Opinion
DOCKET NO. A-1813-11T2
02-21-2013
Peluso, Castelluci & Weintraub, P.C., attorneys for appellant/cross-respondent (Michael E. Weintraub, on the briefs). Edward F. Bezdecki, attorney for respondent/ cross-appellant. Lomurro, Davison, Eastman & Munoz, P.A., attorneys for respondent (Robert F. Munoz, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4517-10.
Peluso, Castelluci & Weintraub, P.C., attorneys for appellant/cross-respondent (Michael E. Weintraub, on the briefs).
Edward F. Bezdecki, attorney for respondent/ cross-appellant.
Lomurro, Davison, Eastman & Munoz, P.A., attorneys for respondent (Robert F. Munoz, of counsel and on the brief). PER CURIAM
Plaintiff, the Estate of David M. McMullin, Sr., by its co-executors named in the Last Will and Testament of David M. McMullin, Sr., appeals from the summary judgment dismissal of an action in which plaintiff seeks to recover assets alleged to belong to the estate. The complaint claimed an interest in monies paid to defendant David M. McMullin, Jr., for his restrictive covenant agreement in the sale of a closely held business that was owned equally by the estate and David Jr. Plaintiff also claimed Elaine G. McMullin, while serving as the temporary administratrix of the Estate of David Sr., breached her fiduciary obligations to the estate's beneficiaries by not recovering the estate's alleged interest in the restrictive covenant payment. Because Elaine passed away prior to the filing of this action, plaintiff named the Estate of Elaine G. McMullin as a defendant. The motion judge concluded plaintiff's claims were barred by Rule 4:30A and granted summary judgment to defendants. In a cross-appeal, David Jr. appeals from an order denying his request for counsel fees and costs, pursuant to Rule 1:4-8. We affirm.
I.
In order to fully understand this familial controversy, it is necessary to detail the parties' relationships and events leading to the filing of this action, particularly prior probate litigation involving challenges to the wills of David Sr. and Elaine. The facts are taken from the summary judgment record.
David Sr. and Elaine were married in 1955 and had five children: Lisa Haddow, Brian McMullin, David Jr., Stacey Machiz, and Kevin McMullin. On April 26, 1990, David Sr. and Elaine executed simple sweetheart wills (the 1990 Wills), naming each other as the executor and sole residuary beneficiary of the other's respective estate, with the survivor's estate being distributed to their five children in equal shares.
On August 2, 2007, David Sr. and Elaine executed new wills (the 2007 Wills), revoking their 1990 Wills. The terms and structure of the 2007 Wills were very different from the 1990 Wills. Significantly, the 2007 Wills incorporated testamentary trusts, including a marital deduction trust and a credit shelter trust, and named Lisa and Brian co-executors and co-trustees.
David Sr. died on September 26, 2007. The most significant asset in his estate was a fifty percent interest in Monmouth Truck Rental Realty Partnership and its affiliate company, Monmouth Truck Equipment, Inc. (collectively Monmouth Truck). Monmouth Truck was established and operated by David Jr. When David Sr. lost his job at Sears, David Jr. invited him to join the business as a fifty percent partner and stockholder. David Jr. remained in charge of all Monmouth Truck business operations.
Following David Sr.'s death, two significant events occurred. First, Elaine filed a caveat against the probate of his 2007 Will. Second, David Jr. sold Monmouth Truck.
Elaine asserted David Sr.'s execution of the 2007 Will was the product of undue influence, fraud and deceit by Brian and/or mistake. She also maintained David Sr.'s illness hampered his testamentary capacity. When Brian and Lisa delayed probate of David Sr.'s 2007 Will, Elaine applied for and was granted letters appointing her temporary administratrix of David Sr.'s estate. The order of appointment restrained Elaine from alienating David Sr.'s interest in Monmouth Truck.
Elaine then initiated an action to set aside David Sr.'s 2007 Will and probate his 1990 Will. In the Matter of the Estate of David W. McMullin, Deceased, Docket No. MON-P-61-08. The pleadings make clear the estate controversy was significantly fueled by the growing animosity between Brian and David Jr.
David Jr. decided to sell Monmouth Truck to avoid interference by Brian and Lisa in the event David Sr.'s 2007 Will were upheld and David Sr.'s fifty-percent interest was administered by his testamentary trust. On July 10, 2008, David Jr. executed agreements selling Monmouth Truck to a third-party for $5,000,000. Elaine, as temporary administratrix of David Sr.'s estate, consented to the sale, stating she "believe[d] it to be consistent with the estimate of value" of the business. The sale was consummated and $1,707,540.22, representing fifty percent of the net proceeds of the sale, was deposited into a trust account pending a court order allowing distribution to David Sr.'s estate.
On February 24, 2009, Elaine's litigation was resolved by a consent order. The terms of the order, in part, provided for dismissal of Elaine's complaint, with prejudice; termination of her appointment as temporary administratrix; probate of David Sr.'s 2007 Will; issuance of letters testamentary to Brian and Lisa, who also were named co-trustees; and Elaine's release of all documents, accounts, and statements related to her temporary administration of David Sr.'s estate.
On July 25, 2008, Elaine executed a new will (the 2008 Will), thereby revoking her 2007 Will. The 2008 Will essentially left the entirety of Elaine's estate to David Jr., and named a law firm as executor (Elaine's executor). Elaine passed away on October 11, 2009.
Lisa filed a caveat against the probate of the 2008 Will. The named executor filed an order to show cause, seeking to discharge Lisa's caveat and admit the 2008 Will to probate. In the Matter of the Estate of Elaine G. McMullin, Deceased, Docket No. MON-P-369-09. Brian, Lisa, Stacy, and Kevin counterclaimed, alleging the 2008 Will should be voided because it resulted from fraud, duress, and/or undue influence exerted by David Jr. Further, Lisa and Brian, as co-executors of David Sr.'s estate, filed a proof of claim against Elaine's estate, asserting a $750,000 obligation. The claim alleged Elaine, while acting as temporary administratrix of David Sr.'s estate, wrongfully authorized the sale of Monmouth Truck in contravention of the order of appointment that restrained the sale, and failed to realize the estate's full interest in the total sale proceeds, stating:
[1.] Upon information and belief, David [Jr.] . . . received an additional sum of [$1,500,000.00] outside of the closing [of Monmouth Truck], for payment of a "restrictive covenant[.]"
. . . .
[2.] Upon information and belief, [Elaine] was either aware of the payment for the restrictive covenant and acquiesced to same or failed to complete her fiduciary duty of due diligence to discover the payment.
. . . .
[3.] As a result of the acts or omissions of [Elaine], the Estate of [David Sr.] suffered a loss of $750,000.00 (50% of the
$1,500,000.00 payment).
In correspondence exchanged between legal counsel for the parties, David Jr. asserted Lisa and Brian's claims were frivolous and David Sr.'s estate had no entitlement to funds he received for his covenant not to compete. Further, David Jr. maintained the co-executors, on behalf of David Sr.'s estate, should have raised and pursued known claims in the prior litigation, which now must be deemed waived. A dispute arose regarding whether David Jr. was compelled to respond to discovery requests regarding the claim related to the sale of Monmouth Truck. In reviewing a series of motions, the judge entered a protective order preventing further discovery regarding the Monmouth Truck sale.
Following a bench trial, final judgment was entered in favor of Elaine's executor, discharging with prejudice Lisa's caveat, dismissing the contestants' counterclaim, admitting the 2008 Will to probate, and appointing the law firm named in Elaine's 2008 Will as executor.
While the contest regarding Elaine's will was raging, David Jr. initiated his own action against Lisa and Brian as co-executors and co-trustees of David Sr.'s estate. In the Matter of the Estate of David W. McMullin, Sr., Deceased, MON-P-75-10. David Jr.'s complaint charged the fiduciaries with failing to distribute the estate assets and refusing to provide a formal accounting. David Jr. further alleged all estate assets had been distributed to Brian and Lisa, rather than as required by the terms of the 2007 Will, and Brian had misappropriated the funds by placing the money in his personal account, rather than a trust account. David Jr. sought damages and the removal of Lisa and Brian as trustees.
A different judge considered this application. The court directed Lisa and Brian to deposit $100,000.00 in their attorney's trust account, to be held pending further order of the court, and to distribute the balance of David Sr.'s estate to the beneficiaries in equal shares. This action was settled prior to trial by a consent order filed on September 8, 2010. The remainder of David Sr.'s estate was distributed, the co-executors' expenses, incurred in the preparation of the accounting as well as their expert and legal fees, would not be paid from estate assets, and Brian and Lisa agreed not to claim any additional corpus or income commissions related to their fiduciary appointments.
