Opinion
DOCKET NO. A-6363-11T3
07-14-2014
JAMES MARK EPSTEIN, Plaintiff-Appellant, v. SONDRA J. LIPPI, Defendant-Respondent.
James Mark Epstein, appellant pro se. Law Offices of David C. Harper, attorneys for respondent (Andrew V. Ha, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. DC-2730-12.
James Mark Epstein, appellant pro se.
Law Offices of David C. Harper, attorneys for respondent (Andrew V. Ha, of counsel and on the brief). PER CURIAM
Plaintiff James Mark Epstein appeals from (1) the May 21, 2012 order denying his motion to compel discovery and granting defendant Sondra J. Lippi's motion for summary judgment; (2) the July 16, 2012 order awarding defendant $1000 in counsel fees and costs as a sanction for plaintiff's pursuit of frivolous litigation; and (3) the August 10, 2012 order awarding defendant an additional $525 in counsel fees and costs in connection with a second motion for sanctions filed by defendant.
Plaintiff, who appeared pro se before the trial court and continues to do so in this appeal, commenced a civil action against defendant arising out of a June 9, 2010 collision between plaintiff, who was riding his bicycle, and defendant, who was operating her motor vehicle. At the time of the accident, plaintiff maintained motor vehicle insurance for which he had elected the verbal threshold option of coverage, meaning that to recover for his non-economic injuries, he must have sustained a permanent injury within the meaning of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8.
During the course of discovery, defendant propounded interrogatories upon plaintiff, which included questions concerning the nature of plaintiff's injuries. In response, plaintiff certified that his claims were not "based on permanent injuries or aggravation of previous injuries sustained." Plaintiff also certified that as a result of the accident, he "suffered greatly increased anxiety when riding his bicycle. As a result, [his] bicycle riding has greatly decreased, depriving him of the health and transportation benefits previously enjoyed."
Trial was scheduled for April 17, 2012, but was rescheduled for May 21, 2012. On May 3, 2012, defendant sent plaintiff a frivolous litigation letter pursuant to Rule 1:4-8, (1) demanding that plaintiff dismiss his complaint with prejudice because plaintiff's insurer compensated him for damages to his bicycle and found no liability on the part of defendant, thereby closing its subrogation file; (2) asserting that plaintiff's discovery responses indicated his claims were not based upon permanent injuries or the aggravation of pre-existing injuries as a result of the accident; and (3) alleging plaintiff was not seeking recovery for lost wages or other economic claims.
Plaintiff refused to withdraw his complaint, stating that he sought to recover out-of-pocket expenses he incurred in seeking medical treatment and full restitution for property damage to his bicycle that was destroyed in the accident, for which he only received partial reimbursement from his insurer. He also indicated he was seeking punitive damages because defendant's conduct "displayed a conscious and deliberate disregard for the safety of others[.]"
On May 21, 2012, the date scheduled for trial, both parties appeared. The court noted that it had two motions, one from the defendant seeking summary judgment and one from plaintiff seeking to compel discovery. The court granted defendant's motion, thereby rendering plaintiff's motion moot.
We note neither motion was timely. See R. 4:46-1 ("All motions for summary judgment shall be returnable no later than 30 days before the scheduled trial date, unless the court otherwise orders[.]"); see also R. 4:24-2 ("Unless the court otherwise permits for good cause shown, motions to compel discovery . . . must be made returnable prior to the expiration of the discovery period.") The record does not reflect that either party objected to the motion filed by the other party on timeliness grounds. Since the court considered the motions, we assume the court determined there was good cause to do so.
In granting summary judgment, the court found it was undisputed plaintiff failed to vault the verbal threshold. With regard to the claimed property damage, the court stated "there's nothing here." Plaintiff inquired specifically what the court's findings were regarding the property damage, and in accepting defense counsel's argument, the court explained to plaintiff that any recovery for property damage was also subject to the verbal threshold. The court stated:
The verbal threshold affects any damages whatsoever as a result of the accident. See, that's the problem you have. I would like to help you with the 500 but the verbal kills that too. And you know what, you're not unique. I have verbal threshold[.] I think most people today do because it's a lot cheaper for insurance to have a verbal threshold. So, you're stuck either way. All right. I tried.
On June 11, 2012, defendant filed a motion seeking sanctions against plaintiff pursuant to Rule 1:4-8. The court conducted oral argument on June 25, 2012, and issued a written decision and order on July 16, 2012, granting defendant's motion and awarding $1000 in counsel fees and costs to defendant as a result of plaintiff's pursuit of his claims.
In concluding plaintiff's claims were frivolous, the court focused upon the absence of a viable cause of action to recover for personal injuries because plaintiff was subject to the verbal threshold and had conceded he sustained no permanent injuries. The court also found there "is absolutely nothing in this case regarding an issue of punitive damages. Plaintiff, Epstein, has mentioned punitive damages on a number of occasions, but absolutely nothing has been provided which would justify such an assertion." Noting that defendant sought over $5000 in counsel fees and costs, the court determined this amount was not appropriate and found that $1000 was a reasonable fee, which would "act as [a] deterrence for future conduct."
Following the June 25, 2012 proceeding, plaintiff filed a motion to enforce litigant's rights pursuant to Rule 1:10-2, seeking an order compelling defendant to provide him with a copy of the May 21, 2012 order. In response to this motion, defendant filed a second frivolous litigation motion seeking to recover fees and costs, pursuant to Rule 1:4-8. The court issued a written opinion dated August 10, 2012, in which the court expressed that it had been hopeful the $1000 sanction it previously imposed would have brought an end to what the court described as "nonsense." Noting that the basis of this most recent application for the imposition of fees was based upon plaintiff's contention he never received the May 21, 2012 order, the court stated that the "[o]rders were delivered in [its] presence, after the May 21st hearing. [The court's] [l]aw [c]lerk gave copies to both the [p]laintiff and [d]efendant." The court also questioned why plaintiff would wait "almost 60 days after the hearing to file his Motion for Sanctions[,]" if he in fact had not received the court's order. The court concluded plaintiff's motion was "absurd" and warranted the imposition of sanctions. The court imposed a $565 sanction. The present appeal followed.
On appeal, plaintiff contends the trial court committed reversible error in dismissing his claim for property damage based upon his failure to vault the verbal threshold, and also erred in granting defendant's first motion for imposition of sanctions because his property damage claim was not frivolous. In addition, plaintiff contends the court erred when it imposed sanctions in connection with his motion pursuant to Rule 1:10-2 to compel defendant to provide a copy of the May 21, 2012 order. Finally, plaintiff urges the court committed reversible error when it "failed to properly determine the attorney's fees."
We have considered the arguments advanced in light of the record and governing legal principles, and conclude, with the exception of plaintiff's claim for property damage, the 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.
The trial court was of the view that because plaintiff failed to vault the verbal threshold, he could not pursue his property damage claims. However, pursuant to N.J.S.A. 39:6A-12, a plaintiff who fails to vault the verbal threshold is precluded from recovering only noneconomic losses. The statute provides in pertinent part, "[n]othing in this section shall be construed to limit the right of recovery, against the tortfeasor, of uncompensated economic loss sustained by the injured party." Ibid.
Defendant does not challenge the fact that a plaintiff who fails to vault the verbal threshold may nonetheless pursue economic damage claims. Rather, defendant contends plaintiff "never alleged any property damage in his [c]omplaint." The complaint, however, states "[d]efendant's vehicle, despite [p]laintiff's yelling 'Stop!' and attempting to get out of the way, hit [p]laintiff's bicycle rendering him unconscious and demolished his bicycle." (Emphasis added).
Defendant was aware that plaintiff received compensation from his homeowner's insurance carrier for the bicycle, but plaintiff maintained he was not fully compensated. Because the court erroneously believed plaintiff was precluded from recovering economic losses, we are constrained to reverse that part of the judgment granting summary judgment dismissing his property damage claim. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (stating that a trial court's application of the law is not entitled deference). The fact, however, that we have reinstated this claim, does not require reversal of the sanctions imposed.
Rule 1:4-8(a)(2) speaks in terms of "claims," specifically, by "advocating a pleading . . . [a] pro se party certifies that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims . . . are warranted by existing law[.]" (Emphasis added). Consequently, the survival of one claim does not negate the imposition of sanctions where a party has otherwise pursued other claims which are frivolous. Here, as the trial judge concluded, plaintiff presented absolutely no evidence to support continuation of his punitive damages claims.
Affirmed in part, reversed in part and remanded for further proceedings. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION