WILLIAM C. ILER v. BOROUGH OF ATLANTIC HIGHLANDS

NOT FOR PUBLICATION WITHOUT THE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-4382-15T3

WILLIAM C. ILER,

        Plaintiff-Appellant,

v.

BOROUGH OF ATLANTIC HIGHLANDS,
THOMAS AMBROSOLE, and STEVEN
LEWINSON,

     Defendants-Respondents.
_____________________________

              Argued November 14, 2017 – Decided December 28, 2017

              Before Judges Gilson and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Docket No. L-
              0640-15.

              Larry S. Loigman           argued    the    cause    for
              appellant.

              Bernard M. Reilly argued the cause for
              respondent Borough of Atlantic Highlands.

              Barbara K. Lewinson         argued the cause for
              respondents Thomas          Ambrosole and Steven
              Lewinson (Barbara K.         Lewinson, of counsel;
              Jeffrey Zajac, on the       brief).

PER CURIAM
     Plaintiff William C. Iler appeals from orders dated February

14, 2014, January 6, 2015, January 4, 2016, March 4, 2016, and May

13, 2016, which dismissed his complaint, granted partial summary

judgment to defendant-counterclaimant the Borough of Atlantic

Highlands     (Borough),     allowed    the   individual   defendants-

counterclaimants Thomas Ambrosole and Steven Lewinson (individual

defendants) to dismiss their counterclaims, and awarded defendants

attorney's fees and costs.     We affirm all the orders and the final

judgment.

                                   I.

     Plaintiff owned two acres of property in the Borough that he

used as a residence.       In 2002, he sold one acre of the property

to the Borough for $88,000 to be used for passive public recreation

and open space.    Specifically, the deed stated:

            [The] Property herein shall be utilized for
            passive recreational or woodland preservation
            activity (including but not limited to walking
            trails, scenic overlook, small children's play
            area or related structures for such use and
            small parking area related to such use in
            accord and as limited by State of New Jersey
            Green Acres Regulations.

The deed also granted enforcement rights to plaintiff, as the

grantor, or his successors in title to the remainder of the

property that contained the residence.




                                    2                          A-4382-15T3
     The parcel of land sold to the Borough is wooded and sloped.

In 2013, the individual defendants, who own property near the

parcel, approached the Borough and proposed to retain a landscaping

contractor,   Chestnut   Arboricultural   &   Forestry    Services,    LLC

(Chestnut), to remove unsustainable vegetation and trees and to

install native plants.     The individual defendants believed that

the parcel had become overgrown and they proposed, at their own

expense, to contract with Chestnut to thin, prune, and plant native

plants on the parcel.    On October 9, 2013, the Borough adopted a

resolution authorizing the agreement under which Chestnut would

remove and replace invasive plants with non-invasive plants.

     Shortly thereafter, plaintiff, who is an attorney, filed a

self-represented complaint seeking to enjoin the Chestnut plan and

claiming   damages   against   the    Borough    and     the   individual

defendants.   Plaintiff also sought preliminary injunctive relief.

The court denied the request for a preliminary injunction, noting

that plaintiff had not demonstrated a likelihood of success on the

merits.

     Thereafter, the Borough and the individual defendants sent

plaintiff letters informing plaintiff of their position that his

complaint was frivolous and filed in bad faith, and that they

would be seeking reimbursement of attorney's fees in accordance

with 
N.J.S.A. 2A:15-59.1 and Rule 1:4-8.        When plaintiff refused

                                  3                               A-4382-15T3
to dismiss his complaint, the Borough and the individual defendants

filed answers and counterclaims.         In the Borough's counterclaim,

it   contended   that   plaintiff   trespassed    upon   the    property    by

building a stone wall and patio that extended from his property

sixteen-and-one-half feet onto the Borough's property.

      In December 2013, the Borough and the individual defendants

filed a motion seeking to dismiss plaintiff's complaint.                   The

court heard oral argument, found that there were no genuine issues

of material fact, and concluded that the 2002 deed restriction did

not preclude the Borough from thinning, pruning, and planting

native plants on the Borough's property.          Thus, on February 14,

2014, the court granted the motion and dismissed plaintiff's

complaint with prejudice.

      Thereafter, the Borough proceeded with its counterclaim for

trespass against plaintiff.     The Borough hired a land surveyor to

conduct a survey and prepare a report.           That report showed that

plaintiff's wall and patio extended sixteen-and-one-half feet onto

the Borough's property.     Relying on that survey, the Borough moved

for partial summary judgment on its trespass claim.            Plaintiff did

not present any evidence to dispute that his wall and patio

extended onto the Borough's property and, accordingly, the court

granted the motion in an order dated January 6, 2015.



                                     4                               A-4382-15T3
     In August 2015, plaintiff sold his property.             Thereafter, the

new owner removed the existing structures from the Borough's

property and restored it to its natural condition.

     The Borough, therefore, waived its damages claim related to

the trespass, preserving only its right to file for reimbursement

of attorney's fees and costs.              The individual defendants also

waived their counterclaims.         Over plaintiff's objection, the trial

court entered a final order memorializing the withdrawal of the

counterclaims on January 4, 2016.

     Subsequently, all parties filed motions for attorney's fees

and costs. The trial court granted attorney's fees to the Borough,

denied   fees   to     plaintiff,   and    initially     denied   fees   to    the

individual defendants.         The court memorialized that decision in

an order entered on March 4, 2016.          The fees awarded to the Borough

were $10,412.50.

     The individual defendants made a motion for reconsideration

on the fee issue and, after further argument, the court granted

reconsideration and, in an order dated May 13, 2016, awarded the

individual defendants $2,671 for attorney's fees.                 On June 19,

2016, plaintiff filed a notice of appeal.

                                      II.

     On appeal, plaintiff makes three arguments: (1) his complaint

should   not    have    been   dismissed;    (2)   the    counterclaims       were

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frivolous and not supported by adequate facts; and (3) attorney's

fees should not have been awarded to the Borough and the individual

defendants. These arguments lack merit and, accordingly, we reject

them and affirm.

     Having sold his property, plaintiff now lacks standing to

pursue his complaint. A party must have a justiciable controversy

and standing to sue.       O'Shea v. N.J. Schs. Constr. Corp., 
388 N.J.

Super. 312, 317-18 (App. Div. 2006).                "Standing may be found as

long as the parties seeking relief have a sufficient personal

stake in the controversy to assure adverseness and the controversy

is   capable    of   resolution      by       the   courts."        Id.     at    318.

     Here,     plaintiff    lacks   standing        to    pursue   his    complaint.

Plaintiff's     complaint    was    dependent       on    his   ownership    of   the

property adjacent to the parcel that was sold to the Borough.                       In

accordance with the deed, the owner of the property was the

grantor.     The deed allowed the owner of the property to enforce

the restrictions in the deed.             The deed also provided, however,

that the rights of the grantor remained with the property and "his

successors in title to" the remainder of the property.                    Thus, when

plaintiff sold the property in 2015, he no longer had a right to

enforce the restrictions in the deed.                    We note, moreover, that

were the issue still germane, the trial court correctly interpreted



                                          6                                  A-4382-15T3
the deed, which does not restrict the activities under the Chestnut

plan.

      There are two flaws in plaintiff's argument concerning the

dismissal of the counterclaims.        First, the trespass claim is now

moot.   If the disputed issue has been resolved, the claim is moot,

and thus non-justiciable.       Advance Elec. Co., Inc. v. Montgomery

Twp. Bd. of Educ., 
351 N.J. Super. 160, 166 (App. Div. 2002).               The

claim is moot if a judgment cannot grant effective relief, or if

no concrete adversity exists between the parties.           Ibid.   A court

should not hear a case regarding a moot claim.              Here, the new

owner removed the wall and patio and restored the property to its

natural condition.     Thus, because the Borough is no longer seeking

damages, the trespass claim is moot.

