On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. LT-4242-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
Defendant Alexander Sanchez appeals from the order of the Law Division, Special Civil Part, denying his motion for sanctions and attorney's fees that followed the earlier dismissal of plaintiff's complaint at trial.*fn1 We have considered the arguments made in light of the record and applicable legal standards. We reverse and remand for further proceedings consistent with this opinion.
Plaintiff, King Plaza Residential, owns certain residential rental property located in Perth Amboy. Defendant commenced occupancy of one of the units pursuant to a written lease executed on May 9, 2008. A dispute arose concerning charges for water usage and parking spaces. As a result, plaintiff filed an eviction complaint on March 23, 2010. But, on the day of trial, plaintiff withdrew the complaint.
Plaintiff filed a second complaint for eviction on May 28, 2010, again alleging payments due for water charges and parking spaces. Plaintiff again withdrew this complaint on the day of trial.
On September 15, 2010, defendant executed a parking permit agreement with plaintiff. The agreement listed two vehicles and designated two parking spaces - "118 and 119." In a space marked "Addtl Space #," the words, "None 119," were handwritten. The agreement was in the name of Teofila Sanchez and provided that "[a]ll parking spaces must be occupied 'only' by the vehicles belonging to resident names that are mentioned in the Lease with [plaintiff]." According to the agreement, monthly charges would be billed for "each additional vehicle."
On January 31, 2011, plaintiff filed another eviction complaint alleging non-payment of rent. The complaint further alleged that defendants owed $673.10 in rent, comprised of the charges previously billed in the prior two complaints, as well as additional water charges and parking fees incurred. The complaint was again withdrawn by plaintiff on the day of trial.
On April 12, 2011, defendants retained counsel. On April 21, plaintiff filed a fourth eviction complaint for non-payment of rent again alleging unpaid water fees and parking charges. On April 26, apparently in response to defense counsel's inquiry, plaintiff's counsel indicated that he would speak to his client and "take no further action regarding [the complaint] until our offices confer."
On May 11, defense counsel served written notice on plaintiff's counsel pursuant to Rule 1:4-8, stating "the complaint appears frivolous." He further advised that if the complaint was not withdrawn, defendant would seek sanctions. Neither plaintiff nor its counsel responded.
The parties appeared for trial with counsel on May 18, 2011. The lease and parking agreement were moved into evidence, but no testimony was taken. Instead, the judge listened to argument, reviewed the documents and concluded that parking charges only applied "for each additional vehicle, that means in addition to the residents . . . ." He determined defendants were entitled to two parking spaces without charge, and, since it was undisputed that defendants had only two vehicles, the judge dismissed the complaint.*fn2
Defense counsel orally moved for sanctions based upon "frivolous litigation." The judge advised counsel to make a formal motion.
On June 7, defendant filed four motions seeking sanctions and attorney's fees. Each alleged various grounds for the relief: Rule 1:4-8; the frivolous litigation statute, N.J.S.A. 2A:15-59.1; punitive damages based upon plaintiff's "wanton and willful disregard of persons harmed"; and the Consumer Fraud Act, N.J.S.A. 56:8-1 to -184 (the CFA). In support of the motion, defense counsel provided a certification setting forth in detail his various communications with plaintiff's representatives, as well as a brief description of the three prior complaints that had been withdrawn. Defendants provided no certifications, and there ...