One day prior to the execution of this consent order, Brian and Lisa, as co-executors and co-trustees of David Sr.'s estate, filed this action in the Law Division against David Jr. and Elaine's estate. Estate of David W. McMullin, Sr. v. David W. McMullin, Jr. and Estate of Elaine G. McMullin, I/J/S/A, Docket No. MON-L-4517-10. The complaint alleged David Jr. "intentionally and willfully failed to disclose his negotiation and execution of the [r]estrictive [c]ovenant and [n]on-[c]ompete [a]greement from the other [p]artner and [s]tockholder of the entities, [David Sr.'s estate]." It was plaintiff's position one half of the payments made in consideration of the agreement "should have been included as additional assets" in David Sr.'s estate, and David Jr. was unjustly enriched by his failure to disclose the existence of this agreement at the expense of David Sr.'s estate. The complaint also claimed David Jr. engaged in self-dealing, violating his duty of loyalty to other stockholders and partners, and violated his fiduciary duty as sole director and president.
Further, the complaint alleged Elaine failed to assert David Sr.'s estate's interest in the asset while serving as temporary administratrix. Alternatively, she "failed to investigate the existence of said agreement and payments[,]" breaching her fiduciary duties. David Jr. immediately challenged the action as frivolous, time-barred, and precluded by application of collateral estoppel and the entire controversy doctrine.
Plaintiff entered default against defendants, who successfully moved to vacate default and dismiss plaintiff's complaint on summary judgment. The judge found plaintiff's claims should have been presented in the trial challenging the probate of Elaine's will. The remaining issues regarding Elaine's estate were resolved by consent order filed on April 30, 2012, well after this matter was dismissed. The judge granted defendants' motion, concluding collateral estoppel and res judicata barred plaintiff's claims. Accordingly, the Law Division matter was dismissed with prejudice.
Plaintiff filed a motion for reconsideration. David Jr. crossed-moved for counsel fees, pursuant to Rule 1:4-8. The judge granted plaintiff's motion for reconsideration. However, after considering the parties' respective arguments, he again granted the summary judgment dismissal of plaintiff's complaint after concluding the entire controversy doctrine required the claim to have been raised in the prior litigation. Finally, David Jr.'s cross-motion for counsel fees was denied.
Plaintiff appealed, challenging the summary judgment dismissal on the basis that "[t]he trial court erred when it applied [Rule] 4:30A." David Jr. cross-appealed from the provision of the order denying counsel fees and costs.
II.
"[O]n appeal from an order granting summary judgment, we apply the same standard that governs the analysis by the motion judge." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)), certif. denied, 189 N.J. 104 (2006). Applying the standard set forth in Rule 4:46-2(c), we first give "the non-moving party the benefit of all reasonable inferences," and determine whether "the movant has demonstrated that there are no genuine issues of material fact." Id. at 230 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). That determination requires consideration of all "competent evidential materials presented," to determine whether the evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. We next analyze whether the motion judge's application of the law was correct. Atl. Mut. Ins., supra, 387 N.J. Super. at 231 (citing Boylan, supra, 307 N.J. Super. at 167). In carrying out our review, however, we owe no deference to the interpretation of the motion judge on matters of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The entire controversy doctrine, set forth in Rule 4:30A, requires parties to raise all transactionally related claims in the same action and imposes a preclusive effect on claims that are not so joined. K-Land Corp. v. Landis Sewerage Auth., 173 N.J. 59, 69-71 (2002). Specifically, Rule 4:30A states: "Non-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine[.]" The doctrine reflects "our long-held preference that related claims and matters arising among related parties be adjudicated together rather than in separate, successive, fragmented, or piecemeal litigation." Kent Motor Cars, Inc. v. Reynolds and Reynolds, Co., 207 N.J. 428, 443 (2011). See also Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 23 (1989) (noting "[f]ragmented and multiple litigation" is detrimental to the parties, the judicial system, and the public).
