OFFICER CHRISTOPHER MUNN VS. CITY OF TRENTON POLICE DEPARTMENT (L-0223-18, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5123-17T2
OFFICER CHRISTOPHER MUNN,
Plaintiff-Appellant,
v.
CITY OF TRENTON POLICE
DEPARTMENT and CITY OF
TRENTON,
Defendants-Respondents.
____________________________
Argued July 23, 2019 – Decided August 1, 2019
Before Judges Ostrer and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0223-18.
Sara B. Liebman argued the cause for appellant (Caruso
Smith Picini, PC, attorneys; Timothy R. Smith and Joshua
Forsman, of counsel; Sara B. Liebman, on the briefs).
John P. Harrington argued the cause for respondents
(Trimboli & Prusinowski, LLC, attorneys; Stephen E.
Trimboli, of counsel and on the brief; John P. Harrington,
on the brief).
PER CURIAM
Plaintiff Christopher Munn appeals from Law Division orders imposing a
frivolous litigation sanction under Rule 1:4-8 and denying reconsideration. For the
reasons that follow, we reverse and remand for further proceedings.
Plaintiff is a patrolman employed by the City of Trenton Police Department
(the TPD). Five disciplinary charges were brought against plaintiff. The preliminary
notice of disciplinary action alleged:
On November 3, 2016 the officer was ordered by his
supervisor to sign on with communications dispatchers, so
that they can put the officer on duty in the computer
system at the beginning of his shift. The officer failed to
do so. The officer disobeyed a direct order from his
supervisor to meet him at Trenton Police Headquarters.
Plaintiff was charged with insubordination, conduct unbecoming an officer, failure
to promptly and fully obey the lawful order of a superior, insubordination or
disrespect of a supervisor, and failure to promptly and efficiently perform duties.
Plaintiff claims, prior to the disciplinary hearing, he submitted a written
request for it to be open to the public. He further claims members of the press
informed the TPD that they intended to attend the hearing. Plaintiff alleges members
of the public and press appeared for, but were not permitted to attend, the hearing.
The disciplinary hearing was conducted by the Director of the TPD. It was
not open to the public. The Director sustained all five charges. The final notice of
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disciplinary action imposed a fifteen-day suspension without pay. Trenton is a civil
service municipality. Plaintiff filed an appeal from the suspension with the Civil
Service Commission (CSC).
Plaintiff also filed a one-count verified complaint seeking a declaratory
judgment that the disciplinary hearing was void ab initio and the discipline imposed
null and void, and requesting a new, public disciplinary hearing. Plaintiff relied
upon the Attorney General's Guidelines for Internal Affairs Policy & Procedures
(rev. Nov. 2017), which states: "All disciplinary hearings shall be closed to the
public unless the defendant officer requests an open hearing." Id., App. A, Model
Internal Affairs Standard Operating Procedure, III. Procedures, F. Hearing, 5.
Plaintiff averred the Attorney General's Guidelines are binding on all law
enforcement agencies pursuant to N.J.S.A. 40A:14-181, which states: "Every law
enforcement agency . . . shall adopt and implement guidelines which shall be
consistent with the guidelines governing the 'Internal Affairs Policy and Procedures'
of the Police Management Manual . . . ." Plaintiff also contended disciplinary
hearings of law enforcement officers should be public hearings pursuant to the Open
Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21. Plaintiff sought a new public
hearing held in accordance with the Attorney General's Guidelines and OPMA.
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Defense counsel sent written notice to plaintiff's counsel that the complaint
was frivolous and demanding immediate withdrawal of the complaint or defendants
would pursue sanctions under Rule 1:4-8. Plaintiff did not voluntarily withdraw
either of his two claims.
Defendants moved to dismiss the complaint on grounds of lack of subject
matter jurisdiction pursuant to Rule 4:6-2(a) and failure to state a claim upon which
relief may be granted pursuant to Rule 4:6-2(e). The trial court granted the motion
"due to lack of subject matter jurisdiction." It found that jurisdiction for an appeal
from the imposition of discipline at the departmental level was with the CSC, not
the Superior Court, which included any claims of improper procedure at the
departmental hearing.
Defendants then moved against plaintiff for an award of sanctions under Rule
1:4-8, for "failure to withdraw his frivolous claims." Defendants sought sanctions
in the amount of $8694 for the counsel fees they incurred.1 Notably, defendants did
not seek an award of "all reasonable litigation costs and reasonable attorney fees"
under N.J.S.A. 2A:15-59.1(a)(1).
1
The trial court appears to have considered only a portion of the counsel fees
incurred by defendants. As indicated in counsel's certification, defendants were
billed $7521.50 for services through March 23, 2018, and an additional $1172.50
for services thereafter. The trial court seemingly did not consider the counsel fees
incurred for services rendered after March 23, 2018.
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Defendants represented that plaintiff did not assert a right to a public hearing
and did not object to the non-public disciplinary hearing when it took place.
Defendants further represented that "[n]o member of the press was present at or
removed from the hearing." Defendants claimed plaintiff first objected to the non-
public disciplinary hearing in a December 15, 2017 letter from counsel, which
claimed the hearing was conducted in violation of OPMA and "Attorney General
Guidelines." Defendants contended the letter was received by their counsel on
December 20, 2017, six days after the hearing took place.
Defendants further represented that in response to plaintiff's claims, defense
counsel immediately put plaintiff's counsel on written notice of defendants' position
that OPMA did not apply to a departmental disciplinary hearing conducted by a
single hearing officer and that the Attorney General Guidelines do not require a
public hearing on disciplinary charges. The letter also put plaintiff on notice that if
plaintiff commenced litigation based on the facially frivolous claim that the
disciplinary hearing violated OPMA, the City of Trenton would consider such
litigation frivolous and seek all available remedies.
Plaintiff opposed the motion. The trial court found no evidence the complaint
"was used for the purpose of harassment, delay, or malicious injury." The court
noted defendants did not contend the complaint was filed in bad faith or to harass.
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The court found plaintiff's OPMA claim "was patently frivolous" because the
one-person departmental hearing was not an open public meeting under the OPMA.
The court noted "the [c]omplaint was framed to focus on the [OPMA]."2 The court
reached a different conclusion as to plaintiff's claim that the TPD improperly
conducted the hearing in private despite his request for a public hearing. The court
found the claim was not frivolous or lacking a basis, and was filed in good faith.
The court determined a "reasonable fee" should be awarded "since only part of the
[c]omplaint was frivolous."
Although defendants did not apply for relief under N.J.S.A. 2A:15-59.1(a)(1),
the trial court found it applied. The trial court found the hourly rates of $175 and
$135 charged by defense counsel were reasonable, and the time expended by counsel
was warranted based on the quality of the work and the extensive research
performed. The court found no double billing. The court concluded the lodestar
was $7521.50. The trial court granted the motion in part, imposing a "50 percent"
frivolous litigation sanction of $3760.75, payable by plaintiff's counsel to defendants
within thirty days.
2
We note, however, that the complaint alleged a violation of the Attorney General's
Guidelines, which are binding on law enforcement agencies pursuant to N.J.S.A.
40A:14-81, and sought to compel defendants to abide by the requirements of the
Attorney Generals Guidelines and OPMA.
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Plaintiff moved for reconsideration. The trial court reiterated that plaintiff's
OPMA violation claim was frivolous, but his other claim was not. The trial court
rejected plaintiff's argument that a frivolous litigation sanction should not be
imposed unless the entire pleading is deemed frivolous. The court denied
reconsideration but granted plaintiff's application to stay the sanction pending
appeal. This appeal followed.
Plaintiff argues the trial court erred in imposing frivolous litigation sanctions
and denying reconsideration because only one of the two claims asserted in the
complaint was found to be frivolous and neither claim was made in bad faith.
We review a judge's decision on a motion for frivolous lawsuit sanctions
under an abuse of discretion standard. United Hearts, LLC v. Zahabian, 407 N.J.
Super. 379, 390 (App. Div. 2009) (citing Masone v. Levine, 382 N.J. Super. 181,
193 (App. Div. 2005)). We will reverse a decision when "the discretionary act was
not premised upon consideration of all relevant factors, was based upon
consideration of irrelevant or inappropriate factors, or amounts to a clear error of
judgment." Masone, 382 N.J. Super. at 193 (citing Flagg v. Essex Cty. Prosecutor,
171 N.J. 561, 571 (2002)).
Rule 1:4-8 authorizes sanctions against an attorney who asserts "frivolous
claims on behalf of his or her client." In re Estate of Ehrlich, 427 N.J. Super. 64, 77
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(App. Div. 2012) (citing United Hearts, 407 N.J. Super. at 389). A claim "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 may also be imposed if the claim was filed "for any improper purpose,
such as to harass or to cause unnecessary delay or needless increase in the cost of
litigation," Rule 1:4-8(a)(1), or is not "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," Rule 1:4-8(a)(2).
Rule 1:4-8 is strictly construed to ensure that persons are not dissuaded from
accessing the courts. Perez, 391 N.J. Super. at 432-33. Thus, sanctions may be
imposed only when the court is convinced the plaintiff lacked an objectively
reasonable, good faith belief in the merits of the action. Wyche v. Unsatisfied Claim
& Judgment Fund of N.J., 383 N.J. Super. 554, 561 (App. Div. 2006). Nor will a
sanction be awarded where the plaintiff legitimately sought to extend the law to a
previously undecided issue because "honest and creative advocacy should not be
discouraged." Ibid. (quoting Iannone v. McHale, 245 N.J. Super. 17, 28 (App. Div.
1990)).
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Unlike an award of reasonable attorney's fees and costs to a prevailing
plaintiff pursuant to a fee-shifting statute, or to a party defending against frivolous
litigation under N.J.S.A. 2A:15-59.1(a)(1), a sanction under Rule 1:4-8(d) "shall be
limited to a sum sufficient to deter repetition of such conduct." Consequently, the
sanction may be in the form of a penalty payable to the court or "payment to the
movant of some or all of the reasonable attorneys' fees and other expenses incurred
as a direct result of the violation, or both." R. 1:4-8(d). The rule requires the court
to "describe the conduct determined to be a violation of this rule and explain the
basis for the sanction imposed." Ibid.
The trial court did not undertake an analysis of the "sum sufficient to deter
repetition of" filing a frivolous claim. Ibid. Nor did the court undertake a
meaningful analysis of which services pertained to defending the frivolous OPMA
claim. Merely dividing the amount sought in half because one of two claims was
frivolous does not constitute a determination of "the reasonable attorney's fees and
other expenses incurred as a direct result of the violation." Ibid. (emphasis added);
see Giarusso v. Giarusso, 455 N.J. Super. 42, 53 (App. Div. 2018) (vacating a fee
award because "the judge reduced the fees sought by one-half without providing any
further findings or explanation"). "Meaningful appellate review is inhibited unless
the judge sets forth the reasons for his or her opinion." Giarusso, 455 N.J. Super. at
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53 (quoting Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008)). For
these reasons alone, a remand is necessary.
More fundamentally, the trial court ordered plaintiff's counsel, not plaintiff,
to pay the sanction. Plaintiff's counsel is not liable for fees under N.J.S.A. 2A:15-
59.1(a)(1). McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 557-
58 (1993); Lake Lenore Estates, Assocs. v. Parsippany-Troy Twp., 312 N.J. Super.
409, 426 (App. Div. 1998). Therefore, unlike a party who files a frivolous claim,
counsel cannot be held liable under the statute for "all reasonable litigation costs and
reasonable attorney fees" incurred by defendants. N.J.S.A. 2A:15-59.1(a)(1).
In addition, "a pleading will not be considered frivolous for purposes of
imposing sanctions under Rule 1:4-8 unless the pleading as a whole is frivolous."
United Hearts, 407 N.J. Super. at 394. "Thus, when some allegations are later proved
unfounded, a complaint is not rendered frivolous if it also contains non-frivolous
claims." Estate of Ehrlich, 427 N.J. Super. at 77 (citing United Hearts, 407 N.J.
Super. at 390). Nevertheless, "continued prosecution of a claim may, based on facts
becoming 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 was not." Iannone,
245 N.J. Super. at 31 (applying N.J.S.A. 2A:15-59.1). The trial court found
plaintiff's OPMA claim was frivolous and dismissed the remaining claim for lack of
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subject matter jurisdiction. Plaintiff argues his claim of entitlement to a public
hearing was legitimate, even if filed in the wrong forum. We are also mindful that
plaintiff's claims were set forth in a single count. The trial court did not make
findings or state conclusions regarding whether the complaint as a whole was
frivolous.
For these reasons, the award of counsel fees under Rule 1:4-8 is vacated and
the matter is remanded. On remand, the trial court shall determine whether the
complaint as a whole was frivolous, and if so, determine the appropriate sanction to
deter repetition. In doing so, the trial court shall make findings and state the basis
for the sanction imposed in accordance with Rules 1:7-4 and 1:4-8(d).
Reversed and remanded for further proceedings consistent with this opinion.
We do not retain jurisdiction.
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