On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This appeal concerns an application for sanctions against a party brought pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1. The Court must determine whether dismissal on the basis of a procedural deficiency should be conditioned on whether it was practicable to comply with Rule 1:4-8's safe harbor provision.
Dr. and Mrs. Charles Akselrad were parties to a protracted zoning and development dispute with the Township of West Windsor. Shortly after a settlement was finalized, the Akselrads filed a motion for counsel fees and costs pursuant to the Frivolous Litigation Statute. The Akselrads claimed that the Township had acted in bad faith during the litigation by consistently asserting that the Akselrads' property could not be sewered at a reasonable cost. The Akselrads did not file a certification verifying that they had served the Township with a written notice of the conduct alleged to be a violation and demand to cease, as required by Rule 1:4-8(b)(1). The trial court denied the motion with the explanation that the Township as a public entity was immune from frivolous litigation sanctions.
The Akselrads appealed, and the Appellate Division affirmed in an unpublished opinion. Rather than addressing whether the Township was immune from such sanctions, the panel dismissed the Akselrads' application for failure to comply with Rule 1:4-8's procedural requirements of providing their adversary with notice of the specific frivolous conduct, accompanied by a written demand to cease the offending conduct. See R. 1:4-8(b)(1) (the "safe harbor" provision). The Appellate Division's decision did not reveal whether the panel considered if the Akselrads complied with the safe harbor provision "[t]o the extent practicable." R. 1:4-8(f). The Supreme Court granted the Akselrads' petition for certification.
HELD: Rule 1:4-8(f) requires a court that hears an application for frivolous litigation sanctions against a party to assess whether it is practicable to comply with the Rule's safe harbor provision.
1. The Frivolous Litigation Statute permits a court to award reasonable counsel fees and litigation costs to a prevailing party in a civil action if the court determines that a complaint, claim or defense of the non-prevailing person was frivolous. (pp. 6-7)
2. Rule 1:4-8 permits sanctions against an attorney or pro se party for frivolous litigation. Its procedures are that the litigant seeking sanctions must file a separate motion describing the specific frivolous conduct. Prior to filing the motion, however, the aggrieved litigant must provide the attorney or pro se party with a written notice and demand that the allegedly frivolous paper be withdrawn, including a warning that the litigant will apply for sanctions if it is not withdrawn within 28 days of service. This is a procedural safe harbor. The motion for sanctions must include a certification that the litigant seeking sanctions has served the safe harbor written notice and demand on the attorney or pro se party. (pp. 8-10)
3. Here, because the sanction application was filed against a party rather than an attorney, Rule 1:4-8(f) is implicated. Rule 1:4-8(f) requires that a litigant moving for sanctions against a party other than a pro se party comply with the safe harbor provision, but only to the extent practicable. (pp. 1 and 10-13)
4. Rule 1:4-8, with its safe harbor provision, advances the policy interests of deterrence and reparations that animate the Frivolous Litigation Statute. Because the safe harbor rule applies to lawyers and parties alike, all users of the judicial system are spurred to give prompt warning to those engaged in frivolous litigation. (pp. 13-14)
5. The Rule requires a court that hears an application against a party to assess whether it is practicable under all of the circumstances to require strict adherence to its requirements. The most fact-sensitive aspect of such an inquiry undoubtedly will involve compliance with the safe harbor requirement that is designed to bring an early stop to offending behavior. The public policies underlying the Frivolous Litigation Statute militate in favor of requiring that claims against parties meet the Rule's procedural requirements to the fullest extent possible. (pp. 14-15)
6. By requiring an applicant seeking an award against a party to explain what made timely compliance impracticable, courts may not be able to summarily dismiss such applications when genuine factual disputes are present. Technical noncompliance with the Rule demands that a practicability assessment be made. If a court determines that compliance should have occurred earlier, the sanction should be reduced concomitantly. Counsel fees and costs should be calculated from the point when compliance was practicable. If the court determines that compliance was practicable from the time ordinarily required under the Rule, relief may be denied in its entirety. (p. 15)
7. A court should not dismiss an application governed by Rule 1:4-8(f) without making an assessment about the practicability of compliance. Because no such determination was made in respect of the Akselrads' application, dismissal of the application was premature. (pp. 15-16)
The judgment of the Appellate Division is REVERSED and REMANDED for further proceedings consistent with this opinion.
CHIEF JUSTICE ZAZZALI and JUSTICES LONG, ALBIN, WALLACE and RIVERA-SOTO join in JUSTICE LaVECCHIA's opinion. ...