SALVATORE VILLARI SALVILLE DOVILLE v. Appellant. (2010)

This appeal is brought pro se by Dale H. Lundquist, Esq. (“appellant”), former counsel to plaintiffs in this litigation, Salvatore Villari, Salville, L.L.C., and Doville, L.L.C., seeking to vacate a June 1, 2009 order of the Chancery Division directing appellant to remit $3000 in counsel fees to defendant Dr. Henry Bruce.¹

The fee-shifting order at issue was imposed by the Chancery Division as a sanction.   The sanction arose out of certain actions taken in connection with an agreement to settle the underlying case and to modify a mortgage between the parties, and the release of insurance proceeds that previously had been deposited pursuant to a court order into appellant's escrow account.   In particular, the trial court found, after a plenary hearing,² that the sanction was warranted, in light of what the court described as an “improvident and frivolous” attempt to repudiate the settlement agreement on the grounds of duress.   This attempted repudiation occurred “almost contemporaneously with the execution of the Consent Order [allowing the disbursement of the settlement funds].”   The $3000 in fees awarded by the court were substantially less than the $5575 in fees and costs sought in defense counsel's certification of services.   The court's order also reflects that defendant dismissed his application for counsel fees against appellant's clients.

Having reviewed appellant's various arguments raised on appeal to vacate the sanction, none of which are persuasive, we affirm the June 1, 2009 order, substantially for the reasons set forth in Judge James E. Rafferty's bench opinion of May 28, 2009.

We only add two comments.   As to appellant's contention that the shifting of counsel fees as a sanction under Rule 1:4-8 was improper because defendant did not serve a “safe harbor” letter in advance of his motion for fees and because he did not observe the timelines under that Rule, we note that the underlying events here giving rise to the motion transpired so rapidly, and at the tail end of the case, that it was within the court's discretion to permit the sanctions motion, in spite of those alleged deficiencies.   See Ashi-GTO Assocs. v. Irvington Pediatrics, P.A., _ N.J.Super. _, _, (App.Div.2010) (slip op. at 14-15) (noting that, although the procedural requirements of the frivolous litigation rule and statute should be observed where it is practicable to do so, those requirements should not be treated rigidly, and they may be relaxed on a “case by case” basis).   Also, the trial court independently had the authority under Rule 1:10-3 to award counsel fees to defendant, as a remedy in aid of litigants rights with respect to enforcement of the court's orders.  Haynoski v. Haynoski, 264 N.J.Super. 408, 414 (App.Div.1993).

Affirmed.

FOOTNOTES

FN1. Plaintiffs and the other defendants named in the caption have not participated in the appeal.   We recognize the standing of appellant, who is charged with paying the sanction, and Dr. Bruce, who is to receive that payment, as the parties in interest concerning the sanction issue..  FN1. Plaintiffs and the other defendants named in the caption have not participated in the appeal.   We recognize the standing of appellant, who is charged with paying the sanction, and Dr. Bruce, who is to receive that payment, as the parties in interest concerning the sanction issue.

FN2. We note that we were not furnished by appellant with a transcript of the plenary hearing.   See R. 2:5-3(a).   We have relied on the parties' representations about what was adduced at that hearing, and by the trial court's findings summarizing those proofs..  FN2. We note that we were not furnished by appellant with a transcript of the plenary hearing.   See R. 2:5-3(a).   We have relied on the parties' representations about what was adduced at that hearing, and by the trial court's findings summarizing those proofs.

PER CURIAM