NOT FOR PUBLICATION WITHOUT THE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-4298-15T1
LISA VAN HORN,
Plaintiff-Appellant,
v.
HARMONY SAND & GRAVEL, INC.,
Defendant-Respondent.
_______________________________
Submitted October 10, 2017 – Decided November 8, 2017
Before Judges Messano and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Docket No.
L-0288-12.
Spector Gadon & Rosen, PC, attorneys for
appellant (Randi A. Wolf, on the briefs).
Winegar, Wilhelm, Glynn & Roemersma, PC,
attorneys for respondent (Scott M. Wilhelm,
of counsel and on the brief; Jennifer L.
Toth, on the brief).
PER CURIAM
Plaintiff Lisa Van Horn appeals from an award of sanctions
in favor of defendant Harmony Sand & Gravel, Inc. pursuant to R.
1:4-8. Because Harmony's motion for sanctions failed to comply
with the rule's mandatory requirements, we reverse.
By way of brief background, Van Horn sued Harmony in 2012,
seeking to terminate a putative lease agreement between her late
father and Harmony and to eject Harmony from the property she
had inherited from him. The trial court dismissed the action,
finding a valid lease permitting Harmony exclusive possession of
the property until its default, or the depletion of soil and
aggregates made its continued quarrying commercially
unreasonable.
We affirmed the judgment in a published opinion, but for
reasons different than those expressed by the trial court. Van
Horn v. Harmony Sand & Gravel, Inc., 442 N.J. Super. 342, 336
(App. Div. 2015). Analyzing the agreement, we noted it "did not
explicitly state that Harmony had exclusive possession of the
property, which is the cornerstone of any lease agreement.
Rather, the agreement permitted [Van Horn's father] to interfere
with Harmony's possession of the land so long as he did not
interfere with [its] mining operation." Id. at 333 (citation
omitted). Accordingly, we held the agreement was not a lease
but a profit, which conveyed to Harmony the right to extract
materials from the property but did not give it exclusive right
of possession as would a lease. Id. at 345.
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Some months after our opinion, Van Horn made a motion in
the trial court in aid of litigant's rights claiming Harmony had
erected fencing around the property and locked gates that
prevented her access to a house on the property, which she
wished to renovate and rent out. Contending she had no
intention of interfering with Harmony's quarrying activities,
Van Horn sought an order "enforcing the terms of the Appellate
Division's opinion in this case," and directing Harmony to
provide her keys to the gates and cease interfering with her
possessory rights in the property.
Harmony filed a cross-motion to dismiss Van Horn's motion
as moot and "assessing counsel fees in its favor." Harmony
claimed the trial court lacked jurisdiction as the order
dismissing Van Horn's complaint was affirmed and "no judgment
was entered in Plaintiff's favor." Asserting Harmony should be
reimbursed for its fees for having to respond to a motion the
court had no jurisdiction to hear, Harmony's counsel sought
"permission to submit an Affidavit of Services upon my
compliance with the Rules of Court which require me to provide
notice to Plaintiff's counsel."
The court heard brief argument on the motions and concluded
the "Appellate Division decision . . . affirmed the affirmative
dismissal of the original complaint and reserved no rights to
3 A-4298-15T1
enforce under that agreement . . . . There's no order for me to
enforce." The court advised Harmony's counsel it would
"entertain an application for fees." The court thereafter
entered an order dismissing Van Horn's motion with prejudice and
providing that Harmony's cross-motion "for counsel fees is
provisionally granted." Counsel submitted its certification
seeking $3020 in fees and costs, which the court granted in an
order of April 5, 2016, making Van Horn and her counsel "jointly
and severally liable" for payment.
Van Horn moved for reconsideration, seeking vacation of the
order for fees. The court denied the motion. In an attached
statement of reasons, the court explained that it found Van
Horn's motion "to enforce rights that had not been granted by
any order of judgment . . . . not only without merit, but
frivolous." As to Harmony's cross-motion for R. 1:4-8
sanctions, the court stated:
Although defendant did not make a formal
demand to withdraw the motion and provide
for the option of an adjournment, defendant
filed its cross-motion for counsel fees on
February 1, 2016, thereby providing
plaintiff with notice of the intent to seek
counsel fees. As the pre-motion notice was
not formally provided, no certification
could be provided in accordance with the
rule. Oral arguments were then held on
March 2, 2016. Hence, plaintiff had 30 days
to withdraw its motion and avoid the
potential sanction. Though the formal
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procedural requirements of R. 1:4-8(b)(1)
were not strictly followed, the purpose of
the rule was achieved. Pursuant to R. 1:1-
2(a), "[u]nless otherwise stated, any rule
may be relaxed or dispensed with by the
court in which the action is pending if
adherence to it would result in an
injustice."
We think it apparent that the order for sanctions under R.
1:4-8 cannot stand. First, it assessed fees against Van Horn, a
represented party, for the filing of a frivolous motion. See
Toll Bros., Inc. v. Twp. of W. Windsor, 190 N.J. 61, 64 (2007)
(explaining the interplay between R. 1:4-8 and N.J.S.A. 2A:15-
59.1 when an application for sanctions is directed against a
represented party). Although R. 1:4-8(f) provides that the
rule's procedures shall apply "to the extent practicable," to
the assertion of costs and fees against a represented party
pursuant to N.J.S.A. 2A:15-59.1, the Frivolous Litigation
Statute, the Supreme Court has held that statute expressly does
not apply to motions. See Lewis v. Lewis, 132 N.J. 541, 545
(1993). Accordingly, there was no basis for an award against
Van Horn for the filing of the motion in aid of litigant's
rights.
Second, imposition of sanctions against an attorney under
the rule requires strict compliance with its procedures. See
LoBiondo v. Schwartz, 199 N.J. 62, 99 (2009); Trocki Plastic
5 A-4298-15T1
Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399, 407 (App. Div.
2001), certif. denied, 171 N.J. 338 (2002). The only exception
is in circumstances in which the notice required by the rule
would deprive the party seeking sanctions of any effective
remedy. See ASHI-GTO Assocs. v. Irvington Pediatrics, P.A., 414
N.J. Super. 351, 364 (App. Div.) (counsel's inflammatory opening
statement at trial could support award under R. 1:4-8, although
timing would preclude 28-day safe harbor notice required),
certif. denied, 205 N.J. 96 (2010).
As the Supreme Court explained in Toll Brothers, a litigant
seeking sanctions under the rule is required to file a separate
motion describing the specific conduct the litigant alleges to
be in violation, which must be proceeded by a written safe
harbor notice. 190 N.J. at 69; R. 1:4-8(b)(1). The safe harbor
notice "serves as a warning that the litigant will apply for
sanctions 'if the offending paper is not withdrawn within 28
days of service of the written demand.'" Toll Bros., supra, 190
N.J. at 69 (quoting R. 1:4-8(b)(1)). The motion for sanctions
must include a certification attesting to service of the safe
harbor notice. Ibid.
None of those procedural requirements were met here. Van
Horn and her counsel's first notice that harmony intended to
seek sanctions under R. 1:4-8 for the motion in aid of
6 A-4298-15T1
litigant's rights was Harmony's cross-motion to dismiss and for
attorney's fees. Harmony made no explanation for its failure to
comply with the rule, and the record reveals none. Harmony's
failure to comply with any of the rule's detailed requirements
should have been fatal to its application for sanctions against
Van Horn's counsel. See Trocki, supra, 344 N.J. Super. at 406-
07. That the motions were carried for a month does not cure the
deficiencies. Resort to R. 1:1-2(a) in these circumstances
undermines the salutary purposes of the safe harbor notice.
Given the plain terms of the rule and its consistent
interpretation over many years, Van Horn and her counsel could
not fairly expect to either withdraw their motion or be
sanctioned on the return date. The court's imposition of
sanctions under these circumstances was thus a misapplication of
its discretion. See Ferolito v. Park Hill Ass'n, 408 N.J.
Super. 401, 407 (App. Div.), certif. denied, 200 N.J. 502
(2009).
Reversed.
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