BROOKS SLOATE TERRACE COOPERATIVE ASSOCIATION, INC v. LADORA GRIFFIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2033-10T1

BROOKS SLOATE TERRACE

COOPERATIVE ASSOCIATION, INC.,

Plaintiff-Respondent,

v.

LADORA GRIFFIN,

Defendant-Appellant.

________________________________________________

February 14, 2012

Submitted October 5, 2011 - Decided

Before Judges Cuff and St. John.

On appeal from Superior Court of New Jersey, LawDivision, PassaicCounty, DocketNo. L-2458-09.

Theodore E. Kyles, Jr., attorney for appellant.

Piekarsky & Associates, L.L.C., attorneys for respondent (Scott B. Piekarsky, of counsel and on the brief; Domenica D. Hart, on the brief).

PER CURIAM

Defendant LaDora Griffin appeals an order dated December 6, 2010, denying her motion for an award of attorney's fees pursuant to Rule 1:4-8, based on an allegedly frivolous complaint filed against her by plaintiff, Brooks Sloate Terrace Cooperative Association, Inc.

On June 4, 2009, plaintiff filed a complaint against defendant, seeking a declaratory judgment that defendant violated plaintiff's housing cooperative rules prohibiting offensive conduct, which, if successful, could result in an eviction order against defendant.

On September 30, 2009, defendant answered the complaint, denying all of plaintiff's allegations, and counterclaimed that plaintiff breached its proprietary lease agreement with her. On October 20, 2009, plaintiff requested, by letter, that defendant withdraw her counterclaim, pursuant to Rule 1:4-8, as the counterclaim was frivolous. On October 26, 2009, defendant mailed an almost identical letter to plaintiff, requesting a withdrawal of the complaint, claiming it was also frivolous. Neither was withdrawn.

On December 2, 2009, plaintiff responded to defendant's first set of interrogatories. Defendant subsequently filed a motion to dismiss for failure to make discovery pursuant to Rule 4:23, on the ground that plaintiff failed to provide adequate discovery materials sufficient to support its complaint. The motion judge heard oral arguments on January 22, 2010, and denied defendant's motion to dismiss. However, plaintiff subsequently agreed to supply defendant with additional discovery listed on a rider attached to the court's order. On January 27 and February 5, 2010, plaintiff provided defendant with the supplemental discovery.

Plaintiff filed a motion for partial summary judgment on defendant's counterclaim. Defendant then filed a motion for summary judgment on plaintiff's complaint. On September 16, 2010, the motion judge heard oral arguments and granted defendant's motion for summary judgment. On September 27, 2010, the motion judge again heard oral arguments and granted plaintiff's motion for summary judgment on defendant's counterclaims.

On October 15, 2010, defendant filed a notice of motion seeking an award of attorney's fees pursuant to Rule 1:4-8 and Rule 4:23-2. On November 22, 2010, plaintiff opposed the motion, denying any frivolous litigation. On November 26, 2010, defendant submitted a letter brief in support of her motion for attorney's fees sanctions, and on November 29, 2010, defendant submitted a reply to plaintiff's brief opposing the motion.1

On December 6, 2010, the court heard oral arguments on defendant's motion for attorney's fees sanctions. On that same day, the court entered an order denying defendant's motion.

Defendant timely filed a notice of appeal on December 29, 2010. In her appeal, defendant argues the motion judge failed to consider the motion for sanctions under Rule 1:4-8, and only addressed Rule 4:23-2.

To the extent that the trial court's decision implicates legal principles, we independently evaluate those legal assessments de novo. See Finderne Mgmt. Co. v. Barrett, 402 N.J. Super. 546, 573 (App. Div. 2008) ("[W]e do not owe any special deference to a trial court's legal conclusion[.]"), certif. denied, 199 N.J. 542 (2009).

Our review of the motion judge's decision is limited to determining whether the award or denial of such sanctions constituted an abuse of discretion. Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 407 (App. Div.), certif. denied, 200 N.J. 502 (2009). "Reversal is warranted when '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. (quoting Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)).

Rule 4:23-2 primarily involves violations of court ordered discovery. Defendant's argument, although allegedly grounded in a frivolous litigation claim, is functionally a claim rooted in defendant's dissatisfaction with plaintiff's production of discovery. Therefore, the motion judge did not abuse his discretion in determining that attorney's fees were not available to defendant because her claims were "exclusively" contesting the quality of discovery, instead of alleging that plaintiff's attorney filed a complaint "to harass or to cause unnecessary delay or needless increase in the cost of litigation." R. 1:4-8. We discern no abuse of discretion by the motion judge in denying sanctions under Rule 4:23-2, and affirm that determination.

We now address the defendant's contention that the motion judge erred by not awarding sanctions under Rule 1:4-8. The standard for assessing fees against counsel focuses on counsel's presumed knowledge of the legal weight of the proofs. Rule 1:4-8 provides for an award of attorneys' fees and litigation costs to a prevailing party as a sanction against a non-prevailing party's attorney, as follows (in relevant part):

(a) Effect of Signing, Filing or Advocating a Paper. The signature of an attorney . . . constitutes a certificate that the signatory has read the pleading, written motion or other paper. By signing, filing or advocating a pleading, written motion, or other paper, an attorney . . . certifies that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) the paper is not being presented for any improper purpose, such as to harass, or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims . . . and other legal contentions therein 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;

(3) the factual allegations have evidentiary support or, as to specifically identified allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support;

. . .

(d) Order for Sanctions. A sanction imposed for violation of paragraph (a) of this rule shall be limited to a sum sufficient to deter repetition of such conduct. The sanction may consist of (1) an order to pay a penalty into court, or (2) an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation, or both. Among the factors to be considered by the court in imposing a sanction under (2) is the timeliness of the movant's filing of the motion therefor. In the order imposing sanctions, the court shall describe the conduct determined to be a violation of this rule and explain the basis for the sanction imposed.

Defendant's motion was grounded in both Rule 1:4-8 and Rule 4:23-2, and her letter brief specifically requested relief pursuant to both rules. In addressing defendant's motion for fees and costs pursuant to Rule 1:4-8 and Rule 4:23-2, the motion judge did not address the facts or conclusions of law applicable to a request for sanctions under Rule 1:4-8.

For all motions "decided by a written order that [are] appealable as of right," the court must "by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon[.]" R. 1:7-4(a). See also Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (discussing the importance of this function). More specifically, a court imposing frivolous litigation sanctions must "describe the conduct determined to be a violation of [the] rule and explain the basis for the sanction imposed." R. 1:4-8(d). See also Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 543-44 (App. Div. 2009), certif. denied, 203 N.J. 93 (2010). Similarly, a court rejecting sanctions for frivolous litigation must also explain the decision. The motion judge failed to make the necessary findings with regard to defendant's Rule 1:4-8 motion.

For that reason, we reverse and remand the denial of defendant's Rule 1:4-8 motion to the motion judge for a decision in compliance with Rule 1:7-4(a).

Affirmed in part; reversed in part; and remanded.

1 One of the parties may have mistyped a date since it appears defendant submitted her brief in support of her motion after plaintiff submitted its brief opposing the motion. Defendant then submitted her reply brief three days later.