Hagans v. Alan Nickerson, Esq.
| Decision Date | 15 December 2022 |
| Docket Number | A-2438-20,A-0524-21 |
| Parties | SYLVIA HAGANS, Plaintiff-Respondent, v. ALAN NICKERSON, ESQ., Defendant, and GEORGE L. FARMER, ESQ., Defendant/Third-Party Plaintiff-Appellant, v. MARK MOLZ, ESQ., Third-Party Defendant. GEORGE L. FARMER, ESQ., Plaintiff-Appellant, v. SYLVIA HAGANS, and MARK MOLZ, ESQ., Defendants-Respondents. |
| Court | New Jersey Superior Court — 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.
Argued October 18, 2022
On appeal from the Superior Court of New Jersey, Law Division Camden County, Docket Nos. L-0355-17 and L-0332-21.
George L. Farmer, appellant, argued the cause pro se.
Mark J. Molz argued the cause for respondents Sylvia Hagans in A-2438-20 and Sylvia Hagans and Mark J. Molz, Esq. in A-0524-21.
Before Judges Susswein and Berdote Byrne.
These two appeals arise from orders entered in separate proceedings in the Law Division involving common parties and claims regarding the enforceability of a fee arbitration agreement and George L. Farmer's right to reinstate or file anew claims that were previously dismissed or not pursued until after a completed appeal. We scheduled the appeals back-to-back and consolidate them now for the purpose of issuing a single opinion.
We are asked to determine whether the Law Division correctly found Farmer's numerous procedural missteps precluded him from reducing his fee arbitration award to a judgment eight years after its entry. Separately, we are asked to determine whether, despite those missteps, Farmer was entitled to prosecute his third-party complaint, which the trial court previously dismissed with prejudice, and he did not appeal or alternatively refile various causes of action he claims to have previously dismissed without prejudice and did not revive prior to the entry of an order on appeal of the final order in the case.
Based upon our review of the record, and considering the applicable law, we are satisfied the Law Division correctly determined Farmer the statute of limitations had run when Farmer finally sought to reduce the fee arbitration award to a judgment. We also conclude the Law Division correctly denied reinstating Farmer's claims, and, when he filed them anew in a separate action, the Law Division correctly granted summary judgment to Hagans and Molz, and denied Farmer's cross-motion for summary judgment, regardless of any claims of res judicata, because no rational fact-finder could find those claims meritorious. Farmer failed to preserve his counterclaims or third-party complaint on the first appeal either by seeking an appeal, a limited remand, or by filing a cross-appeal to plaintiff's appeal of the final order granting summary judgment, and he was not entitled to revive those claims thereafter. When Farmer filed a new complaint in the Law Division asserting the same causes of action as his previously dismissed third-party complaint and counterclaims, the trial court correctly granted summary judgment dismissing the complaint. We affirm all trial court orders subject to these two appeals.
In this procedural morass, defendant George L. Farmer[1] appeals a trial court order denying his motion for counsel fees and costs as sanctions for frivolous litigation, alternatively allowing him to reinstate his counterclaims and third-party complaint for malicious abuse of process and malicious prosecution, and declining to reduce his fee arbitration award to a judgment. Farmer filed the motion following disposition of plaintiff's previous appeal from an award of summary judgment to Farmer, which we affirmed, and resulted in the dismissal of the matter entirely with respect to all parties. We affirm.
Because of the previous appeal between the parties, Hagans v Nickerson, No. A-3824-18 (App. Div. July 31, 2020) (slip. op.), we do not delve into the full history between these parties which gave rise to the underlying litigation, save a few relevant procedural facts and dates.
Plaintiff Sylvia Hagans retained Farmer for legal representation after she fired prior counsel. They entered a written retainer agreement whereby Farmer substituted as counsel for defendant Nickerson.[2] Hagans and Farmer were not successful in prosecuting her claims in the previous litigation and plaintiff owed Farmer money per their written retainer agreement. Farmer successfully arbitrated fees he charged Hagans pursuant to Rule 1:20A-3, and on July 1, 2013, obtained a fee arbitration award determining Hagans owed him $7,892.60. Despite obtaining this award, it is undisputed Farmer did not file a summary enforcement action to collect the award pursuant to Rule 4:67, as contemplated by the court rule[3] until February 3, 2021, almost eight years after its entry.
On January 24, 2017, Hagans filed a legal malpractice complaint against Farmer, who was, by then, her former counsel. On April 10, 2017, Farmer filed an answer, affirmative defenses, and two counterclaims against Hagans for malicious use of process/malicious prosecution, and malicious abuse of process. Farmer also filed a third-party complaint against Mr. Molz, Hagan's new counsel, alleging three counts: malicious use of process/malicious prosecution, malicious abuse of process, and tortious interference.
Farmer represents that in May 2017, he voluntarily dismissed his counterclaims against plaintiff "without prejudice" by stating so in a brief. It is undisputed no order reflecting this alleged dismissal was ever entered. On June 9, 2017, the first trial judge who presided over the matter dismissed the third-party complaint "with prejudice" for reasons stated on the record, finding no basis for any of the claims pled against Mr. Molz. However, no order reflecting the dismissal was ever entered. Farmer did not appeal that dismissal.
At the conclusion of discovery, Farmer moved for summary judgment which was granted by the second trial judge to preside over the matter, resulting in the dismissal of the entire action with prejudice on March 27, 2019. Hagans filed a notice of appeal as of right from summary judgment. While the appeal was pending, Farmer filed a motion for counsel fees and costs before the trial court.
On May 14, 2019, noting a pending motion in the trial court, and that further proceedings were scheduled, our court inquired if the notice of appeal was truly appealable as of right from a final order. The letter cautioned if the appeal was not final, then procedurally, Hagans required leave to appeal an interlocutory order.
On May 24, 2019, the trial court issued an oral statement of reasons denying Farmer's motion for counsel fees, citing the pending appeal. The trial court's oral decision stated it was denying sanctions and fees "without prejudice" but the order entered indicated only "denied."
On May 29, 2019, following the denial of sanctions and attorney's fees, Hagans certified all issues regarding all parties were determined with finality, and no further proceedings were scheduled in the trial court. On June 25, 2019, Farmer wrote to our court indicating although the order denying sanctions and fees was stamped "denied," the motion had been denied without prejudice. He made no mention of his voluntarily dismissed counterclaim, or the third-party complaint dismissed by the trial court, nor did he seek to dismiss the appeal as interlocutory. Given the orders in the record, we scheduled and considered the appeal as of right from a final order.
On July 31, 2020, we affirmed summary judgment, dismissing all remaining claims. Because Farmer had already voluntarily dismissed his counterclaims, the first trial judge had dismissed the third-party complaint with prejudice, and the second trial judge had denied his motion for sanctions and fees, there was nothing pending before any court.
One week later, on August 6, 2020, Farmer filed an omnibus motion seeking, for the first time, to reduce his 2013 fee arbitration award to a judgment, not by order to show cause pursuant to Rule 4:67, but instead pursuant a breach of contract theory. Additionally, he sought sanctions for frivolous litigation and attorney's fees and costs pursuant to Rule 1:4-8. And, in the event the court did not award sanctions, Farmer sought to reinstate his counterclaims and third-party complaint.
On January 29, 2021, a third trial judge heard oral argument on the motion and denied all three of Farmer's requests on the record, due, in part, to there being a final judgment and completed appeal in the case. First, the trial court found the third-party complaint had been dismissed with prejudice. Second, the trial court found there was a final judgment dismissing the complaint and counterclaims. Third, the trial court found because of the final judgments in the case, "there [wasn't] anything to reinstate." Fourth, the trial court denied sanctions because Hagans, regardless of the disposition on appeal, had a reasonable, good faith basis to pursue the merits of her claim. Lastly, because the trial court denied re-opening the case following appeal, it also found reducing the fee arbitration to a judgment was inappropriate because "it's not clear to the court that whole issue belongs here."
Farmer sought to vacate the January 29, 2021 order pursuant to Rule 4:50-1. After a hearing on March 31, 2021, the trial court declined to vacate the order on April 1, 2021. The court noted ...
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