RICH FU v. SHOPRITE OF EWING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1652-10T3

RICH FU,

Plaintiff-Appellant,

v.

SHOPRITE OF EWING,

Defendant-Respondent.

______________________________

Argued May 11, 2011 Decided June 15, 2011

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Mercer County, Docket No. DC-007226-10.

Rich Fu, appellant, argued the cause pro se.

Gary Steen argued the cause for respondent (Wolff, Helies, Duggan, Spaeth & Lucas, P.A., attorneys; Mr. Steen, on the brief).

PER CURIAM

Plaintiff, Rich Fu, appeals from the dismissal of his complaint against defendant, ShopRite of Ewing, following a bench trial and the court's imposition of sanctions against plaintiff in the form of counsel fees pursuant to Rule 1:4-8(a). We affirm the dismissal of plaintiff's complaint but vacate the award of counsel fees to defendant and remand for further proceedings.

In plaintiff's complaint, he alleged that his vehicle was damaged while in defendant's parking lot and that he unsuccessfully sought to recover the $48.36 he incurred to repair his vehicle, plus interest, from defendant's insurance company. What followed were voicemails and correspondence from plaintiff to defense counsel related to defendant's answer to the complaint, discovery demands and plaintiff's settlement demands, and plaintiff's view of defense counsel's conduct in representing defendant.

On July 26, defense counsel sent a letter to plaintiff contending that plaintiff's allegations were frivolous, "presented for an improper purpose - to harass and cause needless increase in the cost of litigation[.]" Citing Rule 1:4-8(b)(1)(iii), counsel demanded that plaintiff withdraw his complaint or face an application for sanctions. In a separate letter of the same date, defense counsel requested that all communications related to the matter be in writing "[i]n view of the tone, tenor and frequency of your prior communications to me and my office[.]" The next day, plaintiff responded to defense counsel's letter and, among other contentions, expressed the belief that defense counsel's letter was the equivalent of "intim[id]ation against the Plaintiff with the purpose [of] obstruction of justice and prevent[ing] witnesses from testifying in court." In another letter also dated July 27, plaintiff threatened to file an ethics complaint against defense counsel.

Thereafter, contentious correspondence continued to flow back and forth between the parties. In early September, defendant filed a motion seeking sanctions against plaintiff pursuant to Rule 1:4-8. Defense counsel submitted a certification stating that it was "defendant's belief that the plaintiff will not be able to present evidence" to support his claim because he had been unable, during the course of discovery, to "come forward with any credible evidence to support his claim." In addition, the certification detailed plaintiff's actions during the course of the litigation, which defendant maintained demonstrated that "plaintiff has filed a frivolous lawsuit . . . and has harassed and bombarded defendant's counsel with excessive correspondence and telephone calls to increase the cost [of] attorney's fees to defend this matter, in the hopes of obtaining a monetary payment."

Plaintiff opposed the motion and cross-moved for the imposition of sanctions against defense counsel. In his certification in support of his motion, plaintiff set forth his position regarding defendant's actions during discovery and his belief that defense counsel was subjecting him to "intimidation" with the purpose of "obstruction of justice and prevent[ing] witnesses from testifying in court[.]"

Both motions thereafter included additional submissions to the court. Neither party sought oral argument in their moving papers. The court denied both motions in two separate orders. Notably, as to defendant's motion, the order stated "SANCTIONS ARE DENIED AT THIS TIME."

The matter proceeded to trial on December 2. In addition to plaintiff, his wife and a ShopRite employee responsible for gathering carts in the parking lot testified. Defendant produced one witness, the night store manager. Plaintiff's theory of liability against defendant was that his vehicle had been damaged by a shopping cart. None of the witnesses, however, actually witnessed a shopping cart striking his vehicle. At the conclusion of the testimony, the trial court issued its findings, noting:

All during Mr. Fu's testimony and legal argument[,] the argument is that it was possible that this damage was done by the shopping cart because he went back and checked the height of the carts versus the height of where the damage[] occurred on the car and that's what the reenactment photo was supposed to show. It certainly shows that it could have happened then that way and when you can reenact things[,] you can stage things and reenact things however you want to[,] to make it look like -- in the light most favorable to yourself, but it certainly shows that. But, the possibility that it happened[,] even the fact that there's photos on [eleven] other different times of shopping cart[s] in the ShopRite parking lot[,] it doesn't necessarily show that a ShopRite cart damaged Mr. Fu's car on the 22nd or the 24th of April when it was alleged to have happened, whatever day that was.

. . . .

. . . [N]one of the testimony does anything more than pose the possibility of things. Well, there's a possibility of a lot of things [that could have] happened there. We could walk out of this courthouse today and get hit by a car, but that doesn't mean that it's going to happen. Proof of possibility is not enough. Proof of probability is what is needed.

The court next commented on plaintiff's conduct during the course of the litigation:

Yes, this is a de minimis claim, but obviously isn't de minimis to Mr. Fu. It meant a lot to him. He had a right to pursue the claim. You had a right to defend it. What really bothers me, Mr. Fu, is . . . the method by which you proceeded in this particular case was so abusive and so obnoxious that if you were a lawyer I'd report you to the Bar Association or the Disciplinary Review Board and ask that they review that you'd have your license lifted. It's unprofessional conduct in this particular case.

The court found that plaintiff's letters and verbal communications were harassing to the "individuals at ShopRite, to the managers, to the claims adjustors and to the attorney[.]"
Based upon these findings, the court awarded counsel fees to defendant. The court made clear that the counsel fee award was based solely upon plaintiff's conduct during the course of the litigation only:

I'm not going to award any money for the filing of a frivolous lawsuit because it's certainly a lawsuit somebody could bring. You see a lot of them in small claims.

. . . .

But, the method and manner in which he proceeded in this case was so far beyond the bounds of reasonableness for a person let alone somebody who's a paralegal.

The court subsequently entered an order awarding counsel fees in favor of defendant in the amount of $2862. The present appeal followed.

Plaintiff raises the following point for our consideration:

THE TRIAL COURT ERRED IN CONCLUDING THIS PLAINTIFF IS NOT ENTITLED TO DAMAGES FOR WHAT HAPPENED TO HIS CAR, AND THE TRIAL COURT ERRED IN AWARDING SANCTIONS AGAINST THIS PLAINTIFF PRO SE PURSUANT TO RULE1:6-2 FOR SEEKING INSTRUCTIONS FROM THE ETHICS COMMITTEE AND THE FEDERAL GOVERNMENT AFTER THE DEFENSE COUNSEL THREATENING THIS PLAINTIFF PRO SE WITH SANCTION[S] IN HIS ANSWER TO TRY TO INTIMIDATE HIM TO WITHDRAW[] HIS COMPLAINT, AND THEN REFUSING TO TAKE PHONE CALLS, REFUSING TO ANSWER INTERROGATORIES, AND REFUSING TO PRODUCE DOCUMENT[S].

Based upon our careful review of the record, we are satisfied that there is substantial credible evidence in the record to support the trial court's dismissal of plaintiff's complaint and we affirm substantially for the reasons expressed by the trial judge in his December 2, 2010 oral decision. We are constrained, however, to vacate the award of counsel fees as a sanction pursuant to Rule 1:4-8, primarily because the court revisited the issue of sanctions sua sponte without affording plaintiff an opportunity to be heard.

After the court denied the motion and cross-motions for sanctions sought pursuant to Rule 1:4-8 on September 27, the record does not reflect any subsequent motion by defendant seeking the court's reconsideration of the issue of sanctions.1 At the commencement of the trial on December 2, the trial transcript does not reflect an oral motion to revisit the issue. At the conclusion of the presentation of plaintiff's case, defense counsel did not seek a directed verdict or renew defendant's motion for the imposition of sanctions. Following the conclusion of all testimony, defense counsel did not formally move for the imposition of sanctions. Instead, the procedural posture of the case took an unusual turn.

Plaintiff asked the court whether he could say something "as a conclusion." The court responded "yes" and that "[n]ormally the defendant goes first, but I'm going to let him waive his argument. Go ahead." Plaintiff proceeded to address the court with a closing argument and, after addressing the merits of his claim, stated: "[T]here's one thing I want to say about the counsel's behavior." The following colloquy occurred:

THE COURT: You want to get into the behavior of counsel?

MR. FU: Yes.

THE COURT: We're going to get into your behavior, as well.

MR. FU: Well, but there was some extraordinary --

THE COURT: But, just stick with the case for now.

MR. FU: Stick with case, I'm done.

After earlier indicating that he was permitting defense counsel to waive closing argument, the court then inquired whether defense counsel wanted to make any statements. Defense counsel responded, "Yes[.]" Counsel addressed the fact that the case had "dragged on needlessly." Additionally, defense counsel stated that plaintiff then

proceeded pretty much from the beginning to harass and strong[-]arm the insurance company, the adjustor, myself as counsel, to pay his claim including filing several ethics --

. . . .

. . . complaints, reporting my client to the Department of Homeland Security, filing a complaint against the ethics secretary. I don't need to remind the [c]ourt of the plaintiff's burden in this matter. The fact that as defendants we have not produced TV footage or eye witnesses to an event that we claim . . . did not happen[,] that it is not the burden of the defense and we respect the [c]ourt's judgment on that.

The court then launched into its factual findings that included its specific findings relative to plaintiff's conduct during the course of the litigation. Apart from the fact that defense counsel never formally renewed defendant's motion for sanctions, when plaintiff attempted to raise the issue of defense counsel's conduct, the court cut plaintiff off, but then allowed defense counsel, whose closing the court had earlier permitted defense counsel to waive, to place on the record plaintiff's conduct, which defendant found objectionable.

Since plaintiff appeared to be inviting the court to revisit the issue of sanctions, when he sought to address defense counsel's behavior, the court should have afforded plaintiff an opportunity to respond to defense counsel's contentions. Moreover, there is nothing in the earlier order denying defendant's motion for the imposition of sanctions that placed the parties on notice the court was reserving decision on the matter to a later time. Nor do we find the language "SANCTIONS DENIED AT THIS TIME" as set forth in defendant's order helpful. This language is susceptible to at least two interpretations.

This language could be construed as meaning the court was reserving decision until a later time or that the court was of the view that none of the allegations set forth by defendant in support of its motion for sanctions were such that they warranted any relief at that time. In its oral decision on December 2, the court referenced the earlier motions for sanctions:

There were various motions filed by both sides for sanctions because of the way the case proceeded and because of the telephone and written communications primarily generated by Mr. Fu and to both . . . the attorney and to the client initially. On the 27th of September[, the court] dealt with the motions briefly because the [c]ourt . . . didn't feel it was appropriate to deal with sanctions at that particular time. Frankly, the [c]ourt just wants to deal with the facts of the case and ordered the parties not to have any additional communications with each other until the trial.

The record on appeal does not contain a transcript of the September 27 proceeding. Thus, we are unable to determine whether the parties were given oral notice that the court intended to revisit the issue of sanctions at the time of trial. Based upon the above statement by the court, it does appear that the court was poised to revisit the issue. While we find no abuse of the court's discretion in revisiting the issue at the time of trial, plaintiff was not afforded a fair opportunity to respond. Doe v. Portiz, 142 N.J. 1, 106 (1995) ("[D]ue process requires an opportunity to be heard at a meaningful time and in a meaningful manner."); Matter of Doe, 294 N.J. Super. 108, 122 (Law Div. 1996), aff'd, 302 N.J. Super. 255 (App. Div.), certif. denied, 151 N.J. 468 (1997), cert. denied, 523 U.S. 1096, 118 S. Ct. 1580, 140 L. Ed. 2d 795 (1998). Given the court's indulgence towards plaintiff during the course of the trial, we are certain the court's failure to afford plaintiff an opportunity to address defense counsel's behavior was inadvertent. Nonetheless, we are constrained to vacate the counsel fee award and remand for new proceedings on the question of sanctions. The proceedings should be held as to both parties since plaintiff attempted to address defense counsel's conduct during the course of the proceedings but was precipitously cut off.

Finally, because the trial judge made certain factual findings relative to the merits of the parties' request for sanctions, in fairness to the judge, a different judge should preside over the remand proceedings.

Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 We note that the order awarding counsel fees indicates that the matter was before the court on a "[m]otion pursuant to Rule 1:6-2" and the "Papers filed with the Court" section of the order has an "x" marked next to "Answering papers" and "Reply papers." There is no reference in defendant's brief to this motion. It is not our obligation to search the record in an attempt to find the documents that support the entry in the order. Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 474-75 (App. Div. 2008) (noting the obligation to direct the reviewing court to the specific parts of the record that support a particular argument), certif. denied, 197 N.J. 476 (2009).