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Khoudary v. Salem County Bd. of Social Services

June 9, 1995

SAM KHOUDARY, PLAINTIFF-APPELLANT, CROSS-RESPONDENT,
v.
SALEM COUNTY BOARD OF SOCIAL SERVICES, DEFENDANT-RESPONDENT CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Salem County, after remand.

Approved for Publication June 9, 1995.

Before Judges Dreier and Villanueva. The opinion of the court was delivered by VILLANUEVA, J.A.D.

The opinion of the court was delivered by: VILLANUEVA

VILLANUEVA, J.A.D.

Plaintiff appeals from an order compelling him to pay attorney fees ($1,175 in trial court and $4,270.03 in the Appellate Division) pursuant to N.J.S.A. 2A:15-59.1, the so-called frivolous litigation act (Act). Defendant cross-appeals from the denial of the full amount of attorney fees it requested. We affirm on plaintiff's appeal and reverse on defendant's cross-appeal and modify the award to grant defendant the full amount requested.

Plaintiff brought a lawsuit against defendant Salem County Board of Social Services seeking $2,475 for rent and a security deposit for the rental of an apartment to defendant's client. No certificate of occupancy was issued and the premises were uninhabitable. Tried without a jury, the Judge ruled that plaintiff had no cause of action. Immediately after the Judge's ruling, defendant made a motion to recover attorney fees of $1,912.50 (15.3 hours at $125 per hour) under the Act. The Judge denied the motion.

On defendant's appeal, we reversed and held that this was a nuisance suit, "particularly egregious because plaintiff attempted to cause a public entity to pay money which it could not lawfully pay." 260 N.J. Super. 79, 86 (App. Div. 1992).

We held further:

Plaintiff's claim was not some novel position with a plausible foundation for which a good faith argument could be made. It was an aberrant and legally groundless claim. ... plaintiff's claim was not honest and creative litigation. Plaintiff flouted governmental authority and then endeavored to take advantage of a public entity.

[Id. at 88.]

We remanded for a hearing as to the amount of attorney fees to be awarded. Notwithstanding our opinion and being unwilling to pay any attorney fees to defendant's attorney, plaintiff's son, a lawyer, frustrated defendant's attorney's attempts to collect any fees. On November 24, 1992, plaintiff filed a motion for reconsideration in the Appellate Division, and requested in the alternative a stay of the decision pending determination by the Supreme Court of the then-pending McKeown-Brand v. Trump Castle Hotel & Casino, [decision later reported at 132 N.J. 546 (1993)]. We denied all aspects of plaintiff's motion.

On December 9, 1992, defendant filed a cross-motion in the Appellate Division seeking clarification as to whether the award of fees included the fees and costs on the appeal. We granted that motion and issued an order directing that the award of attorney fees to defendant included the fees on the appeal as well as the trial.

Defendant then filed a motion for attorney fees setting forth in detail the time expended in connection with the appeal, as well as the time expended at trial. Defendant later filed two additional detailed affidavits regarding attorney fees. Plaintiff filed a cross-motion and issued a notice in lieu of subpoena for the personal bank records of defendant's attorney. When all matters were argued on February 8, 1993, the trial court quashed plaintiff's notice in lieu of subpoena but reserved its determination on awarding fees. At the hearing, the court posed no questions to defendant's counsel concerning any of the listed charges, and did not identify any items for which additional explanation was required.

On March 18, 1993, the trial court issued a letter "order" allowing certain enumerated fees, but which had the effect of denying all fees not set forth in the letter. Defendant submitted ...


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