May 18, 2009
MANUFACTURERS & TRADERS TRUST COMPANY, TRUSTEE FOR SECURITIZATION SERIES 1997-3, AGREEMENT DATED JUNE 12, 1997, PLAINTIFF-APPELLANT,
AUDRY E. GREEN AND SHIRLEY GREEN, HIS WIFE, DEFENDANTS-RESPONDENTS.
BANK OF NEW YORK, AS TRUSTEE FOR FIRST CITY CAPITAL HOME EQUITY LOAN TRUST 1998-2, UNDER THE POOLING AND SERVICING AGREEMENT DATED NOVEMBER 1, 1998, PLAINTIFF-APPELLANT,
SHIRLEY GREEN AND AUDRY E. GREEN, DEFENDANTS-RESPONDENTS.
MANUFACTURERS & TRADERS TRUST COMPANY, TRUSTEE FOR SECURITIZATION SERIES 1997-3, AGREEMENT DATED JUNE 1, 1997, PLAINTIFF-APPELLANT,
AUDRY E. GREEN AND SHIRLEY GREEN, HIS WIFE, DEFENDANTS-RESPONDENTS, AND PARKWAY MORTGAGE CORPORATION, DEFENDANT.
THE CHASE MANHATTAN BANK, AS TRUSTEE OF IMC HOME EQUITY LOAN TRUST 1997-5 UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF SEPTEMBER 1, 1997, PLAINTIFF-APPELLANT,
AUDRY E. GREEN AND SHIRLEY GREEN, DEFENDANTS-RESPONDENTS, AND SHIRLEY FREEMAN, TENANT, DEFENDANT.
On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Cape May County, F-7783-02, F-10766-04, F-4429-01, F-0862-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2009
Before Judges Winkelstein and Gilroy.
In these four back-to-back appeals, which we have consolidated for purposes of our opinion, plaintiffs appeal from orders of the Chancery Division denying their post-judgment applications for attorneys' fees under Rule 1:4-8. We affirm.
We briefly summarize the procedural aspects of the cases.
The three mortgagees, Manufacturers & Traders Trust Company, in docket numbers A-4993-07 and A-5041-07; Bank of New York, in docket number A-4997-07; and Chase Manhattan Bank, in docket number A-5047-07, were all represented by the same attorney in four separate foreclosure proceedings against defendants. In four separate opinions, this court affirmed judgments of foreclosure in each case. See Mfrs. & Traders Trust Co. v. Green, No. A-7120-03 (App. Div. Jan. 4, 2008); Mfrs. & Traders Trust Co. v. Green, No. A-1124-04 (App. Div. Jan. 4, 2008); Chase Manhattan Bank v. Green, No. A-1556-06 (App. Div. Jan. 4, 2008); Bank of N.Y. v. Green, No. A-2349-06 (App. Div. Jan. 10, 2008). In the Chase Manhattan case, we remanded for the trial court to address two limited issues unrelated to the issue now on appeal. We will not repeat the procedural and factual histories of each foreclosure proceeding as they are set forth in our prior opinions.
On April 1, 2008, plaintiffs filed motions for counsel fees and costs incurred in pursuing the foreclosure judgments both in the trial court and on appeal. In a written opinion dated April 17, 2008, Judge William Todd denied the motions as to docket numbers A-5041-07 and A-5047-07; and in a written opinion dated April 30, 2008, Judge Todd denied the motions as to docket numbers A-4993-07 and A-4997-07. The court memorialized its decisions in orders on those dates.
In the judge's written opinions, he relied on the language of Rule 1:4-8 that requires an application for sanctions to be filed no later than twenty days following the entry of a final judgment. R. 1:4-8. The court concluded that the time limit was "intended to reflect the court's concern that any issues as to sanctions be raised promptly, to permit action on such claims to be reviewed with any other issues which might be raised on appeal." The court reasoned as follows:
Plaintiff's counsel did contemplate the potential for this application at the very beginning of these proceedings. . . .
[The trial court's] decision [in the initial litigation] was issued in February 2004 and an order was entered striking defendants['] pleadings on February 17, 2004. Judgment was not entered through the Office of Foreclosure until March 2005. By that time, defendants had filed a bankruptcy petition. Following additional proceedings in the Bankruptcy Court, final judgment was again issued in December 2006. The appeals from that judgment were not resolved until January 2008. . . .
[Rule] 1:4-8 clearly requires that an application for sanctions be filed "no later than 20 days following the entry of final judgment." This court is satisfied that provision of the [r]ule must be interpreted as requiring the filing of the application within 20 days of the date of the entry of the judgments which were the subject of the notices of appeal resolved by the Appellate Division in January 2008. The judgments in these cases were entered, at the latest, by December 2006, and these applications should have been filed long ago. Plaintiff apparently rel[ies], at least in part, on the provisions of the [r]ule which provides that the term "final judgment" is to include any order deciding a post[-]judgment motion. This court is satisfied that provision of the [r]ule is simply not applicable here. Presumably the [r]ule was intended to provide guidance as to when motions must be filed, when an attorney or litigant has filed papers that are somehow frivolous, when the dispute is not resolved until some time after the final judgment has been entered. There is no reasonable basis for suggesting the [r]ule was intended to preserve the time for the filing of a motion for sanctions, related to prior litigation before the trial court, until after an appeal from the trial court's action has been resolved by the Appellate Division.
Following plaintiffs' motion for reconsideration of all four orders, on May 28, 2008, in a single written opinion, the trial court again denied plaintiffs' application for Rule 1:4-8 counsel fees, and memorialized its opinion in an order of that date. The court stated the following:
[P]laintiffs filed motions for awards of fees pursuant to R. 1:4-8, seeking fees for services rendered both at the trial level and during the prior appeals. Those motions were not presented at the trial level prior to the entry of the final judgments which were the subject of the prior appeals. They were only filed after the Appellate Division had resolved each of the appeals that had been filed, generally affirming the actions previously taken at the trial level.
I addressed these motions for fees in two separate Letter Opinions. . . . In each case I denied the motion for fees. I concluded that Rule 1:4-8 required that the motions be presented within 20 days of the entry of final judgment in each respective matter. That in turn would have permitted any action taken by the trial court on those motions to be reviewed by the Appellate Division as it was considering the defendants' appeals from those final judgments. I concluded each motion was untimely. . . .
These motions for reconsideration . . . appear to raise two specific issues that were not clearly addressed in my prior letter opinions. . . .
First, plaintiffs now argue that the court should relax the time restrictions of R. 1:4-8 to permit the filing of these applications out of time. It is clear this court does have the authority to relax the time restrictions of the Rule if deemed appropriate. See R. 1:3-4. I am not satisfied, however, that such a relaxation would be appropriate here. . . . [T]he time restrictions of the Rule serve important and potentially valuable functions, particularly evident in the circumstances presented here. . . . [T]he Rule is structured to require an application for fees to be presented within a discrete time following the entry of final judgment. . . . It limits the amount of time that will pass between the conduct alleged to give rise to the frivolous litigation and the determination as to whether that conduct was in fact frivolous. It increases the likelihood that the application for fees will be considered by the trial judge who handled the underlying proceedings. More importantly, it permits any challenge to the trial court's action on the frivolous litigation claim to be addressed with any appeal from the final judgment. In these cases, the Appellate Division has already devoted a substantial amount of time to the resolution of the prior appeals, addressing a variety of issues in fairly detailed and extensive opinions which go to the merits of the underlying claims and defenses. It seems entirely reasonable to this court to require that the frivolous litigation claim be presented as required by the Rule, if only to permit potential appellate review in an efficient and effective manner. As an aside, one could also argue that litigants are entitled to rely on the time provisions of the Rule when they are considering whether or not to file an appeal, and just how an appeal will be prosecuted. In any event, this court is satisfied it would not be appropriate to relax the time restrictions of the Rule here, as plaintiffs suggest.
Plaintiffs have also provided authority supporting their claim that this court would have authority to deal with claims for fees incurred in the prior appeals, and that it was not necessary that those claims first be presented to the Appellate Division. . . .
Those cases do support the general proposition advanced by plaintiff-that applications for fees incurred during an appeal can, in appropriate circumstances, initially be presented to the trial court. In all of those cases, however, an application for fees had initially been presented to and resolved by the trial court prior to the time the matter was presented to the Appellate Division. . . . None of these cases address this court's more basic concern-that the initial application for fees must be presented within 20 days of the entry of final judgment, pursuant to R. 1:4-8.
We agree with Judge Todd's thorough and well-reasoned opinion. We add only that appeals to the Appellate Division, with very few exceptions, may only be taken from final judgments, which means the judgment must be final as to all parties and all issues. R. 2:2-3; Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007) (citing R. 2:2-3(a)(1)). A final judgment also must include post- disposition counsel fee applications. Gen. Motors v. City of Linden, 279 N.J. Super. 449, 454-56 (App. Div. 1995), rev'd on other grounds, 143 N.J. 336 (1996); Pressler, Current N.J. Court Rules, comment 2.2.2 on R. 2:2-3 (2009). Here, plaintiffs did not file their counsel fee applications until after this court issued its opinions. That delay has resulted in piecemeal appellate review, which, as we have often indicated, is an "anathema to our practice." Janicky, supra, 396 N.J. Super. at 550 (internal quotation omitted). We decline to place our imprimatur on this practice.
Plaintiffs' remaining arguments are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(1)(E).
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