Opinion
DOCKET NO. A-4647-13T2
02-17-2016
GERARD WARD, BEN BROOKS, HENRY DREW, and GERALD G. SORRENTINO, on their behalf and others similarly situated, Plaintiffs, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, A DIVISION OF PRUDENTIAL FINANCIAL INC., Defendant, and PORT AUTHORITY POLICE BENEVOLENT ASSOCIATION, INC., PORT AUTHORITY DETECTIVES ENDOWMENT ASSOCIATION, PORT AUTHORITY SERGEANTS BENEVOLENT ASSOCIATION, PORT AUTHORITY LIEUTENANTS BENEVOLENT ASSOCIATION and GASPAR J. DANESE, Individually and as President of PORT AUTHORITY POLICE BENEVOLENT ASSOCIATION INC., Defendants-Respondents, IN THE MATTER OF TRUJILLO RODRIGUEZ & RICHARDS, L.L.C., Appellant.
Carl D. Poplar argued the cause for appellant. Christine Carey Lilore argued the cause for respondents Port Authority Police Benevolent Association, Inc. and Gaspar J. Danese. Craig Kozan argued the cause for respondents Port Authority Detectives Endowment Association, Port Authority Sergeants Benevolent Association, and Port Authority Lieutenants Benevolent Association (Witham & Kozan, P.A., attorneys; Mr. Kozan, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5311-04. Carl D. Poplar argued the cause for appellant. Christine Carey Lilore argued the cause for respondents Port Authority Police Benevolent Association, Inc. and Gaspar J. Danese. Craig Kozan argued the cause for respondents Port Authority Detectives Endowment Association, Port Authority Sergeants Benevolent Association, and Port Authority Lieutenants Benevolent Association (Witham & Kozan, P.A., attorneys; Mr. Kozan, on the brief). PER CURIAM
Trujillo Rodriguez & Richards, L.L.C. (TRR), one of the two law firms that represented plaintiffs, appeals from that part of a May 2, 2014 order, entered on remand, directing TRR to pay defendants' counsel fees and costs as sanctions under Rule 1:4-8. We affirm.
I.
On July 22, 2008, the Port Authority Police Benevolent Association, Inc. (PAPBA), Port Authority Detectives Endowment Association (PADEA), Port Authority Sergeants Benevolent Association (PASBA), Port Authority Lieutenants Benevolent Association (PALBA), and Gaspar J. Danese (collectively defendants), obtained summary judgment resulting in the dismissal of plaintiffs' class action suit with prejudice.
Plaintiffs stipulated to dismissal of their claims against Prudential Insurance Company of America.
The merits of the class action lawsuit, which related to Port Authority police officers' benefits, are not pertinent to this appeal. --------
On June 1, 2010, the PADEA, PASBA, and PALBA — represented by Witham & Kozan — and the PAPBA and Danese — represented by Christine Carey Lilore (Lilore), were awarded counsel fees and costs. The order apportioned payment of the award between plaintiffs and their attorneys, TRR and Hill Wallack, L.P. (HW). TRR's portion was $41,532.22.
Plaintiffs appealed and we affirmed the grant of summary judgment, the finding that plaintiffs' claims were frivolous, and that sanctions were warranted. Ward v. Port Auth. Police Benevolent Ass'n, No. A-5023-09 (App. Div. June 8, 2012) (slip op. at 14-15), certif. denied, 212 N.J. 455 (2012). However, we concluded that the trial court "failed to articulate its findings regarding the reasonableness of the fees and hours expended or the factors it considered in entering the award." Id. at 15. We also determined that the trial court "abused its discretion in sanctioning the individual plaintiffs" but remanded for consideration of sanctions against TRR and HW. Id. at 19-21.
On remand, the judge conducted oral argument and issued a written opinion finding "that the award of reasonable counsel fees and costs is the appropriate sanction" against TRR and HW. The judge then conducted "a de novo review of the previously submitted billing records and consider[ed] the arguments of counsel regarding the amount of the counsel fees and costs to be imposed as a sanction under [Rule] 1:4-8." The judge determined that the "number of hours reasonably expended in defense of plaintiffs' claims [to be] 280 hours[,]" applied the appropriate hourly rates, and apportioned the sanction equally between TRR and HW. On May 2, 2014, the judge entered an order directing TRR and HW to each pay $35,630 to Witham & Kozan and $32,500 to Lilore.
On appeal, TRR argues that (1) the judge improperly shifted all of the defense's costs to TRR and HW, exceeding the prior assessment of $41,532.22; (2) the judge abused her discretion because she failed to consider certain mitigating factors relevant to TRR in addition to improperly considering class status as an aggravating factor; (3) any monetary sanctions should have been nominal; and (4) TRR was denied due process.
II.
We review the decision to award fees pursuant to Rule 1:4-8 under an abuse of discretion standard. United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 390 (App. Div.), certif. denied, 200 N.J. 367 (2009). The amount of the sanction imposed is also within the discretion of the trial court and we will disturb that determination only when there has been a clear abuse of discretion. See Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001); Rendine v. Pantzer, 141 N.J. 292, 317 (1995). Such an "abuse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).
A.
TRR first argues that we did not, in our decision in the first appeal, disturb the initial apportionment of $41,532.22 made by the first judge, and therefore the remand judge could not award more than the original "cap" of $41,532.22. Because the remand judge decided to increase that value after full review of the record, TRR argues the remand judge impermissibly shifted all of the defense's costs to TRR and HW, overriding the original determination by the first judge. TRR's argument is unpersuasive because we did not restrict the trial court to such a cap. We indicated that the trial court "failed to articulate its findings regarding the reasonableness of the fees and hours expended" and "the factors it considered in entering the award." Ward, supra, slip op. at 15. We therefore remanded "to permit the appropriate findings to be set forth after consideration of plaintiffs' objections to the charges incurred" while emphasizing that the trial court was restricted, under Rule 1:4-8(d), to sanctions "'limited to a sum sufficient to deter repetition' of the complained-of conduct[.]" Id. at 15-16. We then went on to reverse the sanctions against the individual plaintiffs but remanded "for further consideration of the issue of sanctions, limiting those sanctions to an award against [TRR and HW] pursuant to Rule 1:4-8." Id. at 21.
On remand, the judge saw "some ambiguity . . . with regard to the extent of [our] remand" but ultimately followed our directions and did not err. Even though we did not disturb the amount awarded, we instructed the trial court to make the requisite findings to support the award. At the end of our opinion, we expressly instructed the trial court to consider "an award" against TRR and HW. Thus, the judge was not limited to the prior assessment and was free to conclude that "the award of reasonable counsel fees and costs is the appropriate sanction" against TRR and HW.
B.
TRR relies on Estate of Cohen v. Cohen, Nos. A-0713-10, A-0864-10, A-0941-10 (App. Div. Oct. 3, 2013), certif. denied, 217 N.J. 287 (2014), to argue that the judge abused her discretion by failing to consider certain mitigating factors when imposing sanctions. We note that Cohen is an unpublished opinion, which does not constitute precedent and is not binding on us. R. 1:36-3. The judge complied with Rule 1:4-8(d) by "describ[ing] the conduct determined to be a violation of [Rule 1:4-8] and explain[ing] the basis for the sanction imposed." The judge stated:
[HW] submits that it has already been penalized by its outlay of over $40,000 in unreimbursed expenses . . . and the expending of hours that might have generated fees from other clients. This argument carries little weight in terms of the imposition of a sanction, since plaintiffs' counsel would have been in the very same position had it simply lost the case on its merits. Rather, the court takes into consideration the pursuit of frivolous litigation instituted as a class action and the prospect of a substantial fee award in the event that it could resolve the matter in its clients' favor. The court has also taken into consideration the fact that [HW] is a firm of [seventy] attorneys and that a lesser amount in the form of a sanction paid into court may not have an impact sufficient to impress upon the firm as a whole the
consequences of engaging in frivolous litigation.
Although the excerpt above addresses HW, the considerations apply equally to TRR, seeing as both firms represented plaintiffs jointly, TRR joined in the arguments of HW, and TRR failed to contest the equal allocation of fees. Indeed, the judge noted explained TRR "joined in the arguments of [HW] and did not object to the equal allocation of sanctions between the two firms or submit further information on the issue." The judge did not abuse her discretion by considering the arguments presented, providing a detailed explanation for her findings and conclusions, and fixing a sanction within the parameters of Rule 1:4-8(d).
C.
Finally, we conclude that TRR's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
TRR argues that any monetary sanctions should be nominal. Rule 1:4-8(d) provides that sanctions
shall be limited to a sum sufficient to deter repetition of such conduct. The sanction may consist of . . . an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation, or both.
[(Emphasis added).]Despite TRR's contention, the rule does not require fees and costs to be nominal, but rather allows for "all" reasonable fees and costs to be awarded.
Regarding TRR's argument that it was denied due process, we note that TRR and HW submitted a joint memorandum of law in opposition to defendants' motion for counsel fees under Rule 1:4-8. The judge held oral argument, where TRR's attorney appeared and argued on its behalf. The judge clearly acknowledged that TRR and HW filed a joint memorandum, which was hand-delivered by HW. It is clear from the record that TRR was afforded due process.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION