VALERIE KONEFAL VS. HOWARD LANDAU (L-0407-17, BERGEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0024-20
VALERIE KONEFAL,
Plaintiff-Appellant,
v.
HOWARD LANDAU,
EILEEN LANDAU a/k/a
MARIE LANDAU, an
incapacitated person, and
EILEEN LANDAU BY HER
COURT APPOINTED GUARDIAN,
DENISE BLIND,
Defendants-Respondents.
______________________________
Argued October 18, 2021 – Decided November 4, 2021
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-0407-17.
Anthony Joseph D'Artiglio argued the cause for
appellant (Ansell Grimm & Aaron, PC, attorneys;
Joshua S. Bauchner and Anthony Joseph D'Artiglio, on
the briefs).
Ronald P. Groseibl argued the cause for respondent
Howard Landau.
PER CURIAM
This estate litigation matter returns to us following a limited remand. See
Konefal v. Landau, No. A-2781-18 (App. Div. May 13, 2020) (slip op. at 5).
We remanded the matter to the trial judge for more specific findings in support
of an award of attorney's fees. Ibid.
Following the remand, plaintiff Valerie Konefel appeals from a July 21,
2020 order awarding counsel fees against her and in favor of defendant Howard
Landau1 in the amount of $39,391.60.2 We affirm.
We presume the parties are familiar with the facts. We incorporate the
facts from our prior unpublished decision.
On appeal, plaintiff argues the following: she was denied due process;
defendant's Rule 1:4-8 notice was deficient; the "[t]rial [c]ourt abdicated its role
as an impartial fact finder"; her complaint was not frivolous; and the awarded
attorney's fees are excessive. We disagree.
1
We refer to Howard Landau as defendant because his wife, Eileen Landau, is
legally incapacitated and not participating in this appeal.
2
The remand judge vacated her earlier determination awarding attorney's fees
against plaintiff's counsel and his law firm. Plaintiff is not appealing from that
portion of the July 21, 2020 order.
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2
Many of plaintiff's arguments in this appeal could, and should, have been
addressed in her original appeal. Nowhere in our May 13, 2020 opinion did we
direct the remand judge to examine issues other than the award of attorney's
fees. We do not consider issues asserted beyond the scope of our remand
instructions. See Henebema v. Raddi, 452 N.J. Super. 438, 450-51 (App. Div.
2017) ("It is well-known that a 'trial court is under a peremptory duty to obey in
the particular case the mandate of the appellate court precisely as it is written.'")
(citing Flanigan v. McFeely, 20 N.J. 414, 420 (1956)). Nor did we compel the
trial judge to conduct a separate hearing on the attorney fee issue, reexamine
issues previously resolved, or address issues not raised in plaintiff's initial
appeal. We expressly instructed the trial judge to set "forth her specific findings
as to each element of [defendant]'s claim for fees under Rule 1:4-8 and N.J.S.A.
2A:15-59.1, and explain her reasons for awarding them . . . ." Konefal, slip op.
at 5.
Based on our review of the limited issue on remand, we affirm for the
comprehensive reasons provided by the remand judge in her written decision
accompanying the July 21, 2020 order. We add only the following comments.
On remand, we instructed the judge to analyze the sufficiency of
defendant's written demand that plaintiff withdraw her complaint under Rule
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1:4-8. Id. at 4. The moving party is required to serve the opposing party with
written notice and a demand "describ[ing] the specific conduct alleged to have
violated [Rule 1:4-8]." R. 1:4-8(b)(1).
Here, defendant's Rule 1:4-8 letter, served during the early stages of
plaintiff's case, identified nine reasons why the claims in plaintiff's complaint
lacked merit, constituted a frivolous pleading, and were filed in bad faith. In
her July 21, 2020 written decision, the judge thoroughly examined plaintiff's
claims, reviewed plaintiff's conduct, and explained the reasons for finding
plaintiff filed her pleading in bad faith. Having reviewed the record, we are
satisfied the judge complied with our remand instruction when she found
plaintiff's complaint was filed in bad faith.
We next review the remand judge's award of attorney's fees. A trial court's
award of attorney's fees is disturbed only upon a clear abuse of discretion. J.E.V.
v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012). "Although New Jersey
generally disfavors the shifting of attorney fees, a prevailing party can recover
those fees if they are expressly provided for by statute, court rule, or contract." 3
3
Defendant sought attorney's fees under N.J.S.A. 2A:15-59.1 and Rule 1:4-8.
Under the rule, a court may award attorney's fees but must "describe the
conduct determined to be a violation of this rule and explain the basis for the
sanction imposed." R. 1:4-8(d).
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Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 440 (2001). Our review of
an award of attorney's fees is deferential, id. at 444, and "fee determinations by
trial courts will be disturbed only on the rarest occasions." Rendine v. Pantzer,
141 N.J. 292, 317 (1995).
Here, the judge faithfully followed our instructions on remand in awarding
attorney's fees to defendant. The judge painstakingly detailed her reasons for
finding plaintiff's claims were filed in bad faith. The judge also considered the
factors under the Rules of Professional Conduct 1.5(a) in calculating the amount
of the attorney's fees awarded to defendant and against plaintiff. Given the
contentious nature of this litigation, the amount of the attorney's fees awarded
was eminently reasonable and relatively conservative.
Affirmed.
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