CAROLYN CRAWFORD VS. EDWARD SGALIO VS. JAY H. GREENBLATT, ESQUIRE (L-0205-17, CAPE MAY COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0749-18T3
CAROLYN CRAWFORD,
Plaintiff-Respondent,
v.
EDWARD SGALIO and
MARGARET SGALIO,
Defendants,
and
JEFFREY L. GOLD, ESQUIRE,
Defendant/Third-Party
Plaintiff-Appellant,
v.
JAY H. GREENBLATT, ESQUIRE,
and JONATHAN CRAWFORD,
jointly, severally, and in the alternative,
Third-Party Defendants.
__________________________________
Argued September 16, 2019 – Decided January 13, 2020
Before Judges Vernoia and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Docket No. L-0205-17.
Richard Michael King, Jr., argued the cause for
appellant.
Jay H. Greenblatt argued the cause for respondent
(Greenblatt & Laube, PC, attorneys; Jay H. Greenblatt,
on the brief).
PER CURIAM
Defendant Jeffrey L. Gold (Gold), an attorney licensed to practice in the
State of New Jersey, appeals from an amended order awarding plaintiff Carolyn
Crawford $19,613 in attorney's fees and costs based on a determination that
Gold's counterclaim constituted a frivolous pleading under Rule 1:4-8. We
affirm.
I.
We begin by recounting the long sequence of events that led the trial court
to conclude Gold filed a frivolous counterclaim that justified an award of
attorney's fees and costs. The original complaint in this matter asserted claims
against defendant Edward Sgalio (Sgalio) and his wife, defendant Margaret
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Sgalio,1 arising out of the purchase of real property in Sea Isle City. In
November 2008, Sgalio entered in a contract to purchase the property in his own
name from its owner Marjorie Roth.
Four months later, on March 28, 2009, Sgalio entered into a memorandum
of understanding (MOU) with plaintiff concerning the purchase of the same
property. Under the MOU, plaintiff and Sgalio agreed to form a limited liability
company (LLC) that would purchase the Sea Isle City property for $210,000
from Roth. The MOU further provided plaintiff and defendant would open a
bank account for the LLC, plaintiff would deposit $125,000 and Sgalio would
contribute $40,000 to the account. Plaintiff and Sgalio also agreed that
following the purchase of the property, plaintiff would obtain full ownership
interest in the LLC by a stock transfer from Sgalio, for which he would be paid
$39,000.
Three days after he and plaintiff signed the MOU, Sgalio purchased the
property in his own name with the funds plaintiff deposited in the newly-created
bank account. Plaintiff later became aware of Sgalio's purchase of the property,
1
We refer to defendant Edward Sgalio as "Sgalio" for simplicity and clarity,
and because he was directly involved with plaintiff and Gold in the transactions
and other actions at issue on appeal. Where appropriate, we refer to defendant
Margaret Sgalio by her full name.
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but he assured her that he did so to facilitate the purchase contemplated under
the MOU, and that he would transfer the property to the LLC when it was
formed.
Sgalio subsequently advised plaintiff there was a tidal-lands issue with the
property that could pose significant problems with the plans to develop it. On
November 17, 2009, plaintiff and Sgalio met with Gold, who undertook to
represent them regarding the tidal-lands issue. At that time, Gold learned of
plaintiff's interest in the property and understood the property had been
purchased by Sgalio on plaintiff's behalf. According to Gold, at that meeting,
he also discussed with plaintiff "the cause of action she might have against
Sgalio," but plaintiff opted not to pursue any claims against Sgalio at that time.
Gold and plaintiff also discussed potential claims against the title company, and
he advised that title to the property be kept in Sgalio's name, even though
plaintiff was the real party in interest, to prevent plaintiff from becoming a
named party. Following the meeting, Gold accepted plaintiff's payment of his
requested retainer and undertook prosecution of plaintiff's and Sgalio's tidal-
lands claim against the title company that issued the title policy in connection
with Sgalio's March 31, 2009 purchase of the property.
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On January 13, 2010, and again on March 15, 2010, plaintiff called Gold
to inquire about what he was doing to pursue the title company claim. Gold
never filed suit against the title company, and he never disclosed to plaintiff that
he represented the Sgalios in other matters, or that in 2005 he represented other
individuals who were under contract to purchase the same property from Roth
and faced the same tidal-lands title issue.
By February 2010, Sgalio had defaulted on the mortgage he granted Roth
to secure the loan she made for his purchase of the property. Gold contacted
Sgalio and plaintiff to inform them that Sgalio "may stop payment on the
[m]ortgage," and that they may involve Roth in any lawsuit related to the tidal-
lands issue against the title company. In March 2010, Roth filed a foreclosure
complaint against Sgalio. In July 2010, Gold notified Sgalio and plaintiff of the
foreclosure complaint and advised them he hired an expert and planned to file
an answer, counterclaim, and third-party claim against the title company.
Plaintiff paid for the expert.
By November 2010, discovery requests in the foreclosure case caused
Gold to advise plaintiff and Sgalio that he would likely have to disclose
plaintiff's ownership interest in the property. Plaintiff subsequently retained
Michael Ruberton, Esq. to protect her interest in the matter. Ruberton contacted
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Gold, characterized Gold's actions as "unfathomable," and advised that all
communication with plaintiff should be sent to him. In January 2011, Gold
wrote to Sgalio and informed him plaintiff had obtained a new attorney and was
"claiming all kinds of bad things" about him and them. In February 2011, Gold
disclosed plaintiff's ownership interest in the property to opposing counsel in
the foreclosure action.
In May 2011, Sgalio called Gold and told him to "drop [the] case." Gold
then engaged in settlement negotiations with Sgalio's creditors and Roth, which
resulted in a forbearance agreement in September 2011. The agreement required
Sgalio to withdraw his defenses in the foreclosure action, allow it to proceed
uncontested, and recommence his payments subject to a promissory note. In
exchange, Roth agreed not to expose the property to a sheriff's sale for three
years. In addition, Gold settled the third-party claim against the title company
for $20,000. From the $20,000 settlement, Gold retained $14,874 to satisfy his
outstanding bill for legal services, and Sgalio received the remaining balance.
Sgalio subsequently defaulted on his payments under the mortgage and
forbearance agreement, and in February 2013, a complaint for foreclosure of a
tax sale certificate was filed against the Sgalios. In July 2013, Gold successfully
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negotiated a settlement on behalf of the Sgalios that prevented the plaintiff in
that action from moving for foreclosure until November 1, 2013.
By the end of July 2013, the Sgalios found a buyer for the property. In
September 2013, they met with Gold to "go over the [t]itle [w]ork," and on
October 30, 2013, they closed title on their sale of the property. At closing, the
Sgalios paid $82,000 to satisfy two of their creditors based on agreements Gold
negotiated on their behalf in anticipation of the closing of title on the Sgalios'
sale of the property. The property was sold to 5920 Sounds Avenue, LLC.
Margaret Sgalio was the real estate agent in the sale and received a commission.
Gold closed his file and billed the Sgalios.
Plaintiff received no compensation from the sale of the property, and
alleged she first learned of the sale in April or May 2015 when her son
discovered the sale while looking up tax information. Plaintiff retained Jay H.
Greenblatt, Esq., to inquire about the sale. In November 2015, Greenblatt
contacted Gold about reviewing his file related to the sale of the property. Gold
and Greenblatt exchanged correspondence over the next four months related to
Greenblatt's efforts to review Gold's file. Gold sent Greenblatt incomplete files
and resisted Greenblatt's repeated requests to view his entire file related to the
property.
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In April 2016, plaintiff filed her complaint against the Sgalios, 5920
Sounds Avenue, LLC, and fictitious defendants, claiming they conspired to, and
did, defraud plaintiff. Greenblatt did not serve Gold with the complaint because
he believed Gold had a conflict of interest because of his representation of
plaintiff in connection with the claims made in the foreclosure litigation with
Roth and the tidal-lands issue with the title company. Gold filed an answer on
behalf of the Sgalios in response to the complaint. Greenblatt and Gold
continued to communicate concerning Greenblatt's request to review Gold's
complete file related to the property, and Gold continued to refuse to supply the
complete file.
In a September 23, 2016 order, the court granted plaintiff's motion to
disqualify Gold from representing the Sgalios. The court determined Gold had
"a conflict representing [the Sgalios] in a case filed by his former client
[plaintiff]." The court explained that plaintiff's complaint "involves
substantially the same issues, it involves the same property, and even more
significantly it involves the contractual relationship between both of [Gold's]
former clients." The court concluded that Gold's representation of the Sgalios
"in a case filed by his former client [plaintiff], represents a conflict and is
inconsistent with the ethical principles of Rules 1.7 and 1.9 of the New Jersey
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Rules of Professional Conduct and with the standards set by the New Jersey
Supreme Court."
Greenblatt continued his efforts to obtain access to Gold's file related to
the property. In response to plaintiff's second motion to compel production of
the file, the court entered an October 21, 2016 order directing that Gold provide
plaintiff access to his "full and complete files relative to his prior representation
of [plaintiff] regarding the mortgage foreclosure, tax sale certificate foreclosure
and title company action concerning" the property for review by plaintiff's
counsel, and awarding plaintiff attorney's fees. On November 28, 2016, the
court ordered Gold to pay plaintiff $4,500 in attorney's fees and again ordered
him to provide plaintiff unfettered access to the files. Finally, on January 12,
2017, the court ordered Gold to bring the "full and complete files" to an in-
person case management conference scheduled for February 7, 2017.
Greenblatt viewed Gold's files prior to the February 7 conference, and on
February 6, 2017, he sent Gold a letter asserting that, despite owing plaintiff a
duty as his client, Gold "served only the interest of the Sgalios" when he helped
them sell the property with knowledge that his prior client, plaintiff, held a legal
interest in the property. Greenblatt further asserted Gold's numerous
representations that he had nothing to do with the October 30, 2013 property
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sale were contrary to information contained in Gold's file, and he alleged Gold
committed "at the least, malpractice and at the most, fraud," for facilitating the
sale of the property while knowing plaintiff was the "equitable owner and real
party in interest."2 Greenblatt advised Gold to contact his malpractice insurer,
and he expressed his wish to "resolve the matter amicably."
By letter dated February 13, 2017, Gold threatened that if Greenblatt
"attempt[ed] to add [Gold] to the case based upon the allegations in
[Greenblatt's] letter," he would file a counterclaim against plaintiff, a third-party
complaint against plaintiff's son, and a third-party complaint against Greenblatt
for "facetious allegations." Gold pointed out the filing of those claims would
require the retention of separate counsel by each of the parties.
Plaintiff filed an amended complaint naming Gold as a defendant and
alleging he breached his fiduciary duty to plaintiff by allowing the Sgalios to
2
For example, in a December 1, 2010 letter from Gold to plaintiff and Sgalio,
Gold stated it was his "understanding . . . the property had been bought in
[Sgalio's] name for [plaintiff] and that was why" plaintiff "paid" Gold's
"[r]etainer." In a January 2011 letter, Gold advised that when he first met with
plaintiff on November 17, 2009, he discussed with her "the conflict possibility
and the cause of action she might have against Sgalio." In a June 27, 2017
certification, Gold explained that at his first meeting with plaintiff on November
17, 2009, they discussed that "[t]itle on the property was in Sgalio's name
although it was to be in [plaintiff's] name," but plaintiff "did not at [that] time
want to change that since she did not want to be involved as a named [d]efendant
in the [then-pending] [f]oreclosure lawsuit."
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violate her rights related to the property, committed legal malpractice, and
conspired to defraud plaintiff. In response, Gold filed a counterclaim against
plaintiff and a third-party complaint against plaintiff's son and Greenblatt. In
his counter-claim, Gold alleged: (1) plaintiff "negligently failed to make the
appropriate investigation before filing" her amended complaint; (2) plaintiff
"aided and abetted her son . . . and [Greenblatt] in filing an improper cause of
action"; (3) plaintiff, her son, and Greenblatt "conspired to cause damage to
[Gold] without proper cause and proper investigation"; (4) plaintiff asserted her
claims against Gold in bad faith; and (5) plaintiff's claims against Gold were
defamatory. In his third-party complaint, Gold alleged similar causes of action
against plaintiff's son and Greenblatt.