The Supreme Court has stated:
Underlying the Entire Controversy Doctrine are the twin goals of ensuring fairness to parties and achieving economy of judicial resources. As this Court has recognized, "[t]he purposes of the doctrine include the needs of economy and the avoidance of waste, efficiency and the reduction of delay, fairness to parties, and the need for complete and final disposition through the avoidance of 'piecemeal decisions.'" Cogdell[, supra 1, 116 N.J. [at] 15 . . . (citing 2 State of New Jersey Constitutional Convention of 1947, Committee on the Judiciary Report § 11(J) at 1187 (1947)); accord Oliver v. Ambrose, 152 N.J. 383, 392-93 (1998).Therefore, the entire controversy doctrine "requires joinder in one action of all legal and equitable claims related to a single underlying transaction[,]" Manhattan Woods Golf Club, Inc. v. Arai, 312 N.J. Super. 573, 577 (App. Div.), certif. denied, 156 N.J. 411 (1998), "embod[ying] the principle that the adjudication of a legal controversy should occur in one litigation in only one court[,]" Cogdell, supra, 116 N.J. at 15.
[Kent Motor Cars, supra, 207 N.J. at 443.]
Under the entire controversy doctrine, parties are required to present not only the principal matters to be litigated but also any other aspects of a controversy between them that could be litigated. Vision Mortg. Corp. v. Patricia J. Chiapperini, Inc., 307 N.J. Super. 48, 51-52 (App. Div. 1998), aff'd, 156 N.J. 580 (1999). Commonality of legal issues is not required, but rather, "the determinative consideration is whether distinct claims are aspects of a single larger controversy because they arise from interrelated facts." DiTrolio v. Antiles, 142 N.J. 253, 271 (1995). See also Garvey v. Twp. of Wall, 303 N.J. Super. 93, 100 (App. Div. 1997) (stating the entire controversy doctrine requires a "factual nexus" between the circumstances underlying the claims asserted and those withheld). Consequently, "all parties involved in a litigation should at the very least present in that proceeding all of their claims and defenses that are related to the underlying controversy." Cogdell, supra, 116 N.J. at 15 (citations omitted).
"'[T]he doctrine is one of judicial fairness and will be invoked in that spirit.'" Higgins v. Thurber, 413 N.J. Super. 1, 11-12 (App. Div. 2010) (quoting Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 343 ( 1984)), aff'd 205 N.J. 227 (2011). The entire controversy doctrine does not "'apply to bar component claims either unknown, unarisen, or unaccrued at the time of the original action.'" K-Land Corp., supra, 173 N.J. at 70 (quoting Pressler, Current N.J. Court Rules, comment 2 on R. 4:30A (2002)). When "considering fairness to the party whose claim is sought to be barred, a court must consider whether the claimant has had a fair and reasonable opportunity to have fully litigated that claim in the original action." Gelber v. Zito P'ship, 147 N.J. 561, 565 (1997) (internal quotation marks and citations omitted). "'[T]he first forum must have been able to provide all parties with the same full and fair opportunity to litigate the issues and with the same remedial opportunities as the second forum.'" Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 661 (1996) (quoting Perry v. Tuzzio, 288 N.J. Super. 223, 230 (App. Div. 1996)).
The ultimate authority to control the joinder of parties and claims remains with the court; the parties may not choose to withhold related aspects of a claim fromSee also Mystic Isle Dev. Corp. v. Perskie & Nehmad, 142 N.J. 310, 323 (1995) (holding application of the preclusive effect of the entire controversy doctrine is left to judicial discretion, to be exercised on a case-by-case basis).
consideration, see, e.g., Hobart Bros. Co. v. Nat'l Union Fire Ins. Co., 354 N.J. Super. 229, 240-41 (App. Div.) (quoting Oltremare v. ESR Custom Rugs, Inc., 330 N.J. Super. 310, 315 (App. Div. 2000)), [certif. denied, 175 N.J. 170 (2002),] nor may they decline to reveal the existence of other parties in an effort to achieve an advantage.
[Kent Motor Cars, supra, 207 N.J. at 446.]
III.
A.
Challenging the trial court's application of the entire controversy doctrine's preclusive bar, plaintiff first contends the doctrine is inapplicable in probate actions. The argument attempts to parse a comment made by the Court in Thurber, supra, 205 N.J. at 230, without consideration of its context. Accordingly, we determine plaintiff's contention is meritless.
In Thurber, supra, we concluded the trial court misapplied the entire controversy doctrine to bar the plaintiffs-beneficiaries' subsequent legal malpractice action against counsel for the estate, as the plaintiffs were not given "a full and fair opportunity to litigate th[eir] claims" in the probate action, making it inequitable to preclude the subsequently filed suit. 413 N.J. Super. at 5. The Supreme Court granted certification. 203 N.J. 438 (2010). In affirming our conclusion that the entire controversy doctrine would not bar the plaintiffs' suit, notwithstanding the prior probate proceedings which only reviewed the executor's formal accounting of the estate, the Court concluded: "[T]o settle an account on an estate trust is a formalistic proceeding, unique to probate. See R. 4:87-1(a). . . . In the context of this and like proceedings in probate, the entire controversy doctrine is out of place." Thurber, supra, 205 N.J. at 229 (citing Perry, supra, 288 N.J. Super. at 229) (emphasis added).
