KELVIN SMITH VS. JOHN F. JOHNSON (L-1599-15, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1581-16T1
KELVIN SMITH,
Plaintiff-Appellant/
Cross-Respondent,
v.
JOHN F. JOHNSON,
RALPH ALLOCCA, ESQ.,
BRIAN FRUEHLING, ESQ.,
and TICOR TITLE INSURANCE
COMPANY OF FLORIDA,
Defendants,
and
PAUL J. BURR, ESQ.,
Defendant-Respondent/
Cross-Appellant.
________________________________
Argued December 4, 2018 – Decided January 17, 2019
Before Judges Yannotti and Rothstadt.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1599-15.
Jessica A. Tracy argued the cause for appellant/cross-
respondent (Curcio Mirzaian Sirot, LLC, attorneys;
Paul F. Campano, of counsel; Jessica A. Tracy, on the
briefs).
Raphael M. Rosenblatt argued the cause for
respondent/cross-appellant (Rosenblatt Law PC,
attorneys; Raphael M. Rosenblatt, of counsel and on the
briefs).
PER CURIAM
In this case, plaintiff Kelvin Smith asserted claims against defendant Paul
J. Burr for legal malpractice and conversion. The matter was tried before a jury,
which returned a verdict for defendant on both causes of action. Plaintiff then
filed a motion for judgment notwithstanding the verdict (JNOV). Defendant
demanded that plaintiff withdraw the motion, claiming it was frivolous. Plaintiff
refused to withdraw the motion, and defendant filed a cross-motion pursuant to
Rule 1:4-8 for sanctions.
The trial judge entered orders dated November 4, 2016, denying the
motions. Plaintiff's appeal and defendant's cross-appeal followed. On plaintiff's
appeal, we affirm the trial court's order denying the motion for a JNOV. On
defendant's cross-appeal, we affirm the order denying defendant's motion for
sanctions, and dismiss the other issues raised as moot.
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I.
We briefly summarize the relevant facts and procedural history. John
Johnson agreed to sell plaintiff certain real property on Rose Avenue in Jersey
City. Attorney Ralph P. Allocca acted as the settlement agent for plaintiff and
Johnson. Before the closing, plaintiff obtained a $300,000 loan to purchase the
property, and some of these funds were to be applied to pay off Johnson's
outstanding mortgage loan. America's Servicing Company (ASC), the
mortgage-servicing company, agreed to accept $230,126.26 to pay off Johnson's
loan and discharge the mortgage on the property.
The closing took place on January 26, 2009, and title to the property was
transferred to plaintiff, and thereafter Allocca sent ASC a check drawn on his
attorney trust account to pay off Johnson's loan. On January 28, 2009, ASC
returned the check to Allocca, and told him payment had to be made by cashier's
check or with certified-bank funds.
On March 26, 2009, US Bank, N.A., filed a foreclosure action against
Johnson, plaintiff, and others claiming that Johnson's mortgage loan remained
due and owing. On April 13, 2009, Allocca obtained a cashier's check, payable
to ASC, in the amount of $230,728.42 to pay off Johnson's loan. It appears that
the check was given to Anthony Garvin, the broker who introduced plaintiff to
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the property and negotiated the terms of the sale. On April 17, 2009, Garvin
endorsed the check and deposited the funds into an account at Bank of America,
in the name of "Laura Mae LLC d/b/a/ Master Builders," an entity that Garvin
owned.
At his deposition, plaintiff testified that he never saw the check; however,
at trial, plaintiff admitted he endorsed the check over to Garvin expecting that
Garvin would use the funds to pay off Johnson's loan. Plaintiff believed this
would remove ASC's lien on the Rose Avenue property and resolve the pending
foreclosure action.
In July 2010, Johnson retained defendant to recover the monies from the
sale of the property that should have been used to pay off his loan. Johnson and
defendant entered into a "Legal Services Agreement" (LSA), which provided,
among other things, that defendant's engagement was limited to: (1) actions or
claims by Johnson arising from the sale of the Rose Avenue property; (2)
disputes with any creditor or lender claiming monies that Johnson owed for
services provided; and (3) "action[s] or dispute[s] arising after the collection of
the unpaid proceeds" from the sale of the property.
The LSA further provided that Johnson would "be solely responsible for
the payment of any and all loan proceeds, including but not limited to, any
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deductions of legal fees and costs paid to attorney, due on the" property. In
addition, the LSA stated that defendant would not be responsible for paying any
of Johnson's debts, loans, or other obligations.
On July 1, 2010, defendant wrote to Allocca and stated that Johnson had
retained him to investigate and collect monies from the January 26, 2009
closing, which were supposed to be applied to pay off Johnson's loan. Defendant
demanded a copy of Allocca's closing file.
Allocca responded in a letter dated July 12, 2010. He stated that ASC had
returned the check to pay off Johnson's loan because the check was drawn on an
attorney-trust account. Allocca said he thereafter obtained a cashier's check,
and apparently the check was given to Garvin. According to Allocca, Garvin
deposited the funds into a bank account, without his knowledge or approval.
Allocca provided defendant with a copy of the check, which plaintiff and Garvin
had endorsed.
Defendant did not hear anything further from Allocca for several months,
and on November 9, 2010, he wrote to Allocca and demanded additional
information. Allocca replied in a letter dated November 10, 2010, and enclosed
a copy of his closing file. In the letter, Allocca stated that he had done "nothing
improper, illegal or unethical." He added that if anyone had converted the funds
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that were supposed to be used to pay off Johnson's loan, plaintiff and Garvin
were the persons responsible.
On November 30, 2010, defendant wrote to plaintiff and informed him
that Johnson had retained him to investigate the apparent misapplication of the
proceeds from the sale of the Rose Avenue property, make formal criminal and
civil complaints, retrieve the funds, and collect damages and legal fees.
Defendant told plaintiff he should retain an attorney and contact his office. A
tenant at the Rose Avenue property provided plaintiff with the letter. Plaintiff
then called defendant. He said he did not want defendant to represent him or
take any legal action on his behalf.
On March 17, 2011, Allocca wrote to defendant and advised him he had
$233,000 in his trust account, which Garvin had given to him to pay off
Johnson's loan. In the letter, Allocca stated that if defendant wanted him to, he
would transfer the monies to defendant to be "h[eld] in escrow pending a
resolution of this matter." Allocca also proposed to resolve Johnson's claim
against Garvin for damages. Allocca did not, however, provide defendant with
a proposed escrow agreement, and defendant never agreed in writing to hold any
funds in escrow. Defendant testified that he understood Allocca's letter to mean
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that he should hold the monies pending resolution of Johnson's claim against
Garvin for damages.
Allocca died on April 15, 2011. Thereafter, a Chancery Division judge in
Morris County appointed Brian J. Fruehling to act as trustee for Allocca's law
practice. On May 10, 2011, Fruehling sent defendant a check in the amount of
$233,000, drawn upon Allocca's trust account. Fruehling also provided
defendant with a copy of a letter that Allocca had written to defendant. In the
letter, Allocca stated he was enclosing the $233,000 check, and he asked
defendant to "[p]lease hold these funds in your trust account pending the
resolution of all claims regarding the property."
On June 1, 2011, defendant wrote to plaintiff and Garvin and stated that
unless he heard from them within five business days, he would release the funds
to Johnson. On June 7, 2011, defendant wrote to Johnson and reminded him of
his obligation to pay the outstanding loan. In the letter, defendant stated that
the letter served as confirmation "that [y]ou have directed me to release said
funds to you; and that you are fully aware that [y]ou remain responsible to pay
the mortgage loan on [the subject property]; and that [y]ou have stated that you
will attempt to resolve and pay said mortgage loan on your own." Because
plaintiff and Garvin had not contacted defendant, he deducted his legal fee from
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the funds, and distributed the balance to Johnson. Plaintiff testified that as of
the date of the trial, the mortgage was still on the property.
On August 3, 2011, plaintiff's attorney wrote to defendant and claimed
that while title to the Rose Avenue property may have been transferred, "a
closing has not occurred." Plaintiff's attorney stated that unless Johnson's
mortgage loan was paid off within five days, "and a proper closing of title held,"
plaintiff would file "suit to undo the entire transaction and receive a refund of
the monies being held in [defendant]'s trust account." Plaintiff's attorney did
not, however, file an action to undo the transaction.
In September 2014, plaintiff filed an answer to the pending foreclosure
complaint, a cross-claim, and a third-party complaint, asserting claims against
Johnson, Allocca, Fruehling, Ticor Title Insurance of Florida, and defendant. In
December 2014, the Chancery Division severed plaintiff's claims from the
foreclosure action and transferred them to the Law Division for disposition.
Defendant filed an answer to plaintiff's complaint. He later filed an
amended answer, counterclaim, cross-claim, and fourth-party complaint against
Garvin. The trial court subsequently dismissed the claims against Ticor,
Fruehling, Allocca, and Johnson.
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In July 2016, defendant filed a motion for summary judgment, which the
court denied as untimely under Rule 4:46-1. Thereafter, plaintiff's claims
against defendant were tried before a jury. At the trial, plaintiff testified and
called defendant as a witness. Plaintiff also presented expert testimony from
Anthony Ambrosio.
At the conclusion of plaintiff's case, defendant moved for involuntary
dismissal or entry of a judgment on plaintiff's claims, pursuant to Rule 4:37-2(b)
and Rule 4:40-1. Defendant argued that plaintiff's legal malpractice claim failed
because plaintiff had not established that he owed plaintiff a duty. Defendant
further argued that plaintiff failed to prove he converted the monies. He also
contended that both claims should be dismissed because plaintiff failed to
establish he was damaged by defendant's alleged wrongful acts.
While the motions were pending, defendant presented expert testimony by
Bennett J. Wasserman. At the conclusion of Wasserman's testimony, the trial
judge denied defendant's motions to dismiss plaintiff's legal malpractice and
conversion claims, but reserved decision on the motion to dismiss both claims
for lack of proof of damages. The attorneys for the parties then provided closing
arguments, and the judge charged the jury. After deliberations, the jury returned
a verdict for defendant on both causes of action.
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Thereafter, the judge denied as moot defendant's motion to dismiss based
on plaintiff's alleged failure to prove damages. Plaintiff filed a motion for a
JNOV, which the judge denied. The judge also denied defendant's motion for
sanctions under Rule 1:4-8 with regard to the JNOV motion. This appeal and
cross-appeal followed.
II.
On appeal, plaintiff argues the trial judge erred by denying his motion for
a JNOV. When reviewing a trial court's order denying a motion for a JNOV, we
apply the standard that governs the trial court. Riley v. Keenan, 406 N.J. Super.
281, 298 (App. Div. 2009) (citing Frugis v. Bracigliano, 177 N.J. 250, 269
(2003)).
The standard for a motion for a JNOV is the same that applies to a motion
for involuntary dismissal under Rule 4:37-2(b) and a motion for judgment under
Rule 4:40-1. Filgueiras v. Newark Pub. Sch., 426 N.J. Super. 449, 455 (App.
Div. 2012). Therefore, we "must accept as true all the evidence which supports
the position of the party defending against the motion and according [that party]
the benefit of all inferences which can reasonably and legitimately be deduced
therefrom, and if reasonable minds could differ, the motion must be denied."
Riley, 406 N.J. at 298 (citing Dolson v. Anastasia, 55 N.J. 2, 5 (1969)).
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A. Wasserman's Testimony
On appeal, plaintiff argues that Wasserman's testimony constituted a net
opinion, which the jury improperly relied upon in rendering its verdict. Plaintiff
asserts Wasserman "fail[ed] to impart special knowledge or expertise," provided
"bare opinions based on speculation," and "distract[ed] and confus[ed] the jury"
in other ways.
It is well established that an expert witness may not provide a "net
opinion." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372
(2011). "The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids
the admission into evidence of an expert's conclusions that are not supported by
factual evidence or other data.'" Townsend v. Pierre, 221 N.J. 36, 54 (2015)
(alterations in original) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583
(2008)). The rule requires an expert to "'give the why and wherefore' that
supports the opinion, 'rather than a mere conclusion.'" Id. at 54 (quoting
Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)).
Furthermore, an expert's opinion must have "objective support" and may
not be based on a standard that is "personal." Pomerantz, 207 N.J. at 373. "In
the context of legal malpractice, an expert must base his or her opinion on
standards accepted by the legal community and not merely on the expert's
A-1581-16T1
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personally held views." Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 79
(App. Div. 2007) (citing Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97,
103 (App. Div. 2001); Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 14
(App. Div. 2006)). In New Jersey, the Rules of Professional Conduct "set forth
an appropriate standard of care by which to measure an attorney's conduct."
Kaplan, 339 N.J. Super. at 103 (quoting Baxt v. Liloia, 281 N.J. Super. 50, 57
(App. Div. 1995)).
In this case, Wasserman was qualified as an expert in the field of
professional legal malpractice and ethics. Plaintiff contends Wasserman failed
to provide authority for his opinion that defendant did not owe him a duty under
RPC 1.15 because plaintiff did not have a "bona fide claim" to the funds
defendant had collected for Johnson.
The rule applies when a lawyer holds property of a client or another
person. RPC 1.15(a). The rule states in pertinent part that
[w]hen in the course of representation a lawyer is in
possession of property in which both the lawyer and
another person claim interests, the property shall be
kept separate by the lawyer until there is an accounting
and severance of their interests. If a dispute arises
concerning their respective interests, the portion in
dispute shall be kept separate by the lawyer until the
dispute is resolved.
[RPC 1.15(c).]
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The rule does not expressly use the term "bona fide," but Wasserman
opined that the rule applies when a client or some third person has an ownership
interest or legitimate claim to the property a lawyer possesses. Wasserman's
understanding of the rule's requirement is supported by its plain language. He
did not cite case law to support his interpretation, and this was an appropriate
subject for cross-examination. However, Wasserman's testimony had sufficient
support in RPC 1.15(c). It was not a net opinion.
Plaintiff further argues that Wasserman improperly testified as to
plaintiff's state of mind, usurped the jury's role as fact-finder by addressing the
ultimate issue of fact, made statements that were not supported by the evidence,
provided factual and legal conclusions that had no basis in fact, and offered a
highly prejudicial legal opinion. The record shows that plaintiff's trial counsel
objected at various times during Wasserman's testimony.
The judge sustained some objections, directed the jury to disregard certain
statements, and overruled other objections. On appeal, plaintiff contends the
jury's verdict indicates that it gave great weight to Wasserman's testimony and
this resulted in a miscarriage of justice.
"The admission or exclusion of expert testimony is committed to the
sound discretion of the trial court." Townsend, 221 N.J. at 52 (citing State v.
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Berry, 140 N.J. 280, 293 (1995)). An appellate court gives deference to the
"trial court's decision to admit expert testimony, reviewing it against an abuse
of discretion standard." Id. at 53 (quoting Pomerantz, 207 N.J. at 371–72).
"Under that standard, an appellate court should not substitute its own judgment
for that of the trial court, unless 'the trial court's ruling was so wide of the mark
that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147
(2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
Here, the trial judge carefully considered plaintiff's objections to
Wasserman's testimony. As noted, the judge sustained some objections to
Wasserman's testimony, overruled others, ordered the jury to disregard certain
statements, and provided curative instructions when the judge deemed such
instructions were required. Plaintiff's attorney had the opportunity to cross-
examine Wasserman on statements that allegedly lacked factual support.
We are convinced from our review of the record that the judge's rulings
on the objections to Wasserman's testimony were a reasonable exercise of
discretion. Plaintiff had not established that the judge's rulings resulted in a
"manifest denial of justice." Brown, 170 N.J. at 147 (quoting Marrero, 148 N.J.
at 484).
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B. The Jury Instructions
Plaintiff also argues that the trial judge erred by failing to instruct the jury
that defendant had a duty under RPC 1.15 to hold the proceeds from the sale of
the property in his trust account pending resolution of all claims regarding those
funds, including plaintiff's claim that the monies should be applied to pay off
Johnson's mortgage loan. He contends the judge's failure to instruct the jury in
this manner resulted in a miscarriage of justice.
In considering allegations of error in jury instructions, "[t]he ultimate
question is whether, taking the charge as a whole and reading it in context, the
jury was misled or inadequately informed." Mehlman v. Mobil Oil Corp, 153
N.J. 163, 194 (1998) (citing Navarro v. George Koch & Sons, Inc., 211 N.J.
