NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5886-17T2
THERESA C. GRABOWSKI,
Plaintiff-Appellant/ Cross-Respondent,
v.
ANNETTE ARNOLD, a/k/a ANNETTE DENNERY, her Estate, Beneficiaries, and/or Successors in Interest, BERNADETTE MAURICE, a/k/a BERNADETTE DENNIS, and ANN MARIE McCORMICK,
Defendants-Respondents,
and
EDWARD J. MAURICE,
Defendant-Respondent/ Cross-Appellant. ______________________________
Argued January 9, 2020 – Decided June 16, 2020
Before Judges Nugent and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4603-15.
Andrew Todd Cupit argued the cause for appellant/cross-respondent.
Matthew R. Litt argued the cause for respondent/cross- appellant (Posternock Apell PC, attorneys; Matthew R. Litt, on the briefs).
Frank Guaracini, III argued the cause for respondent Ann Marie McCormick (Blaney & Karavan, PC, attorneys; Frank Guaracini, III, of counsel and on the brief).
PER CURIAM
Plaintiff, Theresa C. Grabowski, is a New Jersey attorney. Years after
representing a client whose stepmother had guaranteed payment of plaintiff's
fees, plaintiff filed a fraud action against, among others, two of the stepmother-
guarantor's other adult children, to whom the mother had transferred her interest
in a house in a seaside community. The trial court dismissed the amended
complaint as to one of the transferees for failure to state a claim upon which
relief could be granted and dismissed the amended complaint as to the other on
summary judgment. Plaintiff appeals from those orders, as well as another order
denying her various requests for relief, including recusal of the trial judge. One
of the defendant-transferees cross-appeals from the denial of his motion seeking
A-5886-17T2 2 frivolous pleading sanctions for plaintiff's motion to reinstate the complaint
against him.
Because plaintiff's amended complaint did not state a cognizable cause of
action against the transferees of the seaside property, and because plaintiff failed
to present evidence on the summary judgment record from which a factfinder
could have inferred that either transferee was responsible under any liability
theory for plaintiff's fee, we affirm. We find no merit in plaintiff's challenge to
the order denying her other relief. On the cross-appeal, because the trial court's
findings of fact and conclusions of law are inadequate, we remand for further
consideration.
I.
Plaintiff commenced this action by filing a complaint in December 2015,
seeking to recover legal fees for services rendered to defendant Bernadette
Maurice in 2008. The complaint named her and her stepmother, defendant
Annette Arnold, who guaranteed payment of her fees. Arnold died in February
2016. Two months later, on April 20, 2016, plaintiff filed an amended
complaint, which named all four defendants.
Plaintiff's amended complaint begins with a section that contains the
following factual assertions. Plaintiff provided legal services to defendant
A-5886-17T2 3 Bernadette Maurice (the "client") during 2008. Plaintiff represented the client
based on the client's stepmother ("Arnold" or "mother") guaranteeing verbally
and in writing that she would pay plaintiff's fees. According to the amended
complaint, the mother once "even pledged that plaintiff would be paid from the
proceeds of the sale of a home that she had an ownership interest in at the
shore—only to later advise plaintiff that she had transferred that interest to her
brother for no consideration. At that time, [the mother] again renewed her
promise to pay plaintiff."
In August 2009, plaintiff sent to the client and her mother letters stating
there was a past due balance of $10,518.01, she intended to file a lawsuit, but
the client and mother had the option to arbitrate the fee dispute if they so elected.
In response, the mother telephoned plaintiff, acknowledged receiving the fee
arbitration notice, "and reiterated her prior multiple promises to pay plaintiff's
bills for legal services rendered" on the client's behalf. The mother made
additional payments through December 2009. More than five years later, in
September 2014, plaintiff made another written demand for payment of her
outstanding bill.
More than a year after sending this second demand, plaintiff filed her
initial December 2015 complaint against the client and her mother. The mother
A-5886-17T2 4 died two months later, and two months after her death plaintiff filed the amended
complaint.
The amended complaint contains six "counts." The first four counts allege
causes of action for breach of contract, common law fraud, unjust enrichment,
and an account stated. The fifth count alleges a cause of action for fraudulent
conveyance. The sixth count is a claim for punitive damages.
Plaintiff represented the client in 2008, as previously noted. The amended
complaint's fifth count alleges that on July 7, 2008, the mother owned a fifty
percent interest in real estate in Avalon. That same day, she represented to
plaintiff that her brother owned the other fifty percent interest in the property,
the property had a fair market value of almost $800,000, and the property was
listed for sale. The mother further represented "that the proceeds of the aforesaid
sale would be used to satisfy any and all obligations due to plaintiff as a result
of the services provided by plaintiff[.]"
The fifth count additionally alleges that on or about January 28, 2010, the
mother transferred for one dollar her fifty percent interest in the Avalon property
to two of her other children, defendants Ann Marie McCormick and Edward J.
Maurice. More than two years later, on May 30, 2012, the Avalon property was
A-5886-17T2 5 sold to a third party for $550,000, resulting in gross proceeds of $137,500 each
to defendants McCormick and Maurice.
Plaintiff also asserts in the amended complaint's fifth count that by
excluding the client when she transferred her interest in the Avalon property,
the mother evidenced her intent "to have such property not be used to satisfy the
obligations to plaintiff, despite the specific representations of [the mother] to
the contrary." The fifth count asserts the Avalon property's transfer was made
for nominal consideration rather than fair market value and was intended to
defraud the mother's creditors, particularly plaintiff. The count further asserts
the Avalon property's transfer resulted in the unjust enrichment of defendants
McCormick and Maurice, who were both active participants and complicit in the
fraud perpetrated by their mother.
Plaintiff did not allege that when the mother transferred her interest in the
Avalon property, she was insolvent or became insolvent as a result of the
transfer. Rather, plaintiff asserted that when the mother sold the property, she
represented she "still could and would pay all amounts due plaintiff." The
amended complaint does not refer to the Uniform Fraudulent Transfer Act
("UFTA"), N.J.S.A. 25:2-20 to -34.
A-5886-17T2 6 Following the filing of the amended complaint, the parties filed a series
of motions. First, defendant Edward Maurice filed a motion pursuant to Rule
4:6-2(e) to dismiss the amended complaint for failure to state a claim upon which
relief can be granted. Although plaintiff had not referenced the UFTA in her
complaint, Maurice based his motion on the UFTA's statute of limitation and the
amended complaint's failure to plead with specificity the elements of fraud.
Plaintiff filed a cross-motion to suppress defendant Edward Maurice's
responsive pleading, enter a default against him, and compel him to deposit the
proceeds he received from the sale of the Avalon property into court pending
resolution of the litigation. In her brief opposing the motion to dismiss, plaintiff
asserted Maurice was "properly a party to this action due to his status as an heir
of Arnold, in addition to the direct causes of action against him." She insisted
Maurice was "properly a defendant with regard to the contract cause of action
due to his being a beneficiary of defendant Arnold, and the fact that plaintiff has
a claim to any proceeds of the [E]state of Arnold that is superior to that of
Movant."
In her opposing brief, plaintiff insisted she had set forth sufficient "badges
of fraud" to satisfy the specific pleading requirements concerning actions
alleging fraud. Plaintiff repeated, "the Movant is required to be named as a
A-5886-17T2 7 defendant regarding Arnold's fraud due to his status as an heir, and plaintiff's
claims having priority against the [E]state of Arnold over any claim of the
Movant." Plaintiff added, "[m]ovant would also have this [c]ourt ignore the
issue that he could be found to have been an active participant in converting the
asset so as to be out of reach of creditors such as plaintiff, and that his motivatio n
could be found to be because of his clear disdain for [the client]."