On May 22, 2017, Greenblatt sent Gold a letter pursuant to Rule 1:4-8,
demanding Gold voluntarily withdraw his counterclaim and third-party
complaints. Greenblatt asserted the pleadings violated Rule 1:4-8(a)(1) – (3)
because they asserted claims "for an improper purpose," were "unwarranted
under existing law," and "clearly have insufficient evidentiary support."
Greenblatt further stated Gold's claims were "without any legal or factual basis."
Greenblatt warned Gold that if the counterclaim and third-party complaint were
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not dismissed within twenty-eight days, he would apply to the court for
sanctions.
Two weeks later, Greenblatt, on plaintiff's behalf and on his own behalf
as a pro se defendant in the third-party complaint, moved to dismiss Gold's
counterclaim and third-party complaint. Although captioned as a summary
judgment motion and supported by Greenblatt's certification attaching two
letters from Gold, the motion requested dismissal of the counterclaim and third-
party complaint "on the grounds that they fail to state claims upon which relief
may be granted."
On July 14, 2017, the court granted the motion in part. The court
interpreted Gold's pleadings to assert claims for common law negligence and
professional malpractice, malicious abuse of process, civil conspiracy,
intentional tort liability under § 870 of Restatement (Second) of Torts (1979),
aiding and abetting, and defamation. The court dismissed the allegations in the
pleadings for negligence and professional malpractice, malicious abuse of
process, and defamation because they failed to state claims upon which relief
could be granted as a matter of law. The court denied without prejudice the
request to dismiss the remaining claims, finding "the merits of [these] claim[s]
[had] not been substantially adjudicated."
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Plaintiff and Greenblatt filed a motion for reconsideration and for a more
definite statement as to the remaining claims. On September 11, 2017, the court
denied the motion for reconsideration, but granted the motion for a more definite
statement and ordered Gold to provide "a certified pleading setting forth more
specific allegations and more specific causes of action that shall serve to
supplement and become a part of the [c]ounterclaim and [t]hird-[p]arty [c]laim."
In its written decision, the court noted the allegations in Gold's counterclaim and
third-party complaints were "not reasonably certain enough to place [m]ovants
on notice of the claims against them," and the "[m]ovants strain[ed] to categorize
the causes of action against them in the within motion and the previous motion
to dismiss."
Plaintiff's claims against the Sgalios were settled in mediation, but
plaintiff's claims against Gold and those he asserted in counterclaim and third-
party complaint remained outstanding. Gold never complied with the court's
September 11, 2017 order requiring that he file a more definite statement of the
causes of action in those pleadings. Instead, he filed a motion for voluntary
dismissal of the counterclaim and third-party complaint. Greenblatt opposed the
motion and moved to involuntarily dismiss Gold's counterclaim and third-party
complaints. The court granted the motion for involuntary dismissal.
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Greenblatt subsequently moved for sanctions and attorney's fees pursuant
to Rule 1:4-8. In support of the motion, Greenblatt supplied a certification of
his services. Gold opposed the motion, and the court heard oral argument.
In a detailed written April 18, 2018 decision, the court granted the motion
for sanctions and attorney's fees explaining it had allowed Gold to provide a
more definite statement as to the causes of action asserted in the counterclaim
and third-party complaint, but Gold "never actually filed a more specific
statement." The court noted that, instead, Gold relied on his claim the causes of
action in the amended complaint lacked merit because he was not involved in
the Sgalio's October 30, 2013 sale of the property. The court found the argument
unpersuasive and that "[a]t best, [it] perhaps . . . suggest[s] a defense to
[p]laintiff's claims, but it ignores his wholly unsupported counterclaims and
third[-]party complaint."
The court concluded that "[b]ased on [Gold's] refusal to release his client's
file multiple times, as well as [Gold's] previous failure to comply with a [c]ou rt
[o]rder to provide more support for his counterclaims and third[-]party
complaint . . . [Gold's] counterclaim and third[-]party complaint were frivolous."
In granting the motion, the court required that Greenblatt supply a supplemental
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certification of services supporting his attorney's fees claim. Gold filed a motion
for reconsideration, which the court denied.
On August 28, 2018, after a "thorough review" of Greenblatt's application,
the court ordered Gold to pay $13,877 in attorney's fees. The cou rt found
Greenblatt's billable rate reasonable when compared to fees charged by other
attorneys "who possess similar qualifications." Greenblatt subsequently notified
the court that the amount it awarded was based on his original certification
submitted in support of the motion, and that the court did not consider the
supplemental certification which described additional services rendered in
response to Gold's reconsideration motion. The court filed an amended
September 26, 2018 order, requiring that Gold pay $19,613 in attorney's fees.
This appeal followed.
Gold presents the following arguments for our consideration:
POINT I
AS A PREREQUISITE TO AN AWARD OF FEES,
RULE 1:4-8 REQUIRES THE "SAFE HARBOR"
LETTER SET FORTH THE BASIS FOR THE
ALLEGATION OF FRIVOLOUSNESS "WITH
SPECIFICITY", AND THE APPLICANT IN THIS
CASE ENTIRELY FAILED TO DO SO[.]
POINT II
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IT WAS AN ABUSE OF DISCRETION AND A
VIOLATION OF THE SPIRIT OF THE "SAFE
HARBOR" PROVISION TO AWARD NEARLY
$20,000 OF ATTORNEY'S FEES FOR A
COUNTERCLAIM THAT SURVIVED SUMMARY
JUDGMENT AND WAS DISMISSED ALMOST
IMMEDIATELY AFTER THE UNDERLYING
CLAIM WAS RESOLVED IN MEDIATION[.]
POINT III
THE COURT IMPROPERLY REACHED
CONCLUSIONS OF FACT ON DISPUTED ISSUES
OF FACT REGARDING THE CREDIBILITY OF
GOLD'S FACTUAL POSITION WITHOUT
CONDUCTING AN EVIDENTIARY HEARING[.]
POINT IV
GREENBLATT CONCEDED CRAWFORD'S
AFFIRMATIVE CLAIM WAS "INEXTRICABLY
INTERTWINED" WITH HER PURSUIT OF THE
UNDERLYING CLAIM AGAINST SGALIO AND
GOLD, AND IT IS NOT FAIR OR REASONABLE TO
CONCLUDE $20,000 WAS SPENT DEFENDING
THE COUNTERCLAIM AS OPPOSED TO
PROSECUTING THE SETTLED CASE IN CHIEF[.]
II.
We review a court's award of attorney's fees under Rule 1:4-8 for an abuse
of discretion. Bove v. AkPharma, Inc., 460 N.J. Super. 123, 146 (App. Div.
2019) (citing McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div.
2011)). Reversal is warranted "only if [the decision] 'was not premised upon
A-0749-18T3
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consideration of all relevant factors, was based upon consideration of irrelevant
or inappropriate factors, or amounts to a clear error in judgment.'" McDaniel,
419 N.J. Super. at 498 (quoting Masone v. Levine, 382 N.J. Super. 181, 193
(App. Div. 2005)). To the extent the court's decision implicates legal principles,
we independently evaluate those legal assessments de novo. Manalapan Realty,
LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Finderne Mgmt.
Co., Inc. v. Barrett, 402 N.J. Super. 546, 573 (App. Div. 2008).
Rule 1:4-8 allows an attorney or pro se litigant "to be sanctioned for
asserting frivolous claims on behalf of a client." United Hearts, LLC v.
Zahabian, 407 N.J. Super. 379, 389 (App. Div. 2009). Rule 1:4-8(a) provides
that when an attorney or pro se party signs, files, or advocates "a pleading,
written motion, or other paper," that attorney or pro se party "certifies that to the
best of his or her knowledge, information, and belief":
(1) 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;
(3) the factual allegations have evidentiary support or,
as to specifically identified allegations, they are either
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likely to have evidentiary support or they will be
withdrawn or corrected if reasonable opportunity
for further investigation or discovery indicates
insufficient evidentiary support; and
(4) the denials of factual allegations are warranted on
the evidence or, as to specifically identified denials,
they are reasonably based on a lack of information or
belief or they will be withdrawn or corrected if a
reasonable opportunity for further investigation or
discovery indicates insufficient evidentiary support.