Super. 558, 570–71 (App. Div. 1986)). Generally, "an appellate court will not
disturb a jury's verdict . . . 'where the charge, considered as a whole, adequately
conveys the law and is unlikely to confuse or mislead the jury, even though part
of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172
N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).
Here, the trial judge denied defendant's motion for involuntary dismissal
or a judgment, and ruled that when viewing the facts in the light most favorable
to plaintiff, the jury could find that defendant owed a duty to plaintiff as a non-
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client, citing Petrillo v. Bachenberg, 139 N.J. 472 (1995), Dynasty Bldg. Corp.
v. Ackerman, 376 N.J. Super. 280 (App. Div. 2005), and Innes v. Marzano-
Lesnevich, 435 N.J. Super. 198 (2014), aff'd as modified, 224 N.J. 584 (2016).
The judge stated under Petrillo, a jury could find that defendant had a duty
to plaintiff if defendant represented he was going to pay off Johnson's loan once
he collected the funds. In addition, the judge ruled that under Dynasty and Innes,
the jury could find that defendant had a duty to hold the monies pending
resolution of plaintiff's claim. The judge also determined that based on the
testimony and evidence presented, a jury could find that defendant breached
both duties.
Thereafter, the judge charged the jury as follows:
Typically a legal malpractice case requires an
attorney client relationship between the plaintiff and
defendant attorney. However, the uncontested
evidence in this case shows that plaintiff was not a
client of the defendant . . . . The law does permit a
claim to be made by a non-client against an attorney in
certain situations. The first situation is where the non-
client relied on the attorney to take some action, or
refrain from taking some action, on the part of that third
party. And that such reliance was reasonable under the
circumstances.
In addition, a non-client plaintiff must establish
that his or her reliance on the attorney was foreseeable
to the attorney. That the attorney knew or should have
known that the non-client is relying on him or her to
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take certain action or refrain from certain actions in the
attorney's professional capacity. In other words,
[plaintiff] must establish, by a preponderance of the
credible evidence, that it was reasonably foreseeable
for [plaintiff] to rely upon the representations of
[defendant], that he would pay off the mortgage and/or
safeguard the funds to pay off the mortgage. If you find
that plaintiff has established these facts by a
preponderance of the evidence you should find
defendant . . . guilty of malpractice and return the
verdict for plaintiff.
An attorney may also be found liable to a third
party when the attorney has reason to foresee the
specific harm that occurred to that third person, such as
the plaintiff in this case. In other words, [plaintiff]
must show, by a preponderance of the evidence, that
[defendant] knew or should've known that [plaintiff]
had a claim to the money that [defendant] collected on
behalf of John Johnson and that [defendant] improperly
distributed the money to himself and others thereby
damaging [plaintiff].
If you find that the defendant has complied with
the standard of care[,] he is not liable to plaintiff
regardless of the result. On the other hand, if you find
that the defendant has departed from this standard of
care resulting in injury or damage, then you should find
defendant liable for his malpractice.
On appeal, plaintiff argues that the judge erred by asking the jury to decide
the question of whether defendant owed plaintiff a duty with regard to the funds
he collected for Johnson. We disagree. The judge's instruction made clear that
the issue of whether defendant owed plaintiff a duty of care turned on material
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issues of fact, specifically whether defendant represented he would pay off
Johnson's loan with monies he collected, and whether defendant knew or had
reason to know that plaintiff had a claim to the money that defendant collected
on behalf of Johnson. The judge's instructions were legally correct.
Plaintiff also takes issue with the first question of the verdict sheet
provided to the jury, which he claims, "was even worse" than the jury charge.
The question asked the jury to determine whether plaintiff had proven by a
preponderance of credible evidence that defendant "deviated from accepted
standards of legal practice with regard to the handling of the subject funds in his
trust account in connection with plaintiff's legal malpractice claim?" Plaintiff
argues that there is nothing in this question that clarifies for the jury whether
defendant had a legal duty to safeguard the mortgage payoff funds.
"A verdict sheet is intended for recordation of the jury's verdict and is not
designed to supplement oral jury instructions." State v. Gandhi, 201 N.J. 161,
196 (2010) (citing State v. Reese, 267 N.J. Super. 278, 287 (App. Div. 1993)).
If the trial court's instructions "were sufficient to convey an understanding of
the elements [of the cause of action] to the jury, and . . . the verdict sheet was
not misleading, any error in the verdict sheet can be regarded as harmless." Id.at 197 (citing Reese, 267 N.J. Super. at 287-89; State v. Vasquez, 265 N.J.
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Super. 528, 547 (App. Div. 1993)). Generally, a verdict sheet is not grounds for
reversal unless it was "misleading, confusing, or ambiguous." Ponzo v. Pelle,
166 N.J. 481, 490 (2001) (quoting Sons of Thunder, Inc. v. Borden, Inc., 148
N.J. 396, 418 (1997)).
We note that the trial judge used the verdict sheet that plaintiff proposed.
In any event, as we stated previously, the judge's charge was legally correct and
the instructions properly guided the jury in addressing plaintiff's legal
malpractice claim. The verdict sheet was not "misleading, confusing, or
ambiguous." Ibid. (quoting Borden, 148 N.J. at 418).
We therefore conclude that the trial judge did not err by denying plaintiff's
motion for a JNOV.
III.
In his cross-appeal, defendant argues that the trial judge erred by denying
his motion for involuntary dismissal of plaintiff's claims under Rule 4:37-2, or
a judgment pursuant to Rule 4:40-1 because plaintiff failed to present sufficient
evidence to establish he was damaged as a result of defendant's alleged wrongful
acts or omissions. Defendant further argues that the judge erred by failing to
grant his motion to strike Ambrosio's expert testimony as an impermissible net
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opinion. In view of our decision affirming the trial court's order denying
plaintiff's motion for a JNOV, these issues are moot.
Defendant also argues that the trial judge erred by denying his motion for
sanctions under Rule 1:4-8. Defendant argues that plaintiff's motion for a JNOV
lacked any basis in existing law or fact. He contends that at trial, plaintiff failed
to present sufficient evidence to support his claims for legal malpractice and
conversion. He argues that plaintiff should have been sanctioned for bringing
the motion for a JNOV.
Rule 1:4-8 allows the court to sanction an attorney for asserting a frivolous
claim on behalf of his or her client. United Hearts, L.L.C. v. Zahabian, 407 N.J.
Super. 379, 389 (App. Div. 2009). A claim "is deemed frivolous when 'no
rational argument can be advanced in its support, . . . it is not supported by any
credible evidence, or it is completely untenable.'" First Atl. Fed. Credit Union
v. Perez, 391 N.J. Super. 419, 432 (App. Div. 2007) (quoting Fagas v. Scott, 251
N.J. Super. 169, 190 (Law Div. 1991)).
Sanctions will not be awarded "[w]here a party has a reasonable and good
faith belief in the" claims being asserted. See ibid. The trial court's ruling on a
motion for sanctions under Rule 1:4-8 will not be disturbed unless shown to be
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a mistaken exercise of discretion. United Hearts, 407 N.J. Super. at 390 (citing
Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)).
In ruling on defendant's motion, the judge stated that plaintiff's attorney
had pursued the matter on behalf of his client diligently and zealously. The
judge found that plaintiff's motion for a JNOV was brought in good faith, based
on counsel's interpretation of the evidence presented at trial.
The judge noted that defendant argued that the motion was frivolous
because plaintiff's expert had not calculated damages, but the jury had not
reached the issue of damages, and the jury's verdict had made this issue moot.
The judge stated that she never addressed this issue and it would be
inappropriate to do so in ruling on defendant's sanctions motion.
The judge found that plaintiff's alleged failure to establish damages was
not a basis for imposing sanctions upon plaintiff's counsel for bringing the
motion for a JNOV. We are convinced the record supports the judge's findings.
We conclude the decision denying defendant's motion was not a mistaken
exercise of discretion.
Accordingly, on the appeal, we affirm the trial court's order denying
plaintiff's motion for a JNOV. On the cross-appeal, we affirm the trial court's
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order denying defendant's motion for sanctions under Rule 1:4-8, and dismiss
the other arguments raised as moot.
Affirmed on the appeal; affirmed in part and dismissed in part on the
cross-appeal.
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