Significantly, plaintiff insisted the UFTA did not apply and she had
"established common law causes of action for fraud, fraudulent conveyance, et
cetera[.]" She contended defendant Maurice "seeks to distract attention from
such causes of action by reference to N.J.S.A. 25:2-20, et seq." Plaintiff
emphasized: "As also noted in paragraph [eighty-two] of the Amended
Complaint, Arnold advised plaintiff that Arnold still had sufficient assets to pay
plaintiff, and Arnold continued to pay plaintiff. Accordingly, N.J.S.A. 25:2 -20,
et seq., does not apply, because the transfer did not render Arnold insolvent at
the time the transfer occurred." Plaintiff concluded that "[i]n view of the lack
of applicability of N.J.S.A. 25:2-20 et seq., the provisions of N.J.S.A. 2A:14-1
apply.[1] Notably, N.J.S.A. 2A:14-1 does not note an exclusion to the [six-] year
1 N.J.S.A. 2A:14-1 establishes a six-year statute of limitations for, among other actions, "any tortious injury to real or personal property" and for "recovery upon a contractual claim." A-5886-17T2 8 time period set forth therein regarding N.J.S.A. 25:2-20, although N.J.S.A.
2A:14-1 does mention N.J.S.A. 12A:2-725 (which is inapplicable to this
matter)."
The court granted defendant Edward Maurice's motion. The court denied
plaintiff's cross-motion.
Next, plaintiff filed a motion seeking, among other things, to have
defendant McCormick appointed administratrix of her mother's estate and to
have the court recuse itself for having demonstrated bias against plaintiff's
attorney. The court denied the motion.
Upon the close of discovery, plaintiff filed a motion seeking to have the
court vacate the order dismissing the complaint as to defendant Edward Maurice.
Plaintiff refused to dismiss the motion after Maurice demanded she do so to
avoid frivolous pleading sanctions. The court denied the motion. The court
later denied defendant Maurice's motion for sanctions.
In addition to the facts previously recounted concerning plaintiff's
rendering of services to the client, the mother's guarantee, and the mother's
transfer of the Avalon property, the summary judgment motion record included
the following. Defendants McCormick and Maurice certified they did not know
plaintiff, did not know plaintiff had rendered services to the client, and did not
A-5886-17T2 9 know the mother had guaranteed payment for those services. McCormick
testified at her deposition—the transcript was submitted on the motion record—
the Avalon property, a single-family residence, originally belonged to her
grandmother, who passed it down to McCormick's mother, defendant Arnold,
and defendant Arnold's brother. They were to continue to pass it down to the
grandmother's heirs, but defendant Arnold's brother wanted to sell it, and a
lawsuit ensued.
McCormick further explained that her mother did not want to be involved
in the litigation, so she transferred her interest in the Avalon property to
defendants McCormick and Maurice, both descendants of the grandmother.
Plaintiff's client was not the grandmother's descendent, which was the reason
the mother, defendant Arnold, did not transfer a partial interest to plaintiff's
client. Defendants McCormick and Maurice had a stepbrother, but their mother
would not transfer any property to him due to his drug and alcohol addiction.
McCormick also testified that her mother, defendant Arnold, did not live
in the Avalon residence. She lived in Lancaster County, Pennsylvania, with her
boyfriend. When she died, her mother co-owned real estate in Cecil County,
Maryland, with her boyfriend. She also owned personal property, including a
car, clothing, and jewelry.
A-5886-17T2 10 II.
On appeal, plaintiff argues the trial court erred by dismissing her fraud
claims, by dismissing her UFTA claims as untimely while imposing a
constructive notice requirement upon her, and by granting summary judgment
despite the existence of genuinely disputed material facts. She also conte nds
the trial court demonstrated bias against her or her attorney, and therefore should
have recused itself; and further erred by refusing to appoint an administrator ad
prosequendum for the mother's estate.
Before addressing plaintiff's argument, we are constrained to point out
some fundamental precepts concerning appeals. Our rules require that an
appellant identify and fully brief any issue raised on appeal. R. 2:6-2(a). Parties
to an appeal are required to make a proper legal argument, "[s]upporting [their]
legal argument with appropriate record reference. . . . [And] provid[ing] the
law." State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977); see also
Sackman v. N.J. Mfrs. Ins. Co., 445 N.J. Super. 278, 297-98 (App. Div. 2016). It
is not the appellate court's duty to search the record to substantiate plaintiff's
argument. See 700 Highway 33 LLC v. Pollio, 421 N.J. Super. 231, 238 (App.
Div. 2011). An argument based on conclusory statements is insufficient to
A-5886-17T2 11 warrant appellate review. Nextel of N.Y., Inc. v. Bd. of Adjustment, 361 N.J.