[R. 1:4-8(a)].
Under Rule 1:4-8(b)(1), "[a] court may impose sanctions upon an attorney if the
attorney files a paper that does not conform to the requirements of Rule 1:4-8(a),
and fails to withdraw the paper within twenty-eight days of service of a demand
for its withdrawal." Zahabian, 407 N.J. Super. at 389.
"For purposes of imposing sanctions under Rule 1:4-8, an assertion is
deemed 'frivolous' when 'no rational argument can be advanced in its support,
or it is not supported by any credible evidence, or it is completely untenable.'"
Ibid. (quoting First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432
(App. Div. 2007)). "Sanctions are warranted 'only when the pleading as a whole
is frivolous or of a harassing nature," id. at 390 (quoting Iannone v. McHale,
245 N.J. Super. 17, 32 (App. Div. 1990)), and just because "some of the
allegations made at the outset of litigation later proved to be unfounded does not
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render frivolous a complaint that also contains some non-frivolous claims,"
Iannone, 245 N.J. Super. at 32 (quoting Romero v. City of Pomona, 883 F.2d
1418, 1429 (9th Cir. 1989)). However, "continued prosecution of a claim or
defense may, based on facts coming to be known to the party after the filing of
the initial pleading, be sanctionable as baseless or frivolous even if the initial
assertion of the claim or defense was not." Id. at 31.
Gold contends the motion court abused its discretion by finding his
counterclaim and third-party complaint constituted frivolous pleadings because
the court partially denied plaintiff's and Greenblatt's motion for summary
judgment and allowed the continued prosecution of some of Gold's claims.
Relying on our decision in Zahabian, Gold contends "one cannot be deemed to
have litigated the matter in bad faith after [the] [t]rial court permitted [the]
matter to proceed through summary judgment." Gold claims the court's partial
denial of the summary judgment motion requires the conclusion his surviving
claims were not frivolous, and therefore the court's award of attorney's fees
"essentially . . . punished [Gold] for withdrawing . . . non-frivolous claim[s]."
We reject Gold's argument for two reasons. First, his reliance on Zahabian
is misplaced. In that case, we held "a pleading cannot be deemed frivolous as a
whole . . . where . . . the trial court denies summary judgment on at least one
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count in the complaint and allows the matter to proceed to trial." Zahabian, 407
N.J. Super. at 394 (emphasis added). Here, Gold's claims never proceeded to
trial because they were involuntary dismissed.
Second, the motion court's decision and order denying plaintiff's and
Greenblatt's summary judgment motion were not based on a finding the
surviving claims were meritorious. To the contrary, the court determined only
that the claims were not sufficiently pleaded to assert causes of action upon
which relief could be granted. After providing Gold an opportunity to recast his
pleadings, the court properly concluded the surviving claims were frivolous
because they were unsupported by "rational argument" or "any credible
evidence." Id. at 389.
Further, the evidence showed the claims were asserted in a bad-faith effort
to create leverage against plaintiff, her son, and Greenblatt. As noted,
Greenblatt informed Gold that plaintiff intended to file claims against him for
breaching his ethical duty to her by aiding the Sgalios' October 30, 2013 sale of
the property while knowing that his former client, plaintiff, held an interest in
the property. In response, Gold not only threatened to file what became his
unsupported and unsupportable claims against plaintiff, her son, and Greenblatt,
he made clear that his retaliatory filing of those claims would cause plaintiff and
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the others to separately incur attorney's fees. In other words, Gold threatened
plaintiff and the others that they would be compelled to incur attorney's fees
defending his frivolous claims. As the motion court correctly determined, such
circumstances support an award of fees under Rule 1:4-8.
Gold also argues Greenblatt's Rule 1:4-8 letter requesting the withdrawal
of the frivolous pleadings was inadequate because it did not state with sufficient
specificity the basis for the request, and, as a result, Gold did not receive notice
of which parts of the pleadings were claimed to be frivolous. We reject the
argument because it was not raised before the motion court and does not go to
our jurisdiction or involve a matter of public concern. Nieder v. Royal Indem.