      Second, both the Borough and the individual defendants had

the right to withdraw their counterclaims.           Conversely, plaintiff

did   not   have   a   right   to   prevent   the    withdrawal   of     those

counterclaims.     On appeal, plaintiff argues that the counterclaims

were frivolous and, therefore, should have been dismissed.              To the

extent that plaintiff is seeking a ruling on the nature of those

claims, just so they can thereafter be dismissed, that argument

does not merit discussion in an opinion.            Accordingly, we reject

it without further discussion.        R. 2:11-3(e)(1)(E).



                                      7                                A-4382-15T3
       Finally, we turn to plaintiff's arguments concerning the
                                 1
award of attorney's fees.              We review an award of attorney's fees

for abuse of discretion.             Noren v. Heartland Payment Sys., Inc.,


448 N.J.   Super.   486,    497      (App.    Div.   2017).       Determinations

regarding attorney's fees will be disturbed "only on the rarest

of    occasions,    and   then       only   because    of    a    clear     abuse    of

discretion."       Litton Indus., Inc. v. IMO Indus., Inc., 
200 N.J.
 372, 386 (2009) (quoting Packard-Bamberger & Co. v. Collier, 
167 N.J. 427, 444 (2001)).

       New Jersey follows the American Rule that provides that a

prevailing party is only entitled to attorney's fees if it is

authorized by the party's contract, court rule, or statute. Litton

Indus., 
200 N.J. at 385, 404 (quoting Packard-Bamberger, 
167 N.J.

at 444).     New   Jersey's   frivolous         litigation       statute,   
N.J.S.A.

2A:15-59.1, seeks to deter frivolous litigation and compensate the

party that was adversely affected by a frivolous suit.                      See Toll

Bros., Inc. v. Twp. of W. Windsor, 
190 N.J. 61, 67 (2007).                        "The

statute permits a court to award reasonable counsel fees and

litigation costs to a prevailing party in a civil action if the

court determines that 'a complaint . . . of the nonprevailing



1
  While plaintiff lacks standing to pursue his complaint on the
merits, he can defend against the attorney's fees awards, which
were premised on his complaint being frivolous.

                                            8                                 A-4382-15T3
person     was     frivolous.'"        Ibid.   (quoting        
N.J.S.A.     2A:15-

59.1(a)(1)).       A complaint is frivolous if it was "commenced, used

or continued in bad faith, solely for the purpose of harassment,

delay or malicious injury[,]" or if "[t]he non-prevailing party

knew, or should have known, that the complaint . . . was without

any reasonable basis in law or equity . . . ."                  
N.J.S.A. 2A:15-

59.1(b)(1) to (2).

     Rule 1:4-8 allows a party to seek sanctions against an

attorney or self-represented party who files a frivolous claim,

motion, or other paper.         See Toll Bros., 
190 N.J. at 69.              Prior

to filing a motion for reimbursement for attorney's fees, the

prevailing party must provide the attorney or self-represented

litigant    with    written   notice    that   the     party    will   apply    for

sanctions    unless    the    frivolous     pleading    is     withdrawn    within

twenty-eight days. Ibid. Motions for reimbursement for attorney's

fees are to be filed within twenty days of the final judgment.                    R.

1:4-8.     The court, however, has discretion to hear an untimely

motion for attorney's fees unless the application is made after

an undue delay.       Czura v. Siegel, 
296 N.J. Super. 187 (App. Div.

1997) (denying a motion for attorney's fees that was filed eight

months after the entry of final judgment).

     Here, both the Borough and the individual defendants sent

plaintiff letters notifying him that they would seek attorney's

                                        9                                  A-4382-15T3
fees under the frivolous litigation statute and Rule 1:4-8.                     We

discern no abuse of discretion in the trial court's decision to

grant the Borough and the individual defendants attorney's fees

under   the   statute   and   rule.        Moreover,   we   see   no   abuse    of

discretion in the court's factual findings on the reasonableness

of counsels' hourly rate and the hours expended.              Accordingly, we

affirm the award of fees.

     Affirmed.




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