March 10, 2011
O.R. (A STUDENT), PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
RICK CAVE, ROBBY VARGHESE, LISA CATALANO, KATHY MITCHEL, THOMAS A. SMITH, DONNA GIBBS-NINI, VICTORIA KNIEWEL (SCHOOL SUPERINTENDENT), ARTHUR DOWNS (PRINCIPAL), CHARLES RUDNICK (PRINCIPAL), DENNIS LEPOLD (PRINCIPAL), MICHAEL ZAPICCHI (PRINCIPAL), AND WEST WINDSOR PLAINSBORO SCHOOL DISTRICT, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2256-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 16, 2011
Before Judges Axelrad, Lihotz, and J. N. Harris.
This case is the latest installment in a very long series of lawsuits arising out of plaintiff's ten-day suspension from a middle school under the auspices of the West Windsor Plainsboro Regional School District (the District) in 2004 for possession of a folding, lock-blade knife on school property. Plaintiff's father has served as his attorney. For ease of reference, we repeat the procedural history set forth in one of our recent opinions. O.R. ex rel. O.R. v. Kniewel, Nos. A-5181-07T2, A-5509-07T1, A-5583-07T2, A-1263-08T1 (App. Div. March l7, 2010), certif. denied, 203 N.J. 96 (2010) (referred to as the Consolidated Appeal):
In 2007, we rejected [O.R.]'s sixteen-point appeal relating to his adjudication of delinquency for committing an act, which if committed by an adult, would have constituted fourth-degree possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have while in or upon any school building, N.J.S.A. 2C:39-5(c)(2). [State ex rel.] R.O., No. A-1540-05T3 (App. Div. June l3, 2007), [certif. denied, 192 N.J. 595 (2007)]. In affirming the Family Part, we concluded that the trial court had not abused its discretion in denying defense counsel's request for broad-spectrum discovery relating to the alleged disparate treatment of students accused of weapons possession. Because [O.R.] had not established a plausible basis for a claim of selective enforcement as part of the delinquency proceedings, he was neither permitted to obtain this extraordinary discovery nor entitled to a reversal of his adjudication of delinquency on such grounds.
[In 2009] we affirmed the denial of [O.R.'s] OPRA*fn1 and common law right of access to public records claim that he pursued against the Plainsboro Police Department (PPD). In that action, [O.R.] sought a judgment to compel the PPD to produce investigative reports, narrative documents, and complaints relating to other incidents of weapons possession reported by [O.R.]'s school district from 2000 through 2006. R.O. (A Minor) v. Plainsboro Police Dept., Custodian of Records, No. A-5906-07T2 (App. Div. June l7, 2009). There, we held that the PPD records sought by [O.R.]: (l) were properly classified as criminal investigatory records, which were exempt from production under OPRA, N.J.S.A. 47:1Al.l, and (2) predominately contained juvenile records, which were therefore confidential and not subject to public inspection or copying pursuant to OPRA, N.J.A.C. l3:94-1.5(3).
[O.R.]'s father sought further remedies on his son's behalf from the Department of Education, which were twice unsuccessful.4 As part of that process before the state administrative agency, the father's discovery practices were characterized by the Commissioner of Education as "very close to constituting 'overzealous, burdensome and harassing conduct,'" but did not rise to a level that warranted sanctions. The Administrative Law Judge who initially considered the matter described [O.R.]'s father's actions as that of a "discovery juggernaut."
4This appears to have been the third affiliated OPRA and common law right to access public records action against the PPD's custodian of records. From 2004 to 2006, [O.R]'s father filed a series of requests under OPRA, seeking information related to the number and racial composition of juvenile arrests and charges filed by several Middlesex County police departments. [Id. at 5-7 (footnotes omitted).]
We then decided the Consolidated Appeal, comprised of four back-to-back appeals presented by interrelated plaintiffs. The first lawsuit arising from the suspension alleged disparate treatment, asserting putative violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. l0:5-l to -49, the New Jersey Civil Rights Act (NJCRA), N.J.S.A. l0:6-l to -2, and the Federal Civil Rights Act (§ 1983), 42 U.S.C.A. § 1983. The remaining three suits alleged violations of OPRA and the common law right of access to public records in connection with discovery in O.R.'s civil rights action. The first action was dismissed by the Law Division through summary judgment in August 2008, and the latter three cases were dismissed by the Law Division in rulings from May 5 through July 11, 2008. On March l7, 2010, we affirmed in a forty-eight page opinion. See Consolidated Appeal.
A few months later, we also affirmed the Law Division's October l3, 2009 order denying plaintiff's request for attorneys' fees arising out of an OPRA request for documents identifying various school district staff with Electronic Violence and Vandalism Reporting System (EVVRS) responsibilities and training. O.R. ex rel. O.R. v. Hutner, No. A-1268-09T1 (App. Div. June 24, 2010), certif. denied, 204 N.J. 42 (2010). The Law Division judge had entered an order on August 24, 2009, dismissing plaintiff's complaint with prejudice, finding plaintiff made "a general request for a document that didn't exist, that was probably inartfully drawn" and defendants' "response was beyond what [they] were required to do." Id. at 4-5.
On September 2, 2009, plaintiff filed the complaint in the present action, naming the District and eleven individuals identified as "Principals, School Superintendent, Information Technology Director, and other employees" of the District, and claiming defendants prejudiced the prosecution of one or more of his prior lawsuits. The first three counts alleged the tort of fraudulent concealment based on alleged incorrect statements and submissions on the part of one or more defendants and their attorney pertaining to EVVRS reports, police notification, and the District's manifestation determinations in plaintiff's prior OPRA and discrimination lawsuits. The third count additionally asserted intentional spoliation of evidence resulting from defendants' failure to provide plaintiff with records that were purportedly in storage or archived. The fourth count asserted a § 1983 claim based on the conduct asserted in the prior counts.
Defendants filed an answer, asserting specific and general denials. Defendants also asserted separate defenses, including failure to comply with the Tort Claims Act (TCA), N.J.S.A. 59:8-1 to -11, litigation privilege, failure to state a claim upon which relief could be granted, res judicata and collateral estoppel, statute of limitations, and the entire controversy doctrine.
On September 30, 2009, defendants filed a notice of removal to federal court, 28 U.S.C.A. § 1441, based on federal question jurisdiction, 28 U.S.C.A. § 1331. On October l, 2009, defendants sent plaintiff a "safe harbor" letter pursuant to Rule 1:4-8(b) and F.R.C.P. 11. By letter dated October 3, 2009, plaintiff's counsel advised defense counsel "we have NO intention of withdrawing the Complaint." Following removal of the action to the United States District Court, plaintiff voluntarily dismissed the federal claim and the case was remanded to the Superior Court. On January 4, 2010, plaintiff filed an amended complaint removing the federal claim and substituting the same claim as a purported violation of the NJCRA and New Jersey Constitution.
Shortly afterwards, defendants moved for summary judgment, which was granted following oral argument on March 5, 2010. The court found the first three counts of the complaint and amended complaint sounded in tort and plaintiff failed to serve a Tort Claims notice pertaining to all defendants other than Catalano, who was not a District employee,*fn2 as required by N.J.S.A. 59:8-8; the entire controversy doctrine barred this action as plaintiff asserted or could have asserted such claims in his prior lawsuits arising from the same facts; and all conduct about which plaintiff complained was protected by the litigation privilege. The court also found plaintiff failed to state a claim for spoliation of evidence as the record was devoid of support for the assertion that defendants intentionally destroyed or concealed any evidence in the prior litigation. See Tartaglia v. UBS PaineWebber, Inc., l97 N.J. 8l, 118 (2008) (holding that to prevail on a spoliation claim, a plaintiff must prove the five elements of a fraudulent concealment claim articulated in Rosenblit v. Zimmerman, 166 N.J. 39l, 406-07 (200l), which includes that a "defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation"). Additionally, the court found the fourth count as pled was not, in reality, a civil rights claim but pertained to an alleged OPRA violation that the Law Division previously found unsubstantiated, and which was on appeal.*fn3 The court entered a memorializing judgment the same day, dismissing plaintiff's complaint with prejudice.
Plaintiff then filed motions for leave to file a late notice of Tort Claim and for reconsideration. In the interim, our March 17, 2010 opinion was issued. Following oral argument on April l6, 2010, the court denied plaintiff's motions, finding he failed to meet the standard for reconsideration, R. 4:49-2 and D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), memorialized in an order of the same date. The court also denied as moot the motion for leave to file a late Tort Claims notice, as well as motions to compel discovery, which are not in the appellate record.
Plaintiff apparently filed a motion to vacate the final judgment dismissing the complaint as to Catalano, Thomas Smith and Robby Varghese, which is not in the appellate record, arguing defense counsel had no right to assert on their behalf plaintiff's failure to file a Tort Claims notice.*fn4 Defendants then filed a motion for frivolous pleading sanctions on May 3, 2010, relying on Rule l:4-8, N.J.S.A. 2A:15-59.1, and N.J.S.A. l0:6-2(f). The court rendered its decision on the record on May 28, 2010, finding plaintiff did not provide any support to vacate the prior orders, and noting that plaintiff had asserted in his complaint that all defendants were in some capacity employed by the school district at the relevant time.
Turning to the motion for sanctions, the court found "there was repeated frivolous litigation" as "plaintiff's counsel has filed . . . upwards of approximately ten complaints all stemming from the same incident." However, while the court understood defense counsel's "frustration," it declined to impose sanctions. Instead, the court noted on the record and provided in the memorializing order of the same date that:
Plaintiff's Counsel is hereby barred from filing any new Complaint relating to the underlying facts of this case, unless, upon motion, leave of Court is given, and that the filing of any new Complaint relating to the underlying facts of this case without leave of Court will result in the imposition of attorney's fees against Plaintiff's Counsel[.]
Plaintiff appealed, arguing:
TRIAL COURT ERRED IN DISMISSING THE CIVIL RIGHTS AND CONSTITUTIONAL CLAIMS FOR UNSPECIFIED PLEADING DEFECTS WITHOUT GIVING PLAINTIFF AN OPPORTUNITY TO AMEND THE COMPLAINT AND WITHOUT GIVING PLAINTIFF AN OPPORTUNITY FOR DISCOVERY. PLAINTIFF HAD VALID CLAIMS TO INCLUDE BUT NOT LIMITED TO OBSTRUCTION OF JUSTICE UNDER 42 U.S.C. Section l985. THEREFORE, DISCOVERY WAS NECESSARY TO DETERMINE THE VIABILITY OF PLAINTIFF'S CLAIMS.
TRIAL COURT ERRED IN DISMISSING THE CLAINMS AGAINST LISA CATALANO WITHOUT AN OPPORTUNITY FOR DISCOVERY. DISCOVERY WAS NECESSARY TO DETERMINE WHETHER LISA CATALANO WAS OR IS A "PUBLIC EMPLOYEE" UNDER THE NEW JERSEY TORT CLAIMS ACT.
TRIAL COURT ERRED IN DISMISSING CLAIMS AGAINST ROBBY VARGHESE AND THOMAS A. SMITH WITHOUT AN OPPORTUNITY FOR DISCOVERY. DISCOVERY WAS NECESSARY TO DETERMINE WHETHER [DEFENSE COUNSEL] HAD STANDING TO REPRESENT THE TWO DEFENDANTS IN THE CASE. THERE WAS A QUESTION WHETHER [DEFENSE COUNSEL] HAD ATTORNEY CLIENT RELATIONSHIP WITH THE TWO NAMED DEFENDANTS WHO WERE SUED IN THEIR INDIVIDUAL CAPACITIES. THE TWO NAMED DEFENDANTS ARE SUBJECT TO INDIVIDUAL LIABILITY UNDER 42 U.S.C. Section l985 SINCE THE NOTICE REQUIREMENT OF THE TORT CLAIMS ACT IS INAPPLICABLE TO CIVIL RIGHTS CLAIMS.
TRIAL COURT ERRED IN DISMISSING THE FRAUDULENT CONCEALMENT CLAIMS AGAINST ALL OF THE DEFENDANTS BASED ON THE NOTICE REQUIREMENT OF THE TORT CLAIMS ACT WITHOUT
GIVING PLAINTIFF A CHANCE TO GIVE A LATE NOTICE OF TORT CLAIM. THE COURT ALSO ERRED IN FAILING TO MAKE AN EXPRESS FINDING OF "SUBSTANTIAL PREJUDICE" ON THE RECORD BEFORE DISMISSING THE CASE FOR FAILURE TO GIVE A NOTICE OF TORT CLAIM.
Defendants filed a cross-appeal, challenging the trial court's denial of their motion for attorneys' fees and costs based on plaintiff's frivolous pleadings and as a prevailing party under the NJCRA. They request we exercise original jurisdiction, R. 2:10-5, because plaintiff did not contest the reasonableness or necessity of the fees and costs incurred by defendants, reverse the order denying sanctions, and remand for the entry of judgment in their favor in the amount of $15,795.00.
We have reviewed the record and applicable law, considering all competent evidential materials and inferences contained in the summary judgment record in the light most favorable to plaintiff, R. 4:46-2, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), and, to the extent the dismissal of any of plaintiff's claims can be viewed as based on a motion to dismiss for failure to state a cause of action, R. 4:6-2(e), we have searched the complaint in depth and with liberality as required by Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (l989). We affirm on plaintiff's appeal. We are satisfied all of plaintiff's arguments are meritless and have been addressed repetitively and at length by the motion judge in this case, the various trial judges, and other panels of our court. Accordingly, plaintiff's arguments do not merit discussion beyond the following comments. R. 2:11-3(e)(l)(E).
We reverse and remand, however, on defendants' cross-appeal. We are satisfied that although the trial court was well-meaning in an attempt to provide every accommodation to plaintiff, defendants were entitled to sanctions against plaintiff's counsel for pursuing frivolous litigation. Although we empathize with defendants in their desire to put this matter to rest and avoid further expenditure of judicial and other resources, further fact-finding is necessary as to the quantum of the award and thus we do not deem it appropriate to exercise original jurisdiction and enter judgment in defendants' favor in a specific amount. See, e.g., Tomaino v. Burman, 364 N.J. Super. 224, 234-35 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004).
The court granted summary judgment for defendants, thus dismissing plaintiff's complaint based on the failure to file a Tort Claims notice, the litigation privilege, and the entire controversy doctrine. N.J.S.A. 59:8-8 mandates that a claim against a public entity be filed no later than ninety days after accrual of the cause of action or the claimant is "forever barred from recovering against a public entity or public employee[.]" The court, in its "discretion," may permit a claimant to file a late notice within one year after the accrual of the claim upon "showing sufficient reasons constituting extraordinary circumstances" for the failure to timely file, so long as the public entity is not "substantially prejudiced." N.J.S.A. 59:8-9.
It is undisputed the District is a public entity covered by the TCA. N.J.S.A. 59:1-3. The defendants as described in the complaint and amended complaint, save apparently for Catalano, were public employees at the time any cause of action accrued,
i.e., "employee[s] of a public entity." Ibid. Plaintiff was well aware he was suing a public entity and its employees who he asserted committed tortious conduct by which he purportedly sustained injury. Contrary to plaintiff's argument on appeal, the filing of a complaint is not considered substantial compliance with the notice requirements. Guzman v. City of Perth Amboy, 214 N.J. Super. 167, 171-72 (App. Div. l986). Plaintiff waited until after his complaint was dismissed on summary judgment to move to file a late notice of claim. We cannot fathom how plaintiff could have established "extraordinary circumstances" when he waited until after his complaint was dismissed on summary judgment to seek relief under N.J.S.A. 59:8-9. Under the circumstances, the trial court acted well within its discretion in perfunctorily denying his untimely motion.
Catalano was not a public employee subject to the TCA; however, the actions taken by her, defense counsel, and the balance of the defendants in responding to plaintiff's numerous OPRA and other discovery demands are absolutely insulated from civil liability by operation of the litigation privilege. See Loigman v. Twp. Comm. of Middletown, 185 N.J. 566, 579, 589 (2006) (holding that in New Jersey, the litigation privilege protects attorneys and parties from civil liability in tort-related claims arising from words uttered in the course of judicial proceedings). Based on the trial court and prior Appellate Division opinions, it does not appear there was any misrepresentation of material facts by defense counsel upon which plaintiff or the court relied. Nonetheless, the actions complained of by plaintiff in this lawsuit fit squarely within the rule articulated in Hawkins v. Harris, 141 N.J. 207, 216 (l995), i.e., counsel's representations to the court in the various actions were: (l) communications made in judicial proceedings; (2) by an attorney who represented defendants in the prior litigation; (3) made to achieve the objects of the litigation; and (4) had a logical connection to the matters being litigated.
The entire controversy doctrine requires all claims "arising out of or relating to the same transactional circumstances" be initiated in a single action. Brennan v. Orban, 145 N.J. 282, 290 (l999) (citation and internal quotation marks omitted). See also DiTrolio v. Antiles, 142 N.J. 253, 267 (l995) (holding the central consideration of whether a prior claim and a successive claim constitute one controversy such that the successive claim should be barred by the entire controversy doctrine is "whether the claims against the different parties arise from related facts or the same transaction or series of transactions"); Garvey v. Twp. of Wall, 303 N.J. Super. 93, 100 (App. Div. l997) (holding that the doctrine applies when there is a factual nexus grounded in a core set of related factual circumstances). The purposes of the entire controversy doctrine "are threefold: (l) the need for complete and final disposition through the avoidance of piecemeal decisions; (2) fairness to the parties to the action and those with a material interest in the action; and (3) efficiency and avoidance of waste and the reduction of delay." DiTrolio, supra, 142 N.J. at 267. See also, Thornton v. Potamkin Chevrolet, 94 N.J. l, 8 (l983) (noting that "when a matter is presented to a judicial forum, the litigants should not fractionalize their claims to the detriment of the system").
As codified by court rule, "[n]on-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims." Rule 4:30A. Application of this doctrine "depends on the exercise of judicial discretion in the facts of each case," Prevratil v. Mohr, 145 N.J. 180, 190 (l996), and requires consideration of "[t]he twin pillars of the entire controversy doctrine[-]  fairness to the parties and fairness to the system of judicial administration." Gelber v. Zito P'ship, 147 N.J. 56l, 565 (l997). When "considering fairness to the party whose claim is sought to be barred, a court must consider whether the claimant has had a fair and reasonable opportunity to have fully litigated that claim in the original action." Gelber, supra, l47 N.J. at 565 (citation and quotation marks omitted).
Here, the claims of plaintiff and his father clearly arise from related facts and a single transaction or series of transactions, i.e., plaintiff's suspension and the ensuing OPRA requests and putative violations. Moreover, the "twin pillars" of Gelber weigh significantly in favor of application of the entire controversy doctrine. It is crystal clear plaintiff had more than ample opportunity to litigate and argue before the trial court, administrative tribunal, and appellate courts the facts and substance of this lawsuit, whether couched in terms of OPRA violations, civil rights violations, or assorted tort claims. The defendants, in various combinations, have been pulled into court repeatedly to litigate and re-litigate these issues in a variety of forums. The administration of justice is fairly served by barring a "re-run of the earlier lawsuit[s]." Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 26 (l989). Plaintiff's numerous suits, all of which have been dismissed on the merits, have already wasted significant judicial time and resources and have unnecessarily cost defendants substantial time and money.
This is an apropos segue to defendants' cross-appeal. Sanctions for frivolous litigation are addressed in Rule l:4-8(a), which provides, in pertinent part, that the signature of an attorney constitutes a certification that he or she has read the pleading, written motion, or other paper and by "signing, filing or advocating a pleading, written motion, or other paper," the attorney "certifies that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:"
(l) the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; [and]
(3) the factual allegations have evidentiary support . . . or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.
Sanctions may consist of "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[.]"
R. 1:4-8(d). "To the extent practicable, the procedures prescribed by this rule shall apply to the assertion of costs and fees against a party other than a pro se party pursuant to N.J.S.A. 2A:l5-59.l." R. 1:4-8(f).
A party seeking sanctions must send a "safe harbor" letter to opposing counsel, describing "the specific conduct alleged to have violated th[e] rule" and give notice that if the offending paper is not withdrawn within twenty-eight days of service of the demand, a motion for sanctions will follow. R. l:4-8(b)(l).
N.J.S.A. 2A:15-59.l(a) also provides for attorneys' fees and costs to a prevailing party in a frivolous lawsuit "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 statute defines "frivolous" as "commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury" or if the non-prevailing party "knew, or should have known, that the complaint, counterclaim, cross-claim or defense 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.l(b)(2).
Rule l:4-8 and N.J.S.A. 2A:l5-59.l are interrelated in that the Rule "prescribes the current motion procedure applicable to fee applications under the statute." Czura v. Siegel, 296 N.J. Super. 187, 189 (App. Div. l997). The Rule "governs the procedure for fee applications both against parties under the statute and against lawyers under the rule." Trocki Plastic Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399, 405 (App. Div. 200l), certif. denied, 171 N.J. 338 (2002).
Defendants urge that judgment of fees and costs be entered solely against plaintiff's counsel, not plaintiff; therefore, the assessment of fees should be analyzed under Rule 1:4-8. Defendants timely sent the appropriate "safe harbor" letter. However, plaintiff's counsel categorically refused to dismiss this lawsuit, notwithstanding that the claims were factually and legally deficient and were merely a repetition of the issues asserted in serial litigation that had already been disposed of by various trial judges, the Commissioner of Education, the Administrative Law Judge, and the Appellate Division, or were otherwise pending in appeals before us.
We are convinced the record supports a finding that attorneys' fees sanctions are warranted against plaintiff's attorney. The subjective views of the father-attorney cannot overcome what is a plainly frivolous lawsuit. It is patent his actions were not "objectively reasonable under the circumstances," DeBrango v. Summit Bancorp, 328 N.J. Super. 219, 227 (App. Div. 2000), and he did not have "a reasonable good faith belief in the merit of his action[s]," J.W. v. L.R., 325 N.J. Super. 543, 548 (App. Div. l999). Accordingly, we remand to the trial court to make a determination as to the reasonable litigation costs and attorneys' fees incurred "as a direct result of" plaintiff's counsel's violation of paragraph (a) of Rule l:4-8 and of "a sum sufficient to deter repetition of such conduct." We leave to the discretion of the trial court whether to permit either or both additional submissions or oral argument regarding the quantum of the sanction. We reiterate that we have already determined the record supports the applicability of sanctions against plaintiff's counsel for engaging in frivolous litigation and that issue is not to be the subject of the remand.
The record is inadequate to determine whether defendants were entitled to reasonable attorneys' fees and costs as the prevailing party under the NJCRA. This issue is preserved on remand if defendants wish to pursue it.
Affirmed on plaintiff's appeal; reversed and remanded on defendants' cross-appeal.