Opinion
DOCKET NO. A-2300-14T4
03-07-2016
ANTHONY CAPPUCCIO, Plaintiff-Respondent/Cross-Appellant, v. BARBARA BASIA BROWN, Defendant-Appellant/Cross-Respondent.
Seth Grossman, attorney for appellant/cross-respondent. Cooper Levenson, P.A., attorneys for respondent/cross-appellant (Louis Niedelman and Howard E. Drucks, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-4244-12. Seth Grossman, attorney for appellant/cross-respondent. Cooper Levenson, P.A., attorneys for respondent/cross-appellant (Louis Niedelman and Howard E. Drucks, on the brief). PER CURIAM
Defendant Barbara Basia Brown appeals a December 10, 2014 Law Division order denying her post-trial motion for fees and costs under N.J.S.A. 2A:15-59.1 and Rule 1:4-8. Plaintiff Anthony Cappuccio cross-appeals that portion of the court's order denying his motion for fees and costs under Rule 1:4-8. We affirm.
I.
We discern the following facts and procedural history from the record. On June 18, 2012, plaintiff filed a complaint alleging that defendant "issued defamatory statements and information constituting libel and slander thereby irrevocably damaging the reputation and character of plaintiff." The complaint requested an award of compensatory and punitive damages, attorney's fees, and costs. Defendant filed an answer to the complaint, denying that she uttered any defamatory statements regarding plaintiff and asserting affirmative defenses.
On September 14, 2012, the court granted plaintiff's motion for leave to file an amended complaint, which was filed on September 18, 2012, alleging that defendant libeled and slandered plaintiff by uttering false statements about him. The amended complaint included the allegation that defendant's defamatory statements caused damage to plaintiff's "character, reputation and community standing." Defendant filed an answer to the amended complaint, denying plaintiff's allegations and asserting affirmative defenses.
Following the filing of the initial pleadings, the parties exchanged written discovery, took depositions, and engaged in motion practice. On November 13, 2012, defendant filed a motion for summary judgment and for a protective order limiting plaintiff's discovery. On February 12, 2013, the court denied defendant's motion for summary judgment without prejudice and granted in part and denied in part defendant's motion for a protective order.
On August 14, 2013, defendant filed a motion for partial summary judgment seeking dismissal of certain factual allegations in the amended complaint and dismissing any and all claims for compensatory damages. On October 1, 2013, the court granted in part defendant's motion, limiting plaintiff's defamation claim to a cause of action for libel based upon defendant's posting of statements in the comments section of a local news website. The court's order also indicated that the parties had stipulated that plaintiff "ha[d] presented no evidence of any 'actual' or 'compensatory' damages, nor [would] there be a claim for such [at] trial."
The matter was tried before a jury. On October 29, 2014, the jury rendered its verdict finding that plaintiff had proven by clear and convincing evidence that defendant "maliciously posted a false and defamatory comment about [plaintiff] online[.]" The jury did not award damages, finding that plaintiff failed to prove that he suffered damage to his reputation as a result of defendant's publication of the defamatory statement. On November 17, 2014, the court entered a final order dismissing the lawsuit.
On November 17, 2014, defendant moved for an award of fees and costs under N.J.S.A. 2A:15-59.1 and Rule 1:4-8. Defendant asserted that she was entitled to fees and costs under N.J.S.A. 2A:15-59.1, claiming she was the prevailing party in the litigation because the jury did not award compensatory damages to plaintiff. She also asserted that plaintiff's claims were frivolous under Rule 1:4-8 because plaintiff proceeded to trial knowing that he could not prove an entitlement to compensatory damages.
In the certification submitted in support of defendant's motion to the trial court, her counsel relied upon Rule 4:23-1 as a basis for defendant's claimed entitlement to the award of fees and costs. On appeal defendant does not argue that the court erred by rejecting her argument under the rule. We therefore do not address the issue. --------
In response to defendant's motion, plaintiff's counsel served defendant's counsel with a written notice pursuant to Rule 1:4-8 asserting that defendant's motion for fees and costs was frivolous, requesting that the motion be withdrawn, and advising that if the motion was not withdrawn within twenty- eight days plaintiff would seek an award of attorney's fees and sanctions. Defendant did not withdraw her motion and on November 26, 2014, plaintiff filed a cross-motion under Rule 1:4-8 seeking fees and costs incurred in defending against defendant's motion.
The court considered the motions without oral argument. On December 10, 2014, the court entered a written memorandum of decision and order denying both parties' motions. Defendant appealed the denial of her motion for the award of fees and costs under N.J.S.A. 2A:15-59.1 and Rule 1:4-8. Plaintiff cross-appealed the denial of his motion for fees and costs under Rule 1:4-8.
II.
In our review of a trial court's determination on a request for the award of sanctions pursuant to N.J.S.A. 2A:15-59.1 or Rule 1:4-8, we apply an abuse of discretion standard. In re Estate of Ehrlich, 427 N.J. Super. 64, 76 (App. Div. 2012), certif. denied, 213 N.J. 46, and appeal dismissed, 213 N.J. 496 (2013); Mansone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). "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.'" Ehrlich, supra, 427 N.J. Super. at 76 (quoting United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 390 (App. Div.), certif. denied, 200 N.J. 367 (2009)). To the extent that the trial court's decision implicates legal principles, we independently evaluate those legal assessments de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 14 0 N.J. 366, 378 (1995); Finderne Mgmt. Co., Inc. v. Barrett, 402 N.J. Super. 546, 573 (App. Div. 2008), certif. denied, 199 N.J. 542 (2009).
N.J.S.A. 2A:15-59.1(a)(1) provides that "[a] party who prevails in a civil action . . . against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint . . . of the nonprevailing person was frivolous." The statute is designed "to discourage the advancement of frivolous positions through the imposition of attorney's fees upon the nonprevailing party." Chernin v. Mardan Corp., 244 N.J. Super. 379, 382 (App. Div. 1990).
To award costs to a prevailing party for a frivolous claim, the statute requires a showing that "the nonprevailing party either brought the claim in bad faith for harassment, delay, or malicious injury; or 'knew, or should have known that the complaint [or] counterclaim . . . was without [any reasonable] basis in law or equity . . . .'"
[Ehrlich, supra, 427 N.J. Super. at 77 (alterations in original) (quoting Buccinna v. Micheletti, 311 N.J. Super. 557, 562-63 (App. Div. 1998)).]
Rule 1:4-8 authorizes a court to impose sanctions against an attorney for asserting a frivolous claim on behalf of his or her client. Ibid. "An assertion is deemed frivolous when '"no rational argument can be advanced in its support, or it is not supported by any credible evidence, or it is completely untenable."'" Ibid. (quoting First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432 (App. Div. 2007)).
A pleading will not, however, be deemed frivolous under Rule 1:4-8 "unless the pleading as a whole is frivolous." United Hearts, supra, 407 N.J. Super. at 394. "[A] pleading cannot be deemed frivolous as a whole nor can an attorney be deemed to have litigated a matter in bad faith where . . . the trial court denies summary judgment on at least one count in the complaint and allows the matter to proceed to trial." Ibid.
Based upon our review of the record we discern no basis to conclude that the court abused its discretion in denying defendant's motion for fees and costs under N.J.S.A. 2A:15-59.1 and Rule 1:4-8. Plaintiff's singular allegation was that defendant uttered false and defamatory statements against him. Defendant filed an answer denying the allegation, thereby necessitating a trial. The jury wholly rejected defendant's denial and found by clear and convincing evidence that defendant maliciously defamed plaintiff. The jury's verdict provides ample support for the court's finding that plaintiff's claim was supported by law and was not frivolous or brought in bad faith.
We reject defendant's contention that the jury's failure to award damages rendered her the prevailing party under N.J.S.A. 2A:15-59.1, thereby requiring an award of fees and costs. The jury's failure to award damages to plaintiff did not render his claim frivolous or one asserted in bad faith. In a defamation case, reparation through an award of damages "is not the only focus of the [tort] system." W.J.A. v. D.A., 210 N.J. 229, 247 (2012). The jury's verdict here served the purposes of "deterrence" and "vindication" of a defamation claim because it "establish[ed] that defendant's allegations against . . . plaintiff were false." Ibid.
The jury's verdict represented a success for plaintiff on a "significant issue in [the] litigation [that] achiev[ed] some of the benefit [he] sought in bringing suit" and, for that reason, he could properly be considered the prevailing party in the litigation. Tarr v. Ciasulli, 181 N.J. 70, 85 (2004) (second alteration in original) (quoting Szczepanski v. Newcomb Med. Ctr., Inc., 141 N.J. 346, 355 (1995)). We are therefore satisfied the court did not abuse its discretion in finding that defendant was not the prevailing party under N.J.S.A. 2A:15-59.1, that plaintiff's claim was not brought in bad faith, and that plaintiff's claim was not frivolous under the statute or Rule 1:4-8.
We are also satisfied that the court did not abuse its discretion in finding that plaintiff was not entitled to an award of fees under Rule 1:4-8 for the filing of his opposition to defendant's application. Although the defendant's application was rejected by the court, we are convinced that it was supported by a rational argument and was not completely untenable. Ehrlich, supra, 427 N.J. Super. at 77. The record supports the trial court's finding that defendant's motion was not filed in bad faith or for purposes of harassment, and was not otherwise frivolous within the meaning of Rule 1:4-8. United Hearts, supra, 407 N.J. Super. at 390.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION