defendant appeared pro se obviating an award of fees. Dunn v. N.J. Dept. of Human Services, 312 N.J. Super. 321, 333 (App. Div. 1998); Asaadi v. Meltzer, 280 N.J. Super. 68, 73 (Law Div. 1994).

A

ffirmed in part, reversed in part and remanded for proceedings consistent with this opinion.