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Keiser v. West Bergen Mental Healthcare

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 23, 2007

HAROLD KEISER, JR., PLAINTIFF-RESPONDENT,
v.
WEST BERGEN MENTAL HEALTHCARE, INC., A NEW JERSEY CORPORATION, FORMALLY KNOWN AS WEST BERGEN MENTAL HEALTH CENTER, BOROUGH OF MIDLAND PARK, A POLITICAL SUBDIVISION OF THE STATE OF NEW JERSEY, AND ITS CONSTRUCTION OFFICIAL AND ZONING OFFICER, THE DEPARTMENT OF HUMAN RESOURCES OF THE STATE OF NEW JERSEY, DEFENDANTS, AND DAVID F. BOLGER, INDIVIDUALLY AND AS SOLE TRUSTEE OF THE DAVID F. BOLGER REVOCABLE TRUST, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. L-7442-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2007

Before Judges Wefing and R. B. Coleman.

Barry W. Sirota, Esq. and Jay Joseph Friedrich, Esq. appeal from an order of the trial court finding them jointly and severally liable to defendants for $63,091 in counsel fees.

After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

This is the second time this matter has been before this court. In 2005 we reversed a trial court order denying defendants' request for such counsel fees and remanded the matter for further proceedings. Keiser v. West Bergen Mental Healthcare, No. A-6050-03T2 (App. Div. June 30, 2005). We set forth the history of this matter in that opinion, and it is unnecessary to restate it here. In that opinion, we set forth our conclusion that plaintiff's "suit against the Bolger defendants was filed in bad faith in that the harm was inflicted intentionally and without justification or excuse." We have no basis to retreat from that conclusion in this appeal.

In connection with the remand proceedings, plaintiff, who had initiated these proceedings, did not appear, and he has not participated in this appeal. We thus do not address the trial court's determination that plaintiff is obligated to defendants for counsel fees in the amount of $63,091. Our focus in this appeal, rather, is the trial court's conclusion that appellant Sirota is obligated for counsel fees of $49,000 and appellant Friedrich for counsel fees of $36,255.

We recognize that the trial court set forth in meticulous detail the manner in which it calculated these sums. We also recognize that this matter has consumed time and resources for the affected parties and the court system. We nonetheless conclude that a further remand is appropriate.

We reach this conclusion for several reasons. Rule 1:4- 8(d) provides that a sanction imposed shall be limited to a sum sufficient to deter repetition of such conduct. The sanction may consist of (1) an order to pay a penalty into court, or (2) an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation, or both.

We did not direct in our earlier opinion that the amount of the sanction was to make defendants whole in terms of their counsel fees. There is no indication in the record before us that consideration was given to imposition of a lesser sanction, and there is no explanation as to why a partial award of fees would not be "sufficient to deter repetition."

The trial court noted in its written opinion that it based its calculus upon the itemized billing records of defendants' counsel. It did not make a finding that the services rendered and billed were both reasonable and necessary. Those billing records have not been supplied to us in connection with this appeal and thus, even if we were so inclined, we are unable to conduct a de novo review.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

20071023

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