MARGARET REARDON VS. ROSSY SANTOS (L-2662-16, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0235-16T2
MARGARET REARDON,
Plaintiff-Respondent,
v.
ROSSY SANTOS, LESBIA V.
MENDEZ, MY OWN HANDS SERVICES,
LLC, and ESTEBAN MANUEL,
Defendants-Appellants.
_______________________________
Submitted November 8, 2017 - Decided November 30, 2017
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
L-2662-16.
Ernest G. Ianetti, attorney for appellants.
Murano & Roth, LLC, attorneys for respondent
(John F. Murano, on the brief).
PER CURIAM
Defendants Rossy Santos, Lesbia V. Mendez, My Own Hands
Services, LLC and Esteban Manuel appeal from a June 24, 2016 order1
awarding $1400 in attorney's fees to plaintiff as a result of
defense counsel's failure to prepare and provide a brief in
opposition to a summary judgment motion filed on behalf of
plaintiff Margaret Reardon. We reverse.
Plaintiff sued defendants for the return of money she paid
for reconstruction of her home after it was destroyed by a fire.
Defendants filed a counterclaim seeking payment for work
performed.
Plaintiff filed a motion for summary judgment against
defendants two months after filing her complaint. Plaintiff's
motion was filed prior to the service of discovery by either party.
Defendants requested a two-week adjournment of the summary
judgment motion because their counsel was defending back-to-back
criminal trials as a pool attorney for the Office of the Public
Defender. Plaintiff's counsel was unable to agree to the
adjournment request because: he would be on vacation the following
motion cycle, his client was elderly and anxious about the loss
of the money she paid to defendants, and plaintiff's counsel
1
On August 5, 2016, the judge certified the order "as final to
permit [defense counsel] to seek appellate review."
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believed defendants had no valid defense and one of the
individually named defendants was in the country illegally.
Four days prior to the original return date of plaintiff's
motion, defense counsel wrote to the court requesting a two-week
adjournment. Plaintiff's counsel opposed the requested
adjournment and the motion judge denied the adjournment.
Both counsel appeared in court on the return date of
plaintiff's motion. Defense counsel renewed his request for a
two-week adjournment of the motion. The judge heard from both
counsel on the renewed adjournment application. During argument
on the adjournment request, plaintiff's attorney sought counsel
fees for his time spent preparing and attending court. Plaintiff's
counsel advised the motion judge that he spent four hours of time,
including driving to/from the court that day and preparing for the
summary judgment argument, at a rate of $375 per hour. 2 Defense
counsel asked the motion judge to delay any decision on an award
of attorney's fees pending the outcome of the summary judgment
motion. The motion judge adjourned the motion, but ordered defense
counsel to pay plaintiff's counsel $1,400 in fees.
Defendants filed timely opposition to the adjourned summary
judgment motion on behalf of the individual defendants and
2
The motion judge awarded $350 per hour as a "fair and reasonable
rate."
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stipulated that the corporate defendant committed a regulatory
violation of the Consumer Fraud Act. Plaintiff's summary judgment
motion was eventually denied on the merits.
We review an award of sanctions pursuant to Rule 1:2-4 for
abuse of discretion. Shore Orthopaedic Grp., LLC v. Equitable
Life Assurance Soc'y, 397 N.J. Super. 614, 623 (App. Div. 2008),
aff'd, 199 N.J. 310 (2009) (awarding of attorney's fees should not
be disturbed unless it constitutes a clear abuse of discretion).
A court may award reasonable attorney's fees when authorized to
do so by rule or statute. Id. at 623-24. Rule 1:2-4, provides:
(a) Failure to Appear. If without just excuse
or because of failure to give reasonable
attention to the matter, no appearance is made
on behalf of a party on the call of a calendar,
on the return of a motion, at a pretrial
conference, settlement conference, or any
other proceeding scheduled by the court, or
on the day of trial, or if an application is
made for an adjournment, the court may order
any one or more of the following: (a) the
payment by the delinquent attorney or party
or by the party applying for the adjournment
of costs, in such amount as the court shall
fix, to the Clerk of the Court . . . or to
the adverse party; (b) the payment by the
delinquent attorney or party or the party
applying for the adjournment of the reasonable
expenses, including attorney's fees, to the
aggrieved party . . . .
(b) Motions; Briefs. For failure to comply
with the requirements of R. 1:6-3, 1:6-4 and
1:6-5 for filing motion papers and briefs and
for failure to submit a required brief, the
court may dismiss or grant the motion or
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application, continue the hearing to the next
motion day or take such other action as it
deems appropriate. If the hearing is
continued, the court may impose sanctions as
provided by paragraph (a) of this rule.
Judges should impose sanctions sparingly when "litigants have
failed to comply precisely with particular court schedules, unless
such noncompliance was purposeful and no lesser remedy was
available." Connors v. Sexton Studios, Inc., 270 N.J. Super. 390,
395 (App. Div. 1994). Before a court imposes sanctions, the judge
should consider whether there has been a showing of prejudice on
the part of the requesting party. Mayfield v. Cmty. Med. Assocs.,
335 N.J. Super. 198, 207 (App. Div. 2000). Our review of an order
imposing sanctions "requires us to abstain from interfering with
those discretionary decisions unless an injustice has been done."
Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 82-83 (App.
Div. 2004) (quoting Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super.
557, 571 (App. Div. 2000)).
We conclude the motion judge mistakenly exercised her
discretion in sanctioning defense counsel by awarding attorney's
fees to plaintiff. Defense counsel was reasonable in requesting
an adjournment due to his back-to-back criminal trial schedule as
a pool attorney for the Office of the Public Defender. Defense
counsel explained that his workload increased dramatically as a
result of being assigned additional cases by the Office of the
5 A-0235-16T2
Public Defender. Under the circumstances, defense counsel's
noncompliance with the court rule governing the filing of a timely
opposition brief was not an act of purposeful defiance. Nor did
the motion judge find defense counsel acted in bad faith. Further,
plaintiff's counsel failed to articulate any substantial prejudice
to his client as a result of a two-week adjournment of the motion.
Thus, the motion judge's imposition of sanctions under the
circumstances was an injustice.
Reversed.
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