RONALD L. FULTON v. SUNHILLO CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RONALD L. FULTON,

Plaintiff-Appellant/

Cross-Respondent,

v.

SUNHILLO CORPORATION,

Defendant-Respondent/

Cross-Appellant.

Argued April 22, 2015 Decided July 20, 2015

Before Judges Alvarez, Waugh, and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5310-09.

Ronald Fulton, appellant/cross-respondent, argued the cause pro se.

Douglas Diaz argued the cause for respondent/cross-appellant(Archer & Greiner, attorneys; Peter L. Frattarelli and Mr. Diaz, on the briefs).

PER CURIAM

Plaintiff Robert Fulton appeals the March 18, 2014 Law Division order awarding defendant Sunhillo Corporation $191,652.44 in counsel fees pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1, and Rule 1:48. After our review of the record and the relevant precedent, we affirm based on Judge Richard F. Wells's thorough and cogent thirty-two-page written opinion. We remand for the judge to render a decision regarding fees incurred on appeal.

A brief background discussion is warranted. When we affirmed the Law Division judge's award of summary judgment to Sunhillo, we also remanded the matter for reconsideration of Sunhillo's demand for counsel fees. Fulton v. Sunhillo Corp., No. A-2021-11 (App. Div. Nov. 18, 2013) (slip op. at 26). As a result, Judge Wells conducted an evidentiary hearing, at which Fulton was self-represented as he has been throughout. The judge carefully enumerated those expenses incurred between April 20, 2010, after Sunhillo sent Fulton the requisite Rule 1:4-8 notice, and December 28, 2011, when the matter ended in the Law Division. Judge Wells deleted all fees related to Sunhillo's counterclaim.

Since he was uncertain whether he had authority to do so, Judge Wells did not award attorney's fees and costs for the appeal. Sunhillo has therefore taken a cross-appeal of the judge's denial of its claims for reimbursement of those expenses. Thus this remand to the trial court includes not only the legal fees Sunhillo incurred on the original appeal regarding the award of summary judgment, but any claim that Sunhillo may file for payment of legal fees for this appeal.

Judge Wells's decision was premised on his close examination of Fulton's baseless claims and misrepresentations. He noted, for example, plaintiff's admission at deposition that he had no facts supporting his allegation that the company breached the implied covenant of good faith and fair dealing. The judge also found that Fulton made misrepresentations, for example, by initially failing to acknowledge that his employment with Sunhillo was "at will." As the judge said

it is this court's conclusion of law that Fulton's continued prosecution of his lawsuit against Sunhillo was frivolous. This court finds that Fulton knew, or should have known, that his [c]omplaint ultimately was without any reasonable basis in law or equity and could not have been supported by a good faith argument for an extension, modification[,] or reversal of existing law. In arriving at this assessment, the court has focused on Fulton's actions from an objective viewpoint. Based on the above findings of fact, it is the court's conclusion that Fulton continued the prosecution of his lawsuit against Sunhillo under circumstances where he knew there was absolutely no evidence supporting his claims. This court further concludes that an objective view of Fulton's conduct during the litigation reveals evidence of harassing, if not outright extortive[,] motivation.

The judge observed that there was no relationship between Fulton's $5,000,000 settlement demand and any actual damages. Fulton's only purpose in pursuing the litigation was to harass and cause financial harm to Sunhillo.

The judge also determined that Sunhillo's counsel's hourly rates and litigation costs were reasonable and necessary. In setting the lodestar, he allowed fees only at the rate charged by the firm at the inception of the litigation, not its later, higher rate.

On appeal, Fulton raises the following points for our consideration

A. Standards of Review

B. CEPA and Non-CEPA Claims

C. Legal, Procedural and Due Process Errors

1. THE PLAINTIFF'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT FAILED TO ENFORCE THE RULES GOVERNING THE COURTS' CODE OF JUDICIAL CONDUCT UPON A SUPERIOR COURT TRIAL JUDGE WHO COMMITTED PLAIN ERROR BY NOT RECUSING HIMSELF SUA SPONTE FROM HEARING A MATTER INVOLVING A PRO SE PLAINTIFF WHO WAS LITIGATING AGAINST THE LAW FIRM PLANNING TO EMPLOY THE JUDGE'S CURRENT CLERK.

2. THE PLAINTIFF'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION WAS VIOLATED WHEN THE COURT FAILED TO ENFORCE THE RULES GOVERNING THE COURTS' CODE OF JUDICIAL CONDUCT UPON A SUPERIOR COURT APPELLATE JUDGE WHO COMMITTED PLAIN ERROR BY NOT RECUSING HIMSELF SUA SPONTE FROM DECIDING A MATTER INVOLVING A PRO SE PLAINTIFF WHO HE PREVIOUSLY RULED AGAINST IN ANOTHER LAWSUIT WHILE HE WAS A MIDDLESEX COUNTY SUPERIOR COURT JUDGE.

3. THE PLAINTIFF'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT FAILED TO ENFORCE THE RULES GOVERNING THE COURTS' CODE OF JUDICIAL CONDUCT UPON A SUPERIOR COURT TRIAL JUDGE WHO COMMITTED PLAIN ERROR BY NOT RECUSING HIMSELF SUA SPONTE FROM HEARING A REMANDED MATTER INVOLVING A PRO SE PLAINTIFF WHO WAS LITIGATING AGAINST THE LAW FIRM WHERE THE CLERK WAS ACTIVELY UNDER THE AUSPICES OF THE JUDGE DURING THE TRIAL PERIOD AND BECAME EMPLOYED BY THAT SAME LAW FIRM DIRECTLY AFTER SUMMARY JUDGMENT OF THE PLAINTIFF'S CASE.

4. THE PLAINTIFF'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT FAILED TO ENFORCE THE RULES GOVERNING THE COURTS' CODE OF JUDICIAL CONDUCT UPON A SUPERIOR COURT TRIAL JUDGE WHO COMMITTED PLAIN ERROR BY NOT RECUSING HIMSELF SUA SPONTE FROM HEARING A MATTER INVOLVING A PRO SE PLAINTIFF AFTER HE LOST ALL IMPARTIALITY.

D. Conflicts of Interest and Unequal Access to the Court

1. THE TRIAL COURT ERRED AND CREATED CONFLICTS OF INTEREST THAT HAVE RENDERED THIS CASE IMPROPER, UNFAIR AND A MISCARRIAGE OF JUSTICE.

E. Voluntary Dismissal of Counterclaim and Imposition of Fees

1. THE TRIAL COURT ERRED AND WAS EXCESSIVELY HARSH IN EVALUATING AND IMPOSING PROPER ATTORNEY FEES AND COSTS.

F. Abuse of Power and Abuse of Discretion

1. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION AND POWER IN GRANTING SUMMARY JUDGMENT AND THEN AWARDING ATTORNEY LITIGATION COSTS AND FEES AFTER ORIGINALLY DENYING THE SAME.

G. Imbalance of Treatment and Harassing Behavior by Defendants

H. Judicial Misconduct

1. THE TRIAL COURT AND APPELLATE DIVISION HAVE CREATED LEGAL ERROR AND CONDUCTED JUDICIAL MISCONDUCT THAT HAS JEOPARDIZED THE INTEGRITY OF THE NEW JERSEY COURT SYSTEM.

I. Former Law Suits Self-Represented as a Pro Se Litigant

A number of these points rely upon arguments challenging the merits of our original decision affirming summary judgment. We do not entertain those arguments, as Fulton's opportunity to raise them has expired. See R. 2:2-3.

As to the fee award, Fulton essentially contends that the outcome was dictated by improprieties, judicial bias, and judicial misconduct at both the trial and appellate levels. When Judge Wells asked Fulton for factual support for these claims, none was forthcoming. Indeed, Fulton's response was that to disclose this would reveal his appellate strategy to his opponent.

We review an award of frivolous litigation fees for abuse of discretion. Ferolito v. Park Hill Ass'n, 408 N.J. Super.401, 407 (App. Div.), certif. denied, 200 N.J.502 (2009). No such abuse occurred here. The judge clearly explained his decision, drawing upon factual findings supported by the record.

Moreover, we conclude that, under Rule2:11-4, Sunhillo is also entitled to counsel fees for both appeals. Pursuant to the rule, we may in our discretion refer the issue to the trial court. Seeibid. We do so, anticipating that the calculation of fees for both appeals may require additional paper submissions, and, at the trial court's sole discretion, an evidentiary hearing.

Affirmed, except that we remand to the trial court for disposition the final issue of appellate fees payable by Fulton to Sunhillo under the Frivolous Litigation Statute.