On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-756-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Lisa and Holston, Jr.
This is an appeal from an order, entered on May 5, 2005, which awarded Andres & Berger, P.C. $29,100 representing counsel fees and $7,650 representing out-of-pocket costs for the testimony of expert witnesses, based on a finding that comments of defendants' counsel in summation that resulted in a mistrial were made in bad faith.
The case in which this award of counsel fees and costs was made was a personal injury action. On March 28, 1998, plaintiff brought her car to the premises of defendant Bridgestone/ Firestone, Inc. d/b/a Moorestown Firestone Tire & Service Center (Bridgestone) for repairs to the brakes and servicing.*fn1 After shopping at a nearby mall, plaintiff returned to defendant's premises to pick-up her car. As she was backing the car out of a service bay, the brakes failed and plaintiff drove into a light post, which resulted in her suffering personal injuries.
The circumstances of the accident were disputed. According to plaintiff, one of defendant's employees told her they had completed the repairs to her car and returned the keys. According to defendant's employees, plaintiff took the car without permission from the service bay before the repairs had been completed.
The case was sharply contested as to both liability and damages. The primary issue regarding damages was whether the accident at defendant's premises was a proximate cause of the injuries to plaintiff's cervical spine, which required surgery in September 2000.
After defendant's summation, plaintiff moved for a mistrial on the ground that defendant's counsel had made improper comments in summation which misrepresented the evidence and impugned the integrity of plaintiff's counsel and were so prejudicial they could not be remedied by a curative instruction. Following extensive argument, the trial court granted plaintiff's motion and declared a mistrial. The court also indicated that it would entertain a motion by plaintiff's counsel for counsel fees and costs at a later date.
The case was subsequently retried. The jury found both parties to have been negligent and assigned 49% responsibility to defendant and 51% responsibility to plaintiff for the accident, as a result of which a judgment of no cause of action was returned in defendant's favor. No appeal was taken from this judgment.*fn2
After the retrial, plaintiff's counsel made a motion for counsel fees and the costs it had incurred for the testimony of expert witnesses at the first trial. At the argument on the motion, the court expanded upon its reasons for declaring a mistrial. The court also found that the improper comments by defendants' counsel that necessitated a mistrial were made in bad faith. The court stated that this finding was based on "the egregiousness of the comments" and the "experience" of defendants' counsel as a trial litigator. Consequently, the court granted the motion and awarded plaintiff's counsel $29,100 representing counsel fees and $7,650 representing out-of-pocket costs for the testimony of expert witnesses.
This State follows the "American Rule," under which each litigant generally bears responsibility for its own counsel fees. Dziubek v. Schumann, 275 N.J. Super. 428, 438 (App. Div. 1994). In accordance with this rule, a court ordinarily cannot award counsel fees against an opposing party or attorney unless such an award is authorized by statute, court rule, or contract. Ibid. Therefore, a court may not award counsel fees as a matter of course against a party or attorney whose conduct has precipitated a mistrial.
However, "[a] court has the inherent power in appropriate circumstances, to sanction an attorney, rather than the client, particularly when the attorney's improper conduct has resulted in additional costs to the adverse party or the judicial system." Pontidis v. Shavelli, 296 N.J. Super. 420, 424 (App. Div. 1997); see also Vargas v. A.H. Bull Steamship Co., 25 N.J. 293, 296 (1957), cert. denied, 355 U.S. 958, 78 S.Ct. 545, 2 L.Ed. 2d 534 (1958) ("Thus we find no error in conditioning the order of dismissal upon the payment of counsel fees. Allowance of fees in such circumstances is within the inherent power of the court; in effect they are but reimbursement for expenses."); Trieste, Inc. II v. Twp. of Gloucester, 215 N.J. Super. 184, 188 (App. Div. 1987) ("[A] court has inherent power to impose sanctions on litigants[.]").
"[T]he threshold for the use of inherent power sanctions is high." Dziubek, supra, 275 N.J. Super. at 440 (quoting Reed v. Iowa Marine & Repair Corp., 16 F.3d 82, 84 (5th Cir. 1994)). "[T]he imposition of such a sanction is generally not imposed under this power without a finding generally that the attorney's conduct constituted or was tantamount to bad faith." Ibid.
The trial court found that the improper comments in the summation of defendant's counsel were made in bad faith. A finding of bad faith is a factual findings. See Chestone v. Chestone, 322 N.J. Super. 250, 259 (App. Div. 1999). Consequently, as with any other factual finding by a trial court, we are required to defer to that finding if "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Thus, the determination of this appeal requires us to review each of the three comments in the summation of defendant's counsel that the trial court found to be improper and the court's finding of bad faith based on those comments.
The doctor who performed the surgery upon plaintiff's cervical spine was Dr. Elisabeth M. Post, a neuro-surgeon. Although Dr. Post testified at a discovery deposition conducted on October 14, 2002 that the cervical injury she performed surgery to correct was causally related to plaintiff's March 28, 1998 automobile accident, she later submitted a written report, dated April 3, 2003, which concluded that "[plaintiff's] herniated cervical discs were caused by an event unrelated to her accident." In another discovery deposition, Dr. Post again asserted that the cervical injury for which she performed surgery on plaintiff was causally related to the accident, and Dr. Post so testified in a videotaped de bene esse deposition shown to the jury at trial. At that deposition, defendant's counsel vigorously cross-examined Dr. Post ...