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Berthelsen v. Hall

Decided: May 24, 1984.


On appeal from Superior Court of New Jersey, Law Division, Bergen County.

King, Dreier and Bilder. The opinion of the court was delivered by Dreier, J.A.D.


George A. Price, Esq., attorney for plaintiff, has appealed from an order of the Law Division assessing a $250 sanction against him as a result of the attorney's instituting this action when "there was no basis for the suit." The trial judge noted that he could not assess counsel fees, since defendant had appeared pro se, but the $250 was awarded as a sanction against the attorney to reimburse the defendant for his out-of-pocket costs and loss of time. The judge further noted that plaintiff's suit had been instituted against the defendant without the slightest effort to obtain the facts, and that "there was not a shred of reason why [defendant] should have been brought in."*fn1

The trial judge correctly noted that R. 4:42-9 limits the awarding of attorney's fees to the situations governed by that rule or where otherwise permitted by law, but found this rule of court does not bar the imposition of sanctions through which the court can protect itself from frivolous litigation.

This case must be distinguished from Atkinson v. Pittsgrove Twp., 193 N.J. Super. 23 (Ch.Div.1983) in which the inherent power of the Chancery court was cited as authority for the imposition of a sanction upon a plaintiff. It was there noted:

In that case the plaintiff had instituted multiple suits based upon a cause of action that had been fully adjudicated. In the case before us, however, we have the imposition of sanctions upon an attorney, and this requires a different analysis from that in Atkinson. Sanctions are not unknown to our practice, especially if they are sanctions which shift the cost of a proceeding, or some aspect of it, from a party imposed upon to the one whose conduct has necessitated the expense. See R. 4:46-6 (summary judgments opposed by a factual contention "raised in bad faith . . . with knowledge that it was a palpable sham or predicated on facts known or which should have been known . . . to be false."); R. 4:23-3 (costs payable for failing to comply with a proper request for admissions); R. 4:23-5 (sanction for failure to answer interrogatories in a timely manner -- $50 costs imposed against "the delinquent party."); R. 2:11-4 (attorney's fees as sanction for violation of appellate rules); and N.J.S.A. 2A:18-70 (authorizing costs up to $10 for "a frivolous or vexatious claim or defense" in the Small Claims Division).

The usual sanction imposed by other jurisdictions is attorney's fees. See, eg. Viola Sportswear, Inc. v. Mimun, 574 F. Supp. 619 (E.D.N.Y.1983), relying upon 15 U.S.C. § 1117, and the general vexatious litigation statute, 28 U.S.C. § 1927 under which an attorney "who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses and attorneys' fees reasonably incurred because of such conduct." Rule 11 of the Federal Rules of Civil Procedure roughly parallels our R. 1:4-8, but specifically provides that an attorney's signature on a pleading certifies, inter alia, that to the best of his knowledge (formed after reasonable inquiry) it is grounded in fact and not designed to harass. This rule specifically provides that a violation may lead to sanctions including an order to pay reasonable attorneys' fees. The court in Viola

Sportswear, Inc. further noted that it had inherent power over members of its bar and that "[i]f a court may assess counsel fees against a party who has litigated in bad faith, it certainly may assess those expenses against counsel who willfully abuse judicial process." [574 F. Supp. at 621, quoting from Roadway Express, Inc. v. Piper, 447 U.S. 752, 766, 100 S. Ct. 2455, 2464, 65 L. Ed. 2d 488 (1980)]. The court there assessed $20,000 in attorneys' fees against both the plaintiff and its attorneys, jointly and severally.

Similar statutory authority exists in Massachusetts, Mass.Gen.Laws Ann., ch. 231 §§ 6F, 6G, Town of Brookline v. Goldstein, 388 Mass. 443, 447 N.E. 2d 641 (Sup.Jud.Ct.Mass.1983); Wisconsin, Wis.Stats. § 814.025, Radlein v. Industrial Fire and Casualty Ins. Co., 117 Wis. 2d 605, 345 N.W. 2d 874 (1984); Florida, Fla.Stats. § 57.105, Angora Enterprises v. Condominium Association of Lakeside Village, Inc., 432 So. 2d 792 (Fla.Dist.Ct.App.1983); and under United States Supreme Court Rule 49.2, Tatum v. Regents, U.S. , 103 S. Ct. 3084, 77 L. Ed. 2d 1346 (1983), cited in Atkinson. In addition, sanctions have been specifically authorized in New Jersey in Union and Burlington Counties under the Individualized Case Management Project, there by special order of the Chief Justice.

Rule 1:1-2 provides generally that the Court Rules "shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." There then follows a general relaxation provision and the statement that "[i]n the absence of rule, the court may proceed in any manner compatible with these purposes." D.R. 7-102(A)(1) and (2) provides:

(A) In his representation of a client, a lawyer shall not:

(1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he believes that such action would serve ...

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