VIOLET DEAN v. HARRAH'S ATLANTIC CITY OPERATING COMPANY, LLC

NOT FOR PUBLICATION WITHOUT THE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-1651-17T3

VIOLET DEAN,

          Plaintiff-Appellant,

v.

HARRAH'S ATLANTIC CITY
OPERATING COMPANY, LLC,
d/b/a HARRAH'S RESORT
ATLANTIC CITY,

     Defendant-Respondent.
______________________________

                   Submitted December 4, 2018 – Decided December 13, 2018

                   Before Judges Sabatino and Mitterhoff.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Atlantic County, Docket No. L-2646-15.

                   Chance & McCann, LLC, attorneys for appellant
                   (Kevin P. McCann, of counsel; Matthew Weng, on the
                   brief).

                   Cooper Levenson, PA, attorneys for respondent (Justin
                   A. Britton and Russell L. Lichtenstein, on the brief).

PER CURIAM
      This appeal by plaintiff and her counsel in a personal injury case seeks to

reverse the Law Division's October 27, 2017 order imposing sanctions of $5,000

in counsel fees and $150 in costs upon them, jointly and severally, pursuant to

Rule 1:4-8 and  N.J.S.A. 2A:15-59.1(b)(2). Applying the deferential standard of

review that governs such discretionary rulings, we affirm.

      Plaintiff, a customer at Harrah's Resort Atlantic City, was injured when

she was knocked over by an unidentified minor running through the casino. The

incident was captured on a security camera, but no one was able to identify the

minor or his parent who was with him at the time. Plaintiff incurred substantial

medical expenses from her fall.

      Plaintiff sued the casino, arguing that it breached a hypothesized duty to

detain the minor who may have caused her fall and the minor's parent so that

they could be identified for a potential future lawsuit. The defendant casino sent

two "safe harbor" letters to plaintiff's counsel pursuant to Rule 1:4-8(b)(1),

placing plaintiff on notice that defendant regarded the lawsuit to be frivolous

and demanding it to be withdrawn. Plaintiff nonetheless elected to continue to

pursue the case.




                                                                          A-1651-17T3
                                        2
      After discovery ended, the case was heard by a two-member non-binding

arbitration panel in Atlantic County pursuant to Rule 4:21A-1(a)(2). The panel

recommended a "no-cause" disposition.

      Plaintiff rejected the arbitration result and demanded a trial de novo.

Defendant then moved for summary judgment, on the basis that plaintiff lacked

a viable cause of action, even viewing the facts in a light most favorable to her.

Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995).           After

considering plaintiff's opposition, 1 the court granted summary judgment and

dismissed the complaint with prejudice.

      Defendant then moved for sanctions under Rule 1:4-8 and  N.J.S.A. 2A:15-

59.1(b)(2). Plaintiff opposed that motion, asserting the litigation had been

appropriately pursued based on existing law or "a non-frivolous argument for

the extension, modification, or reversal of existing law or the establishment of

new law." R. 1:4-8(a)(2). The court agreed with defendant's position and

awarded the requested sanctions. Plaintiff now appeals that determination. 2




1
   The appendix on appeal does not contain plaintiff's summary judgment
opposition papers, and she does not refer to them in her brief on appeal.
2
  Plaintiff does not contest the reasonableness of the calculation of defendant's
fees.
                                                                          A-1651-17T3
                                        3
      On appeal, plaintiff reiterates her position that the lawsuit was based on a

good faith belief to extend the law with a novel legal theory. Plaintiff further

argues that the no-cause result in the non-binding arbitration, and the dismissal

of her complaint on summary judgment, do not necessarily mean that her lawsuit

was frivolous.

      Our scope of review of the trial court's sanctions ruling is limited. As the

briefs of both parties agree, appellate courts generally are to review an award of

sanctions under Rule 1:4-8 and  N.J.S.A. 2A:15-59.1 by evaluating whether the

trial court abused its discretion. See, e.g., McDaniel v. Man Wai Lee,  419 N.J.

Super. 482, 498 (App. Div. 2011); see also Masone v. Levine,  382 N.J. Super.
 181, 193 (App. Div. 2005). This deferential standard is appropriate, given the

high volume of cases litigated in our civil trial court, and the perspective and

day-to-day experience our civil judges have in distinguishing colorable claims

from untenable ones. Applying this deferential standard of review, we discern

no abuse of discretion, nor any error of law, in the trial court's determination.

      We accept for purposes of our discussion that plaintiff and her counsel did

not act in bad faith in continuing with the lawsuit after receiving the timely "safe

harbor" letters from defense counsel. However, even if a claim is not frivolous

under  N.J.S.A. 2A:15-59.1(b)(1) because it has not been pursued "in bad faith,


                                                                            A-1651-17T3
                                         4
solely for the purpose of harassment, delay or malicious injury," the claim

alternatively may be deemed frivolous under subsection (b)(2) of the statute if

"[t]he nonprevailing party knew, or should have known, that the [claim] 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)(2). See also Wyche v. Unsatisfied Claim Fund,  383 N.J.

Super. 554, 560-61 (App. Div. 2006) (applying analogous concepts expressed in

Rule 1:4-8). The trial court appropriately relied on this portion of the statute in

its analysis.

      The letter plaintiff's counsel sent to defense counsel in response to the safe

harbor correspondence maintained that the casino was liable under an asserted

duty to "keep the evidence in tact [sic]." However, that letter cited to no

supporting legal authority. On appeal, plaintiff's brief likewise cites to no case

or specific authority from which a duty could be extended.             During oral

argument on the sanctions motion, the trial court asked plaintiff's counsel if he

could cite to any case from "any jurisdiction" recognizing a legal duty of a

property owner to detain a third party customer after an injury, and counsel

provided in response no citation but only alluded generally to a premises owner's

duty to keep its property "reasonably safe."


                                                                            A-1651-17T3
                                         5
      Our statutes and court rules do not wish to discourage inventive or creative

lawyering. Even so, the circumstances of this particular case, in absence of at

least colorable or analogous support for plaintiff's claims cited in case law or

statute, reflect the trial court did not abuse its discretion in awarding sanctions. 3

      Affirmed.




3
   That said, we do agree with plaintiff that the no-cause outcome of the
nonbinding arbitration and her failure to overcome defendant's summary
judgment motion do not themselves justify a finding of frivolity.
                                                                              A-1651-17T3
                                          6