Opinion
DOCKET NO. A-0364-13T4
09-02-2016
MOSES SEGAL, Plaintiff-Appellant/Cross-Respondent, v. CYNTHIA LYNCH, Defendant-Respondent/Cross-Appellant.
Steven M. Resnick argued the cause for appellant/cross-respondent (Ziegler & Zemsky, LLC, attorneys; Mr. Resnick, on the brief). Francis W. Donahue argued the cause for respondent/cross-appellant (Donahue, Hagan, Klein & Weisberg, LLC, attorneys; Mr. Donahue, of counsel and on the briefs; Kelsey Mulholland, on the briefs). Christopher J. Carey argued the cause for cross-respondents Budd Larner and Steven M. Resnick as to issues I and II on the cross-appeal (Graham Curtin, attorneys; Mr. Carey, of counsel and on the brief; Patrick J. Galligan, Theodore T. Reilly and Jared J. Limbach, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FD-19-313-13. Steven M. Resnick argued the cause for appellant/cross-respondent (Ziegler & Zemsky, LLC, attorneys; Mr. Resnick, on the brief). Francis W. Donahue argued the cause for respondent/cross-appellant (Donahue, Hagan, Klein & Weisberg, LLC, attorneys; Mr. Donahue, of counsel and on the briefs; Kelsey Mulholland, on the briefs). Christopher J. Carey argued the cause for cross-respondents Budd Larner and Steven M. Resnick as to issues I and II on the cross-appeal (Graham Curtin, attorneys; Mr. Carey, of counsel and on the brief; Patrick J. Galligan, Theodore T. Reilly and Jared J. Limbach, on the brief). PER CURIAM
In this high-conflict custody and visitation action, plaintiff Moses Segal appeals from a September 4, 2013 Family Part order requiring him to pay a significant portion of the counsel fees incurred by his former common law wife, defendant Cynthia Lynch, along with other costs incurred during the litigation. Plaintiff also appeals from orders entered on December 3, 2010, and August 9, 2011, denying his motions to file an amended complaint to assert a claim of intentional infliction of emotional distress. Defendant cross-appeals, arguing that the trial court erred by rejecting her request for sanctions against plaintiff's counsel. After reviewing the extensive record, briefs, and controlling legal principles, we affirm.
The trial court entered a "Corrected Order" on November 1, 2013, to address a clerical error.
In addition, plaintiff's amended notice of appeal lists seventy other orders entered during the litigation, many of which form the basis for the counsel fee award against him; however, plaintiff's counsel advised at oral argument that plaintiff was withdrawing his appeals of orders relating to custody and visitation, in light of the age of the parties' children, who are now both at least eighteen years old.
By order dated May 29, 2014, this court granted plaintiff's counsel's motion for "leave to appear as to Issue I and II on cross appeal."
I.
This appeal arises from litigation which began in this state when plaintiff filed a verified complaint for custody and parenting time in Morris County on September 22, 2006. Litigation between the parties had commenced in Canada in July 2003, with the Canadian court ultimately awarding defendant sole custody of the parties' two children, along with approximately $11,000,000 as a lump-sum payment of spousal and child support. Litigation in Morris County took nearly seven years to conclude, and saw numerous applications to this court challenging various Family Part orders.
The parties met in New York City in 1992, when plaintiff was fifty-two years old, and defendant was thirty-four years old. Plaintiff had been divorced for five years and had four children with whom he then had a satisfactory relationship. Plaintiff possessed both a law degree and an MBA and, according to defendant, had a net worth of $100,000,000, most of which he kept in accounts in Switzerland and the Channel Islands. Defendant had never been married and was a practicing attorney in New York.
In 1994, defendant agreed to quit her job and move to London to reside with plaintiff and start a family. Because defendant was reluctant to give up her career, plaintiff agreed to give her $100,000 immediately in case their relationship failed, and monthly income thereafter to replace her salary. Soon after defendant moved to London, plaintiff decided to sell his London apartment and the pair moved to the Bahamas, a tax-free jurisdiction. In December 1994, their daughter, Erin, was born.
We use pseudonyms for the children to protect their privacy.
In January 1997, the parties decided to relocate to Toronto, as plaintiff was a Canadian citizen. In 1998, their son, Wayne, was born. The family resided in a mansion, enjoying a luxurious lifestyle with full-time help including nannies; neither party was employed, then or subsequently. Plaintiff and defendant were considered married under Canadian common law.
In August 2001, the parties decided to separate, and defendant and the children moved out of the marital home. According to defendant, she and plaintiff had begun fighting regularly, and plaintiff had become very controlling, had locked her out of the house, and had grabbed and pushed her on several occasions. Plaintiff voluntarily paid support (including rent for an apartment for defendant and the children), and continued to see the children regularly but with no formal parenting plan or schedule. Defendant claimed that, during this period, plaintiff continued to be physically abusive towards her, even in front of the children.
In December 2002, plaintiff stopped paying support and, in July 2003, defendant filed suit for custody and support. Notably, she was unable to work in Canada because she was not a Canadian citizen. Two months later, in September 2003, a Canadian court ordered plaintiff to pay defendant $12,000 in monthly support. However, rather than complying with this directive, plaintiff fled Canada, leaving behind his two children, then ages eight and five.
Defendant pursued recourse in Canada to enforce her support award and, on April 22, 2005, the Canadian court awarded her sole custody and approximately $11,000,000 as a lump-sum payment of spousal and child support, support arrears, and other credits. In its decision, the court noted that plaintiff had a net worth of $100,000,000. The court also found that plaintiff was entirely opposed to providing defendant with any significant amount of support and had intended to bankrupt her through the litigation. Because the court determined that plaintiff would never voluntarily pay the award, it awarded defendant two of plaintiff's properties in Canada.
Plaintiff appealed the April 22, 2005 order. On June 14, 2006, a little over a week after plaintiff's appeal was argued before the Canadian appellate court, Toronto police came to defendant's home and informed her that they had information indicating that plaintiff had taken out a contract on her life. They took defendant and the children into protective custody that afternoon and the three spent several weeks at a secret location. Thereafter, with the permission of the police, defendant and the children spent the month of July at the Jersey shore, in Sea Girt, in accordance with previously-made plans. On July 18, 2006, plaintiff sent defendant an email which included a Latin phrase meaning "no one messes with me and gets away with it."
Plaintiff denied taking out a contract on defendant's life and no charges were ever filed against him. In late October 2006, the Toronto investigation was closed after police found no evidence linking plaintiff to the alleged murder plot.
At the end of the vacation, defendant decided to move in with her mother in Long Hill until the Toronto investigation was completed, and she enrolled the children in school under her last name. The police had told her to be cautious, and she thought it would be better if the children were not registered under "Segal." She contacted the local police about the threat, and they regularly patrolled by her mother's house.
Through the use of a private investigator (and with some assistance from defendant's estranged sister), plaintiff eventually located defendant and the children in Long Hill. On September 22, 2006, plaintiff filed a complaint in Morris County for parenting time. Specifically, he sought every other weekend and two mid-week visits with each child, which, notably, was more than he had ever had since the separation in 2001. In a supporting certification, plaintiff claimed that he was "retired" and that he simply "moved" to the United States between 2003 and 2005. Plaintiff later amended his complaint to include a request for a transfer of full residential and legal custody from defendant to himself.
In December 2006, the Canadian appellate court denied plaintiff's appeal. Notably, the court also denied an attempt by plaintiff's first wife to intervene in the hopes of securing some portion of the value of plaintiff's properties to satisfy money that plaintiff owed to her. Defendant believed that plaintiff had orchestrated his first wife's attempted intervention. Plaintiff then moved to compel defendant to place her lump-sum award in a trust, claiming that the funds needed to be protected because his first wife had also filed suit against defendant in Texas federal court alleging a RICO violation and seeking $12,000,000 in damages. On July 3, 2007, Judge Weisenbeck determined that plaintiff's application was brought in bad faith and awarded defendant counsel fees.
