RICHARD B. HUYKMAN v. RICHARD W. SACCO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2019-09T3

RICHARD B. HUYKMAN,

Plaintiff-Appellant,

v.

RICHARD W. SACCO and

GREGORY D. SACCO,

Defendants-Respondents.

____________________________________________

May 6, 2011

Submitted March 22, 2011 - Decided

Before Judges Wefing and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1621-07.

Richard B. Huykman, appellant pro se.

Respondents have not filed a brief.

PER CURIAM

Richard Huykman appeals from an order entered June 26, 2009 awarding sanctions against him for frivolous litigation and the order denying his motion to reconsider entered August 29, 2009. After reviewing the record in light of the contentions advanced on appeal, we reverse.

This matter has a convoluted factual and procedural history that has been set forth in detail in prior cases before this court. See Sacco v. Maziarz, No. A-1148-08 (App. Div. March 11, 2010)(slip op. at 2-7). For purposes of this decision we find the following relevant. In 1992 Huykman sued brothers Gregory Sacco and Richard W. Sacco on a claim relating to ownership of a race horse. When the Saccos declared bankruptcy in 1995, Huykman filed a claim in bankruptcy court to prevent discharge of his debt. John Maziarz, Esq., represented the Saccos during the adversarial proceedings. After Maziarz failed to file paperwork with the court in a timely manner, the bankruptcy court entered a judgment against the Saccos in favor of Huykman.

The Saccos then sued Maziarz for legal malpractice in state court in Middlesex County. Huykman contacted the Saccos and offered to assist them in their malpractice claim in exchange for their agreement to pay any money recovered to reduce Huykman s judgment against them. The Saccos agreed to this proposal.

In August 2002, the trial court granted Maziarz' motion to file a third-party complaint against Huykman, alleging his negligence had contributed to the Saccos' damages. During the July 2003 trial, Huykman consented to the Saccos' motion to make Huykman a direct defendant. The jury awarded the Saccos $438,732 in damages and found Maziarz three percent at fault and Huykman ninety-seven percent at fault. The trial court also awarded the Saccos attorney's fees, apportioned in the same manner.

Huykman appealed the final judgment. In 2006, we affirmed the final judgment in part, reversing only that portion of the trial court's order that assessed attorneys fees against Huykman. Sacco v. Maziarz, No. A-1847-03 (App. Div. Feb. 21, 2006)(slip op. at 26-28), cert. denied, 188 N.J. 217 (2006). We also denied his motion for reconsideration and post-judgment relief. The Supreme Court later denied his motion for certification and his motion for reconsideration. Ibid.

In 2007, Huykman filed the action under appeal in Morris County against the Saccos to collect a $23,500 loan used to finance the Middlesex case. In October 2007, the Saccos counterclaimed to collect attorneys fees they claimed Huykman had promised to pay for the malpractice litigation against Maziarz. In early 2008, the trial judge dismissed Huykman s complaint but allowed the counterclaim to proceed.1 In April 2008, Huykman filed what he called a "counterclaim" to the Sacco's counterclaim, asking the court to overturn the 2003 judgment against him and award him damages.

In July 2008, the judge dismissed Huykman's motion to file an amended complaint and denied his counterclaim. She also ordered him to cease attempting to relitigate the Middlesex case or face a sanction for bringing a frivolous suit.2 The judge repeatedly told Huykman that she could not be an appeals court for another trial court or for the Appellate Division.

At the August 29, 2008, hearing, apparently on a discovery motion3 by Huykman, the judge again warned Huykman that he was barred from continuing to ask the court to revisit the Middlesex case. Concerned that Huykman might not have fully comprehended her prior order prohibiting relitigating the Middlesex case, the judge denied the defense's motion for sanctions. She wrote on the August 29, 2008 order, in pertinent part:

[T]o be completely clear, if any action emanating from the Middlesex County action is brought in this court (Morris County), by way of complaint, motion or otherwise, Mr. Huykman will be sanctioned in the full amount of reasonable and necessary fees and costs incurred by his adversary in defending against such complaint, motion, etc."

In January 2009, Huykman filed a motion to dismiss the counterclaim due to failure to provide discovery and a motion to dismiss the counterclaim as being barred by the entire controversy doctrine and res judicata due to the prior verdict. The Saccos again moved for sanctions for Huykman's violation of the August 29, 2008 order. On June 26, 2009, the trial court heard the pending motions. The judge first denied his motion to dismiss due to failure to answer discovery, as most of the discovery originally requested had been provided. She did, however, order that depositions of the Sacco brothers be conducted by July 13, 2009.

Next, the judge refused to consider Huykman's motion to dismiss based upon the entire controversy doctrine and res judicata. She stated that the motion was identical to the motions that she had already dismissed in July and August, 2009. Huykman argued unsuccessfully that this motion was different than those he had filed previously. Finally, she ordered a sanction based upon Huykman's repeated and frivolous filings. Specifically, the judge ordered Huykman to pay attorney's fees for the Saccos attorney of $3,000 for ten hours of work at $300 per hour. On August 28, 2009, the judge denied Huykman's motion for reconsideration of the sanction.4 This appeal followed.

We must first comment on the lack of a full record before us.5 Plaintiff, as appellant, was required to comply with Rule 2:6-1(a) which requires the record on appeal to include the pleadings as well as other parts of the record essential to the consideration of the issues. In creating this record, plaintiff must include documents that the appellant reasonably should assume the respondent would rely on in meeting the issues raised. Ibid. Plaintiff s status as a pro se litigant does not relieve his obligation to comply with the court rules. Venner v. Allstate, 306 N.J. Super 106, 110 (App. Div. 1997).

Nevertheless, defendant, as respondent, has a similar obligation. Ibid. When an appellant has not complied with R. 2:6-1, a respondent is to include the parts of the record necessary to complete the record. R. 2:6-3. Ibid. The defendants here have neither completed the record nor filed a brief in opposition the Huykman s appeal.

We begin with the general principle that "each litigant bears his, her or its litigation costs even where there is litigation which is of marginal merit." Id. at 113. A claim or defense is frivolous only "when 'no rational argument can be advanced in its support, or it is not supported by any credible evidence, or it is completely untenable.'" First Atl. Fed. Credit Union v. Perez, 391 N.J. Super.419, 432 (App. Div. 2007) (quoting Fagas v. Scott, 251 N.J. Super. 169, 190 (Law Div. 1991)). When considering sanctions for frivolous litigation, a court must give a "'restrictive interpretation'" to the term "'frivolous'" in order to avoid limiting access to the court system. Id. at 433. (quoting McKeown Brand v. Trump Castle Hotel and Casino, 132 N.J 546, 561-62 (1993)); see also Trocki Plastic Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399, 406-407 (App. Div. 2001). Even the past filing of frivolous claims is not enough to bar filing of meritorious actions. Rosenblum v. Borough of Closter, 333 N.J. Super 385, 390 (App. Div. 2000).

Based upon the somewhat sparse record before us, we are unable to find that Huykman's motion ofJanuary 27,2009, amounted to frivolous litigation. Previously, Huykman had petitioned the court several times to overturn the trial and appellate decisions in the Middlesex case. Clearly, repeatedly filing motions to pursue "the same fruitless and groundless cause" would be frivolous. Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292, 310 (App. Div. 2010) (quoting Atkinson v. Pittsgrove Twp., 193 N.J. Super. 23, 30-32 (Ch. Div. 1983)).

We do not read the January 2009 motion at issue here, however, as an attempt to relitigate the Middlesex 2003 case. Rather, Huykman merely argued that its finality precluded the pending counterclaim. In contrast to Huykman's other filings, the most recent motion did not seek relief from the 2003 judgment or damages from the Saccos or ask the judge to overrule any other court. Thus, the elements that might have been frivolous in the other motions were not contained in the motion at issue.

Even if Huykman's motion did violate the order of August 29, 2008, we find that order was overly broad. We must take into account that the sole remaining claim in the case "emanated" from the Middlesex case. The issue in the counterclaim was whether Huykman had made an oral promise to pay the Saccos' attorneys fees for the Middlesex County 2003 suit. In this context, raising the existence of the final judgment as a defense in an action for attorneys fees does not appear to be so completely untenable or in bad faith that it could be deemed frivolous. We sympathize with the frustration of the motion judge, given that Huykman's pleadings and correspondence were voluminous, unfocused and repetitive. Nonetheless, an absolute bar on any pleading that emanated from the Middlesex 2003 litigation unnecessarily precluded Huykman from defending against the counterclaim. As we find that the motion at issue was not frivolous, we vacate the attorney's fees award and judgment.

R

1 Neither the complaint nor the order dismissing the complaint is contained in the record.

2 In July 2008, Huykman filed a motion in Middlesex County to set aside or amend the 2003 judgment. In September 2008 the Middlesex County trial court dismissed the matter. We affirmed the dismissal. Sacco v. Maziarz, No. A-1148-08 (App. Div. March 11, 2010).

3 This motion is not contained in the record.

4. On September 4, 2009, the counterclaim against Huykman was dismissed at the close of the Saccos' case.

5 Among the documents missing in the record is the motion for the imposition of sanctions for the frivolous suit, which resulted in this attorneys fee sanction; the July 3, 2008 order threatening sanctions; and the motion that resulted in the August 28, 2008 order that prohibited Huykman from filing any further pleadings emanating from the Middlesex County suit.