RICHARD MUCIA v. MIDDLESEX COUNTY

NOT FOR PUBLICATION WITHOUT THE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-1564-14T3

RICHARD MUCIA, THOMAS VARGA,
CHRISTOPHER JAREMA and GIANCARLO
RUSSO,

        Plaintiffs-Appellants,

v.

MIDDLESEX COUNTY, MIDDLESEX
COUNTY SHERIFF'S OFFICE,

     Defendants-Respondents.
______________________________

              Argued November 1, 2017 – Decided February 8, 2018

              Before Judges Fuentes, Manahan, and Suter.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Monmouth County, Docket No.
              C-000020-14.

              Timothy R. Smith argued the cause for
              appellants   (Caruso,  Smith,   Picini,   PC,
              attorneys; Joshua M. Forsman, on the brief).

              Lisa   Barré-Quick argued  the   cause  for
              respondent (Apruzzese, McDermott, Mastro &
              Murphy, PC, attorneys; Arthur R. Thibault,
              Jr., of counsel; Lisa Barré-Quick, on the
              brief).

PER CURIAM
     Plaintiffs Richard Mucia, Thomas Varga, Christopher Jarema

and Giancarlo Russo (plaintiffs) appeal from a July 31, 2014 order

imposing    sanctions    under    Rule       1:4-8   in   favor   of   defendants

Middlesex    County     and      Middlesex       County     Sheriff's     Office

(defendants) and from a September 12, 2014 order that denied

reconsideration.1     We affirm.

                                             I

     Plaintiffs were investigators hired by the Middlesex County

Sheriff's Office.       In January 2014, they were suspended without

pay pending termination after it was learned that they, or someone

on their behalf, paid the then Middlesex County Sheriff, Joseph

Spicuzzo,2 to obtain their positions.

      Plaintiffs served a verified complaint and order to show

cause with temporary restraints, seeking to be restored to the

county payroll pending the outcome of departmental charges.                    The



1
    This appeal concerns the sanctions assessed for frivolous
litigation under Rule 1:4-8.     Two other appeals concern the
dismissal of a prerogative writ action where plaintiffs sought to
challenge their termination from employment. See Thomas Varga v.
Middlesex County (A-5238-14) and Christopher Jarema v. Middlesex
County (A-5250-14).
2
   Spicuzzo was convicted of bribery in official and political
matters, 
N.J.S.A. 2C:27-2.



                                         2                               A-1564-14T3
complaint relied on the Attorney General's Internal Affairs Policy

and    Procedures     (Guidelines)3      and   
N.J.S.A.    40A:14-149.1      as

authority for reinstatement.

       Defendants sent a letter dated January 24, 2014, demanding

that    plaintiffs'    counsel        voluntarily   dismiss   the     verified

complaint or defendants would seek dismissal and then request

sanctions under Rule 1:4-8.             The letter advised there was "no

basis in law or fact" for the claim that plaintiffs' suspensions

violated the law because, as sheriff's investigators, they were

at-will employees who served at the pleasure of the sheriff, citing

to 
N.J.S.A. 40A:9-117a.        Defendants advised that 
N.J.S.A. 40A:14-

149.1 only applied to municipal police officers.                Further, the

Guidelines,    relied     on     by     plaintiffs,   allowed       "immediate

suspension"   without    pay    where    "necessary   to   maintain    safety,

health, order or effective direction of public services,"4 such as



3
   The Guidelines were not included in the record. They can be
found at State of New Jersey Division of Criminal Justice, Internal
Affairs     Policy      &     Procedures,     (September     2011),
https://www.eastbrunswick.org/filestorage/204/299/1622/internala
ffairs2000v1_2.pdf .
4
   State of New Jersey Division of Criminal Justice, Internal
Affairs    Policy    &   Procedures,    18    (September    2011),
https://www.eastbrunswick.org/filestorage/204/299/1622/internala
ffairs2000v1_2.pdf . The Guidelines were revised in July 2014 and
November 2017, but the condition cited above has not been revised.

                                         3                            A-1564-14T3
here,   where    plaintiffs      "engaged   in    bribery     to    obtain    their

positions."      Finally, the letter advised that the "admission [by

plaintiffs] of bribery is an allegation of dishonesty and moral

turpitude," citing Herzog v. Township of Fairfield, 
349 N.J. Super.
 602, 608 (App. Div. 2002) as authority for the suspensions.

      Plaintiffs declined to withdraw the complaint, arguing that

at-will employment was not relevant where termination was sought

"through an internal affairs complaint."                 They contended Herzog

only applied if they were charged with a criminal offense or an

"equivalent to the most serious crimes involving moral turpitude

or   dishonesty."       Defendants     responded,        again     warning    about

sanctions.

      On March 10, 2014, the trial court denied the requested

restraints, finding there would be no irreparable harm by the loss

of pay incident to the suspensions.              Plaintiffs were unlikely to

be successful on the merits because as sheriff's investigators,

they were at-will employees under 
N.J.S.A. 40A:9-117a. The statute

cited by plaintiffs, 
N.J.S.A. 40A:14-149.1, did not apply. Because

plaintiffs      were   accused    of   having     paid    a   bribe   to     obtain

employment, the alleged violation equated with a crime involving

moral turpitude that would justify suspension without pay under

Herzog.   The Guidelines allowed for a suspension without pay at

                                       4                                   A-1564-14T3
the discretion of the appointing authority.                 Finally, the court

found that plaintiffs' interests did not outweigh the public

interest in addressing public corruption.

     On   April   25,   2014,     the    trial    court    granted   defendants'

unopposed motion to dismiss the verified complaint under Rule 4:6-

2(e).   In May 2014, defendants filed a motion under Rule 1:4-8 for

reasonable attorney's fees and costs in defending against the

order to show cause and verified complaint.               Defendants contended

that plaintiffs did not withdraw the baseless complaint despite

notice and an opportunity to do so.            Defendants' counsel submitted

a "certification of reasonable attorneys' fees and costs" that

identified the attorneys who worked on the case, their hourly

rates, the hours they worked, and the fees incurred for making the

motion for sanctions and costs.              The professional biographies of

counsel were included to "enable the [c]ourt to review the criteria

required in deciding the award of attorneys' fees and costs."

     At   oral    argument   on    the       sanctions    motion,    counsel   for

plaintiffs argued that plaintiffs had certain protections that

arose from Herzog and the Guidelines.                Counsel contended that

sanctions should not be imposed in the absence of bad faith. Here,

defendants had not shown plaintiffs acted in bad faith or that

they were unfit for their positions as investigators.                 Counsel did

                                         5                               A-1564-14T3
not address whether the attorney's fees and costs requested by

defendants were reasonable.

     On July 31, 2014, the court imposed sanctions under Rule 1:4-

8.   In its comprehensive written opinion, the court found that

"[p]laintiffs and their counsel must have known, or at least should

have known, that their [c]omplaint had no reasonable basis in law

or equity."   Plaintiffs never addressed the at-will employment

statute, 
N.J.S.A. 40A:9-117a, and the statute they cited, 
N.J.S.A.

40A:14-149.1, did not apply to sheriff's investigators.       By this

omission, counsel "seem[ed] to have chosen to feign [N.J.S.A.

40A:9-117a's] nonexistence."   Further, plaintiffs did not address

Herzog which was "directly adverse."      This omission was "evidence

of the frivolity with which this action was brought."       The court

awarded attorney's fees "due to the underlying frivolity of the

substantial majority of [p]laintiffs' original claims and the

repeated   failure   of   [p]laintiffs'    counsel   to   address    or

acknowledge adverse legal authority."      The court did not rely on

plaintiffs' citation to the Guidelines.

     Plaintiffs objected to the proposed form of the order.         See

R. 4:42-1(c) (allowing order to be signed if the court is satisfied

the order accurately sets forth its disposition).          Plaintiffs

requested a hearing about the amount of the proposed fees.

                                 6                            A-1564-14T3
        The court entered the sanctions order on July 31, 2014 over

this objection, requiring plaintiffs' counsel to pay defendants'

counsel fees and costs of $7584.52 in ten days. The court declined

to hold a hearing, noting that plaintiffs' counsel "raised no

objection to the accountings . . . during the pendency of the

underlying    motion        when   any   such   opposition     would   have    been

appropriate."

     In plaintiffs' motion for reconsideration, they asserted the

court    failed   to    consider     certain    of   their    arguments.       They

contended, for the first time, that 
N.J.S.A. 40A:9-117a was not

relevant because the appropriate question was whether a sheriff's

investigator could be suspended without pay and not whether they

could be terminated from employment as at-will employees.                  Counsel

argued that they advanced non-frivolous claims, asserting that

Herzog    "cannot      be   considered    as    offering     binding   precedent"

because it is "internally contradictory."               Counsel suggested the

court should have considered mitigating factors, such as the lack

of a prior offense, in assessing the amount of the sanction.

     In a supplemental letter brief, plaintiffs asked the court

to consider the factors in Rule of Professional Conduct 1.5,

questioning why the case was handled by three partners, the number

of hours and the costs incurred. The trial court denied the motion

                                          7                                A-1564-14T3
for reconsideration on September 12, 2014.           The court explained

that   "after    defendant    requested   the   complaint   be   dismissed,

plaintiffs failed to do so forcing defendants to file a motion to

dismiss that was unopposed. Had plaintiffs withdrawn the complaint

in January at the request of the defendants, it's very possible

that sanctions would never have been awarded."

       In this appeal, plaintiffs allege the trial court erred in

finding the underlying litigation was frivolous and in assessing

sanctions.      Plaintiffs also argue the court should have conducted

a hearing to determine what fees were reasonable.

                                   II

       We review the court's order that imposed sanctions under Rule

1:4-8 and the order that denied reconsideration under an abuse of

discretion standard.         United Hearts, LLC v. Zahabian, 
407 N.J.

Super. 379, 390 (2009).         An abuse of discretion "arises when a

decision is 'made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible

basis.'" Flagg v. Essex Cty. Prosecutor, 
171 N.J. 561, 571, (2002)

(quoting Achacoso-Sanchez v. Immigration & Naturalization Serv.,


779 F.2d 1260, 1265 (7th Cir. 1985)).

       Litigation is frivolous that is "commenced, used or continued

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

                                     8                             A-1564-14T3
malicious injury" or where the party "knew, or should have known,

that   the    complaint,      counterclaim,   cross-claim     or   defense   was

without any reasonable basis in law or equity and could not be

supported by a good faith argument for an extension, modification

or reversal of existing law."         
N.J.S.A. 2A:15-59.1(b).        Sanctions

can be requested under Rule 1:4-8.            They will be denied where the

pleading party had an objectively reasonable and good faith belief

in the merit of the claim.          See First Atl. Fed. Credit Union v.

Perez, 
391 N.J. Super. 419, 433 (App. Div. 2007).             A party seeking

sanctions under Rule 1:4-8 must meet certain notice requirements.5

Zahabian, 
407 N.J. Super. at 389.

       We discern no abuse of discretion here.                The trial court

thoroughly explained why sanctions were being imposed.              Plaintiffs

relied on the wrong statute, and did not mention the one that

applied to sheriffs' investigators, even though that oversight was

pointed out by defendants in time to have addressed it.                Counsel

cited no authority to support the incipient argument that the

appointing authority could terminate investigators without cause,

but not suspend them without pay.           Plaintiffs did not distinguish

Herzog,      which   allows    suspension     without   pay   "where   conduct


5
  There is no dispute defendants satisfied the requirements of
Rule 1:4-8(b)(1).

                                       9                               A-1564-14T3
equivalent to the most serious of crimes involving moral turpitude

or dishonesty is supportably alleged."                     
349 N.J. Super. at 608.

Herzog   is    precedential          and    directly       adverse    to     plaintiff’s

position.      Plaintiffs obtained their law enforcement positions

through dishonesty.

      Plaintiffs      now     rely    on    the     Guidelines       as    their     "main"

argument.          However,    under       those    Guidelines,       the     appointing

authority had the discretion to suspend without pay.                              We reject

plaintiffs' assertion that the appointing authority could not

suspend without pay as "necessary to                       maintain the order and

effective direction of public services" where a public employee

has obtained his or her position through an act of corruption.

      The     court    did     not     abuse       its     discretion        in     denying

reconsideration, which is appropriate only where "1) the [c]ourt

has expressed its decision based upon a palpably incorrect or

irrational basis, or 2) it is obvious that the [c]ourt either did

not   consider,       or    failed    to    appreciate       the     significance          of

probative, competent evidence."                    D'Atria v. D'Atria, 
242 N.J.

Super.      392,    401     (Ch.     Div.        1990).       "[A]        trial     court's

reconsideration       decision       will    be     left    undisturbed       unless       it

represents a clear abuse of discretion."                    Pitney Bowes Bank, Inc.



                                            10                                      A-1564-14T3
v. ABC Caging Fulfillment, 
440 N.J. Super. 378, 382 (App. Div.

2015).

     Plaintiffs   provided     nothing   new   for   the   court's

reconsideration, arguing simply that the court failed to fully

appreciate the arguments they had made.        Plaintiffs did not

challenge the amount of the attorney's fees requested when they

were before the trial court.    They raised it for the first time

when they opposed the form of the order.   We perceive no abuse of

discretion, in any event, because the unrefuted certification from

defendants' counsel provided the information necessary to support

the imposition of sanctions.

     Affirmed.




                                11                         A-1564-14T3