LISA VAN HORN v. HARMONY SAND & GRAVEL, INC

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4298-15T1

LISA VAN HORN,

        Plaintiff-Appellant,

v.

HARMONY SAND & GRAVEL, INC.,

     Defendant-Respondent.
_______________________________

              Submitted October 10, 2017 – Decided November 8, 2017

              Before Judges Messano and Accurso.

              On appeal from Superior Court of New Jersey,
              Law Division, Warren County, Docket No.
              L-0288-12.

              Spector Gadon & Rosen, PC, attorneys for
              appellant (Randi A. Wolf, on the briefs).

              Winegar, Wilhelm, Glynn & Roemersma, PC,
              attorneys for respondent (Scott M. Wilhelm,
              of counsel and on the brief; Jennifer L.
              Toth, on the brief).

PER CURIAM

        Plaintiff Lisa Van Horn appeals from an award of sanctions

in favor of defendant Harmony Sand & Gravel, Inc. pursuant to R.
1:4-8.   Because Harmony's motion for sanctions failed to comply

with the rule's mandatory requirements, we reverse.

    By way of brief background, Van Horn sued Harmony in 2012,

seeking to terminate a putative lease agreement between her late

father and Harmony and to eject Harmony from the property she

had inherited from him.   The trial court dismissed the action,

finding a valid lease permitting Harmony exclusive possession of

the property until its default, or the depletion of soil and

aggregates made its continued quarrying commercially

unreasonable.

    We affirmed the judgment in a published opinion, but for

reasons different than those expressed by the trial court.      Van

Horn v. Harmony Sand & Gravel, Inc., 
442 N.J. Super. 342, 336

(App. Div. 2015).   Analyzing the agreement, we noted it "did not

explicitly state that Harmony had exclusive possession of the

property, which is the cornerstone of any lease agreement.

Rather, the agreement permitted [Van Horn's father] to interfere

with Harmony's possession of the land so long as he did not

interfere with [its] mining operation."      Id. at 333 (citation

omitted).   Accordingly, we held the agreement was not a lease

but a profit, which conveyed to Harmony the right to extract

materials from the property but did not give it exclusive right

of possession as would a lease.       Id. at 345.

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    Some months after our opinion, Van Horn made a motion in

the trial court in aid of litigant's rights claiming Harmony had

erected fencing around the property and locked gates that

prevented her access to a house on the property, which she

wished to renovate and rent out.      Contending she had no

intention of interfering with Harmony's quarrying activities,

Van Horn sought an order "enforcing the terms of the Appellate

Division's opinion in this case," and directing Harmony to

provide her keys to the gates and cease interfering with her

possessory rights in the property.

    Harmony filed a cross-motion to dismiss Van Horn's motion

as moot and "assessing counsel fees in its favor."      Harmony

claimed the trial court lacked jurisdiction as the order

dismissing Van Horn's complaint was affirmed and "no judgment

was entered in Plaintiff's favor."     Asserting Harmony should be

reimbursed for its fees for having to respond to a motion the

court had no jurisdiction to hear, Harmony's counsel sought

"permission to submit an Affidavit of Services upon my

compliance with the Rules of Court which require me to provide

notice to Plaintiff's counsel."

    The court heard brief argument on the motions and concluded

the "Appellate Division decision . . . affirmed the affirmative

dismissal of the original complaint and reserved no rights to

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enforce under that agreement . . . . There's no order for me to

enforce."     The court advised Harmony's counsel it would

"entertain an application for fees."    The court thereafter

entered an order dismissing Van Horn's motion with prejudice and

providing that Harmony's cross-motion "for counsel fees is

provisionally granted."     Counsel submitted its certification

seeking $3020 in fees and costs, which the court granted in an

order of April 5, 2016, making Van Horn and her counsel "jointly

and severally liable" for payment.

    Van Horn moved for reconsideration, seeking vacation of the

order for fees.     The court denied the motion.   In an attached

statement of reasons, the court explained that it found Van

Horn's motion "to enforce rights that had not been granted by

any order of judgment . . . . not only without merit, but

frivolous."    As to Harmony's cross-motion for R. 1:4-8

sanctions, the court stated:

            Although defendant did not make a formal
            demand to withdraw the motion and provide
            for the option of an adjournment, defendant
            filed its cross-motion for counsel fees on
            February 1, 2016, thereby providing
            plaintiff with notice of the intent to seek
            counsel fees. As the pre-motion notice was
            not formally provided, no certification
            could be provided in accordance with the
            rule. Oral arguments were then held on
            March 2, 2016. Hence, plaintiff had 30 days
            to withdraw its motion and avoid the
            potential sanction. Though the formal

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          procedural requirements of R. 1:4-8(b)(1)
          were not strictly followed, the purpose of
          the rule was achieved. Pursuant to R. 1:1-
          2(a), "[u]nless otherwise stated, any rule
          may be relaxed or dispensed with by the
          court in which the action is pending if
          adherence to it would result in an
          injustice."

    We think it apparent that the order for sanctions under R.

1:4-8 cannot stand.     First, it assessed fees against Van Horn, a

represented party, for the filing of a frivolous motion.     See

Toll Bros., Inc. v. Twp. of W. Windsor, 
190 N.J. 61, 64 (2007)

(explaining the interplay between R. 1:4-8 and 
N.J.S.A. 2A:15-

59.1 when an application for sanctions is directed against a

represented party).     Although R. 1:4-8(f) provides that the

rule's procedures shall apply "to the extent practicable," to

the assertion of costs and fees against a represented party

pursuant to 
N.J.S.A. 2A:15-59.1, the Frivolous Litigation

Statute, the Supreme Court has held that statute expressly does

not apply to motions.     See Lewis v. Lewis, 
132 N.J. 541, 545

(1993).   Accordingly, there was no basis for an award against

Van Horn for the filing of the motion in aid of litigant's

rights.

    Second, imposition of sanctions against an attorney under

the rule requires strict compliance with its procedures.     See

LoBiondo v. Schwartz, 
199 N.J. 62, 99 (2009); Trocki Plastic


                                  5                         A-4298-15T1
Surgery Ctr. v. Bartkowski, 
344 N.J. Super. 399, 407 (App. Div.

2001), certif. denied, 
171 N.J. 338 (2002).   The only exception

is in circumstances in which the notice required by the rule

would deprive the party seeking sanctions of any effective

remedy.   See ASHI-GTO Assocs. v. Irvington Pediatrics, P.A., 
414 N.J. Super. 351, 364 (App. Div.) (counsel's inflammatory opening

statement at trial could support award under R. 1:4-8, although

timing would preclude 28-day safe harbor notice required),

certif. denied, 
205 N.J. 96 (2010).

    As the Supreme Court explained in Toll Brothers, a litigant

seeking sanctions under the rule is required to file a separate

motion describing the specific conduct the litigant alleges to

be in violation, which must be proceeded by a written safe

harbor notice.   
190 N.J. at 69; R. 1:4-8(b)(1).   The safe harbor

notice "serves as a warning that the litigant will apply for

sanctions 'if the offending paper is not withdrawn within 28

days of service of the written demand.'"   Toll Bros., supra, 
190 N.J. at 69 (quoting R. 1:4-8(b)(1)).   The motion for sanctions

must include a certification attesting to service of the safe

harbor notice.   Ibid.

    None of those procedural requirements were met here.     Van

Horn and her counsel's first notice that harmony intended to

seek sanctions under R. 1:4-8 for the motion in aid of

                                6                          A-4298-15T1
litigant's rights was Harmony's cross-motion to dismiss and for

attorney's fees.     Harmony made no explanation for its failure to

comply with the rule, and the record reveals none.    Harmony's

failure to comply with any of the rule's detailed requirements

should have been fatal to its application for sanctions against

Van Horn's counsel.     See Trocki, supra, 
344 N.J. Super. at 406-

07.   That the motions were carried for a month does not cure the

deficiencies.     Resort to R. 1:1-2(a) in these circumstances

undermines the salutary purposes of the safe harbor notice.

Given the plain terms of the rule and its consistent

interpretation over many years, Van Horn and her counsel could

not fairly expect to either withdraw their motion or be

sanctioned on the return date.     The court's imposition of

sanctions under these circumstances was thus a misapplication of

its discretion.     See Ferolito v. Park Hill Ass'n, 
408 N.J.

Super. 401, 407 (App. Div.), certif. denied, 
200 N.J. 502

(2009).

      Reversed.




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