On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2861-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2009
Before Judges Fisher and Sapp-Peterson.
Plaintiff commenced this legal malpractice action, alleging defendants Klitzman & Gallagher and Thomas Cutchall (defendants) gave him negligent advice during his workers' compensation action. Defendants commenced a third-party action against Ansell, Zaro, Grimm & Aaron (the Ansell firm), which preceded defendants, and Schibell & Mennie (the Schibell firm), which succeeded defendants in the representation of plaintiff in the compensation action. The Schibell firm successfully moved for summary judgment and was awarded counsel fees as a sanction based on a finding that the third-party complaint was frivolous.
Defendants appeal the orders entered in the Schibell firm's favor. The Schibell firm has cross-appealed, arguing that the sanctions awarded were inadequate.
The appeal and cross-appeal raise questions regarding the timeliness of defendants' appeal, the legal sufficiency of defendants' third-party action against the Schibell firm, and the amount of sanctions awarded. We find defendants' appeal to be timely, but we find no merit in the appeal or the cross-appeal and affirm.
In considering the timeliness of the appeal, it is necessary to briefly recount the trial court proceedings and the action's status when the appeal was actually commenced and when the Schibell firm argues the appeal should have been commenced.
Plaintiff's complaint was filed on June 24, 2004. In a nutshell, the record suggests that plaintiff claimed defendants failed to provide adequate or correct advice to plaintiff regarding his eligibility for a traumatic disability pension, pursuant to N.J.S.A. 43:15A-43, at the time he retired. On November 9, 2005, defendants filed a third-party complaint against the Ansell firm and the Schibell firm. Defendants alleged they represented plaintiff from the end of December 1998 -- at approximately the same time plaintiff retired -- and only until February 16, 1999; the Ansell firm preceded defendants and the Schibell firm succeeded defendants in the representation of plaintiff.
In the proceedings that followed, the Ansell firm obtained a dismissal of the third-party complaint without prejudice due to defendants' failure to timely provide discovery. Around the same time, the Schibell firm moved for summary judgment. The trial judge extended discovery for a brief period of time and adjourned the Schibell firm's motion to a later time.
By order entered on November 14, 2006, the judge granted the Schibell firm's motion for summary judgment dismissing the complaint for reasons set forth in an oral decision of that same date. Later, on April 4, 2007, the Ansell firm obtained an order dismissing with prejudice the third-party action. The only issues remaining in the wake of those orders were those existing between plaintiff and defendants.
On May 3, 2007, the Schibell firm moved against defendants for sanctions, pursuant to Rule 1:4-8 and N.J.S.A. 2A:15-59.1, based on its assertion that the third-party complaint was frivolous. After hearing oral argument on October 17, 2007, the judge granted the motion for sanctions; she concluded that the Schibell firm was entitled to the fees and expenses incurred in defending against and obtaining the dismissal of the third-party action, but denied the request insofar as it sought a recovery for the time spent in seeking fees and expenses and insofar as it sought damages based upon a future increase in the Schibell firm's malpractice insurance premiums. The judge directed the Schibell firm to provide an affidavit of services.
The Schibell firm not only submitted an affidavit of services on November 1, 2007, but it also sought reconsideration of that part of the judge's earlier ruling which denied all the fees ...