Super. 22, 45 (App. Div. 2003).
Here, the arguments in plaintiff's brief are in many instances based upon
conclusory assertions with general citations to cases rather than "a pinpoint
citation, often called a 'pincite[,]'" to the language in a case or "to the specific
pages that relate to the cited proposition[.]" The Blueblook: A Uniform System
of Citation B 10.1.2, at 12 (Colum. L. Rev. Ass'n et al eds., 20th ed. 2015). It
is thus difficult to discern whether a case supports the proposition for which
plaintiff cites it, and in some instances a cited case does not support the
proposition for which it is cited. Notwithstanding these difficulties, we turn to
plaintiff's argument that the trial court erred by dismissing the complaint against
defendant Edward Maurice.
We need not address the counts of the amended complaint alleging breach
of contract, fraud by the mother, account stated, and unjust enrichment, because
plaintiff has not challenged their dismissal on this appeal. Concerning count
five, fraudulent conveyance, defendant Maurice moved to dismiss the count
essentially for two reasons: it did not state a cause of action under the UFTA,
and it was barred by the UFTA's statute of limitations. Apparently ignoring
plaintiff's argument in her brief that the UFTA did not apply, the trial court
A-5886-17T2 12 granted the motion based on the UFTA's statute of limitations. In doing so, the
court applied a standard of review that was inapplicable in light of amendments
to the UFTA, of which the trial court was apparently unaware.
Notwithstanding these anomalies, we conclude the trial court reached the
correct result. "[I]t is well-settled that appeals are taken from orders and
judgments and not from opinions, oral decisions, informal written decisions, or
reasons given for the ultimate conclusion." Do-Wop Corp. v. City of Rahway,
168 N.J. 191, 199 (2001).
Rule 4:6-2 states in relevant part: "[T]he following defenses . . . may at
the option of the pleader be made by motion, with briefs: . . . (e) failure to state
a claim upon which relief can be granted." Rule 4:6-2 also states: "If, on a
motion to dismiss based on the defense numbered (e), matters outside the
pleading are presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided by R[ule]
4:46, and all parties shall be given . . . reasonable opportunity to present all
material pertinent to such a motion."
A motion to dismiss a complaint under Rule 4:6-2(e) "must be based on
the pleadings themselves." Roa v. Roa, 200 N.J. 555, 562 (2010). For purposes
of the motion, the "complaint" includes the "exhibits attached to the complaint,
A-5886-17T2 13 matters of public record, and documents that form the basis of a claim." Banco
Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005) (quoting Lum v. Bank of
Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004)).
Motions to dismiss under Rule 4:6-2(e) "should be granted only in rare
instances and ordinarily without prejudice." Smith v. SBC Commc'ns, Inc., 178
N.J. 265, 282 (2004). This standard "is a generous one." Green v. Morgan
Props., 215 N.J. 431, 451 (2013).
[A] reviewing court "searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." At this preliminary stage of the litigation the Court is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint. For purposes of analysis plaintiffs are entitled to every reasonable inference of fact. The examination of a complaint's allegations of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach.
[Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citations omitted).]
Nonetheless, a court must dismiss a complaint if it fails "to articulate a
legal basis entitling plaintiff to relief." Sickles v. Cabot Corp., 379 N.J. Super.
100, 106 (App. Div. 2005). "A pleading should be dismissed if it states no basis
A-5886-17T2 14 for relief and discovery would not provide one." Rezem Family Assocs., LP v.
Borough of Millstone, 423 N.J. Super. 103, 113 (App. Div. 2011).
Concerning plaintiff's claims of fraud against defendant Edward Maurice,
the amended complaint did not state a direct cause of action. Rule 4:5-8(a)
requires a plaintiff asserting an allegation of fraud to plead "particulars of the
wrong, with dates and items if necessary, . . . insofar as practicable." To prove
common-law fraud, a plaintiff must prove a defendant made a material
misrepresentation of a presently existing or past fact, knowing or believing the
fact to be false, with the intent that the plaintiff rely on it; and, that the plaintiff
reasonably relied on the misrepresentation, resulting in damages. Banco
Popular, 184 N.J. at 172-73; Gennari v. Weichert Co. Realtors, 148 N.J. 582,
610 (1997). The amended complaint does not contain any such facts or
allegations against defendant Maurice.
Before the trial court, plaintiff argued Maurice was "required to be named
as a defendant regarding [the mother's] fraud due to his status as an heir, and
plaintiff's claims having priority against the estate of [the mother] over any
claims of [defendant Edward Maurice]." She provided no analysis for that
conclusory assertion, nor did she cite any precedent to support it. Now, on
appeal, plaintiff asserts that because Maurice is not a bona fide purchaser for
A-5886-17T2 15 value of his interest in the Avalon property, the profit he made is subject to
plaintiff's claims "against said property that flow through defendant [mother]
and result from her fraud." Plaintiff also asserts that "equity and justice require
the reinstatement of the case against defendant as recipients of a windfall due to
said fraud." These conclusory assertions do not alter the amended complaint's
deficiency in asserting either a direct claim against defendant Maurice or a
legally sufficient claim that he is somehow vicariously liable for the fraud his
mother allegedly perpetrated nearly three years before she transferred the
property and nearly seven years before she died. In short, though the trial court's
rationale for dismissing the complaint against Maurice was incorrect, the result
was correct. Accordingly, we affirm the decision.
In contrast to her argument to the trial court that the UFTA does not apply,
plaintiff now appears to argue her amended complaint states a cause of action
under the UFTA. Although not entirely clear, she appears to argue that her
complaint states a cause of action under N.J.S.A. 25:2-27, which deems a
transfer of property fraudulent as to an existing creditor at the time of the
transfer "if the debtor made the transfer or incurred the obligation without
receiving a reasonably equivalent value in exchange for the transfer or
A-5886-17T2 16 obligation and the debtor was insolvent at that time or the debtor became
insolvent as a result of the transfer or obligation."
This argument fails, because plaintiff argues that an inference the mother
was insolvent derives from certain bank record balances plaintiff obtained by
issuing a subpoena to the bank. Even if the records demonstrated the mother
was insolvent, which they did not, the records were not submitted to the trial
court in opposition to defendant Maurice's motion to dismiss. Because they
were not part of the motion record before the trial court, we will not consider
them on this appeal.
III.
Plaintiff next contends the trial court erred by granting summary judgment
to defendant McCormick. Appellate courts "review[] an order granting
summary judgment in accordance with the same standard as the motion
judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citations omitted). Our
function is not "to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial." Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986)); accord R. 4:46-2(c). A trial court's
determination that a party is entitled to summary judgment as a matter of law is
A-5886-17T2 17 not entitled to any "special deference," and is subject to de novo
review. Cypress Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 415
(2016) (citation omitted). "Only 'when the evidence "is so one-sided that one
party must prevail as a matter of law"' should a court enter summary
judgment." Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236, 257
(2018) (quoting Brill, 142 N.J. at 540).
In opposition to defendant McCormick's summary judgment motion,
plaintiff argued neither that McCormick perpetrated a fraud nor that she was
vicariously liable for the fraud allegedly perpetrated by her mother. Rather, she
relied exclusively on the UFTA, argued the transfer of the Avalon property was
for inadequate consideration, and further argued the bank records she
subpoenaed demonstrated she had inadequate funds to satisfy her debt. 2
The bank records do not demonstrate the mother was insolvent. The bank
records demonstrate a flow of revenue, including social security payments, and
an outflow of payments. Although the account balance at any given point was
not an irrelevant consideration, plaintiff offered nothing to refute McCormick's
2 The index to plaintiff's appendix does not list the bank statement as a document she provided in opposition to the summary judgment motion. Rather, she lists the bank statement as a document she provided in support of her motion to vacate the dismissal order as to defendant Edward Maurice. A-5886-17T2 18 deposition testimony that her mother co-owed with her boyfriend property in
Maryland and possessed personal property, including a car and jewelry. In
short, plaintiff offered no competent evidence from which a factfinder could
have inferred either that the mother was insolvent when she transferred her
interest in the Avalon property or that the transfer rendered her insolvent.
Consequently, plaintiff's opposition was inadequate to create a genuinely
disputed issue of material fact concerning the section of the UFTA she relied
upon in opposing McCormick's summary judgment motion. Plaintiff's
remaining arguments concerning the summary judgment motion are without
sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
IV.
Plaintiff next argues the trial court erred by failing to recuse itself and by
failing to appoint an administrator ad prosequendum for the mother's estate. The
trial court's curt exchanges with plaintiff's counsel during oral argument, lack of
any attempt to properly frame or narrow the issues, and misapplication of the
appropriate standard of review may have given plaintiff's counsel the impression
of bias. We cannot so conclude, however, based on the record before us. More
important, our plenary review leads us to conclude as a matter of law that
defendant Maurice's motion to dismiss for failure to state a cause of action and
A-5886-17T2 19 defendant McCormick's summary judgment motion were properly granted. Both
were meritorious. Plaintiff's remaining arguments on this point are without
sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Defendant Edward Maurice cross-appeals from the trial court's dismissal
of his claim for frivolous pleading sanctions. He contends plaintiff's motion to
reinstate the complaint against him was frivolous. Plaintiff's counsel filed the
motion under Rule 4:50 and asserted newly discovered evidence required the
reinstatement of the complaint as to Edward Maurice. It appears from the
pleadings plaintiff's counsel filed the motion based primarily on defendant
McCormick's deposition testimony. Plaintiff's counsel perceived that when the
trial court dismissed the complaint against defendant Edward Maurice, it did so
because it accepted as a fact that the mother transferred the Avalon property as
part of her estate planning. Plaintiff's counsel construed McCormick's
deposition testimony as affirming the transfer did not take place as a result of
estate planning.
The trial court denied the motion. In doing so, the court determined
plaintiff's counsel's characterization of McCormick's deposition testimony was
inaccurate. The court found that counsel's representation of what McCormick
A-5886-17T2 20 said was not "even close" to her actual testimony. Based on this
mischaracterization, as well as what the court considered instances of such
conduct in the past, the court concluded plaintiff's counsel believed as an
attorney he was "charged with the responsibility to take people's words, and not
just nuance them, but twist them and contort them to a point that only in the
most strained interpretation of what they said, could it stand for a proposition
that would be favorable to your argument, yet you . . . will push them that far."
However, though apparently concluding the factual allegations asserted by
plaintiff's counsel had no evidentiary support, see Rule 1:4-8(a)(3), the court
denied the motion. Addressing plaintiff's counsel, the court commented it did
not know whether counsel's conduct in construing facts as he did was "a
methodology." The court further commented it thought counsel truly believed
such tactics were "an appropriate way to argue." The court concluded: "And
because of that, only because of that, [I am] not going to impose a sanction."
The court gave little or no consideration to the factors enumerated in Rule
1:4-8(a), particularly 1:4-8(a)(3) that "factual allegations have evidentiary
support or, as to specifically identified allegations, they are either likely to have
an evidentiary support or they will be withdrawn or corrected if reasonable
opportunity for further investigation or discovery indicates insufficient
A-5886-17T2 21 evidentiary support[.]" The court provided no analysis of how plaintiff's
counsel's mischaracterization of defendant McCormick's testimony squared with
the factors enumerated in Rule 1:4-8(a).
Trial courts considering a motion for frivolous pleading sanctions under
Rule 1:4-8(a) are required to make findings of fact and conclusions of law in the
record. Rule 1:7-4(a); Alpert, Goldberg, Butler, Norton & Weiss v. Quinn, 410
N.J. Super. 510, 544 (App. Div. 2009). Here, if the trial court's decision from
the bench is considered to have included findings of fact and conclusions of law,
such findings and conclusions are wholly inadequate. For that reason, we vacate
the order denying defendant Maurice's motion for sanctions and remand this
matter for further consideration of that motion under the proper standard of
review.
Our opinion should not be construed as indicating in any way whether the
award of frivolous pleading sanctions is appropriate or not. That decision is left
to the discretion of the trial court. The trial court's decision, however, must
include adequate factual findings and legal conclusions.
Affirmed in part, vacated in part and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
A-5886-17T2 22