Meanwhile, in December 2006, Judge Weisenbeck had appointed psychologist Dr. Marcy Pasternak to evaluate the parties and the children and to offer an opinion as to what was in the children's best interests as to custody and parenting time. On March 30, 2007, the judge appointed Linda Schofel as parenting coordinator. On August 24, 2007, Schofel contacted Dr. Dana Chavkin, a psychologist, who agreed to meet with the parties in the hopes of serving as a reconciliation therapist for plaintiff and Erin. During Dr. Chavkin's first meeting with plaintiff on August 29, 2007, plaintiff behaved rather bizarrely and gradually grew louder and more intense; he also said something to the effect that he could make it "financially worth [her] while." Dr. Chavkin got the impression that he was offering her money if she helped him achieve a particular result in the case.
Schofel has a master's degree in social work; she also is an attorney licensed to practice law in New Jersey.
On September 28, 2007, Judge Weisenbeck signed an order confirming a mediated parenting schedule that gave plaintiff one overnight per month and one mid-week visit every other week with Erin, and every other weekend and a Thursday overnight with William; however, plaintiff was still dissatisfied.
Thereafter, plaintiff cancelled two sessions with Dr. Chavkin; he called her on October 2, 2007, and told her that, by speaking with Judge Weisenbeck, she had impacted his visitation in a negative way. Specifically, he had expected that things were going to be dramatically different by February 2008, i.e., that he would have custody, but that now, that was not going to happen. He asked her what she had told the judge and said he was going to demand a transcript of the conversation; additionally, he told her, "you better get a lawyer, a good one."
Also dissatisfied with Schofel's services, plaintiff sent her a letter on November 12, 2007, detailing twenty separate grievances. Schofel told plaintiff that she would respond to the allegations, but that she would charge him for doing so. Plaintiff indicated that he would only pay if directed by the court, and submitted his letter of grievances to the court. Judge Weisenbeck ultimately found plaintiff's grievances meritless and ordered him to pay Schofel over $35,000 in fees related to her response to the grievance letter.
Plaintiff appealed Schofel's fee award. We affirmed the award, which the Supreme Court reversed in part. Segal v. Lynch, 417 N.J. Super. 627 (App. Div. 2011), aff'd in part and rev'd in part, 211 N.J. 230 (2012).
During the course of this dispute, Schofel revealed that plaintiff had told her that, to him, this case was all about the $18,000,000 that was at stake. She believed that plaintiff had concocted the grievance letter to cover himself because of this damaging statement. Plaintiff denied making any such statement, and again applied for Schofel's removal.
Schofel ultimately resigned on April 14, 2008, because plaintiff repeatedly served subpoenas on her partners and staff and took information regarding another client from her office and then contacted that client. She also learned from another parenting coordinator that plaintiff was attempting to put together a class action lawsuit against her, and grew concerned about her safety and whether plaintiff was hacking her computer. Plaintiff admitted contacting some of Schofel's other clients.
Throughout the pendency of the litigation, numerous orders were entered modifying and in some cases suspending plaintiff's visitation with the children. A plenary hearing before Judge Weisenbeck began in October 2008. By the end of January 2010, plaintiff had called thirty-nine witnesses and testified himself for eight days. Between January 2009 and February 2010 alone, plaintiff submitted ninety-nine certifications totaling 1300 pages (without exhibits) in support of various motions and orders to show cause. On August 3, 2009, Judge Weisenbeck noted that defense counsel had sent twenty-two separate items of correspondence between July 15 and July 16, 2009. On January 25, 2010, the court ordered both parties to deposit $2,500,000 in interest-bearing trust accounts for the satisfaction of any counsel fee awards made by the court.
By orders dated February 1 and 9, 2010, the court dismissed plaintiff's complaint with prejudice, pursuant to Rule 4:37-2(a), because plaintiff refused to come to court and pay $43,000 towards parenting coordinator's fees, as required by a prior court order. According to the court, plaintiff's conduct was inexcusable given that his own case information statement stated that he was worth $40,000,000. The court stated that it would consider plaintiff's testimony and any unchallenged testimony from his witnesses.
On February 22, 2010, Judge Weisenbeck issued a bench warrant for plaintiff's arrest for failing to make the necessary deposit and payment required by the court's orders of January 25, 2010, and February 9, 2010. Between May 2008 and May 2010, plaintiff moved on five occasions for Judge Weisenbeck to recuse himself. After the judge denied plaintiff's fifth motion in May 2010, plaintiff moved for leave to file an interlocutory appeal which this court granted on May 28, 2010. On June 1, 2010, after learning that plaintiff had been granted leave to appeal the denial of his latest recusal motion, Judge Weisenbeck recused himself, solely to avoid further delay in a case that had been pending since 2006. The case was then assigned to Judge James A. Farber, in Sussex County.
On July 23, 2010, Judge Farber denied plaintiff's motion to transfer the matter to Union County, and also ordered both parties to post security of $1,000,000 for attorney's fees. On August 11, 2010, Judge Farber vacated the outstanding warrant for plaintiff's arrest after plaintiff's counsel represented that the required sum was in his firm's escrow account.
On December 3, 2010, Judge Farber denied plaintiff's motion for permission to file an amended complaint including a count for intentional infliction of emotional distress. The court awarded $4005 in counsel fees to defendant, and denied a subsequent motion to stay this award.
On January 21, 2011, Judge Farber announced that he was reserving decision on the forty-seven pending motions that had been filed during Judge Weisenbeck's tenure because he wanted to resume the trial in the case. On February 4, 2011, Judge Farber reinstated plaintiff's original pleadings.
Neither party objected to Judge Farber's decision to continue the trial after reading the transcripts from the prior trial dates, as opposed to rehearing the entire trial ab initio.
On March 18, 2011, the judge denied defendant's request (made in November 2009 and renewed in September 2010) for permission to amend her counterclaim to include a claim for frivolous litigation sanctions against plaintiff and his counsel, noting that she had failed to submit a proposed form of her amended counterclaim and comply with the safe harbor letter requirement. On May 24, 2011, defendant filed another motion to amend her counterclaim to add a claim for frivolous litigation sanctions against plaintiff and his counsel, pursuant to N.J.S.A. 2A:15-59.1. The court denied this application without prejudice on August 9, 2011.
Meanwhile, on July 7, 2011, plaintiff filed a motion renewing his request to amend his complaint to include a count against defendant for intentional infliction of emotional distress. The court denied this motion on August 9, 2011, and, by order dated September 2, 2011, awarded defendant $3340 in counsel fees.
On December 16, 2011, Judge Farber ordered plaintiff to pay nearly $80,000 towards the outstanding bills of the various experts in the case, including more than $56,000 in parenting coordinator fees. On March 16, 2012, the court granted defendant's motion to again dismiss with prejudice plaintiff's complaint and suppress his defenses to the counterclaim, based upon plaintiff's continuing refusal to pay the experts. Plaintiff also refused to undergo a psychiatric evaluation. Thereafter, the court permitted plaintiff's counsel to cross-examine defendant and her witnesses, but precluded plaintiff from presenting any rebuttal testimony. The trial concluded on May 6, 2013, following oral summations by counsel for each party.
On July 9, 2013, plaintiff's counsel submitted a certification of services in support of plaintiff's request for counsel fees and in opposition to defendant's demand for fees and costs. Counsel claimed to have billed plaintiff $3,550,600 (exclusive of costs) at the trial level. Plaintiff submitted two companion certifications on July 9, 2013. Plaintiff's counsel subsequently submitted a second certification dated July 30, 2013, with fifty exhibits. Plaintiff also submitted a certification dated July 30, 2013, with ninety-four exhibits.
Defense counsel submitted certifications of services dated July 9 and July 30, 2013, indicating that defendant's counsel fees totaled $2,011,754, of which defendant had paid $1,567,018.23, leaving a balance owed by defendant of $444,736. Defense counsel requested the court to assess frivolous litigation sanctions against plaintiff and his counsel under N.J.S.A. 2A:15-59.1(c) and Rule 1:4-8. Defendant provided four supporting certifications.
On September 4, 2013, Judge Farber issued his opinion and signed an order: (1) granting defendant sole legal and physical custody of the children; (2) authorizing, under certain circumstances, possible future contact between plaintiff and the children; (3) ordering plaintiff to pay defendant a total of $1,420,758.75 in attorneys' fees, interest and costs; (4) distributing to defendant, defense counsel and the various psychologists and other professionals in the case the $1,000,000 posted in escrow by plaintiff, and entering judgments against plaintiff for the remaining amounts due these creditors; and (5) issuing a bench warrant for plaintiff's arrest for failing to pay the amounts ordered in the court's December 2011 order. This appeal and cross-appeal followed.
On November 1, 2013, the court issued a corrected order reallocating plaintiff's escrowed $1,000,000 and adjusting the amounts of the judgments entered in favor of the identified creditors. Defendant received $943,770.34 directly or on her account, and a judgment in the amount of $476,988.41 was entered in her favor against plaintiff. --------
Having reviewed the extensive record, including the hearing and trial transcripts, we conclude that the case presents no novel legal issues and was correctly decided. The trial court's determinations, many of which turned on his evaluation of witness credibility, were well explained, supported by sufficient credible evidence, and consistent with established law. We affirm the orders on appeal, substantially for the reasons stated in the trial court's oral and written opinions. We add these comments.
II.
Plaintiff contends that the trial court erred in ordering him to pay a large portion of defendant's counsel fees, including a $350,000 sanction. We disagree.
The award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court. R. 5:3-5(c); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004); Guglielmo v. Guglielmo, 253 N.J. Super. 531, 554-55 (App. Div. 1992). In deciding whether to make such an award, the court should consider
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.A trial judge's decision on a fee application will only be overturned in the rarest circumstances and only for a clear abuse of discretion. Rendine v. Pantzer, 141 N.J. 292, 317 (1995); Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011).
[R. 5:3-5(c).]
In his statement of reasons, Judge Farber concluded that defendant was entitled to an award of fees because plaintiff had taken "a scorched earth approach to the litigation for the sole purpose of seeking reversal of the Canadian financial judgment against him" or, failing that, "to cause [defendant] to spend as much money as possible on attorneys and experts to penalize her and punish her for challenging him." In reaching this "inevitable" conclusion, the judge credited the testimony of Schofel and defendant. The judge then painstakingly analyzed the amounts he assessed against plaintiff.
The judge identified July 1, 2009, i.e., the date of an incident between plaintiff and Erin at the office of plaintiff's reunification therapist that necessitated police intervention, as "the demarcation date for [plaintiff's] egregiously bad acts." After that date, plaintiff twice interfered with defendant's vacation plans and, per Wayne, plaintiff's campaign against defendant "went into full swing." Based on plaintiff's conduct, from July 1, 2009, forward, Judge Farber held that plaintiff should be responsible for the attorneys' fees incurred by defendant, or $986,663.62, while defendant should be responsible for all pre-July 2009 fees, except for instances where the judge found it appropriate to shift fees to plaintiff.
After making other appropriate adjustments, Judge Farber ruled that additional fees should be charged to plaintiff due to his "overarching bad faith in the proceedings." The judge cited numerous examples of plaintiff's bad motives and how plaintiff and his attorneys had prosecuted the case to "harass and intimidate" defendant without any regard to the toll the litigation was taking on the children, including: (1) plaintiff's comment to Schofel; (2) Dr. Chavkin's testimony about plaintiff's offering to "make things worth her while if things went well"; (3) plaintiff's raising or creating specious parenting issues; (4) plaintiff's subpoenas of tangential persons and entities that "boggle[d] the mind"; (5) plaintiff's depositions and trial testimony "exceeding any standard of reasonableness"; (6) plaintiff's baseless recusal and change-of-venue applications; (7) plaintiff's intentional misinterpretation of letters and documents; (8) the "scorched earth strategy" employed by plaintiff's lawyer; (9) the efforts by plaintiff's lawyer to assert the emotional distress claim in the Family Part even after that claim was rejected by the Appellate Division in a separate civil action; and (10) plaintiff's unwarranted or specious motions for reconsideration and stays and his unreasonable interlocutory appeals, emergency appeals, and petitions for certification. In sum, Judge Farber concluded that plaintiff had "used this litigation as a form of economic coercion" and there was "obvious bad faith by plaintiff and his attorney."
The judge noted that he had considered all of the remaining fee-shifting factors, even though he did not believe such consideration was necessary given the bad faith in this case. Specifically, the judge found that the time and labor required in this case was exorbitant. While there were no novel or difficult questions, plaintiff had transformed this custody/parenting case into a "monster created to devour defendant." After further finding that Rule 4:42-9(b), (c) and (d) had been followed, and "[d]ue to the heinous manner in which plaintiff pursued this litigation," Judge Farber shifted an additional $350,000 in fees from defendant to plaintiff, resulting in a new subtotal of $1,398,048.42 (after crediting the payment of $7,077.50 already made to defense counsel).
From our review, the record overwhelmingly demonstrates that plaintiff proceeded in bad faith in litigating this case. Plaintiff's financial motive was confirmed by Schofel, and reflected in the unreasonable, relentless, and overwhelming way plaintiff and his counsel litigated what should have been a simple custody/parenting time action. Plaintiff presented forty witnesses and took the stand himself on ten separate days. His counsel cross-examined Schofel for nine hours after she gave four minutes of direct testimony. The record fails to support any of plaintiff's claims of trial court error regarding the fees and costs assessed against plaintiff. Plaintiff's arguments to the contrary lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
III.
Plaintiff also argues that the lower court erred in denying his motion to amend his complaint to add a count alleging intentional infliction of emotional distress. According to plaintiff, the trial court misread the decision in Segal v. Lynch, 413 N.J. Super. 171 (App. Div.), certif. denied, 203 N.J. 96 (2010), in refusing to permit the amendment. We disagree.
In October 2007, while this action was pending, plaintiff filed a separate complaint against defendant in the Law Division alleging that defendant "intentionally or recklessly engaged in extreme and outrageous conduct designed to poison his relationship with his children, which alienated the natural bond and affection that should exist between them and caused both he and the children emotional distress." Id. at 177. The Law Division dismissed plaintiff's complaint pursuant to Rule 4:6-2(e), finding that the facts alleged by plaintiff's complaint failed, as a matter of law, to state a claim of intentional or negligent infliction of emotional distress. Ibid.
Plaintiff appealed and, on May 3, 2010, we affirmed, finding that plaintiff had not brought a legally cognizable cause of action. Id. at 177-78. Rather, we concluded that "plaintiff's cause of action for intentional infliction of emotional distress must be barred as inimical to and irreconcilable with the best interests of the children involved in this suit." Id. at 178.
On December 3, 2010, Judge Farber denied plaintiff's motion for permission to file an amended complaint including a count for intentional infliction of emotional distress. The court deemed this a specious application given that plaintiff had already been unsuccessful in bringing a similar action in the Law Division. The court ruled:
Before [the trial judge] and the Appellate Division were allegations that defendant came to New Jersey with the children surreptitiously causing plaintiff to hire a private investigator to locate them; and enrolling the children under defendant's maiden name instead of their Segal birth name. The Appellate Division gave examples of the types of egregious behavior which would warrant permitting a case for intentional infliction of emotional distress to proceed in a family setting where a court must protect a child(ren). The examples given were where one parent falsely accuses the other of sexually abusing the child and parental abduction. The court found that [plaintiff's] allegations, if taken as true, did not constitute a cause of action for intentional infliction of emotional distress. The allegations in the proposed
Amended Complaint here pale in comparison to the seriousness of the allegations the Appellate Division dismissed. In short reviewing the pleading with liberality, in the context of the Appellate Division's decision, it fails to state a cause of action and must be barred.The court ordered plaintiff to pay $4005 in counsel fees, noting, among other things, that plaintiff had refused defendant's request that he withdraw the motion.
On July 7, 2011, plaintiff filed a motion renewing his request to amend his complaint to include a count for intentional infliction of emotional distress. The court denied this motion on August 9, 2011, deeming it specious and brought in bad faith, and awarded defendant counsel fees in the amount of $3340. The court found that the most allegedly egregious acts here occurred before October 2007, and that the subsequent events paled in comparison; under the earlier Appellate Division decision, what was presently alleged by plaintiff simply was not actionable. We agree, and find plaintiff's arguments to the contrary lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
IV.
On her cross-appeal, defendant contends that the trial court erred by failing to address her claim for sanctions against plaintiff's attorney pursuant to Rule 1:4-8 and the frivolous litigation statute, N.J.S.A. 2A:15-59.1. Defendant further argues that sanctions were warranted here and that the matter should be remanded for the determination of an appropriate award. We disagree.
Preliminarily, we note that our Supreme Court has limited the applicability of N.J.S.A. 2A:15-59.1 to parties only. McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 549 (1993). Accordingly, Judge Farber did not err in refusing to order sanctions against plaintiff's counsel under this statute.
Further, while sanctions against counsel are permitted under Rule 1:4-8(b)(1) for filing frivolous papers, the Rule sets forth specific requirements of the motion and supporting certification for such sanctions:
An application for sanctions under this rule shall be by motion made separately from other applications and shall describe the specific conduct alleged to have violated this rule. No such motion shall be filed unless it includes a certification that the applicant served written notice and demand pursuant to R. 1:5-2 to the attorney . . . who signed or filed the paper objected to. The certification shall have annexed a copy of that notice and demand, which shall (i) state that the paper is believed to violate the provisions of this rule, (ii) set forth the basis for that belief with specificity, (iii) include a demand that the paper be withdrawn, and (iv) give notice, except as otherwise provided herein, that an application for sanctions will be made within a reasonable time thereafter if the offending paper is not withdrawn within 28
days of service of the written demand.The sanction imposed "shall be limited to a sum sufficient to deter repetition of [the offending] conduct." R. 1:4-8(d).
Strict compliance with Rule 1:4-8(b)(1) is a prerequisite to recovery. State v. Franklin Sav. Acct., 389 N.J. Super. 272, 281 (App. Div. 2006); Cmty. Hosp. v. Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005). In particular, a request for sanctions will be denied when the complaining party fails to afford the offending party the window of opportunity to withdraw the papers claimed to be frivolous, as required under Rule 1:4-8(b)(1). Trocki Plastic Surgery v. Bartkowski, 344 N.J. Super. 399, 406 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).
During the course of this nearly seven-year litigation, defense counsel sent only four safe harbor letters to plaintiff's counsel. Two of these letters, dated December 9, 2009, and August 19, 2010, addressed plaintiff's applications for a trust for the children's support monies and to amend his complaint, and defendant was ultimately awarded counsel fees in both instances because of plaintiff's bad faith. The record does not indicate that defendant prevailed in the case of the other two letters dated November 20, 2009, and March 12, 2010.
Defendant moved, in November 2009 and September 2010, for permission to amend her counterclaim to include a general claim against plaintiff and his counsel under the frivolous litigation statute. This motion was denied in March 2011 because defendant had failed to include a proposed form of the amended counterclaim as an exhibit and a "certification regarding her compliance with the court rule with the safe harbor information."
On May 24, 2011, defendant renewed her motion to amend her counterclaim but again did not append any safe harbor letters. The court denied this application without prejudice on August 9, 2011.
The court found that defendant was faced with a procedural deficiency under Rule 1:4-8(b)(1) because she had not sent specific safe harbor letters as to each filing she now maintained was frivolous. It did not matter that the letters would have likely been futile, and a global letter now would not suffice under the Rule.
Although we acknowledge defendant's position that plaintiff's counsel engaged in improper conduct, we cannot ignore that she is presently trying to belatedly use Rule 1:4-8 for a global sanction against plaintiff's counsel. However, despite being cautioned by the court in March and August 2011, defendant did not send any safe harbor letters to plaintiff's counsel other than the four previously mentioned. Also, her present request for sanctions comes years after most of the allegedly-objectionable filings. Her failure to follow the prescribed procedure means that her application cannot fulfill the purpose of the Rule which was intended to deter attorneys from continuing to engage in frivolous litigation and needlessly burdening the court system. She also admittedly did not request this relief in a separate motion, again in violation of Rule 1:4-8(b)(1).
Accordingly, because defendant did not comply with Rule 1:4-8(b)(1), we reject defendant's contention that the trial court erred by failing to address her claim for sanctions against plaintiff's attorney. We discern no basis to disturb defendant's fee award, which covered all of her fees after July 1, 2009, plus an additional $350,000.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION