Dziubek v. Schumann
| Decision Date | 25 July 1994 |
| Citation | 275 N.J.Super. 428,646 A.2d 492 |
| Parties | George DZIUBEK, Shirley Nagy, Thomas Stagnitti, Administrator Ad Prosequendum of the Estate of Arlene Stagnitti Liva, Deceased and Thomas Stagnitti, Individually, Plaintiffs- Respondents, v. Frederick J. SCHUMANN and Bradford C. Liva, M.D., Defendants. Bradford C. LIVA, M.D., as General Administrator and Administrator Ad Prosequendum of the Estate of Arlene E. Liva, Deceased, Bradford C. Liva, M.D., Individually, Bradford Liva, Jr., by his Parent and Natural Guardian, Bradford C. Liva, M.D., Justin Liva, by his Parent and Natural Guardian, Bradford C. Liva, M.D., and Alexandra Liva, by her Parent and Natural Guardian, Bradford C. Liva, M.D., Plaintiffs, v. Frederick Joseph SCHUMANN, Defendant-Respondent. George Dziubek, Shirley Nagy, Supra Sports Inc., Chris Craft Industries, Inc. and Barnes Bros. Marina, Inc., Defendants, Messrs. Weiner & Shanker, Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
Arthur L. Shanker, for appellant Weiner & Shanker, pro se.
Robert R. Levinson, Edison, for respondents George Dziubek, Shirley Nagy, Thomas Stagnitti, Individually and as Administrator Ad Prosequendum of the Estate of Arlene Stagnitti Liva, Deceased (Levinson, Feinson and DeFilippo, attorneys; Mr. Levinson, of counsel and on the brief).
Peter N. Gilbreth, Morristown, for respondent Frederick J. Schumann (Stephen S. Weinstein, attorney; Mr. Gilbreth, of counsel and on the letter brief).
Before Judges MICHELS, SKILLMAN and WEFING.
The opinion of the court was delivered by
MICHELS, P.J.A.D.
We granted leave to Messrs. Weiner & Shanker, attorneys for plaintiff Bradford C. Liva, M.D. (Dr. Liva), Individually, as General Administrator and Administrator Ad Prosequendum of the Estate of Arlene E. Liva, Deceased, and as Parent and Guardian of Bradford C. Liva, Jr., Justin Liva and Alexandra Liva, to appeal from two orders of the Law Division that awarded attorney fees of $10,475 to Messrs. Levinson, Feinson and DeFilippo, attorneys for plaintiffs George Dziubek (Dziubek), Shirley Nagy (Nagy) and Thomas Stagnitti (Stagnitti), Individually and as Administrator Ad Prosequendum of the Estate of Arlene Stagnitti Liva, Deceased, and $2,187.50 to Stephen S. Weinstein, Esq., attorney for defendant Frederick J. Schumann (Schumann). The trial court assessed the attorney fees against Messrs. Weiner & Shanker because of the conduct of its associate, Philip Morell, Esq., in connection with the aborted settlement of the matter with Dr. Liva.
The question is whether the trial court possessed the power or authority to award attorney fees as a sanction for an attorney's conduct. We hold that in the circumstances of this case the trial court did not have such power or authority and, therefore, reverse the orders under review.
This matter arose out of a boating accident that occurred on Lake Hopatcong in Morris County, New Jersey. Schumann was the owner and operator of the boat that collided with a boat owned and operated by Dr. Liva. Arlene Stagnitti Liva, the wife of Dr. Liva and the mother of his three children, was a passenger in the boat and was killed as a result of the accident. Stagnitti, the father of Arlene Stagnitti Liva, and the grandfather of the three Liva children, individually, and as Administrator Ad Prosequendum of the Estate of Arlene Stagnitti Liva, together with Nagy and Dziubek, who were passengers in Schumann's boat, instituted an action against Dr. Liva and Schumann. After the Stagnitti suit was instituted, Dr. Liva, individually and as General Administrator and Administrator Ad Prosequendum of the Estate of Arlene Stagnitti Liva, and as the parent and natural guardian of his three children, instituted a separate suit against Schumann, Dziubek, and Nagy as well as defendants Supra Sports Inc., Chris Craft Industries, Inc. and Barnes Bros. Marina, Inc. The trial court consolidated both actions.
Dr. Liva moved to dismiss Stagnitti's action. The trial court denied the motion and ordered that Stagnitti be appointed as both Administrator Ad Prosequendum of the Estate of Arlene Stagnitti Liva and Guardian Ad Litem of the three infant children. The trial court also ordered that Stagnitti's complaint be deemed amended to contain the causes of action set forth in Dr. Liva's complaint. The trial court explained that while Dr. Liva could administer the estate of his wife, he could not represent the estate in the action because of a conflict of interest concerning his status as a defendant.
The trial court issued a scheduling order for pretrial discovery proceedings. When Dr. Liva failed to answer interrogatories as required by the scheduling order, his complaint against Barnes Bros. Marina, Inc. was dismissed without prejudice. Additionally, summary judgment was entered in favor of Supra Sports Inc. and Chris Craft Industries, Inc. because Dr. Liva failed to produce an expert report to prove any defect in the boat manufactured and sold by them. Barnes Bros. Marina, Inc. then moved to dismiss Dr. Liva's complaint with prejudice. Since the trial court did not receive an affidavit or certification from Dr. Liva attesting that he understood the case was being dismissed, the trial court directed Messrs. Weiner & Shanker to appear in court to explain.
Although the record is not entirely clear, the parties claimed that Morell represented to the trial court that Dr. Liva knew that his case was being dismissed and that Dr. Liva had advised the Weiner & Shanker law firm that he was no longer interested in pursuing the claim and instructed the firm to dismiss the case. Morell allegedly represented to the trial court that releases would be executed by Dr. Liva by the end of the day. The trial court thereupon directed that a conference call take place if releases were not received by a certain date. The releases received were not unqualified in form, and, therefore, a conference call was held by the trial court. Participating in that call were Robert R. Levinson, Esq., and Angel M. DeFilippo, Esq., who represented Stagnitti, Nagy and Dziubek, Peter Gilbreth, Esq., who represented Schumann, and Morell. During the conference call, Morell allegedly informed the trial court and the attorneys that new releases would be executed by Dr. Liva for $1.00.
It appears that the trial court granted Schumann's liability insurance carrier's motion to deposit with the court the $300,000 limit of coverage provided by the policy of insurance. Since Stagnitti, Dziubek and Nagy considered the matter settled, they moved (1) to enforce the settlement, (2) to appoint a guardian for the three Liva children, and (3) to distribute the $300,000 deposited in court. Dr. Liva opposed the motion, contending that although he executed the releases he felt that he was entitled to share personally with his children in the distribution of the $300,000 fund. Morell certified that he never intended to waive Dr. Liva's right to share in the $300,000, but merely meant to facilitate the distribution of the $300,000. The trial court immediately ordered a plenary hearing.
At the hearing, Dr. Liva testified that he understood that the $300,000 would go to his wife's estate and that all other claims would be "basically wiped out." He further testified that he understood that the estate would get the entire $300,000 and that the trial court would distribute the funds between the three children and himself. Dr. Liva testified that he understood that if he withdrew his action against Schumann, then Dziubek and Nagy would withdraw their action against him. Dr. Liva also testified that Morell told him, following Morell's meeting with the trial court, that he needed the releases because the matter "had been dragging on for so long" and that "the judge wanted to get this thing straightened out and settled." He testified that when Morell presented the releases they were in blank form, that Morell told him that he needed the releases, and that they should be signed. Consequently, he signed them in blank, but never saw the releases completed until they were shown to him shortly before the hearing. Dr. Liva reiterated that it was his Finally, Dr. Liva testified that he never intended to give up his claim as a surviving spouse.
Morell testified that the releases were signed by Dr. Liva in blank. He explained to Dr. Liva that Dziubek and Nagy would be executing corresponding releases and Dr. Liva would be dropping his personal lawsuit against them, and they in turn would be dropping their lawsuit against him. Morell testified that he further explained to Dr. Liva that the $300,000 had been deposited into court; that a motion had been or would be made to appoint a guardian for the three children to distribute the funds; that Dr. Liva would be executing the releases to facilitate these events; and that Dr. Liva "would personally be sharing in that distribution, if the guardian had felt that was appropriate." According to Morell, Dziubek and Nagy would not share in the proceeds of distribution. Finally, Morell emphasized that Dr. Liva intended to "drop [his] personal lawsuit for [one] dollar."
At the conclusion of the hearing, the trial court held that the parties had not reached an understanding as to the settlement and, therefore, denied the motion to enforce the settlement and to distribute the $300,000 deposited in court. The trial court, in part, reasoned:
Now it's--it's troublesome--troubling to me because I participated, along with counsel, both on the bench and off, in some discussions where I'm frankly convinced that Mr. Levinson, Miss DeFilippo, Mr. Wilson and Mr. Gilbreth were led to understand certain things.
But those understandings, as much as I may have been in part witness to them,...
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