DENNIS ACKERMAN, ETC. VS. GENERAL MOTORS, LLC (L-2898-14, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-4629-15T2
DENNIS ACKERMAN, AS ADMINISTRATOR
AD PROSEQUENDUM AND GENERAL
ADMINISTRATOR OF THE ESTATE OF
KATELYN ACKERMAN,
Plaintiff-Respondent,
v.
GENERAL MOTORS, LLC, CHEVROLET,
GEARHART CHEVROLET and EAGLE
AUTOBODY,
Defendants,
and
COLLISION RESTORATION
INC. (Improperly pleaded as Autobody
by Collision Restoration),
Defendant-Appellant.
______________________________________
Submitted October 24, 2017 – Decided November 6, 2017
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-
2898-14.
Gold, Albanese & Barletti, LLC, attorneys for
appellant (Robert Francis Gold, of counsel and
on the briefs; Kevin M. Eppinger, on the
brief).
Rothenberg, Rubenstein, Berliner & Shinrod,
LLC, attorneys for respondent (Craig M.
Rothenberg, on the brief).
PER CURIAM
Defendant Collision Restoration (Collision) appeals from a
March 29, 2016 order granting plaintiff's cross-motion to dismiss
the complaint with prejudice pursuant to Rule 4:37-1(b); a March
31, 2016 order denying its motion for summary judgment as moot;
and a May 13, 2016 order denying its motion for attorney's fees.
We affirm.
Plaintiff commenced litigation against General Motors,
Chevrolet, Gearhart Chevrolet, Eagle Autobody, and Collision
(collectively defendants). In August 2015, plaintiff settled the
case with General Motors and then filed a stipulation of dismissal
with prejudice, which all parties executed except Collision.
Collision's failure to sign the stipulation required plaintiff to
file the Rule 4:37-1(b) motion seeking dismissal of the complaint
against Collision. Thereafter, the judge entered the orders under
review.
On appeal, Collision argues the judge erred by denying its
request for attorney's fees pursuant to Rule 1:4-8 and its related
request for damages pursuant to the frivolous litigation statute,
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N.J.S.A. 2A:15-59.1(a)(1); and by failing to set appropriate terms
and conditions upon granting the dismissal of the complaint with
prejudice.
We conclude that Collision's arguments are "without
sufficient merit to warrant discussion in a written opinion." R.
2:11-3(e)(1)(E). We add the following remarks.
We review a trial judge's determination of whether to grant
attorney's fees for an abuse of discretion. McDaniel v. Man Wai
Lee, 419 N.J. Super. 482, 498 (App. Div. 2011). Such an "abuse
of discretion is demonstrated if 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 in judgment." Masone v. Levine, 382 N.J.
Super. 181, 193 (App. Div. 2005). There is no abuse here.
"Rule 4:37-1(b), requiring court review prior to granting
dismissal, 'was adopted to protect defendants from the duplication
of litigation costs.'" Burns v. Hoboken Rent Leveling &
Stabilization Bd., 429 N.J. Super. 435, 445 (App. Div. 2013)
(quoting Shulas v. Estabrook, 385 N.J. Super. 91, 97 (App. Div.
2006)). When a plaintiff seeks dismissal with prejudice, the
concern of duplicative future litigation costs is eliminated. Id.
at 447. Here, the dismissal of the complaint with prejudice
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against Collision, at plaintiff's own request, eliminated the
concern for duplicative future litigation costs.
The frivolous litigation statute, N.J.S.A. 2A:15-59.1,
provides:
A party who prevails in a civil action, either
as plaintiff or defendant, against any other
party may be awarded all reasonable litigation
costs and reasonable attorney fees, if the
judge finds at any time during the proceedings
or upon judgment that a complaint,
counterclaim, cross-claim or defense of the
nonprevailing person was frivolous.
[N.J.S.A. 2A:15-59.1(a)(1).]
To find a complaint frivolous, the judge shall conclude:
(1) The complaint . . . was commenced, used
or continued in bad faith, solely for the
purpose of harassment, delay or malicious
injury; or
(2) The nonprevailing party knew, or should
have known, that the complaint . . . was
without any reasonable basis in law or equity
and could not be supported by a good faith
argument for an extension, modification or
reversal of existing law.
[N.J.S.A. 2A:15-59.1(b).]
There is no credible evidence in this record demonstrating that
plaintiff filed the complaint in bad faith without any reasonable
basis.
Rule 1:4-8 requires the attorney signing a pleading to certify
that "the claims, defenses, and other legal contentions therein
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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." R. 1:4-8(a)(2). An action is
considered frivolous "when no rational argument can be advanced
in its support, when it is not supported by any credible evidence,
when a reasonable person could not have expected its success, or
when it is completely untenable." Belfer v. Merling, 322 N.J.
Super. 124, 144 (App. Div.), certif. denied, 162 N.J. 196 (1999).
A motion for sanctions under Rule 1:4-8 will be denied where the
pleading attorney had a reasonable and good faith belief in the
merits of the claim. Wyche v. Unsatisfied Claim & Judgment Fund
of N.J., 383 N.J. Super. 554, 561 (App. Div. 2006). Such is the
case here.
Plaintiff filed the complaint against Collision alleging that
Collision's work on plaintiff's vehicle contributed to a fatal
accident. Plaintiff reasonably maintained that Collision
contributed to the accident. We do not interpret the early
settlement reached with General Motors and subsequent stipulation
of dismissal against the remaining defendants to amount to an
admission that plaintiff's complaint against Collision was somehow
unfounded. Certainly, the settlement prevented full discovery on
the issue of the cause of the accident.
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Collision's contention that the judge erred in finding it not
to be a prevailing party, a requirement for relief under N.J.S.A.
2A:15-59.1(a)(1), is also without merit. Although "facts of a
case could demonstrate a prevailing party even where a 'settlement'
resolved the litigation," here, the judge did not find any credible
evidence that the settlement equated to Collision being a
prevailing party. Chernin v. Mardan Corp., 244 N.J. Super. 379,
383 (Ch. Div. 1990); see also First Atl. Fed. Credit Union v.
Perez, 391 N.J. Super. 419, 432 (App. Div. 2007) (stating "if the
matter settles, one party may be deemed to have 'prevailed' for
the purposes of [N.J.S.A. 2A:15-59.1]"). The record reflects that
plaintiff decided to dismiss the complaint after it settled with
General Motors, presumably for an amount that fairly and adequately
compensated plaintiff, not because it filed a baseless complaint
against Collision. The judge therefore did not abuse his
discretion when he denied Collision damages or fees pursuant to
N.J.S.A. 2A:15-59.1 and Rule 1:4-8.
Affirmed.
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