S. HELEN S. ROKOS v. ELLIOT H. GOURVITZ, ESQ., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-0478-04T10478-04T1

A-1517-04T1

A-1537-04T1

A-3977-04T1

HELEN S. ROKOS,

Plaintiff-Respondent,

v.

ELLIOT H. GOURVITZ, ESQ.,

and ELLIOT H. GOURVITZ, P.A.,

Defendants-Appellants.

_________________________________________

 

Argued January 25, 2006 - Decided February 8, 2006

Before Judges Conley, Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, L-9539-00.

Elliot H. Gourvitz, appellant, argued the cause pro se.

Richard Wedinger argued the cause for respondent (Barry, McTiernan & Moore, attorneys; Mr. Wedinger and Diana LaPadula, on the brief).

PER CURIAM

In June 2002, plaintiff obtained a jury verdict against appellant in her Law Against Discrimination complaint. Pursuant thereto, a judgment was entered for $344,590, with interest. An additional judgment of $195,463.36 was entered for counsel fees. Appellant's appeal therefrom was unsuccessful. Plaintiff commenced efforts to obtain satisfaction of the judgment. In early 2004, appellant agreed, pursuant to a payment plan, to pay $350,000 in settlement of the judgment. He did not make the required payments and so plaintiff again commenced enforcement efforts, resulting in September 24, 2004, and October 26, 2004, orders for incarceration, an October 25, 2004, order awarding plaintiff counsel fees, and a February 28, 2005, order awarding plaintiff additional counsel fees. Appellant appeals these orders, along with an order of November 15, 2004, denying his motion to sanction plaintiff's attorney for violation of a confidentiality agreement.

In these consolidated appeals, appellant contends:

I. THE TRIAL COURT ABUSED ITS DISCRETION BY APPLYING RULE 1:10-3 TO INCARCERATE DEFENDANT IN A CIVIL ACTION.

II. COUNSEL FEES INCURRED BY PLAINTIFF'S ATTORNEYS WERE "FRUITS OF THE POISONOUS TREE," I.E., PLAINTIFF AND THE COURT MISAPPLIED RULE 1:10-3 AND, AS SUCH, BASED UPON THE MISAPPLICATION, THE COUNSEL FEE AWARD SHOULD BE REVERSED.

III. AS THE WITHIN MATTER IS NO LONGER AN L.A.D. CASE, AND FOR THE LAST TWO YEARS IT HAS BECOME A COLLECTION CASE, PLAINTIFF'S ATTORNEYS ARE NOT ENTITLED TO A COUNSEL FEE AWARD.

IV. THERE SHOULD BE NO AWARD OF COUNSEL FEES TO PLAINTIFF'S ATTORNEY SUBSEQUENT TO FAIR OFFER OF SETTLEMENT, WHICH PLAINTIFF REJECTED AND BASED UPON THE COURT'S INDICATION THAT IT WOULD BE RELUCTANT TO AWARD ANY COUNSEL FEES SUBSEQUENT TO SAID DATE.

V. THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SANCTION PLAINTIFF'S ATTORNEY'S VIOLATION OF THE CONFIDENTIALITY AGREEMENT OF THE COURT ORDERED SETTLEMENT.

We have considered these contentions in light of the record and applicable law. Of particular importance to us is the fact that appellant was never incarcerated and he has now paid his debt to plaintiff. Although he still has not paid the counsel fees, it was conceded by plaintiff's counsel during oral argument that the orders for incarceration are no longer effective and cannot be used in any further efforts to recoup the counsel fees. Point I, therefore, is moot. Point V is of insufficient merit to warrant an opinion. R. 2:11-3(e)(1)(E). And, as to points II, III and IV, we see no abuse of discretion in the award of counsel fees incurred in an effort to obtain enforcement of plaintiff's LAD judgments and the subsequent settlement thereof. Tanksley v. Cook, 360 N.J. Super. 63, 66 (App. Div. 2003).

 
Affirmed.

(continued)

(continued)

4

A-0478-04T1

February 8, 2006