On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. LT-11434-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Holston, Jr. and Grall.
Plaintiffs William T. and Amy Anastasio appeal from a final order of the Special Civil Part in an action for summary dispossess. The defendants are Jonathan and Savilla Kaltner. The matter was tried to the court in the Special Civil Part. For reasons stated in a letter decision of August 18, 2006, the court reduced rent owed in proportion to the area of the residence that was uninhabitable. The judge also awarded defendants $5775 in attorney fees and $800 in expert fees. That award was made on defendants' claim that plaintiffs commenced or continued the action in bad faith and with the purpose to harass, entitling them to "reasonable litigation costs and reasonable attorney fees" pursuant to N.J.S.A. 2A:15-59.1. Plaintiffs' appeal is limited to the award on defendants' frivolous litigation claim.
The pertinent facts are as follows. Plaintiff William T. Anastasio is an attorney. Although plaintiffs are represented on appeal, William litigated the case in the trial court pro se.
Mold grew in two finished rooms in the basement of the home defendants rented from plaintiffs. The rooms, which were used as a recreation room and bedroom, were not habitable for a period of seven months. On that basis, they sought a rent abatement. Plaintiffs defended by contending that defendants deliberately left the windows open in order to cause water incursion and obtain a reduction in their rent. The court determined that plaintiffs' factual claim was wholly unsupported by any evidence or inference that plaintiffs could have drawn based on the facts they knew. The court also found that defendants' explanation for their delayed efforts to abate the mold condition, which was that the lab report confirming mold did not indicate the address of the property, was a classic example of "bad faith maliciousness." Based on those findings, the court concluded that William, capable of proceeding against defendants pro se, "used his ability to represent himself to delay, harass and financially harm defendants merely to punish [the] tenants for defending themselves."
After considering the hourly rate ordinarily charged by defendants' attorney and defendants' need to retain an expert to defend against plaintiffs' claims, the court awarded fees for twenty-one hours of legal services at $275 per hour and $800 for expert fees. The court found that twenty-one hours represented the time the attorney spent in response to plaintiffs' frivolous defenses to their claim for a partial abatement of rent. Defendants incurred total fees for legal services in the amount of $11,013.66 and were awarded $5775.
Plaintiffs raise three issues on appeal:
I. THE FINDING OF FRIVOLOUS LITIGATION IS NOT SUPPORTED BY THE EVIDENCE.
II. ASSUMING, ARGUENDO, THAT AN AWARD OF COUNSEL FEES WAS APPROPRIATE THE TRIAL COURT DID NOT CONDUCT THE APPROPRIATE ANALYSIS.
III. THE FRIVOLOUS LITIGATION STATUTE SHOULD NOT BE USED TO ASSESS ATTORNEYS' FEES AGAINST OTHER ATTORNEYS.
After review of the record in light of the arguments presented, we conclude that they lack sufficient merit to warrant more than the brief comments that follow. R. 2:11-3(e)(1)(E).
The trial court's findings are supported by substantial credible evidence in the record and support an award of fees pursuant to N.J.S.A. 2A:15-59.1. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). "A complaint, counterclaim, cross-claim, or defense is deemed frivolous if it was 'commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury' . . . . Toll Bros., Inc. v. Twp. of West Windsor, 190 N.J. 61, 67 (2007) (quoting N.J.S.A. 2A:15-59.1b(1)). This award was assessed because of plaintiffs conduct as litigants, not against William as an attorney retained to represent the interests of a client. See McKeown-Brand v. Castle Hotel & Casino, 132 N.J. 546, 556-61 (1993) (distinguishing awards against litigants from awards against attorneys). The trial court conducted this trial on five separate days and was in a position to evaluate the statutory factors relevant to the reasonableness of the fees and costs. N.J.S.A. 2A:15-59.1a, c(1) (requiring consideration of the "nature of the services rendered, the responsibility ...