On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-781-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Lihotz.
Plaintiff Patricia Venner appeals from three Law Division orders, as follows: 1) the June 22, 2005 order dismissing her complaint with prejudice; 2) the July 5, 2005 order awarding defendant Vespias Tire Centers, Inc., attorney fees and costs, pursuant to N.J.S.A. 2A:15-59.1; and 3) the August 5, 2005 order denying plaintiff's motion to vacate the dismissal and reinstate her complaint. We affirm the dismissal of plaintiff's complaint with prejudice, but are constrained to reverse the attorney fee award, as the order is not accompanied by the requisite statutory findings. Ibid.
Plaintiff's complaint*fn2 asserted a violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -49. Generally, plaintiff alleged that she was required to present her personal check for payment prior to services being rendered, as defendant sought to verify the availability of funds; while two Caucasian customers, who paid cash and used a credit card, paid defendant following the completion of services.
The matter was scheduled for trial on June 22, 2005. In the pretrial colloquy, plaintiff was advised that she failed to present a pre-trial memorandum as required by Rule 4:25-3, acknowledged she had no witnesses, and failed to assert a basis for a damage claim. The court proposed to adjourn the matter for ten days to allow the further exchange of information, R. 4:25-7(b), and to permit defendant to file a motion for summary judgment. Plaintiff, at that time, asserted her request to voluntarily dismiss her complaint. The trial judge examined plaintiff under oath. Plaintiff attested that her application to dismiss with prejudice was made voluntarily and with full knowledge that she would not be permitted to refile her claims against defendant. The court granted plaintiff's application; defendant moved for counsel fees. The order dated June 22, 2005, dismissed the complaint with prejudice and allowed defendant to submit an affidavit of counsel fees and costs. Thereafter, the order dated July 5, 2005 was entered, awarding defendant $1,000 in counsel fees pursuant to N.J.S.A. 2A:15-59.1. Plaintiff's motion to vacate the dismissal, R. 4:50-1, and reinstate the complaint was denied on August 5, 2005.
On appeal, plaintiff asserts she was "under pressure from the court [to] dismiss her complaint. Additionally, she claims the court improperly denied her request to reinstate her claim and awarded counsel fees. A trial judge's decision on whether to open a judgment is left undisturbed unless it represents a clear abuse of discretion. Mancini v. EDS ex rel. N.J. Auto. Full Ins., Underwriting Ass'n, 132 N.J. 330, 334 (1993). The denial of plaintiff's motion was soundly based on the trial judge's review of the circumstances surrounding plaintiff's request for voluntary dismissal, as well as the arguments advanced to set that order aside, which were found to be unavailing. Our review of the record determines no misapplication of discretion by the trial judge in granting plaintiff's voluntarily dismissal and denying the subsequent motion to set that judgment aside.
N.J.S.A. 2A:15-59.1, which governs the applicable procedures for an award of frivolous litigation counsel fees and costs, states:
a. (1) A party who prevails in a civil action, either as 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.
The trial court must make specific findings that the complaint, "was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury" that the non-prevailing party "knew, or should have known," that the complaint, "was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law."
N.J.S.A. 2A:15-59.1(b)(1) and (2); see also Toll Bros., Inc. v. Township of W. Windsor, 190 N.J. 61, 67 (2007).
The record on appeal is inadequate to review the attorney fee award in this matter. The motion judge made no findings to support that plaintiff's purpose in presenting her complaint was "harassment, delay or malicious injury." Plaintiff's conduct appears to the contrary inasmuch as she requested a voluntary dismissal after the trial judge, during the June 22, 2005 hearing, reviewed the flaws in plaintiff's presentation and suggested defendant move for summary judgment. The record presents no evidence that plaintiff's conduct was anything more than an honest attempt to press a perceived, but ill-founded, claim.
In summary, we conclude that the order dismissing plaintiff's complaint with prejudice and the order denying reinstatement of that complaint are affirmed. The order dated July 5, 2005, awarding defendant counsel ...