Annotate this Case
                               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-2909-17T2







both his personal and professional




          Third-Party Defendant/Fourth-
          Party Plaintiff-Respondent,

ANGELA ROPER, ESQ. (in both her
professional and personal capacities),
KENNETH THYNE, ESQ. (in both his
professional and personal capacities),
G. MARGEOTES (in both his
professional and personal capacities),

     Fourth-Party Defendants.

           Argued December 10, 2019 – Decided May 12, 2020

           Before Judges Yannotti, Hoffman and Firko.

           On appeal from the Superior Court of New Jersey, Law
           Division, Bergen County, Docket No. L-2764-14.

           Kenneth S. Thyne argued the cause for appellant (Roper
           & Thyne, LLC, attorneys; Kenneth S. Thyne, on the

           Patrick P. Toscano, Jr. argued the cause for pro se
           respondent The Toscano Law Firm, LLC (Patrick P.
           Toscano, Jr., and AnnMarie Harrison, on the brief).

           Joseph De Donato argued the cause for respondents The
           Toscano Law Firm, LLC, as to the counterclaim only,
           and respondent Patrick J. Toscano, Jr., Esq. (Bennett
           Bricklin & Saltzburg, LLC, and Braff, Harris,
           Sukoneck & Maloof, attorneys; Joseph De Donato, of
           counsel and on the brief; Mark Thomas Hall, on the


      This case involves a dispute between a client and the law firm and attorney

who represented him for two years in a whistle-blower case that settled in

September 2013, less than three weeks after the client discharged the firm.

Approximately six months later, The Toscano Law Firm, LLC (the Toscano

Firm) sued the client, defendant Ellis Haroldson, seeking payment of attorney's

fees. Along with his answer, Haroldson filed a counterclaim and third-party

complaint,1 asserting various claims, including legal malpractice and breach of

contract. Haroldson's claims were unsuccessful and, after a bench trial, the trial

court awarded the Toscano Firm over $31,000 in attorney's fees; in addition, the

court rejected Haroldson's demand for the return of a $15,000 retainer he paid

when he initially engaged the Toscano Firm.

      On appeal, Haroldson argues that the trial judge erred by 1) denying a jury

trial on the quantum meruit claim, 2) excluding his expert's opinions, 3) denying

frivolous litigation sanctions, and 4) denying access to off-record statements and

emails. We find no errors in the trial court's dismissal of Haroldson's affirmative

claims, sanctions determination, or evidence rulings. However, we conclude the

trial court erred when it denied Haroldson's request for a jury trial regarding the

  Haroldson's third-party complaint asserted claims against Patrick P. Toscano,
Jr., (Toscano) individually.
disputes over attorney's fees and the retainer Haroldson paid. We therefore

affirm, in part, and reverse and remand, in part.


       The Borough of Cliffside Park (the Borough) employed Haroldson as a

police officer from January 1994 to June 2010.        According to Haroldson's

CEPA2 complaint, his duties in 2008 and 2009 included filing complaints against

bars for violations of Borough ordinances and regulations of the New Jersey

Alcoholic Beverage Control Commission (ABC). He alleged that the son of the

Borough's mayor "worked for a liquor house" that "supplied all of the local bars

with liquor," and these bars lost income if a bar was suspended from selling

liquor as a result of a complaint Haroldson filed. He alleged that he "complained

to the ABC about the actions of the Mayor and Council in refusing to process

the complaints in a lawful manner" and that Mayor Gerald Calabrese and Chief

of Police Donald V. Keane learned of his complaints.

       The record indicates Haroldson went out on disability leave for cardiac

surgery from September 2008 to July 2009. On November 13, 2009, Chief

Keane served Haroldson with a preliminary notice of major disciplinary action

(PNMDA). The notice concerned Haroldson's alleged conduct in collecting a

    Conscientious Employee Protection Act,  N.J.S.A. 34:19-1 to -14.
personal debt from a man named Vincent O'Hara and his company.                     In

communications with O'Hara and his wife, Haroldson purportedly stated that he

was "a cop who carries a gun," and said that O'Hara would be "stopped all over

the county" by Haroldson's police friends. Chief Keane charged Haroldson with

abuse of public office, official misconduct, conduct unbecoming a police officer,

and a violation of the implicit standard of good behavior. Two months later,

Chief Keane served Haroldson with notice of an additional charge,

"manipulating and wrongfully using the judicial system by misleading the court"

(the supplemental charge).

      The disciplinary charges all resulted from a complaint filed by O'Hara's

wife in July 2009, alleging harassment by Haroldson over a two-year period. In

July and August 2009, the officer heading the Internal Affairs Division of the

Police Department took statements from O'Hara, his wife, and one other witness.

At the direction of Chief Keane, the investigating officer did not speak with

Haroldson about the complaint and interviews, despite an internal policy

providing that "Internal Affairs shall notify the suspect officer in writing that an

internal investigation has been started, unless the nature of the investigation

requires secrecy."

      During two days in February and March 2010, retired Judge Anthony J.

Sciuto, appointed as a hearing officer in the disciplinary action, heard testimony

and received evidence on the disciplinary charges.           In his report and

recommendation dated April 21, 2010, Judge Sciuto stated that "[i]t is important

to note at the outset that the charges against Sergeant Haroldson do not emanate

from his official duties and responsibilities as a police officer," but from his

efforts to collect a personal debt. Judge Sciuto found "no believable testimony

that Sergeant Haroldson threatened Mr. O'Hara by saying 'I'm a cop who carries

a gun and I will have you stopped all over the county."'           Regarding the

supplemental charge, the judge found that the Borough failed to prove that

Haroldson misled the court or misused the judicial system.

      As to the harassment allegations, however, Judge Sciuto found:

            What is supported are the voluminous and numerous
            phone calls that were made to either Mr. O'Hara at his
            business or to Mr. and Mrs. O'Hara at their residence.
            These phone calls were perceived by Vincent O'Hara
            and Mrs. O'Hara, his wife, as harassing, threatening,
            and fearful. Although I cannot describe the phone calls
            as threatening by Sergeant Haroldson[,] they were
            perceived as being threatening by the recipients of the
            calls and there is no question that the sheer number of
            calls were harassing to Mr. and Mrs. O'Hara.

      Judge Sciuto recommended that Haroldson "be found responsible for

making harassing phone calls" that were "perceived by [the O'Haras] to be

threatening," thus proving the four original disciplinary charges. While the

judge acknowledged that Haroldson made the harassing phone calls in a personal

capacity, he noted that "the fact is, he is a police sergeant" and "[t]he standard

of professionalism and good behavior must be upheld in his daily life." The

judge recommended that Haroldson "receive a penalty of time served, plus

[ninety] days suspension from the date of this recommendation."

      On June 15, 2010, by resolution, the Borough "accepted and adopted"

Judge Sciuto's "factual findings and conclusions," and "found and adjudged"

that Haroldson "committed each and every one of the disciplinary infractions

with which he has been charged," including the supplemental charge that Judge

Sciuto had expressly determined was "not supported by any credible testimony."

Rather than suspend Haroldson as Judge Sciuto recommended, the Borough

determined that "the appropriate penalty for such disciplinary infractions is

termination." Eight days later, Haroldson filed a complaint in lieu of prerogative

writs (prerogative writ action), seeking, among other relief, a de novo hearing

on the disciplinary charges and the restoration of his employment.

