On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket Number L-9464-96
Before Judges Petrella, Braithwaite and Parker.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2000
Defendant/third-party plaintiff, Glenn King, appeals from a judgment in favor of third-party defendants, awarding them costs and attorneys fees pursuant to the frivolous complaint statute, N.J.S.A. 2A:15-59.1. We affirm.
This case has a lengthy and convoluted procedural history that we need not recite in its entirety. For the purposes of this appeal, we report the following. Plaintiff, Lucille Gooch, filed a complaint against Choice Entertaining Group, Group IV Equities, Site Development, Inc., Accent Landscaping and appellant King, (d/b/a CDC Contracting, Inc.). Gooch's complaint alleged negligence resulting in snow-related injuries incurred at Commerce Square. King, an attorney acting pro se, filed an answer to Gooch's complaint, and asserted cross-claims against Accent Landscaping and a third-party complaint against Philip and Cynthia Franchi, owners of Accent Landscaping.
In the third-party complaint, King alleged in essence that statements made by the Franchis in the course of the litigation defamed him. King further claimed harassment and abuse of process based upon the allegedly defamatory statements and sought restitution for costs, expenses and losses suffered as a result of his claim. Finally, King asserted a third-party claim for intentional and/or negligent infliction of emotional distress arising out of the alleged defamation.
Ultimately, plaintiff's personal injury claims were settled, and only the third-party claims remained. The third-party complaint was submitted to mandatory non-binding arbitration on June 8, 2000, after which it was "dismissed as having no cause of action." The Franchis moved to confirm the arbitration award and King filed no opposition. A dismissal order was entered on August 4, 2000 and, on September 19, 2000, the Franchis filed a motion for costs and attorneys fees under N.J.S.A. 2A:15-59.1. At that point, King cross-moved for an order vacating the arbitration dismissal of his third-party complaint and reinstating the matter to the trial list. In his motion, he claimed that he did not oppose the Franchis' motion to confirm the arbitration award because they had agreed that the arbitration would end the litigation. When the Franchis moved for fees, however, he moved to vacate the arbitration award.
In response to King's motion, the Franchis denied the existence of an agreement between themselves and King and asserted that in the arbitration, appellant "was not able to identify any statement" or details about the alleged defamation. The arbitrator ruled that King's abuse of process claim was not viable "because all of the actions complained of were within the limited immunity of the litigation." Moreover, the arbitrator stated that the award "was not on procedural grounds but on the merits."
After hearing argument on the motion to confirm the arbitration, the judge found "that there was absolutely no basis in the law for the third-party complaint which alleged defamation and slander against the third-party defendants .... And that the claim was frivolous." The judge granted the Franchis' motion and awarded fees and costs totaling $7,127 in accordance with N.J.S.A. 2A:15-59.1. King's motion for reconsideration was denied and additional cots and fees totaling $599.60 were assessed against him for that motion.
In this appeal, King argues that (1) the motion for sanctions pursuant to N.J.S.A. 2A:15-59.1 was not filed timely under R. 1:4-8; (2) the motion judge was unfamiliar with the case; (3) the motion judge evidenced bias toward King; (4) the judge misapplied the standard; and (5) the judge did not consider King's application to vacate the order dismissing the complaint.
The frivolous litigation statute provides:
A party who prevails in a civil action, either as a plaintiff or defendant, 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, counterclaim, cross-claim or defense of the non-prevailing person was frivolous. [N.J.S.A. 2A:15-59.1a(1).]
In determining whether sanctions should be imposed under the statute, the factors to be considered include whether the action "was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury" or whether the non-prevailing party "knew, or should have known," that the action "was without any reasonable basis in law or equity and could not be supported by a good ...