Ins. Co., 62 N.J. 229, 234 (1973). Moreover, the argument lacks sufficient merit
to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), other than to note
Greenblatt's letter expressly requested withdrawal of the counterclaim and third-
party complaint because they asserted claims lacking "any legal or factual
basis." We are convinced the letter satisfied the requirements of Rule 1:4-8
because it was "sufficiently specific and detailed to provide an opportunity to
'withdraw the assertedly offending pleadings.'" Ferolito v. Park Hill Ass'n, 408
N.J. Super. 401, 408 (App. Div. 2009) (quoting Trocki Plastic Surgery Ctr. v.
Bartkowski, 344 N.J. Super. 399, 406 (App. Div. 2001)).
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Gold also argues the court erred by making credibility determinations in
its disposition of his reconsideration motion. More particularly, Gold points to
the following statement in the court's decision denying the motion: "Gold again
attempts to rehash whether he was involved in the 'out sale' contract" [for the
Sgalio's October 30, 2013 sale of the property]. The [c]ourt did not find his
arguments to be credible." Gold claims the statement shows the court's decision
was improperly founded on a credibility determination, and that there is a factual
issue as to whether he participated in the sale. We are not persuaded.
Gold misinterprets the court's statement and takes it out of context. Gold
opposed plaintiff's motion for sanctions under Rule 1:4-8 by arguing he was not
involved in the Sgalio's sale of the property and, as such, he could not be found
liable for any of plaintiff's asserted claims against him. At oral argument, the
court observed that Gold's position might support a defense to plaintiff's claims,
but it did not provide factual or legal support for the claims he asserted in the
counterclaim and third-party complaint. The court made the same point in its
written decision. Thus, when the court characterized Gold's argument as not
"credible," it merely noted the argument was not relevant to the issue presented
by the reconsideration motion—whether the court's order awarding sanctions
under Rule 1:4-8 was based upon a palpably incorrect or irrational basis or was
A-0749-18T3
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entered by the court without consideration of, or a failure to appreciate, the
significance of probative, competent evidence. See Palombi v. Palombi, 414
N.J. Super. 274, 288 (App. Div. 2010); D'Atria v. D'Atria, 242 N.J. Super. 392,
401 (Ch. Div. 1990)).
Gold also argues the fees awarded by the court were unreasonable. Gold
asserts the court "simply accepted" Greenblatt's certification of services
provided, "without any analysis of the factors required for the granting of
attorney's fees." Additionally, Gold challenges the increase in awarded fees
from $13,877 to $19,613.
A party applying for an award of attorney's fees pursuant to Rule 1:4-8 is
not necessarily "entitled to recover . . . all [its] fees and costs"; "only reasonable
attorney fees may be awarded" under Rule 1:4-8. DeBrango v. Summit Bancorp,
328 N.J. Super. 219, 229 (App. Div. 2000). As such, courts should not passively
accept "the submissions of counsel," but should instead "evaluate carefully and
critically the aggregate hours and specific hourly rates advanced by counsel for
the prevailing party to support the fee application." Walker v. Giuffre, 209 N.J.
124, 131 (2012) (quoting Rendine v. Pantzer, 141 N.J. 292, 335 (1995)). Indeed,
"[i]n fashioning an attorney fee award, the judge must determine the 'lodestar,'
which equals the number of hours reasonably expended multiplied by a
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reasonable hourly rate." J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App. Div.
2012).
Here, the court conducted the required analysis of the fee request. It
determined Greenblatt's hourly rate of $385 per hour was reasonable by
comparing it to the rates of other attorneys who possess similar qualifications.
The court then multiplied that rate by 50.1 hours, which was the amount of time
Greenblatt certified he spent working on the counterclaim and third-party
complaints since May 2017, and which the court deemed reasonable. The court
also did not arbitrarily adjust the fee award from $13,877 to $19,613. Rather,
the court merely corrected the fee award when it learned it failed to consider
Greenblatt's supplemental certification of services provided. Gold offers no
basis grounded in the applicable law or evidence to reverse the court's award,
and we find none in our independent review of the record.
Affirmed.
A-0749-18T3
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