      On February 9, 2011, Judge Joseph S. Conte held a bench trial in the

prerogative writ action. In a March 2, 2011 decision, the judge ruled there was

"insufficient evidence in the record to reverse Judge Sciuto's finding that the

sheer number of calls constituted harassment."

      On the issue of the appropriate penalty, Judge Conte noted that New Jersey

case law "support[s] the standard that a public employee whose conduct is not

egregious enough to warrant termination should not be punished with more than

a six-month suspension." The court was "uncertain" as to whether Judge Sciuto

had been aware of this standard and had known that his recommendation – time

served plus a ninety-day suspension – would extend Haroldson's suspension

beyond six months, effectively resulting in his termination. The court observed

that "[o]ne may infer that if Judge Sciuto was definitely aware of this rule, he

would have simply recommended the termination of Haroldson's employment if

he truly intended that to be the result." Accordingly, the court remanded the

matter to Judge Sciuto for further consideration, "in light of the seriousness of

the allegations of harassment and the appropriateness of sentencing in light of

the six-month rule" set out in case law.

      On April 11, 2011, Judge Sciuto issued a supplemental letter opinion,

clarifying that he "only intended to suspend" Haroldson. He explained:

            Had I been aware of the cases which require termination
            for a period of suspension imposed for over six
            months[,] I would have reduced my recommendation to
            bring the penalty within a six month period. . . . So the

            record is clear . . . I was recommending only a period
            of suspension not a termination.

      A. Haroldson's CEPA Claim

      On June 15, 2011, Haroldson filed his CEPA lawsuit, 3 naming as

defendants the Borough, the Cliffside Park Police Department, Mayor

Calabrese, and Chief Keane. Among other things, Haroldson claimed that Chief

Keane pursued the disciplinary charges against him in retaliation for his

"whistle-blowing activities." He also alleged that he was "relieved of his duties

in filing any complaints against any bars or liquor stores and this duty was

transferred to another officer" in retaliation for his complaints to the ABC.

Thirteen days after Haroldson filed his CEPA complaint, the Borough adopted

a resolution acknowledging that Judge Sciuto recommended only a suspension,

but nevertheless reaffirmed its prior decision to terminate Haroldson's


      The termination issue then returned to Judge Conte for consideration in

the prerogative writ action. On July 26, 2011, Judge Conte found that the

Borough proved the original disciplinary charges by a preponderance of credible

  According to Haroldson, another attorney filed the complaint for him as "a

evidence, but held that it should have taken Judge Sciuto's clarification of the

recommended penalty into consideration. He concluded:

            In reviewing the record below, this [c]ourt finds that the
            sanctions imposed upon Haroldson were so
            disproportionate to his offense, that it shocks the
            [c]ourt's sense of fairness.       Though Haroldson's
            behavior amounted to harassment due to the sheer
            number of calls he placed to the O'Haras and his
            position in the community as a police officer, the
            sanction of termination is not appropriate for a
            [seventeen]-year police veteran at the rank of Sergeant
            with no prior disciplinary infractions on his record. In
            keeping with the principle of progressive discipline,
            this [c]ourt finds it exceedingly unfair to impose such a
            punishment on Haroldson who was simply trying to
            collect a considerable debt, which he felt he was owed.

      Concluding that the Borough's resolution to terminate Haroldson was

"arbitrary and capricious," Judge Conte held that his punishment "should be

limited to a suspension of exactly six months" from November 13, 2009.

Haroldson apparently returned to work after the conclusion of the prerogative

writ action, but the record does not indicate for how long. At some point after

his return, Haroldson "had gotten hurt" and "was seeking accidental disability"

benefits from the New Jersey State Division of Pensions and Benefits.

Eventually, Haroldson received an accidental disability pension.

      B. The retention and termination of the Toscano Firm

      On October 19, 2011, Haroldson executed a retainer agreement with the

Toscano Firm for the CEPA case, and the Toscano Firm filed a substitution of

attorney with the court. The retainer agreement provided that the Toscano Firm

"shall represent the CLIENT'S interest and protect your legal rights and do all

necessary legal work to properly represent you in this matter." The agreement

stated that there would be "certain inevitable costs to be incurred" in the

litigation and that "[r]esponsibility for these costs" would be "distributed as

follows: RETAINER of: $15,000 (nonrefundable) plus 25% of any eventual

net recovery."

      Haroldson testified he paid the Toscano Firm a $15,000 retainer, and

Toscano told him that he would get it back at the end of the case. He recounted:

            I told [Toscano] that I needed somebody to protect me
            because I had a target on my back. He agreed to take a
            retainer of $15,000. He explained to me it was a . . .
            fee-shifting case, and he was going to charge [twenty-
            five] percent of any settlement because he does that for
            all law enforcement officers, instead of one-third, and
            that the $15,000 would be returned to me upon
            settlement of the case.
      The Toscano Firm represented Haroldson in the CEPA case for nearly two

years, and while the parties do not dispute what actions the Toscano Firm took

to protect and advance Haroldson's interests during that time, their views as to

the adequacy of those actions differ significantly. Between October 2011 and

the first discovery end date, December 15, 2012, the Toscano Firm propounded

and responded to discovery requests, reviewed documents and interrogatory

responses received from the defendants, served deposition notices for Mayor

Calabrese and Chief Keane, prepared Haroldson for his deposition, and

represented him at two days of deposition questioning, although his deposition

was not completed.       During this time, the Toscano Firm scheduled the

depositions of Mayor Calabrese and Chief Keane several times, but each time

they were adjourned at the request of defense counsel, not the Toscano Firm.

      Fourth-party defendant Arthur G. Margeotes joined the Toscano Firm in

the fall of 2012. He began working on Haroldson's CEPA case in January 2013,

after the discovery end date and after the court scheduled the initial trial date of

March 4, 2013. On January 16, 2013, the Toscano Firm filed a motion to reopen

discovery, which the defendants in the CEPA case opposed.

      On January 31, 2013, the parties appeared for a settlement conference

before Judge Robert L. Polifroni. The Toscano Firm withdrew its motion to

reopen discovery, without prejudice, and the judge entered an order

1) adjourning the trial date from March 4 to June 10, 2013, and 2) scheduling

another settlement conference for March 5, 2013. The order further provided

that, if the case did not settle by the March 5 settlement conference, Haroldson

could "re-file his motion to compel the deposition of party defendants."

      When the case did not settle, the Toscano Firm re-filed its motion to

reopen discovery, which the court granted. After the Toscano Firm continued

to encounter problems in scheduling the depositions in the CEPA case, on May

15, 2013, the court granted its motion to compel, scheduling Chief Keane's

deposition for May 22, 2013, and Mayor Calabrese's deposition for May 23,

2013; however, these court-ordered depositions did not occur.              Mayor

Calabrese's deposition did not take place because he became "very seriously ill"

during the CEPA litigation. According to Haroldson's brief, Chief Keane's

deposition did not go forward on the court-ordered date because Toscano

"insisted" on deposing Mayor Calabrese first.      Mayor Calabrese's counsel

requested an adjournment of the June 10, 2013 trial date, which the court

granted. In June or July 2013, Margeotes left the Toscano Firm.

      Judge Polifroni held a status conference on September 3, 2013. The

parties sharply dispute what transpired that day. Toscano testified that the

CEPA defendants, through Judge Polifroni, made a settlement offer of $125,000.

Toscano said "the numbers talked about" by the parties were a demand for

$275,000 and an offer of $125,000, and Judge Polifroni told him during their

discussions that he believed the case could settle for $200,000. According to

Toscano, it was "very obvious" that "if the demand came down to [$200,000]

right in the middle of the [$125,000] and the [$275,000] the case would have

settled that day, literally that day, then and there."      Toscano said that he

unsuccessfully tried to get authority from Haroldson to settle for $200,000:

            I told Mr. Haroldson straight out that if he settled it for
            [$200,000], my attorney[']s fee would be reduced to
            $10,000. I remember that like it happened a minute
            ago. He said, no. He then went on a tirade, one of his
            tirades, cursing.


            We didn't settle because of his tirade and what he said
            to me.

      Contrary to Toscano's recollection, Haroldson testified, during the bench

trial on the fee dispute, that no settlement offer for any amount was conveyed to

him at the conference, and Toscano did not offer to take a reduced fee if the case

settled for $200,000. Later, before the jury, Haroldson acknowledged that

Toscano had told him at the September 2013 conference that there was a

settlement offer of $125,000.

      Dennis Calo, lead defense counsel in the CEPA case, testified that he was

never authorized to make and did not make any settlement offer while the

Toscano Firm represented Haroldson, either at the September 2013 conference

or any other time. He disputed Toscano's contentions that, at the conference,

the demand was $275,000, the municipality unofficially countered at $125,000,

and the matter could have settled that day for $200,000.

      Calo said that he had "very limited" settlement discussions with Toscano.

He recounted that Toscano made several demands, but he did not believe they

were made in a good faith effort to settle the case because the demands were "a

moving target" that were "all over the lot."

      According to Calo, at Haroldson's deposition, Toscano said he believed

the case could resolve for $125,000. Calo said the $125,000 figure came from

Toscano, not himself, and he "didn't think it was a reasonable demand or a

settlement figure at the time," but he "thought it wasn't crazy"; however, just a

few days later, he received a letter or an email from Toscano demanding "close

to $400,000."

      Calo noted that there were prior settlement conferences with Judge

Polifroni on January 31, 2013, and March 5, 2013. At the first conference,

Toscano said that Haroldson "would probably take" $300,000 to settle the case.

At the second conference, Toscano made a demand for $275,000, and Calo

responded that this "was not reasonable." On May 15, 2013, Toscano made a

demand for $425,000 and Calo did not respond. On July 1, 2013, Toscano made

a demand for $399,707.85.

      Calo did not recall specific details of the September 2013 conference with

Judge Polifroni, but insisted he never tendered a settlement offer of any amount

to Toscano. Calo explained he would have needed authority from both the

Borough and the insurance carrier to make an offer, and he did not have it.

      Also, Calo testified that a significant hurdle to settlement was a non-

monetary issue. The position of the CEPA case was that Haroldson would have

to agree to leave the police department and not reapply for another position with

the Borough, and this was an essential part of any resolution. Toscano, however,

never committed to that requirement. Calo explained:

            With respect to the retirement [Toscano] was never
            clear on what [Haroldson] would do, and that was the
            first requirement, you had to be clear that he would
            leave the job. If he said – if he said he would leave the
            job there's a basis to negotiate, so that's why there was
            no negotiation, because he never said he would leave
            the job. If he, on the other hand he said, no, he will not
            leave the job, then we would know we're not going to
            negotiate, we're going to try the case. So that's – that
            [was] the posture of the case.

      Following the September 2013 conference, Judge Polifroni entered an

order setting a deadline of September 30, 2013, for completing the depositions

of Haroldson, Mayor Calabrese, and Chief Keane. The order further provided

that if Calabrese was "not cleared medically" so that he could be deposed by the

deadline, he would not be permitted to testify at trial. Finally, the order set

January 2, 2014 as "a firm trial date . . . not subject to further adjournments due

to lawyer or client unavailability."

      C. CEPA case settlement and fee dispute

      Because Margeotes had worked on his CEPA case while an associate at

the Toscano Firm, Haroldson testified that he decided the day of the September

2013 conference to retain Margeotes to replace the Toscano Firm. Haroldson

said that he trusted Toscano when he first retained the Toscano Firm, but the

relationship "went totally south" as the CEPA case proceeded. He said that, in

the four or five months leading up to the September 2013 conference, Toscano

advised him that he thought their attorney-client relationship should end and

sent him an email directing him to find another attorney. Haroldson thought that

would be very difficult to do so late in the case, so he asked Toscano to stay,

"hoping things would improve."

      By the time the parties appeared before Judge Polifroni on September 3,

2013, Haroldson stated, "There was considerable tension between myself and

Mr. Toscano. . . ." According to Haroldson, Toscano had promised but failed to

1) try to move the CEPA case to federal court, and 2) depose each member of

the Borough council. Toscano had also failed to obtain more specific answers

to interrogatories, which Haroldson said he repeatedly asked him to do. From

Haroldson's perspective, Toscano "was not prepared to try my case or to even

negotiate a reasonable settlement."

      On September 6, 2013, Haroldson retained Margeotes to represent him in

the CEPA case, and Margeotes sent Toscano a letter advising him of this

development. Margeotes later certified that he believed "discovery was far from

complete and the case was not trial ready" when he took it over, despite the trial

court's "definitive" September 30 deadline for completion of all outstanding


      Margeotes testified that he had a good working relationship with Calo and

believed that he did not engage in "game playing" during the settlement

negotiations that took place after he took over representation from the Toscano

Firm. Calo and Margeotes previously met when the latter was an assistant

prosecutor in Passaic County; in addition, they "had brief interactions" during

the CEPA case when the Toscano Firm handled it.

      Calo said that Margeotes called him within a day or so of taking over,

advising that he now represented Haroldson. Margeotes told him he was "in a

pickle on the case" because nothing had been done, so he wanted to settle the

case or extend the discovery period again. According to Calo,

            [W]e discussed settlement of the case. He readily
            agreed that a condition of the settlement would be that
            Mr. Haroldson would have to leave the job and not
            reapply for any position with [the Borough], so that
            there was a basis to continue discussions. I told him to
            tender a demand to settle the case, and I think the
            demand was a little over $200,000, and very quickly we
            ended up settling the case for $200,000 on the condition
            that . . . Mr. Haroldson at that time was applying for a
            disability pension, and he was going to go out on a
            disability pension, and I think the whole settlement was
            contingent upon him retiring on a disability pension
            and – and leaving the job.
      The CEPA case settled for $200,000 on or about September 25, 2013.

Approximately $56,000 of that amount represented monies due to Haroldson for

vacation time and other accrued back pay. A condition of the settlement was

that Haroldson would leave the police force.

      Margeotes wrote to Toscano on September 25, 2013, advising him that "a

tentative settlement agreement" had been reached in the CEPA case and asking

for a copy of the Toscano Firm's retainer agreement and a "complete accounting"

of the Toscano Firm's time on the matter. Toscano responded that the Toscano

Firm was "invok[ing] an attorney lien of [twenty-five percent] of the first

$200,000 collected." Margeotes took a fee of $12,500 for his work on the CEPA

case and "segregated $50,000.00 in trust from the settlement" pending resolution

of the Toscano Firm's claim for fees.

      On November 15, 2013, the Toscano Firm filed a motion seeking an

attorney's lien and disclosure of the amount of the settlement. On January 17,

2014, the court entered an order 1) establishing a lien, "the amount to be

determined by further proceedings in this [c]ourt or by the District Fee

Arbitration Committee,"4 and 2) requiring the Toscano Firm to produce its time

records relating to the CEPA case.

      The Toscano Firm moved for an enhanced fee, and Haroldson moved for

a reduction in the $50,000 that Margeotes held in escrow. On March 7, 2014,

the court denied the motion for an enhanced fee, explaining:

            Here, the [c]ourt does not find that Mr. Toscano
            encountered work that was more difficult or time
            consuming beyond that which is normally encountered
            in similar cases. The fact that Mr. Haroldson may have
            been a "needy" client, or [the] fact that depositions had
            to be rescheduled due to a defendant's illness is not
            sufficient to show that Mr. Toscano's work was more
            difficult or time-consuming than normal.

   There is no dispute that Toscano filed the arbitration notice required by the
Court Rules and Haroldson opted not to proceed with fee arbitration, although
it is not clear from the record exactly when this occurred.

      The court granted Haroldson's motion for a reduction of the monies in

escrow, holding that the amount "need not exceed" $31,250. It explained: "The

[c]ourt will reduce the fee to [twenty-five percent] of $125,000 because

$125,000 is the number that represents a settlement offer obtained by Mr.

Toscano." The court directed Toscano to file a petition to set the amount of the

attorney's lien within fourteen days.

      Rather than file a petition in the CEPA case, the Toscano Firm filed a

separate lawsuit – the matter under review – naming both Haroldson and

Margeotes as defendants. The complaint filed by the Toscano Firm sought to

enforce an attorneys' lien for services it performed in representing Haroldson in

his whistle-blower lawsuit.      In addition, the complaint asserted claims for

intentional interference with prospective economic advantage and intentional

interference with contractual relations against Margeotes.

      On June 9, 2014, Haroldson filed an answer, together with a counterclaim

against the Toscano Firm and a third-party complaint against Patrick P. Toscano,

Jr., Esq., individually. Along with his claims for legal malpractice and breach

of contract, Haroldson asserted eight additional claims. Haroldson demanded

"a trial by jury . . . on all issues so triable" and timely filed an affidavit of merit

in support of his legal malpractice claim.

      In addition to an answer to the third-party complaint, Toscano filed a

fourth-party complaint against Haroldson and Margeotes, and named as fourth-

party defendants the law firm, and individual attorneys representing Haroldson

in the case, specifically, Roper & Twardowsky, LLC (R&T), Angela Roper, and

Kenneth Thyne (collectively, the R&T defendants). While the fourth-party

complaint listed sixteen "specific causes of action," Toscano generally alleged

that Margeotes and the R&T defendants improperly 1) lured Haroldson away

from the Toscano Firm, and 2) induced Haroldson to refuse to pay attorneys'

fees to the Toscano Firm for its work on the CEPA case and to assert

unwarranted legal malpractice claims. In accordance with Rule 1:4-8(b)(1),

Haroldson and the R&T defendants sent Toscano a notice asserting that the

fourth-party complaint violated the frivolous litigation rule and demanded

Toscano withdraw the pleading, action he did not take.

      After several motions challenging the fourth-party complaint, on October

27, 2014, the court dismissed it without prejudice. Thereafter, Toscano filed a

motion 1) to file an amended fourth-party complaint, and 2) to disqualify the

R&T defendants from representing Haroldson.        The R&T defendants and

Haroldson sent Toscano a notice asserting his motion to file an amended fourth-

party complaint violated the frivolous litigation rule and demanded its

withdrawal. Toscano did not withdraw the motion, which the trial court denied

on February 6, 2015.

      In February 2016, Toscano moved for summary judgment as to the third -

party complaint and the Toscano Firm moved for summary judgment as to

Haroldson's counterclaim. These motions were returnable on April 1, 2016,

which was three days before the then-scheduled trial date, so the court declined

to consider them on the merits.

      Trial began on May 2, 2016 but ended in a mistrial on May 11, 2016. The

record does not disclose the reason for the mistrial.

      On July 21, 2016, Toscano and the Toscano Firm again moved for

summary judgment as to Haroldson's claims against them. The trial court

granted the motions in part, dismissing Haroldson's claims for 1) legal

malpractice, 2) intentional infliction of emotional distress, 3) negligent

infliction of emotional distress, and 4) negligent supervision. The court denied

summary judgment as to Haroldson's claims for 1) negligent misrepresentation,

2) breach of contract, 3) breach of fiduciary duty, 4) intentional attorney

misconduct, and 5) fraud.

      On June 28, 2017, the trial court ruled, over Haroldson's objection, that

the Toscano Firm's attorney's lien claim should be decided by the court without

a jury.    Regarding Haroldson's remaining affirmative claims, the court

acknowledged that the right to a jury trial would attach "[u]nder normal

circumstances," but it expressed concern that trying the lien claim to the court

and the other claims to a jury could produce "inconsistent results . . . inconsistent

verdicts," and "factual discrepancies in findings." The court did not resolve the

issue at the time; however, it noted that it might "try the whole proceeding"

without a jury to avoid any inconsistencies and to promote judicial economy.

The court conducted a bench trial and heard testimony on the Toscano Firm's

attorney's lien claim on June 28 and 29, 2017. 5

      The court then empaneled a jury to hear Haroldson's remaining claims,

and trial took place on July 17, 18, and 19, 2017. At the close of Haroldson's

evidence, the Toscano Firm and Toscano moved to dismiss all claims against

them. The court held that Haroldson failed to establish a prima facie case as to

all claims, except his claim that the Toscano Firm and Toscano had promised to

return his $15,000 retainer fees but then reneged, which Haroldson contended

  Rather than issuing a decision on the attorney's lien claim at that point, the
court requested counsel to submit proposed findings of fact and conclusions of

was a breach of contract and fraud. The court ruled that the dispute as to the

$15,000 retainer was "a fee issue." It explained:

            On the issue of the fraud, or the statement, that I will
            return your $15,000 retainer, I find that issue so
            inextricably tied to the issue of the fee under the fee
            lien, and any setoff, that the [c]ourt must determine that
            issue. I – I don't want to run the risk [of] the possibility
            of an inconsistent verdict, so I'm going to determine
            that issue.

The court granted the motion to dismiss all of Haroldson's claims "except with

respect to the fee issue," on which it reserved.

      In a written opinion issued on August 25, 2017, the court held that the

Toscano Firm was "entitled to the entire lien of $31,250." On September 18,

2017, the court entered an order directing Margeotes to forward that sum, which

had been held in escrow, to the Toscano Firm. In its opinion, the court also

rejected Haroldson's "contention that Toscano unconditionally promised to

refund the $15,000 retainer in the event of a settlement."