Plaintiff homes in on this sentence to support its notion the entire controversy doctrine is inapplicable to probate proceedings. However, plaintiff completely ignores the Court's additional statement clarifying the comment as it went on to state: "While it certainly may be permissible for a chancery court to expand a probate proceeding to encompass a claim of legal malpractice, that was not done here." Ibid. (citations omitted). Obviously, the Court's statement merely expressed the conclusion that under the factual circumstances presented, application of the entire controversy doctrine was improper.
Certainly, application of the entire controversy doctrine may be appropriate when probate proceedings are expanded beyond a summary review of an executor's accounting following the administration of an estate. See, e.g., In re Estate of Gabrellian, 372 N.J. Super. 432 (App. Div. 2004) (applying the entire controversy doctrine to issues determined in a probate action, thus precluding claims raised in a subsequent action), certif. denied, 182 N.J. 430 (2005).
We also find ludicrous plaintiff's suggestion the claims could not have been litigated in the summary probate proceedings. Admitting the causes of action now alleged in the Law Division complaint were "against parties in the underlying probate actions," plaintiff contends the estate administrations "related to the limited purpose of said probate actions, being a will contest and a fiduciary's accounting." On the contrary, the record reflects every aspect of the probate proceedings regarding the administration of David Sr. and Elaine's estate involved contentious litigation. The parties battled over the fiduciaries, the propriety of the testamentary instruments, the actions of the temporary fiduciaries, and the determination of claims and the distribution of the residuary assets. Moreover, a creditor's claim for payment, as well as a claim of breach of fiduciary responsibility, would appropriately have been presented in the probate cases.
The trial judge certified Elaine's estate administration was a contested administration on February 2, 2010. Admittedly, the threshold determination was whether Elaine's 2008 Will should be probated. Brian and Lisa, on behalf of plaintiff, asserted a claim as a creditor in that proceeding. The probate judge's ruling, disallowing discovery attempts regarding the sale of Monmouth Truck in the course of the litigation to determine whether Elaine's will should be probated, did not preclude plaintiff as a creditor from asserting its claim against Elaine's estate. Rather than litigating that claim, plaintiff instead initiated the Law Division action before a different judge.
Having determined the nature of the proceedings did not affect the application of the entire controversy doctrine, we next examine whether plaintiff knew or should have known to present the claims included in the Law Division action in the previous probate litigations. As we noted, the Law Division complaint contains five counts against David Jr., alleging unjust enrichment, self-dealing, breach of the duty of loyalty, breach of fiduciary duties, and fraud. The single count against Elaine alleges she breached her fiduciary duty while serving as the administratrix of David Sr.'s estate, by not discovering the restrictive covenant payment, even though the complaint acknowledges Elaine had no knowledge of the restrictive covenant agreement or payment.
Disputes surrounding the sale of Monmouth Truck first arose in the litigation surrounding the disposition of the assets in David Sr.'s estate. Brian and Lisa, as putative co-executors, were informed of Elaine's consent, as the temporary administratrix, to accept the sale price. They were well aware of the restriction imposed on her in the order of appointment, yet they abandoned their challenge to her decision to consent to the sale. The terms of the consent order, finalizing Elaine's role as administratrix of David Sr.'s estate, specifically waived all pending discovery, including requests for copies of all documents related to the sale of Monmouth Truck. Therefore, any claims regarding Elaine's disregard of the ordered restriction on sale have been waived.
In addition to the propriety of the payment received for David Sr.'s interest in Monmouth Truck, the financial components of the sale could have been discovered, as this asset was dominant in David Sr.'s estate. Brian and Lisa, individually and as co-executors of David Sr.'s estate, were suspicious of Elaine and David Jr.'s close relationship. They also had the opportunity to obtain all documentation regarding the Monmouth Truck sale and examine Elaine's actions as temporary administratrix. Prior to Elaine's death, almost twenty months passed after execution of the consent order allowing Brian and Lisa to assume their fiduciary roles under David Sr.'s will. At no time did Brian and Lisa reopen the administration of David Sr.'s estate.
Finally, David Jr. reopened David Sr.'s estate on February 10, 2010, for the purpose of challenging the fiduciaries' administration and their failure to provide an accounting, again offering another opportunity for David Sr.'s estate to assert claims against David Jr. for allegedly secreting estate assets. Assuming, for the sake of argument, Brian or Lisa could not have discovered the payment to David Jr. for his restrictive covenant earlier, at the very least, they learned of the agreement at a time when David Sr.'s estate was reopened.
Specifically, David Jr. sought an accounting of the disposition of David Sr.'s estate assets. The allegations in plaintiff's Law Division complaint relate to the estate's purported assets, specifically, David Sr.'s shares of the restrictive covenant payment. That claim is part of the same "bundle[] of rights and liabilities" deriving from the probate of David Sr.'s 2007 Will. However, plaintiff chose not to raise the issue in the probate litigation, rather, they initiated a separate action advancing claims on behalf of David Sr.'s estate while settling the dispute surrounding the litigation initiated by David Jr.
The record is clear: plaintiff had actual knowledge of the claim; the litigation concerned the distribution of the estate's assets, including any alleged interest in this payment solely ending up in David Jr.'s hands; and such a claim should have been litigated. Plaintiff should have perused its potential claims but withheld action and, instead, settled the action surrounding David Sr.'s estate.
In light of the totality of the facts, we conclude the issues presented in plaintiff's newest complaint "must be regarded as constituting an element of one mandatory unit of litigation" that has concluded. DiTrolio, supra, 142 N.J. at 268 (citations omitted). Plaintiff "omitted components of the dispute or controversy" which it could and should have presented by "engag[ing] in additional litigation to conclusively dispose of their respective bundles of rights and liabilities" regarding the assets of David Sr.'s estate, which arose in the prior litigations during David Sr.'s estate administration. Ibid.
Both the claims against David Jr. and Elaine should have been raised in the course of this proceeding. Although Elaine had passed away, the question of whether she properly performed her fiduciary responsibilities during her brief role as the administratrix of David Sr.'s estate should have been litigated in the course of the challenges to Brian and Lisa's administration of David Sr.'s estate. Despite the requirement to join all related actions, before the same judge in the same forum, plaintiff held back its purported claims, settled the litigation, and attempted to initiate a different lawsuit before a different judge. This cannot be sanctioned. See Glukowsky v. Equity One, Inc., 180 N.J. 49, 71 (2004) (explaining discouragement of forum shopping is a proper judicial goal).
We reject as specious the suggestion plaintiff proceeded in the Law Division to secure a jury trial. No request for a jury trial was presented in its complaint. See R. 4:35-1 (stating plaintiffs must affirmatively request a jury trial).
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B.
We turn to David Jr.'s cross-claim challenging as error the denial of his request for attorney's fees and costs, claiming the litigation was frivolous.
[Rule 1:4-8] is designed to ensure that attorneys do not initiate or pursue litigation that is frivolous. The [rule], which is comprehensive, . . . imposes an obligation on the attorney or party pro se to certify, based on a reasonable inquiry, that the pleading "is not being presented for any improper purpose," that the assertions "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," and that there is "evidentiary support" for the allegations being made. R. 1:4-8(a)(1), (2), (3). Second, the [rule] imposes a continuing duty on the attorney or party pro se who filed the pleading to correct or withdraw the allegations or theA trial court's determination granting or denying fees and costs for frivolous litigation is reviewed for abuse of discretion. Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 407 (App. Div.) (citation omitted), certif. denied, 200 N.J. 502 (2009). David Jr. bears the burden of establishing the litigation was frivolous. He offers only a conclusory assertion supported by the fact that summary judgment was granted. More is necessary to secure an award of sanctions as permitted by the rule. Accordingly, we decline to disturb the Law Division judge's denial of fees.
denials contained therein based upon further investigation and discovery. R. 1:4-8(a)(3), (4). Third, it creates an enforcement mechanism by which a party who believes that a pleading or filing violates the [rule] may so advise the adversary, giving the adversary the opportunity to withdraw the pleading without penalty, failing which, that party may seek or the court may impose a variety of sanctions. R. 1:4-8(b)(1).
[LoBiondo v. Schwartz, 199 N.J. 62, 98 (2009).]
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION