Williams v. Gluck & Tobin

• Decision Date: 23 March 2021
• Docket Number: DOCKET NO. A-2220-19
• Parties: KELLY WILLIAMS, Plaintiff-Respondent, v. GLUCK & TOBIN, ESQS. and IRVING TOBIN, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

KELLY WILLIAMS, Plaintiff-Respondent, v. GLUCK & TOBIN, ESQS. and IRVING TOBIN, Defendants-Appellants.

DOCKET NO. A-2220-19

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted January 27, 2021

March 23, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Ostrer and Enright.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4165-17.

LisaBeth Klein, attorney for appellants.

Henry P. Wolfe and David C. Ricci, attorneys for respondent.

PER CURIAM

Defendants Gluck & Tobin, Esqs. and Irving Tobin appeal from the November 22, 2019 order, which awarded plaintiff Kelly Williams counsel fees and costs totaling $20,852.80 and reaffirmed a prior award of $5000 in statutory damages to plaintiff. Defendants also seek reversal of the August 22, 2019 denial of their motion to amend their answer, and the companion orders dated August 30, 2019 orders, which granted summary judgment to plaintiff, and denied such relief to defendants.¹ We affirm.

Plaintiff resided in Roselle Park, and rented an apartment unit from Fred Bonda on October 1, 2015. In conjunction with her tenancy, she received a public assistance rent subsidy and qualified for Section 8 housing. Defendants represented Bonda in filing numerous summary dispossess actions against plaintiff. Gluck & Tobin, Esqs. is a law firm owned and operated by defendant Irving Tobin, Esquire.

On October 11, 2016, defendants filed a summary dispossess action on behalf of Bonda. Their complaint was dismissed after plaintiff paid her overdue rent. Subsequently, defendants filed five more summary dispossess actions against plaintiff. In each of its summary dispossess complaints, defendants demanded plaintiff pay not only outstanding rent, but late charges, lock and keyreplacement fees, and attorney fees. Although the summary dispossess actions were collectively dismissed for reasons we need not address in the instant appeal, defendants' filings prompted plaintiff to sue defendants.

On August 9, 2017, plaintiff filed a Special Civil Part complaint against defendants, alleging that one of their summary dispossess complaints violated the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692.² Defendants disputed that they qualified as debt collectors under the FDCPA or that they engaged in unfair debt collection practices. Following a multi-day trial, the Special Civil Part judge issued a written opinion on May 31, 2018, which stated, in part,

defendants were debt collectors who engaged in unfair debt collection practices under the FDCPA. Moreover . . . their conduct was abusive to the plaintiff when they filed [five] unwarranted summary dispossess actions against her, seeking rent that was paid, [and her tenancy] prohibited attorney fees and late charges, aswell as, other miscellaneous fees . . . . [T]he complaints were false, misleading, and deceptive and defendants' actions were prohibited under sections 1692e and 1692f of the FDCPA.

Accordingly, the judge awarded plaintiff $1000 in statutory damages and on August 15, 2018, granted plaintiff counsel fees and costs in the sum of $25,604.53.

While the Special Civil Part action was pending, on November 21, 2017, plaintiff filed a Law Division action against defendants, based on one of the five summary dispossess actions filed by defendants which had not been addressed in the Special Civil Part case. Similar to her allegations in the Special Civil Part suit, plaintiff alleged defendants violated the FDCPA by trying to collect late charges and counsel fees in a particular summary dispossess action, knowing she was a Section 8 tenant. On March 30, 2018, plaintiff amended her complaint to address the remaining FDCPA violations she alleged arose from four other summary dispossess actions defendants filed on behalf of Bonda. On July 13, 2018, plaintiff filed a second amended complaint to join defendant Irving Tobin as a party to the suit. Defendants answered this complaint on August 27, 2018 and included the following affirmative defenses: failure to state a claim; laches; unclean hands; res judicata; and equitable estoppel.

On March 29, 2019, plaintiff moved for summary judgment. Defendants sought and received two lengthy adjournments of this motion to July 12, 2019. On June 26, 2019, instead of responding to the pending summary judgment motion, defendants moved for leave to file and serve an amended answer to assert plaintiff's action should be precluded under the entire controversy doctrine (ECD). Defendants conceded they previously "inadvertently omitted the mention of th[is] Affirmative Defense." The parties consented to adjourn the summary judgment motion until defendants' motion for leave to amend was decided. On August 8, 2019, defendants filed a response to plaintiff's summary judgment motion, which relied on the ECD. Thus, the merits of plaintiff's summary judgment claims were essentially uncontested. Also, on August 8, 2019, defendants filed a cross motion seeking summary judgment and dismissal of plaintiff's second amended complaint.

On August 22, 2019, the Law Division judge denied defendants' motion to amend, finding "[t]he discovery end date is long pas[t]. The proposed amendment seeks to raise the [ECD,] which would be prejudicial at this late date. Laches analysis is appropriate and persuasive here."

On August 30, 2019, the Law Division judge considered the parties' cross applications for summary judgment. No one appeared on behalf of defendants.Nonetheless, the judge inquired why plaintiff's pending action could not have been handled in the Special Civil Part action. Plaintiff's counsel replied, "Well, they could have perhaps," but "[e]ach one of those [actions] is a separate cause of action that can be brought separately." Plaintiff's counsel added, "there's permissive joinder and then there's mandatory joinder . . . . Permissively, we could have brought those cases, just like we brought these five cases now together in one lawsuit, but there [was] no obligation for us to bring the other cases at that time."

The Law Division judge then found:

The court has considered this matter. It has been before the court for many, many months. Mr. Tobin has requested numerous adjournments in this case and is claiming unavailability. I don't know the circumstances of Mr. Tobin, but this was hung out for an extraordinarily long period of time before today's date where . . . we scheduled this matter for oral argument and somehow Mr. Tobin doesn't appear. At some point the plaintiff and plaintiff's counsel are entitled to an end date.

In this case the plaintiff submitted a statement of material facts consisting of [seventeen] points, which if you follow those . . . points leads one to the conclusion that the plaintiff is entitled to this summary judgment motion . . . . [Mr. Tobin] admitted all of them except the one . . . . Paragraph 17, which states, "The defendant did not appeal the court's decision [in the Special Civil Part matter], so the ruling is a final judgment on the merits." Mr. Tobin, disputes that, he doesn't give a reason, in violation of the rules, which he's supposed todo. But I find as fact that he did not do that and that [the Special Civil Part] ruling that he is a debt collector in the context of this case is the law of the case. And, therefore, summary judgment on all of these other similar cases that Mr. Tobin filed are subject to the debt collection acts and, therefore, plaintiff is entitled to summary judgment in this matter.

Regarding defendants' cross-motion for summary judgment, the judge added:

Mr. Tobin made a cross-motion for summary judgment where he, once again, is basing the case on the entire controversy doctrine. He submitted a single-spaced letter brief, which is against the rules and he's simply relying on the entire controversy doctrine. I already banned that argument because he didn't make it in a timely fair way and . . . and, by the way, the entire controversy doctrine is an equitable doctrine meant to bring cases before the court, as appropriate. I don't find anything in this matter bars the plaintiff[] from proceeding as [s]he did. I do not find the entire controversy doctrine has been violated, to the extent it's a firm order and something that the courts can use when appropriate.

The judge granted plaintiff summary judgment and denied defendants' cross-motion for summary judgment. Subsequently, plaintiff moved for an award of counsel fees and costs and final judgment over defendants' objection. On November 22, 2019, the Law Division judge awarded plaintiff counsel fees and costs totaling $20,852.80 after extensively considering the factors set forth in Rule of Professional Conduct (RPC) 1.5. Defendants moved forreconsideration of the November 22, 2019 order, and their motion was denied on January 10, 2020,³ with the judge finding

With respect to Rule 4:49-2 regarding reconsideration, there is nothing new - there is no new information that's submitted and the prior decision that I made is not incorrect, and nothing was overlooked.

Mr. Tobin keeps wanting to repeat his argument on the entire controversy doctrine, which I dealt with in prior decisions.

On appeal, defendants raise three arguments in their point headings, claiming the trial court erred by: (1) applying the incorrect legal standard in its denial of defendants' motion to amend their answer to include the entire controversy doctrine as an affirmative defense; (2) granting plaintiff's summary judgment motion and denying their cross-motion for summary judgment by "ignoring the entire body of case law involving the entire controversy doctrine"; and (3) awarding counsel fees and costs to plaintiff, "both by violating applicable equitable standards, as...