      On September 27, 2017, Haroldson filed a motion before the Assignment

Judge that sought access to CourtSmart 6 recordings of threatening statements

  CourtSmart is the digital audio recording system installed in New Jersey
courtrooms statewide. With CourtSmart, the microphones in a courtroom
remain active and recording whenever the courtroom is open, regardless of
whether court is in session or in recess.
allegedly made by Toscano in the courtroom during court recesses in May 2016

and June 2017. On October 13, 2017, the judge denied release of the requested

recordings, but stated "the court shall conduct an in-camera review of the

CourtSmart back-up tape." Following that review, the court indicated the tape

"did not contain indicia of a threat." Nevertheless, the court released the back-

up recording, which "contained a terse conversation that took place among

individuals . . . once the trial judge left the bench." Regarding the May 2016

recordings, the judge noted they were reviewed by the Trial Court

Administrator, who heard nothing relevant or material to Haroldson's allegations

rendering the request for recordings moot.

       On October 10, 2017, Haroldson moved for sanctions against the Toscano

Firm and Toscano for having filed the fourth-party complaint in June 2014 and

for having moved to file an amended fourth-party complaint in December 2014.

The Toscano Firm filed a cross-motion for attorneys' fees, contending that

Haroldson's sanctions motion was filed in bad faith.

       Both motions were denied on December 15, 2017. 7 The motion court held

that Haroldson's motion was untimely under Rule 1:4-8(b)(2), which required

    The cross-motions for sanctions were also decided by the Assignment Judge.

any motion for sanctions to be filed no later than twenty days following the entry

of final judgment, stating that "[t]he final judgment on this case was rendered

by the [c]ourt on August 25, 2017," and the motion was not filed until October

10, 2017. The court further found that Toscano did not lack "a good-faith belief

in his motion for enhanced fees," and believed the allegations "in the proposed

pleadings were . . . entirely accurate." As for the cross-motion, the court found

that the Toscano Firm had failed to show bad faith and denied it.

      On January 29, 2018, the court entered an order dismissing the remaining

claims in Haroldson's counterclaim and third-party complaint. On April 17,

2019, counsel for the Toscano Firm filed with the trial court a voluntary

dismissal of its claims against Margeotes.

      D. Wasserman's opinions

      Haroldson sought to use as an expert witness Bennett J. Wasserman, an

attorney representing litigants and providing consulting services "in matters

concerning the law governing lawyers."        Wasserman served reports dated

December 7, 2014, and January 2, and April 15, 2016.

      Wasserman opined that Toscano acted improperly in numerous ways

when Haroldson was a client of the Toscano Firm, most notably by conducting

discovery in a manner that "unreasonably delayed resolution" of the CEPA case

and by handling the case in a way that violated his duty to represent his client

diligently and promptly. Relying on testimony provided by Margeotes at his

deposition, Wasserman stated that Toscano failed "to properly prosecute and

preserve" the CEPA case, so that when Margeotes took over, he faced the

significant problems of "missing depositions, un-supplemented interrogatory

answers and no expert witness." Wasserman also criticized a number of actions

that Toscano took after the Toscano Firm's representation was terminated,

opining that Toscano engaged in "waging a relentless anti-client campaign

against his client just to secure payment of his asserted fee."

      Wasserman did not testify at trial. The court dismissed Haroldson's legal

malpractice claims on summary judgment, holding that he failed to provide

"expert testimony as to what the appropriate settlement figure would have been"

had Toscano not deviated from the standard of care. Later, when Haroldson

sought to have Wasserman testify before the jury on the claims related to

Toscano's post-discharge actions, the court held that Wasserman's opinions were

net opinions as to those claims because he failed to sufficiently articulate a

standard of care for attorneys seeking payment after the termination of

representation. It is not clear from the record whether Haroldson did not offer

or the court precluded Wasserman's testimony during the bench trial proceedings

on the issue of the lien claim.

      E. Lien claim decision

      The trial court decided the lien claim and the $15,000 retainer dispute on

August 25, 2017. The court found that Toscano "expended in excess of one

hundred twenty (120) hours in the prosecution of the" CEPA case, and it

accepted his time records as "generally accurate." The court found that "a

significant amount of work was performed, including, paper discovery,

conferences, calls, and the deposition of his client." The court contrasted the

time spent by Toscano with the time spent by Margeotes, which was "limited to

that required to negotiate the settlement over the phone, and to prepare and

review settlement documents."

      The court found that a settlement offer of $125,000 had been made at the

September 2013 conference before Judge Polifroni, discounting Calo's

testimony on that point. It further explained:

            With respect to the merits of Haroldson's claim, the
            [c]ourt will judicially notice its prior decisions in the
            matter, which include an [o]rder for summary judgment
            in a legal malpractice claim against Toscano in which
            the [c]ourt dismissed Haroldson's claims based, in part,
            on the lack of merit of his "case within the case." Based
            on the [c]ourt's conclusion that an offer of $125,000
            was communicated to Toscano, and given the

            problematic nature of Haroldson's claims, the [c]ourt
            finds that Toscano made a significant contribution to
            the advancement of Haroldson's case.

      The court held that Toscano was "entitled to the entire lien of $31,250.00."

The court also "decline[d] to credit Haroldson's contention that Toscano

unconditionally promised to refund the $15,000.00 retainer in the event of a

settlement." The court then entered judgment in Toscano's favor for $31,250.


      A. Jury Trial Issue

      Haroldson contends the trial court erred by denying him a jury trial on the

Toscano Firm's claim for an award of attorneys' fees for the work it performed

before he retained Margeotes. We agree and hold that Haroldson was entitled

to a jury trial on the attorney lien claim and the $15,000 retainer dispute.

      Article I, Paragraph 9, of the New Jersey Constitution provides that "[t]he

right of trial by jury shall remain inviolate[.]" This provision "guarantees the

right to trial by jury as it existed at common law" in 1947 when the New Jersey

Constitution was adopted. Ciba-Geigy Corp. v. Liberty Mut. Ins. Co.,  149 N.J.
 278, 291 (1997).

      The right to a jury trial "attaches in legal, but not equitable actions." Id.

at 291. The court must "look to the historical basis for the cause of action and

focus on the requested relief" to determine whether a case is primarily legal or

equitable. Weinisch v. Sawyer,  123 N.J. 333, 343 (1991). See also Shaner v.

Horizon BanCorp.,  116 N.J. 433, 450-51 (1989) ("We consider the nature of the

underlying controversy as well as the remedial relief sought in determining

whether the cause of action has been historically primarily equitable or legal in

nature."). Where litigants seek equitable relief rather than money damages, they

"generally do not enjoy a right to trial by jury." Weinisch,  123 N.J. at 344. But

"where the primary right is legal, and the remedy invoked is likewise legal in

character, and there is an adequate, certain and complete remedy at law, equity

will not exercise its jurisdiction." Pridmore v. Steneck,  122 N.J. Eq. 35, 37


      Here, the trial court correctly held that the Toscano Firm's claim for

"fixing a lien pursuant to N.J.S.A. 2A:13-5" constituted a claim for quantum

meruit, and we discern no dispute on that point. "An attorney hired on a

contingent fee basis and later discharged before completion of services is not

entitled to recover fees on the basis of such contingent agreement; instead, he or

she may be entitled to recover on a quantum meruit basis for the reasonable

value of the services rendered." Glick v. Barclays De Zoete Wedd, Inc., 300

                                        31 N.J. Super. 299, 310 (App. Div. 1997) (citing Cohen v. Radio-Electronics

Officers Union,  146 N.J. 140, 165 (1996)).

      The trial court reasoned that the Toscano Firm 's statutory lien claim was

an "essentially equitable proceeding" to which a right to trial by jury did not

attach. As for Haroldson's remaining counterclaims and third-party claims, the

court recognized that a jury trial right attached, and it empaneled a jury to hear

evidence on those claims. However, because it feared inconsistent results on

the jury's determination of the $15,000 retainer issue and its own decision on

the quantum meruit claim, it made all findings and ruling as to both disputes

without a jury. This constituted error, both in removing the $15,000 retainer

dispute from the jury and deciding it as a breach of contract claim, and in holding

that no jury trial right attached to the quantum meruit claim.

      Rule 4:35-1(d) provides that, once a demand for a jury trial has been made,

the case must be tried to a jury unless all parties consent otherwise or the court

finds that no jury trial right exists. Specifically, the rule states:

             When trial by jury has been demanded as provided by
             this rule the trial of all issues so demanded shall be by
             jury, unless all parties or their attorneys, by written
             consent and filed stipulation or oral stipulation made in
             open court and entered on the record, consent to trial by
             the court without a jury, unless the court on a party's or
             its own motion finds that a right of trial by jury of some
             or all of those issues does not exist.


      The trial court initially recognized that Haroldson's breach of contract and

fraud claims should be tried to a jury, yet it removed the decision on the $15,000

retainer from the jury because it viewed this dispute as "inextricably tied to the

issue of the fee under the fee lien" and it feared possible inconsistent results.

This implied that the court did not view the $15,000 retainer dispute as a separate

breach of contract claim, but as a payment issue subsumed within the lien claim.

Had the court considered the $15,000 retainer payment in this way, then it would

not have deprived Haroldson of his right to a jury trial on either a breach of

contract or fraud claim because, when Haroldson's other claims were dismissed,

the $15,000 retainer dispute became nothing more than an issue of payment or

credit, not an independent cause of action.

      However, in its decision, rather than treating the $15,000 retainer as

credit, or finding that it raised issues "inextricably tied" to the lien claim, the

trial court treated the retainer dispute as a breach of contract claim, wholly

distinct from the lien claim. The court made credibility and fact findings

regarding the promise Toscano allegedly made to Haroldson to return the

retainer and found against Haroldson based solely on those findings. The court,

however, treated these findings as unrelated to the value of the work the Toscano

Firm performed and the amount it was entitled to collect under the lien claim.

The problem with the court's approach of treating the $15,000 retainer dispute

as a breach of contract claim is that a jury trial right attached to that claim and,

if that claim continued intact after Haroldson's other claims were dismissed, then

under Rule 4:35 1(d), the court had no power to deprive Haroldson of a jury

without his consent.

      We also conclude the trial court incorrectly held that the quantum meruit

claim was "essentially equitable." Although many cases describe quantum

meruit as rooted in "equitable" principles, it is recognized as a legal remedy.

Kopin v. Orange Prod., Inc.,  297 N.J. Super. 353, 367 (App. Div. 1997) (finding

quantum meruit "is actually a legal remedy, albeit one based on equitable

principles."); Ballard v. Schoenberg,  224 N.J. Super. 661, 667 (App. Div. 1988)

(noting that the defendant sought "specific performance, an equitable remedy,

and damages in quantum meruit, a legal remedy," but holding that the denial of

a jury trial caused no prejudice because the court never reached issue of quantum


      Quantum meruit is a form of quasi-contract, and the phrase means "as

much as [one] deserves." Kopin,  297 N.J. Super. at 367 (citation omitted). See

also Weichert Co. Realtors v. Ryan,  128 N.J. 427, 437-38 (1992) (finding

quantum meruit "entitles the performing party to recoup the reasonable value of

services rendered."). In Glick, we explained the proper analysis of a quantum

meruit claim where an attorney has been discharged by the client:

             Because the proper measure of compensation under
             quantum meruit is as much as is deserved, the crucial
             factor in determining the amount of recovery is the
             contribution which the lawyer made to advancing the
             client's cause. Thus, if a retiring lawyer cedes to his
             successor a substantially prepared case which resulted
             from an extensive investment of time, skill and funds,
             the retiring lawyer might be entitled to compensation
             greater than the standard hourly rate. In comparison, if
             a ceding lawyer's work contributed to a recovery by the
             client, but the new attorney was crucial in the success
             of the case, then the predecessor's compensation should
             be based, at most, upon a standard hourly rate. Finally,
             if the predecessor's work, no matter how extensive,
             contributed little or nothing to the case, then the ceding
             lawyer should receive little or no compensation. Where
             the attorney is discharged for good cause, he or she may
             not be entitled to any recovery, except reimbursement
             of the reasonable costs incurred in the representation.

             [Glick,  300 N.J. Super. at 310-11 (citations omitted).]

       N.J.S.A. 2A:13-5 gives the attorney "who shall appear in the cause for the

party instituting the action . . . a lien for compensation, upon his client's action,"

and that lien "shall not be affected" by settlement of the action. In construing

the statute, first enacted in 1914, the Court of Errors and Appeals noted that it

applied to both courts of law and courts of equity, depending on where the

underlying action was lodged. Artale v. Columbia Ins. Co.,  109 N.J.L. 463, 465-

66 (E. & A. 1932). The Artale court noted that courts of law and equity have

jurisdiction to enforce an attorney's lien, and it suggested, as procedure in courts

of law, that the dispute be "tried to a jury, or by the court if a jury be waived, or

disposed of by the court where the facts are admitted." Id. at 468.

      In 1959, we noted that the procedures suggested in Artale "have since been

recognized as the proper procedure." H. & H. Ranch Homes, Inc. v. Smith,  54 N.J. Super. 347, 353 (App. Div. 1959). Justice, then Judge, Haneman explained:

             For the guidance of counsel in connection with future
             applications, consistent with the spirit of our present
             rules of practice, we suggest that, where the
             determination or enforcement of an attorney's lien is
             sought, the following procedure, patterned on Artale,
             be employed: The attorney should make application to
             the court, as a step in the proceeding of the main cause,
             by way of petition, which shall set forth the facts upon
             which he [or she] relies for the determination and
             enforcement of his alleged lien. The petition shall as
             well request the court to establish a schedule for further
             proceedings which shall include time limitations for the
             filing of an answer by defendants, the completion of
             pretrial discovery proceedings, the holding of a pretrial
             conference, and the trial. The court shall, by order, set
             a short day upon which it will consider the application
             for the establishment of a schedule. A copy of such
             order, together with a copy of the petition, shall be
             served upon defendants as directed by the court. The
             matter should thereafter proceed as a plenary suit and
             be tried either with or without a jury, in the Law
             Division, depending upon whether demand therefor has

            been made, . . . or without a jury if the venue of the
            main cause is laid in the Chancery Division. In no event
            should the matter be tried as a summary proceeding.

            [Id. at 353–54 (emphasis added).]

See also Musikoff v. Jay Parrino's The Mint, LLC,  172 N.J. 133, 146 (2002)

("affirm[ing] the basic elements of the process articulated in H. & H., except

that we do not interpret the process to require an attorney to file and enforce a

lien petition prior to settlement or judgment in the underlying action .").

      Both Haroldson and the Toscano Firm cite Martin v. Martin,  335 N.J.

Super. 212 (App. Div. 2000), in support of their positions. Although it did not

address the point directly, on balance the Martin case supports the right to a jury

trial in a case like the one under review. The Martin court states that an

attorneys' lien "is rooted in equitable considerations, and its enforcement is

within the equitable jurisdiction of the courts." Id. at 252. However, it explains

that "the procedures to be followed in effectuating the statute are rooted in dicta

set forth in Artale," and it quotes the explanation given by the H. & H. Ranch

court, including the discussion of trial by jury in the Law Division. Id. at 222-

23. Moreover, Martin concerned an appeal from a judgment of the Chancery

Division, so the absence of a jury trial in that case is consistent with the

expectation set out in Artale and H. & H. Ranch that claims in a court of

chancery will proceed without a jury while claims in a law court will be decided

by a jury. Ibid.

      The Toscano Firm argues "the parties stipulated verbally" at one point that

"the fee action should be tried in a bench trial," and both the Toscano Firm's

counsel and the court recalled a discussion about a year before trial that the fee

action would be a bench trial. Counsel for Nicholson acknowledged that "there

were discussions" between counsel in the months before trial as to "procedurally

the best way to approach this"; however, he did not concede that there had ever

been any stipulation, and insisted on Haroldson's right to a jury trial on all issues

of fact and credibility. Regardless, Rule 4:35-1(d) expressly provides that

consent to a bench trial where a jury trial right exists must be by "written consent

and filed stipulation or oral stipulation made in open court and entered on the

record." Haroldson's counsel never signed a written stipulation nor did he ever

make such an oral stipulation in open court. To the contrary, he verbally

demanded a jury on the record in open court. Accordingly, we conclude the trial

court erred in denying Haroldson a jury trial on the lien claim and in its treatment

of the $15,000 retainer dispute.

      B. Expert Opinion Issue

      Haroldson argues that the trial court erred in dismissing his legal

malpractice claims on summary judgment, contending Wasserman's opinion was

"not a net opinion" and "should have been credited" as to "proximate cause ." He

contends that "Wasserman's expert opinion is grounded in the factual record and

the law for determining the standard of care of an attorney in a case for legal

malpractice," and he argues that the issue of whether the Toscano Firm's and

Toscano's actions "proximately caused" his damages was "one for the finder of

fact" that should not have been decided on summary judgment. We find no error

in the trial court's grant of partial summary judgment.

      When deciding a summary judgment motion, the trial court must

determine whether "the competent evidential materials presented, when viewed

in the light most favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party." Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 523 (1995);

see also R. 4:46-2(c). The trial court must not decide issues of fact; it must only

decide whether there are any such issues. Brill,  142 N.J. at 540. The reviewing

court uses the same standard, first determining whether a genuine issue of fact

exists, and then, if one does not, whether the trial court's ruling on the law was

correct. Prudential Prop. & Cas. Ins. Co. v. Boylan,  307 N.J. Super. 162, 167

(App. Div. 1998).

      Contrary to Haroldson's contention, for purposes of the summary

judgment motion, the trial court 1) did not hold that Wasserman offered net

opinions, and 2) made all inferences in Haroldson's favor both as to deviations

from the standard of care and as to proximate cause, crediting that Wasserman's

opinions could establish a prima facie case on those points. Rather, the trial

court held that, even assuming that Wasserman's testimony could establish

deviation from a standard of care and causation, Haroldson presented no proofs

from which a jury could determine the extent of his damages.

      First, the court cited the legal standard for proving damages in a legal

malpractice claim:

            [T]o prove such injury, "the client must demonstrate
            that he or she would have prevailed, or would have won
            materially more . . . but for the alleged substandard
            performance." Lerner v. Laufer,  359 N.J. Super. 201,
            221 (App. Div.), certif. denied,  77 N.J. 223 (2003). The
            measure of damages is ordinarily what the client would
            have obtained without the attorney's negligence.
            Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C.,
             179 N.J. 343, 358 (2004).

      Next, the court noted that Wasserman's opinion was that Toscano's various

failures to properly prosecute the CEPA case caused Haroldson "to lose the full

value of his claim and accept a settlement at a drastic discount or in the

alternative, face the prospect of proceeding to trial without proper preparation."

The court held that this was not sufficient to establish the element of damages,


              Wasserman's conclusion is clear: Toscano's alleged
              deviations from the standard of care caused Haroldson
              to accept a settlement below its true value. However,
              what is glaringly absent is any expert estimation of the
              case's fair settlement value.      While [Haroldson's
              economic expert] estimated that Haroldson's economic
              losses were $108,000, there was no expert testimony as
              to what the appropriate settlement figure would have
              been. Haroldson does not even attempt to address this
              requirement. Without establishing the damage of
              Toscano's alleged malpractice, Haroldson's malpractice
              case clearly fails.

      Haroldson does not dispute that Wasserman failed to quantify the

diminution of value of the CEPA case due to alleged deviations from the

standard of care. Nor does he contend there was other expert testimony or

evidence from which a finder of fact could have determined that the CEPA case

would likely have provided Haroldson with some measurable amount in excess

of the $200,000 settlement he ultimately received. Without such evidence,

Haroldson failed to sustain the burden of showing the damages he claims were

caused by Toscano's deviations from the standard of care in representing him.

      Moreover, Haroldson's reference to a "net opinion" ruling is misplaced, as

the trial court made no such ruling in determining that Wasserman's opinions

were insufficient to defeat summary judgment on the legal malpractice claim.

Rather, later in the case, the court considered whether Wasserman would be

permitted to testify in support of the remaining causes of action, specifically

Haroldson's claims that behavior by Toscano after the Toscano Firm was

discharged constituted breach of a fiduciary duty and intentional attorney


      Wasserman had opined that, after Haroldson left the Toscano Firm for

Margeotes, Toscano acted improperly in various ways in connection with his

post-discharge fee application. However, the court held that Wasserman did not

explain the appropriate standard of care for an attorney's conduct after the

conclusion of the underlying case, so his opinions on that point were net

opinions. It stated:

              So, I'm not going to permit Mr. Wasserman to come in
              and give a disposition on these post-discharge issues
              when his report merely calls it a – calls it a deviation,
              but doesn't comply in my opinion with the law and set
              forth how and why it’s a deviation or identify the
              standard – identify where the standard comes from. So,
              it's – his mere statements along those lines are not

      On appeal, Haroldson asserts that the court erred in its treatment of

Wasserman's opinions in connection with the legal malpractice claims, but he

does not assert that the court erred by precluding Wasserman's testimony as to

his claims based on Toscano's post-discharge conduct. Indeed, Haroldson does

not argue on appeal that the court erred in dismissing the post-discharge-related

claims.   Therefore, the court's ruling that Wasserman's opinions on post-

discharge conduct were net opinions is irrelevant here.

      Regarding the court's grant of summary judgment on the legal malpractice

claim, we find the court did not err in its consideration of Wasserman's opinions

or in its determination that Haroldson failed to offer sufficient proof to enable

the jury to determine damages.

      C. Frivolous Litigation Issue

      Haroldson asserts that the trial court erred in denying his motion under the

frivolous litigation rule for sanctions against Toscano for having filed the fourth-

party complaint in June 2014 and for having moved to file an amended fourth -

party complaint in December 2014. We hold the trial court acted within its

discretion in denying sanctions.

      Conditioned on the moving party providing the appropriate notice, Rule

1:4-8 permits the trial court to grant a motion imposing sanctions for an

adversary's filing a frivolous pleading where the attorney acts with an improper

purpose, asserts claims without a legitimate basis in law or a "non-frivolous

argument" for the extension or modification of the law, or alleges facts that

cannot be supported. A trial court's denial of a motion for sanctions under Rule

1:4-8 is reviewed for abuse of discretion. K.D. v. Bozarth,  313 N.J. Super. 561,

573 (App. Div. 1998).

        "Sanctions are not to be issued lightly; they are reserved for particular

instances where a party's pleading is found to be 'completely untenable,' or

where 'no rational argument can be advanced in its support.'" McDaniel v. Man

Wai Lee,  419 N.J. Super. 482, 499 (App. Div. 2011) (quoting United Hearts,

L.L.C. v. Zahabian,  407 N.J. Super. 379, 389 (App. Div. 2009)). The court can

order the offending attorney to pay a penalty to the court or to pay some or all

of the moving party's attorney's fees, but in either case the sanction "shall be

limited to a sum sufficient to deter repetition of" the improper conduct. R. 1:4-


        Here, the trial court denied the sanctions motion for two reasons: 1)

untimeliness, and 2) the absence of bad faith or knowingly false allegations. On

the issue of timeliness, the court erred in holding that Rule 1:4-8 required the

motion to be filed within twenty days of August 25, 2017, the date it decided

the fee issue. Final judgment in this case did not occur until January 29, 2018,

when the court entered an order dismissing Haroldson's counterclaim and third -

party complaint. Haroldson's sanctions motion was filed three months prior to

the entry of this order, so it was within the deadline imposed by Rule 1:4-8.

      Nevertheless, it bears noting that Haroldson waited twenty months from

the date of the court's denial of the motion to file an amended fourth -party

complaint to seek sanctions connected with that allegedly frivolous pleading.

Although the sanctions motion was not untimely under the rule, the court could

have reasonably believed that, with trial over and no efforts by Toscano to push

the claims in the fourth-party complaint for twenty months, sanctions were not

necessary "to deter repetition of" the conduct at issue. R. 1:4-8(d).

      Haroldson contends that Toscano "simply copied causes of action out of

Bannon's Encyclopedia of New Jersey Causes of Action without reading the

cases or statutes they are based upon," and essentially argues that doing this

rendered the fourth-party complaint frivolous as a matter of law. The fourth-

party complaint asserted sixteen causes of action, including frivolous litigation,

intentional interference with contract, "false complaint of unprofessional

conduct," defamation, and wrongful use of process.

      The overall pleading, as noted by the court when it denied Haroldson's

initial motion to dismiss, "as drawn seems to be a little convoluted." It does not

follow, however, that Toscano's efforts to assert any fourth-party claims were

necessarily frivolous.    Although the pleading is rife with hyperbole and

accusations of bad faith and nefarious intent, its essential factual underpinnings

are accurate.    Haroldson retained Margeotes rather than continue with the

Toscano Firm in the CEPA case, Margeotes settled the dispute less than three

weeks later, and Haroldson thereafter refused to pay attorneys' fees to Toscano

and the Toscano Firm for any work performed. The trial court could reasonably

have concluded from this that Toscano did not act in bad faith or knowingly

allege false facts.

      Haroldson stresses that, upon close inspection, the fourth-party complaint

failed to state a claim upon which relief could be granted. We agree. For this

reason, the trial court dismissed the fourth-party complaint and denied Toscano's

motion to file an amended fourth-party complaint without material changes.

However, not every complaint that fails to state a claim is frivolous.

      Haroldson suggests that the trial court misunderstood the nature of his

sanctions motion, stating that the court "erred to the extent it concluded that"

the motion "was directed at [p]laintiff's [m]otion seeking [e]nhanced [f]ees,"

rather than the motion to file the amended fourth-party complaint. However,

Toscano sought enhanced fees in the fourth-party complaint, as well as other

relief, and Haroldson contended that the inclusion of this requested relief, which

was made after the Toscano Firm 's motion for enhanced fees had already been

denied, was affirmative evidence of an "improper purpose." In this context, the

court's refusal to find that Toscano "had no good-faith belief in his motion for

enhanced fees" simply addressed one of Haroldson's arguments and did not

suggest a misunderstanding on the part of the trial court. We conclude the trial

court acted within its discretion in refusing to impose sanctions for frivolous


      D. Emails and Recordings

      Haroldson argues that the trial court erred 1) in finding that two emails

had been inadvertently sent by Toscano and should have been returned in

accordance with RPC 4.4(b), and (2) in denying access to the recordings of

certain recesses during the May 2016 trial that ended in a mistrial. We disagree,

and find that the trial court acted within its discretion in ruling on these issues.

      Even assuming that the trial court erred in any determination regarding

the emails and the recordings, any such error was harmless. Under the harmless

error doctrine, "[a]ny error or omission shall be disregarded . . . unless it is of

such a nature as to have been clearly capable of producing an unjust result[.]"

R. 2:10–2. See also State v. Macon,  57 N.J. 325, 338 (1971) (an appellate court

must determine "whether in all the circumstances there was a reasonable doubt

as to whether the error denied a fair trial and a fair decision on the merits .");

Feiler v. N.J. Dental Ass'n,  199 N.J. Super. 363, 366 (App. Div. 1984) (an error

is harmless if it is "not 'clearly capable of producing an unjust result' within the

intendment of R. 2:10–2.").

      On appeal, Haroldson does not explain how a different decision by the

trial court on these points could have impacted the disposition of the matter in

any way. Indeed, Haroldson did not seek to admit either the emails or the

recordings as evidence on any claim or defense presented to the judge or the

jury, and the ultimate admissibility of both remains questionable.

      Haroldson's counsel received the emails at issue as part of discovery in

October 2014, yet they were not offered as evidence at trial in 2016 or 2017.

The existence of the emails was not raised until after trial in 2017, and then only

in connection with Roper's insinuation that the State was resisting her ongoing

efforts to obtain court recess recordings out of improper favoritism toward

Toscano. On appeal, Haroldson argues that the emails "demonstrate Toscano's

pattern of intimidation and braggadocio" that he engaged in when attempting to

collect fees post-discharge.    The claims based on post-discharge conduct,

however, were dismissed by the court, and Haroldson does not contest that

decision on appeal. Evidence of pre-discharge intimidation and braggadocio

could, perhaps, be relevant to the issue of the quality of the Toscano Firm's

services in the fee dispute, but it would no longer be relevant to anything else.

      As for the recordings, while they were not actually in Haroldson's

possession prior to trial, his counsel knew of their existence but did not proffer

them as evidence on any material point.        In connection with seeking the

recordings after the completion of the trial, Haroldson's counsel stated they were

relevant to "impugn the credibility of Mr. Toscano in the context of his pending

claim for attorneys' fees."      However, the recordings concerned alleged

inappropriate statements made by Toscano nearly three years after the Toscano

Firm's services were terminated, which would not serve to impugn his credibility

on the issue of the nature and sufficiency of the services the Toscano Firm


      We find no error in the trial court's determination that the email exhibits

were privileged and produced inadvertently. In addition, if any error occurred,

we find that any such error was harmless.

      Any arguments not specifically addressed lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed in part and reversed and remanded, in part. We do not retain



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