Opinion
DOCKET NO. A-0422-14T1
06-19-2015
KENNETH WACHSMAN, Plaintiff-Appellant, v. KATHY J. TOBIAS, Defendant-Respondent.
Winne, Banta, Hetherington, Basralian & Kahn, P.C., attorneys for appellant (Kenneth K. Lehn and Michael J. Cohen, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5828-12. Winne, Banta, Hetherington, Basralian & Kahn, P.C., attorneys for appellant (Kenneth K. Lehn and Michael J. Cohen, on the brief). Respondent has not filed a brief. PER CURIAM
This is the second time we review the denial of plaintiff's request for the award of attorney's fees pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1. In Wachsman v. Tobias, No. A-5271-12 (App. Div. July 23, 2014), we reversed an order that denied plaintiff's application and remanded the matter for further proceedings. The underlying facts and procedural history are set forth in our opinion and need not be repeated here.
In the first appeal, defendant argued the court erred in determining he did not have a statutory right to the award of counsel fees and in concluding he was not the prevailing party in the litigation. In reversing, we concluded the trial court "erred in its determination that 'there is no prevailing party in this matter as the parties settled the case.'" Id. at 6. We provided the following instructions for the remand:
As the parties agreed in their settlement that the legal fees' "decision would be made by the judge on the papers, no testimony, no other proceedings in court," the motion court shall base its decision on the submissions of the parties.
The court shall first determine if plaintiff is a prevailing party and, if so, then has he met his burden to prove the bad faith of the defendant. We note a claim is frivolous "when no rational argument can be advanced in its support, when it is not supported by any credible evidence, when a reasonable person could not have expected its success, or when it is completely untenable." Our Supreme Court has observed that even "false allegations of fact will not justify a fee award unless they are made in bad faith, for the purpose of harassment, delay, or malicious injury."
However, defending against a claim is no excuse for knowingly making false factual statements in a pleading. Therefore, on remand the judge should evaluate defendant's factual assertions that the ring was not given to her in contemplation of marriage
and that she lost the ring, through the prism of whether the assertions were in fact false and made in bad faith, for the purpose of harassment, delay, or malicious injury. That same principle should be applied with regard to defendant's factual contentions in her counterclaim.
[Id. at 6-8 (citations omitted).]
Despite our direction and the parties' agreement, the trial court did not make a determination as to whether plaintiff was a prevailing party based upon the submissions of the parties. As noted, we stated that, if plaintiff was the prevailing party, "he met his burden to prove the bad faith of the defendant." Id. at 7. However, even though defendant had submitted no written opposition to plaintiff's motion, the court conducted a hearing, took testimony from defendant regarding her good faith, and determined she had not acted in bad faith. The court denied plaintiff's application anew and set forth the following reasons for doing so:
On August 8, 2014 this Court held a hearing to determine whether the Defendant's counterclaim, which was abandoned pursuant to the settlement, was frivolous. After completion of the hearing, this Court found that the Defendant had a good faith basis for her counterclaim. The Defendant testified that she honestly believed the ring was a gift that did not need to be returned and that she had mistakenly thought she lost the ring. When the Defendant found the ring she brought it with her to court to turn over as part of the settlement that extinguished the remaining claims. The
Defendant's genuine testimony demonstrated that her counterclaim was brought in good faith.
In his appeal from the second order denying his application, plaintiff argues reversal is warranted because the trial court disregarded our instructions and because the court disregarded his "clear and uncontested evidence of" defendant's bad faith. He further asks that the matter be assigned to a different judge upon remand. We are constrained to agree.
N.J.S.A. 2A:15-59.1(a)(1) provides for an award of reasonable litigation costs and reasonable attorney fees to "[a] party who prevails in a civil action . . . if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the nonprevailing person was frivolous." The focus of the first appeal was whether plaintiff was a prevailing party under this statute and our remand directions were limited accordingly.
The fact that the trial judge elected to follow a different procedure on remand and arrived at the same result as that in the order we reversed casts an unfortunate pall upon the appearance of impartiality so essential to the administration of justice. Therefore, "[i]n an abundance of caution, we direct that this matter be remanded to a different judge for" a determination of plaintiff's application for fees under the
Frivolous Litigation Statute. Entress v. Entress, 37 6 N.J. Super. 125, 133 (App. Div. 2005).
Upon remand, the trial court shall review the submissions presented in support of and in opposition to the fee application. In making its determination, the court shall be guided by N.J.S.A. 2A:15-59.1, and our prior decision in this matter. The court shall also ascertain whether there has been compliance with Rule 1:4-8(b), which "governs the procedures applicable to an award of frivolous litigation counsel fees and costs." See Toll Bros. v. Twp. of W. Windsor, 190 N.J. 61, 64 (2007).
Reversed and remanded for further proceedings consistent with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION