NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2765-21 

BOROUGH OF 

ENGLEWOOD CLIFFS, 

 Plaintiff-Appellant, 

v.

THOMAS J. TRAUTNER, ALBERT 

WUNSCH, 800 SYLVAN AVENUE, 

LLC, and CHIESA SHAHINIAN & 

GIANTOMASI, PC, 

 Defendants-Respondents, 

and 

JEFFREY R. SURENIAN, JOSPEH 

MARINIELLO, JR., JEFFREY R. 

SURENIAN AND ASSOCIATES, 

LLC, and MARINIELLO & 

MARINIELLO, PC, 

Defendants. 

_______________________________

Submitted November 8, 2023 – Decided April 22, 2024 

Before Judges Sumners, Rose and Smith. 

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-5785-21.

APPROVED FOR PUBLICATION 

April 22, 2024

APPELLATE DIVISION 
2 A-2765-21

King, Moench & Collins, LLP, attorneys for appellant 

(Jerry J. Dasti and Patrick F. Varga, on the briefs).

Lowenstein Sandler, LLP, attorneys for respondents 

Thomas J. Trautner and Chiesa Shahinian & 

Giantomasi PC (A. Matthew Boxer, Peter Matthew 

Slocum, and Stephanie Ashley, on the brief). 

Beattie Padovano, LLC, and Hill Wallack LLP, 

attorneys for respondent 800 Sylvan Avenue, LLC 

(Antimo Anthony Del Vecchio and Thomas Francis 

Carroll, of counsel and on the brief; Daniel L. 

Steinhagen and Keith Arnold Loughlin, on the brief).

Albert H. Wunsch, III, respondent pro se, joins in the 

brief of respondents Thomas J. Trautner, and Chiesa

Shahinian & Giantomasi PC. 

The opinion of the court was delivered by 

SUMNERS, JR., C.J.A.D. 

This appeal requires us to settle whether a public entity is immune from 

sanctions for filing a frivolous lawsuit in accordance with the Frivolous 

Litigation Statute (FLS), N.J.S.A. 2A:15-59.1, and Rule 1:4-8. The only 

published cases regarding this issue are two divergent Chancery Division rulings 

issued in 1993 and 1997. If immunity does not apply, we must then determine 

whether the trial court abused its discretion by imposing sanctions. 

The Borough of Englewood Cliffs retained Thomas J. Trautner and Chiesa 

Shahinian & Giantomasi PC, (collectively CSG), Albert Wunsch III, Jeffrey 
3 A-2765-21

Surenian and Jeffrey Surenian and Associates, LLC, (collectively Surenian) to 

represent it in affordable housing litigation. After judgment was entered for 

developer 800 Sylvan Avenue, LLC. (Sylvan), a settlement was reached between 

the Borough and Sylvan. Thereafter, political control of the Borough Council 

majority changed hands and the newly constituted Council sued CSG, Wunsch, 

and Surenian, alleging professional malpractice, breach of contract, unjust 

enrichment, civil conspiracy, and aiding and abetting arising from their 

representation of the Borough in the litigation. The Borough also sued Sylvan, 

alleging claims of conspiracy and aiding and abetting. 

The trial court granted defendants' Rule 4:6-2(e) motions to dismiss the 

Borough's complaint with prejudice. The trial court subsequently granted 

defendants' motion for sanctions, ordering the Borough to pay their attorney's 

fees and costs for filing a frivolous lawsuit. The Borough appeals, arguing the 

sanction applications were procedurally deficient; as a public entity, it is 

immune from paying sanctions under the FLS; and the trial court abused its 

discretion in finding the Borough's lawsuit was frivolous.1 

1

 On August 25, 2023, the Borough and Surenian filed a stipulation of dismissal 

dismissing all claims and counterclaims against each other. 
4 A-2765-21

The court rejects the Borough's arguments and affirms based on our 

interpretation of the FLS that the Borough is not immune from sanctions, 

defendants' applications for sanctions were procedurally compliant with Rule 

1:4-8, and the trial court did not abuse its discretion in imposing sanctions 

against the Borough. 

I. 

The genesis of this litigation is a declaratory judgment action2 by the 

Borough seeking a trial court order that it complied with its state constitutional 

affordable housing obligations. After Sylvan intervened in the action, the 

Borough hired CSG, Surenian, and Wunsch (collectively "defendant 

attorneys").3 We need not fully detail that action or other related litigation 

because they are unnecessary to resolve this appeal.4 Suffice it to say, the trial 

court––the same court which entered the order under review––entered judgment 

2

 In the Matter of the Application Englewood Cliffs, No. BER-L-6119-15. 

3

 The Borough also retained and sued Joseph Mariniello, Jr. and Mariniello & 

Mariniello PC, but they are not included because they did not seek fees or costs, 

were dismissed as defendants, and are not parties to this appeal. 

4

 800 Sylvan Ave. LLC v. Planning Bd. of Englewood Cliffs, No. A-2309-19

(App. Div. Aug 16, 2023); 800 Sylvan Ave., LLC v. Borough of Englewood 

Cliffs, No. A-4019-17 (App. Div. Feb. 19, 2020); Borough of Englewood Cliffs 

v. Surenian, No. BER-L-787-21 (Law Div. May 21, 2021). 
5 A-2765-21

in favor of Sylvan by awarding it a builder's remedy.5 This led to a settlement 

agreement between Sylvan and the Borough resolving the number of affordable

housing units that Sylvan could build in the Borough and related issues. 

Relevant to this appeal, the agreement provided that if "either party . . . seeks 

any relief related to the [declaratory judgment action] in any court of the State 

of New Jersey . . . , the non-breaching party may move to enforce this provision 

of the [a]greement and the breaching party shall be liable for all legal fees 

incurred." 

Prior to approving the settlement, the Borough Council passed Resolution 

20-132, praising defendant attorneys who represented it in the declaratory 

judgment action for recommending a settlement prior to trial, and censuring the 

mayor, who was a member of an opposing political party, for "thwart[ing] the 

work of the Borough to resolve the affordable housing litigation matter . . . 

through the filing of needless lawsuits and allegations." 

5

 "A builder's remedy provides a developer with the means to bring 'about 

ordinance compliance through litigation.'" In the Matter of the Application of 

Bordentown, 471 N.J. Super. 196, 221 (App. Div. 2022) (quoting Mount Olive 

Complex v. Township of Mount Olive (Mount Olive II), 356 N.J. Super. 500, 

505 (App. Div. 2003)). 
6 A-2765-21

In the subsequent municipal election, political control of the Borough 

Council majority changed hands. About nine months later, the Borough sued 

defendant attorneys alleging legal malpractice. In its first amended complaint, 

as to defendant attorneys, the Borough alleged professional malpractice, breach 

of contract, unjust enrichment, civil conspiracy, and aiding and abetting. As to 

defendant Sylvan, the Borough alleged only conspiracy and aiding and abetting. 

Within six weeks of being served the complaint, each defendant sent the 

Borough's attorneys notices demanding the lawsuit be voluntarily dismissed 

because it was frivolous. The Borough did not comply. 

 Defendants successfully moved under Rule 4:6-2(e) to dismiss the 

Borough's complaint with prejudice. In its written decision, the trial court 

found the: (1) malpractice claims were without basis in law or fact; (2) lawsuit 

was barred by the entire controversy doctrine; (3) public documents controlled 

and evinced the Borough's satisfaction with the defendant attorneys' 

representation; (4) conspiracy and aiding and abetting claims were without 

basis in law or fact; and (5) Borough's attorney "was without an authorized 

resolution to commence and prosecute this litigation and was unable to secure 

[authorization] retroactively." The Borough did not appeal. 
7 A-2765-21

Defendants next timely moved for attorney's fees due to the Borough's 

failure to withdraw the lawsuit as they demanded. See R. 1:4-8(b)(2) (motions 

for reimbursement of attorney's fees are to be filed within twenty days of the 

final judgment). In a written decision, the court awarded fees to defendant 

attorneys pursuant to Rule 1:4-8, but Wunsch was only entitled to costs because 

he was self-represented. After defendants submitted their certificates of legal 

services and costs, the court's orders awarded: Sylvan $75,634.75; Wunsch 

$327.20; and CSG $113,264.50.6 

Before us, the Borough contends: (1) defendants failed to satisfy the 

procedures in Rule 1:4-8 and N.J.S.A. 2A:15-59.1 to collect attorney's fees; (2) 

it is immune from frivolous litigation sanctions as a municipality; and (3) the 

trial court abused its discretion in finding the Borough engaged in frivolous

litigation.7 Before addressing the first and third contentions, we first determine 

whether the Borough is immune from sanctions. 

6

 The court also awarded attorney's fees of $27,258 to Surenian, which as noted 

is no longer a party to this appeal. 

7

 The Borough also contends the trial court erred in finding its attorneys, Stone 

& Magnanini LLP (SM), in the action lacked authorization to sue defendants. 

However, given the court's decision not to impose sanctions against SM––who 

is not participating in this appeal––and SM's authorization was not relevant to 
8 A-2765-21

II. 

The FLS "serves a punitive purpose, seeking to deter frivolous litigation," 

and "a compensatory purpose, seeking to reimburse 'the party that has been 

victimized by the party bringing the frivolous litigation.'" Toll Bros., Inc. v. 

Township of West Windsor, 190 N.J. 61, 67 (2007) (quoting Deutch & Shur, 

P.C. v. Roth, 284 N.J. Super. 133, 141 (Law Div. 1995)). The statute provides: 

a.

(1) A party who prevails in a civil action, either 

as plaintiff or defendant, against any other party 

may be awarded all reasonable litigation costs 

and reasonable attorney fees, if the judge finds 

at any time during the proceedings or upon 

judgment that a complaint, counterclaim, crossclaim or defense of the nonprevailing person was 

frivolous. 

(2) When a public entity is required or 

authorized by law to provide for the defense of a 

present or former employee, the public entity 

may be awarded all reasonable litigation costs 

and reasonable attorney fees if the individual for 

whom the defense was provided is the prevailing 

party in a civil action, and if there is a judicial

determination at any time during the 

proceedings or upon judgment that a complaint, 

counterclaim, cross-claim, or defense of the 

nonprevailing party was frivolous. 

the granting of sanctions against the Borough, the trial court's ruling that SM 

was not authorized to sue defendants is not an issue we need address. 
9 A-2765-21

b. In order to find that a complaint, counterclaim,

cross-claim or defense of the nonprevailing party was 

frivolous, the judge shall find on the basis of the

pleadings, discovery, or the evidence presented that 

either: 

(1) The complaint, counterclaim, cross-claim or 

defense was commenced, used or continued in 

bad faith, solely for the purpose of harassment, 

delay or malicious injury; or 

(2) The nonprevailing party knew, or should 

have known, that the complaint, counterclaim, 

cross-claim or defense was without any 

reasonable basis in law or equity and could not 

be supported by a good faith argument for an 

extension, modification or reversal of existing 

law. 

 

c. A party or public entity seeking an award under this 

section shall make application to the court which heard 

the matter. The application shall be supported by an 

affidavit stating in detail: 

(1) The nature of the services rendered, the 

responsibility assumed, the results obtained, the 

amount of time spent by the attorney, any 

particular novelty or difficulty, the time spent 

and services rendered by secretaries and staff, 

other factors pertinent in the evaluation of the 

services rendered, the amount of the allowance 

applied for, an itemization of the disbursements 

for which reimbursement is sought, and any 

other factors relevant in evaluating fees and 

costs; and 
10 A-2765-21

(2) How much has been paid to the attorney and 

what provision, if any, has been made for the 

payment of these fees in the future. 

[N.J.S.A. 2A:15-59.1 (emphasis added).] 

A trial court's decision to order frivolous lawsuit sanctions is reviewed 

under an abuse of discretion standard. Wolosky v. Fredon Township, 472 N.J. 

Super. 315, 327 (App. Div. 2022) (citing McDaniel v. Man Wai Lee, 419 N.J. 

Super. 482, 498 (App. Div. 2011)). An abuse of discretion "arises when a 

decision is 'made without a rational explanation, inexplicably departed from 

established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. 

Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. & 

Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). "Reversal is 

warranted when 'the discretionary act was not premised upon consideration of 

all relevant factors, was based upon consideration of irrelevant or inappropriate 

factors, or amount[ed] to a clear error in judgment.'" Ferolito v. Park Hill Ass'n, 

408 N.J. Super. 401, 407 (App. Div. 2009) (quoting Masone v. Levine, 382 N.J. 

Super. 181, 193 (App. Div. 2005)). 

A. Public Entity Immunity 

Whether a State and its agencies and political subdivisions are immune 

from the FLS is unsettled law. The only published cases are two divergent 
11 A-2765-21

Chancery Division rulings issued almost four years apart, the most recent being 

some twenty-seven years ago. The Chancery court held In the Matter of K.L.F., 

275 N.J. Super. 507, 511 (Ch. Div. 1993), that N.J.S.A. 2A:15-59.1 applies to 

governmental bodies. Almost four years later, another Chancery court reached 

a contrary result in Div. of Youth & Fam. Servs. v. P.M., 301 N.J. Super. 80, 

82 (Ch. Div. 1997). The Borough cites P.M. to support its immunity contention. 

We examine these two decisions. 

i. In the Matter of K.L.F. 

In K.L.F., the court examined the policy behind the FLS because it 

determined, in applying our statutory construction rules, the statute's plain 

meaning as suggested in the Legislature's clear directive "that a party may seek 

sanctions against 'any other [non-prevailing] party'" does not resolve if 

sanctions are limited to a private party and not a public entity. 275 N.J. Super. 

at 513, 515 (alteration in original). The court determined the statute is "punitive 

in nature and seeks the elimination of baseless litigation and pleadings, without 

express exceptions," and considered the adage "expressio unius est exclusio 

alterius," meaning "the express mention of one thing necessarily implies the 

exclusion of all others." Id. at 517. (citation omitted). 
12 A-2765-21

To avoid "the sua sponte creation of an exception which would certainly 

not advance the legislative purpose," the court reasoned "[t]he Legislature's 

failure to carve out an exception [to public entities] within N.J.S.A. 2A:15-

59.1" demonstrated an intent not "to immunize the State from . . . sanction[s]." 

Id. at 519. Combining the statute's policy and "[its] technical construction," the 

court maintained "it [was] patently evident that the Legislature did not intend 

to exempt the State, as party to a civil action, from the same standards of 'good 

faith' and 'reasonable basis in law' as would be expected of a private party in 

the same action." Id. at 520. 

 The K.L.F. court's analysis did not end there. It next considered the 

impact of N.J.S.A. 2A:15-60, which is "seemingly incompatible with N.J.S.A. 

2A:15-59.1." Ibid. N.J.S.A. 2A:15-60 provides, in pertinent part: 

In an action brought by the state, or the 

governor, or any person for the use of the state, the 

plaintiff shall recover costs as any other plaintiff; but 

the defendant in such an action shall not recover any 

costs against such plaintiff, whether the action is

dismissed, judgment shall pass in favor of the 

defendant or any other proceeding is taken. 

The court recognized the "well-established rule that where two statutes 

appear to be in conflict, and one is general in nature and the other more specific, 

the conflict is resolved in favor of the more specific statute 'as a more precise 
13 A-2765-21

manifestation of legislative intent.'" Id. at 521 (quoting State v. Gerald, 113 

N.J. 40, 83 (1988)). It determined N.J.S.A. 2A:15-60 "has been circumvented 

when the basis for assessing counsel fees against the State has been identified 

narrowly and with particularity" and is "a general provision which has remained 

essentially unchanged since its original enactment ninety years ago," thus

"bring[ing] into serious question its relevance nearly a century after its 

enactment." Id. at 521. Considering "the relative ages of the statutes,

[8] and the 

strength and force of the legislative mandate enunciated in N.J.S.A. 2A:15-

59.1, as adduced by the foregoing discussion of legislative intent," the court 

reasoned "N.J.S.A. 2A:15-59.1 supersedes N.J.S.A. 2A:15-60 and operates as 

an implied modifier of the latter and is, therefore, controlling." Id. at 522. 

Hence, the court held "that the State and its agencies and political subdivisions 

do indeed fall within the purview and operation of the [FLS]." Id. at 530. 

ii. Division of Youth & Family Services v. P.M. 

8

 N.J.S.A. 2A:15-60 was enacted in 1903. L. 1903, c. 247. N.J.S.A. 2A:15-

59.1 was enacted in 1988. L. 1988, c. 46. 
14 A-2765-21

In P.M., a different Chancery court disagreed with K.L.F., holding that a 

state agency was immune from FLS sanctions.9 301 N.J. Super. at 82. In 

reaching this holding, the court discerned a distinction between a "party" and 

"person" in N.J.S.A. 2A:15-59.1(a)(1). Id. at 84-87. The court determined the 

statute provided that a "party who prevails . . . against any other party . . . [who 

is a] non-prevailing person" may be awarded fees. Id. at 85 (alteration in 

original) (quoting N.J.S.A. 2A:15-59.1). The court held the distinction between 

the two terms is significant, noting that under N.J.S.A. 1:1-2, whose definitions 

apply to the FLS, a "person" includes "corporations, companies, associations, 

societies, firms, partnership and joint stock companies as well as individuals," 

but "does not include the State of New Jersey unless the word 'person' is used 

'to designate the owner of property.'" Id. at 86-87. 

The P.M. court also relied upon the 1995 amendment to the statute, which 

was enacted after K.L.F., and added subsection (a)(2) to N.J.S.A. 2A:15-59.1. 

Id. at 87. Subsection (a)(2) allows a public entity to obtain attorney's fees when 

the law required it to defend a prevailing present or former employee when the 

9

 Given its finding that the state agency was immune, the P.M. court did not 

reach the issue of whether the "complaint was actually frivolous, or commenced 

or continued in bad faith." 301 N.J. Super. at 82-83. 

 
15 A-2765-21

nonprevailing party pursued a frivolous complaint, counterclaim, cross-claim, 

or defense. N.J.S.A. 2A:15-59.1(a)(2). The court reasoned the Legislature 

would not have added this provision if "the terms used in the pre-existing statute 

were intended to include the state and its agencies." P.M., 301 N.J. Super. at 

87.

The court further maintained that "[t]he 1995 amendment to subsection 

(c) lays any doubt to rest." Id. at 88. Subsection (c) previously provided "a 

party seeking an award," but was changed to provide "a party or public entity 

seeking an award." Ibid. The court reasoned "if the word 'party' is, as K.L.F. 

suggests, broad enough to include the state or its subdivisions, why did the 

Legislature feel a need to include the phrase 'or public entity' in expanding the 

class of litigants who could seek an award?" Ibid. According to the P.M. court, 

"The answer is obvious: the Legislature's use of the word 'party' was never 

intended to include the [S]tate or its subdivisions. A contrary conclusion would 

mean that the 1995 amendments had no substantive consequence." Ibid. 

Lastly, the P.M. court found that because the FLS does not clearly 

extinguish our State's "modern thought" that sovereign "immunity exists unless 

expressly waived by the Legislature," id. at 92 (citing N.J.S.A. 59:1-2), it does 

not upset the presumption that public entities are immune from the statute's 
16 A-2765-21

sanctions, ibid. The court relied on a provision in the Environmental Rights 

Act, N.J.S.A. 2A:35A-1 to 35A-14, which permits a counsel fee award in 

certain prescribed circumstances, subject to a limit set forth 

in N.J.S.A. 2A:35A-10, as an example of an express legislative undertaking to 

create liability within that limit. Id. at 92-93. Thus, the Legislature's intent to 

allow liability against the State must be done "in an unambiguous manner." Id. 

at 92-93 (challenging the K.L.F. court's view that "an affirmative and explicit" 

provision is required to limit the State's liability). 

iii. Lack of Immunity 

K.L.F. and P.M. both express sound reasoning in reaching their 

respective rulings, making our decision a close call. We, however, conclude as 

did K.L.F. and the trial court, that a public entity is not immune from the

sanctions that can be imposed under the FLS. 

The plain language in N.J.S.A. 2A:15-59.1(a)(1) leads us to conclude that 

the unqualified term, "party," in the phrase, "[a] party who prevails in a civil 

action, either as plaintiff or defendant, against any other party may be awarded 

all reasonable litigation costs and reasonable attorney fees," does not exclude a 

public entity "party." See Lippman v. Ethicon, Inc., 222 N.J. 362, 380-81 

(2015) (emphasizing "the statute's plain language, . . . is generally the best 
17 A-2765-21

indicator of the Legislature's intent" (quoting Donelson v. DuPont Chambers 

Works, 206 N.J. 243, 256 (2011))). Nonetheless, we appreciate the P.M. court's 

analysis highlighting how N.J.S.A. 2A:15-59.1(a)(1)'s subsequent use of 

"person" leads to ambiguity because a public entity is not a "person" under 

N.J.S.A. 1:1-2 unless it is being "used to designate the owner of property which 

may be the subject of an offense." Yet, the distinction between these terms for 

interpretative purposes is less significant because other portions of the FLS, 

specifically N.J.S.A. 2A:15-59.1(a)(2) and (b), expressly allow recovery of fees 

against a "nonprevailing party" whose litigation conduct was frivolous. 

If we conclude, and we do not, that the plain language of the FLS is 

ambiguous as to the definition of "party," then we must look to extrinsic 

evidence to inform our analysis, "including legislative history." Parsons by

Parsons v. Mullica Twp. Bd. of Educ., 226 N.J. 297, 308 (2016) (quoting State 

v. Marquez, 202 N.J. 485, 500 (2010)). The Legislature's objective in enacting 

the FLS was "punitive in nature," K.L.F., 275 N.J. Super. at 516 (quoting 

Somerset Trust Co. v. Sternberg, 238 N.J. Super. 279, 286 (1989)), to deter the 

filing of frivolous claims by allowing a judge to impose attorney's fees 

sanctions against the non-prevailing party, ibid. (citing Chernin v. Mardan 

Corp., 244 N.J. Super. 379, 382 (Ch. Div. 1990)). There is no indication in the 
18 A-2765-21

statute's legislative history that public entities were meant to be exempt from 

sanctions if they filed claims determined to be frivolous. See S. Cmty. Affs. 

Comm. Statement to S. Comm. Substitute for A. 1012, S. 1399 & S. 1290 (Oct. 

13, 1994). Absent that clear indication, a public entity should be subject to the 

FLS to satisfy the legislative goal of curbing frivolous litigation. If the 

Legislature intended to afford immunity to public entities, it would have clearly 

stated so. 

After the K.L.F. court held public entities were not immune to FLS 

sanctions, the Legislature did not amend the statute to clarify whether public 

entities were immune.10 Rather, post-K.L.F., N.J.S.A. 2A:15-59.1 was 

amended in 1995 to add: subsection (a)(2)––allowing a public entity to obtain 

attorney's fees when defending a present or former employee; and subsection 

(c)–– providing a public entity could seek an attorney's fees award like other 

parties in a civil case. L. 1995, c. 13, § 1. Neither amendment declared a 

public entity was immune from sanctions under the statute. Thus, unlike P.M., 

we view the amendments as interrelated: making it clear that since a public 

entity was now allowed to seek sanctions when paying for the defense of a 

10

 We also recognize that after P.M. was issued, the Legislature took no action 

to clarify whether public entities were not immune. 
19 A-2765-21

present or former employee when it was not a party, it was subject to the same 

procedures as a party to the litigation when seeking sanctions. We thus 

conclude the FLS allows for sanctions against public entities. 

III. 

Having concluded the Borough is not immune to FLS sanctions, we 

address its contention that defendants did not comply with the procedural 

requirements of Rule 1:4-8 and N.J.S.A. 2A:15-59.1. The Borough argues that 

only CSG "properly addressed relief" under both Rule 1:4-8 and N.J.S.A. 

2A:15-59.1. Yet, the Borough claims, neither defendants nor the trial court 

addressed whether attorney's fees should be imposed against the Borough, as a 

party, "to the extent practicable," as prescribed by Rule 1:4-8. The Borough 

further asserts defendants' motions for sanctions failed to comply with N.J.S.A. 

2A:15-59.1, which requires certifying: (1) the amount of fees requested; (2) 

itemized disbursements; (3) "any other factors relevant in evaluating fees and 

costs"; and (4) "[h]ow much has been paid to the attorney and what provision[s], 

if any, ha[ve] been made for the payment of these fees in the future." (quoting 

N.J.S.A. 2A:15-59.1(c)(1) to(2)). Because CSG did not certify who paid their 

litigation fees in defending the Borough's malpractice claims and the court did 

not inquire who did pay such fees, the Borough asserts it was likely paid by 
20 A-2765-21

malpractice insurance companies and such disclosure should have been made. 

Hence, defendants' motions for fees and sanctions should have been denied with 

prejudice. We are unpersuaded. 

Our Supreme Court through its rulemaking authority imposed procedural 

requirements in Rule 1:4-8, which are not in the FLS. Toll Bros., 190 N.J. at 

65. The FLS and Rule 1:4-8 are interpreted restrictively because "the right of 

access to the court should not be unduly infringed upon, honest and creative 

advocacy should not be discouraged, and the salutary policy of the litigants 

bearing, in the main, their own litigation costs, should not be 

abandoned." Wolosky, 472 N.J. Super. at 327 (quoting Gooch v. Choice 

Entertaining Corp., 355 N.J. Super. 14, 18 (App. Div. 2002)). 

Sanctions can be imposed against an attorney or pro se party who files a 

frivolous pleading with an "improper purpose, such as to harass or to cause 

unnecessary delay or needless increase in the cost of litigation," R. 1:4-8(a)(1), 

or by asserting a claim or defense that lacks the legal or evidential support 

required by Rule 1:4-8(a)(2), (3) and (4). When sanctions are sought against a 

party, Rule 1:4-8(f) provides that "'[t]o the extent practicable,' the procedures 

governing applications for frivolous litigation sanctions against attorneys and 

pro se parties shall apply also to applications against parties." Toll Bros., 190 
21 A-2765-21

N.J. at 64 (alteration in original). To issue sanctions, the court must first 

"assess[] . . . the practicability of compliance" with the Rule. Id. at 73. 

Before moving for FLS sanctions, a prevailing party "is required to 

comply with Rule 1:4-8(b)(1)'s safe harbor provision." Id. at 69. A written 

notice must specifically state why the pleading is frivolous and demand it be 

withdrawn within twenty-eight days, and if not, sanctions will be sought. R.

1:4-8(b)(1). These "timeframes [are] for bringing frivolous behavior to the 

attention of the offending party, . . . so that the behavior could be corrected 

promptly and litigation costs kept to a minimum, thereby preserving judicial, 

lawyers', and litigants' resources." Toll Bros., 190 N.J. at 71. A subsequent 

motion for sanctions must "describe the specific conduct alleged to have 

violated" Rule 1:4-8 and "include[] a certification that the applicant served 

written notice and demand pursuant to Rule 1:5-2 to the attorney or pro se party 

who signed or filed the paper objected to." R. 1:4-8(b)(1). 

To sanction the Borough by ordering it to pay defendants' attorney's fees, 

the trial court must "assess whether it is practicable under all the circumstances 

to require strict adherence to the requirements of Rule 1:4-8." Toll Bros., 190 

N.J. at 72. "The most fact-sensitive aspect of such an inquiry undoubtedly will 

involve compliance with the safe harbor requirement that is designed to bring 
22 A-2765-21

an early stop to offending behavior." Ibid. "By insisting on compliance as soon 

as practicable, the salutary benefits of adhering to the notice requirement will 

more promptly rid the judicial forum of frivolous litigation behavior and will 

concomitantly provide reimbursement for the fees and costs actually 

attributable to an adversary's uncorrected offending conduct." Ibid. 

A. Adherence to Rule 1:4-8 

i. Safe Harbor Compliance 

We agree with the trial court that defendants complied with the "safe 

harbor" provision by notifying the Borough within weeks of being served the 

first amended complaint that the litigation should be withdrawn because the 

claims are frivolous. Thus, contrary to the Borough's argument, the court 

assessed under Rule 1:4-8(f) whether "[t]o the extent practicable, the 

procedures prescribed by this rule shall apply to the assertion of costs and fees 

against a party other than a pro se party pursuant to N.J.S.A. 2A:15-59.1." 

Sylvan's notice contended: (1) the Borough's claims are frivolous and 

sanctions will be sought under Rule 1:4-8 and N.J.S.A. 2A:15-59.1 if not 

withdrawn; (2) as an adverse party in the Borough's declaratory judgment 

action, there was no legal support for the Borough's effort to disgorge it from 

the builder's remedy and related relief it received from the alleged malpractice 
23 A-2765-21

by defendant attorneys; (3) there is no evidence that it engaged in conspiracy 

or aided and abetted tortious activity against the Borough; (4) there is no good 

faith argument to expand the law to support the Borough's claims; (5) the 

Borough's complaint interfered with its protected rights under the First 

Amendment of the United States Constitution and Article I of the New Jersey 

Constitution to seek judicial relief against the Borough; (6) the tort claims are 

barred by the Noerr-Pennington11 doctrine; and (7) the Borough's complaint 

constitutes a SLAPP12 claim. 

Wunsch's notice asserted: (1) Borough counsel was not authorized to file 

the complaint; (2) the retainer agreement for Borough counsel to represent the 

Borough was not properly executed as it was signed by the mayor, not the 

Borough's Deputy Clerk as required, and only listed New York attorneys 

11

 Noerr-Pennington stems from E. R.R. Presidents Conf. v. Noerr Motor 

Freight, Inc., 365 U.S. 127, 136-40 (1961), and United Mine Workers v. 

Pennington, 381 U.S. 657, 669-70 (1965). "Under the . . . doctrine, those who 

engage in conduct aimed at influencing the government, including litigation, 

are shielded from retaliation provided their conduct is not a sham." Cordova v. 

Cline, 396 P.3d 159, 167 (N.M. 2017) (citing Octane Fitness, LLC v. ICON 

Health & Fitness, Inc., 572 U.S. 545, 555-57 (2014)). 

12 An acronym for Strategic Lawsuits Against Public Participation, whereby

litigation is filed for the main purpose of stifling free speech rights by imposing 

"the expense and burden of defending a lawsuit." LoBiondo v. Schwartz, 323 

N.J. Super. 391, 418 (App. Div. 1999). 
24 A-2765-21

Nicholas Gravante and Karen Dyer of Cadwalader, Wickersham & Taft LLP as 

the Borough's attorney, but their pro hac vice applications were denied ceasing 

their involvement in the litigation; and (3) the settlement agreement the 

complaint seeks to overturn was authorized by the Borough Council and cannot 

be invalidated. 

CSG's notice stated: (1) the complaint "violate[d] the frivolous litigation 

standards of . . . Rule1:4-8 and N.J.S.A. 2A:15-59.1"; (2) the complaint was 

ultra vires given the Borough Council did not approve its initiation by the mayor 

before the Borough retained counsel; (3) the attorney's fees incurred by the 

Borough's counsel far exceeded the $100,000 cap set forth in counsel's retainer 

agreement as authorized by the Borough Council;

13 and (4) the malpractice 

claims are without basis in fact or law. 

The record supports the trial court's findings that defendants' notices 

"pass[ed] muster" under Rule 1:4-8 by "specif[ying] the basis for the belief that 

the [Borough's] pleading is frivolous and providing [an] opportunity for 

remediation." Although Sylvan's notice, unlike the other defendants', did not 

specifically mention the complaint must be withdrawn within twenty-eight days 

13

 According to CSG's notice, the most recent invoice showed the Borough's 

counsel had billed $723,416.33 in fees. 
25 A-2765-21

per Rule 1:4-8(b)(1), in repeatedly referencing Rule 1:4-8, it sufficiently 

notified the Borough that an application for sanctions would be made under the 

Rule. Moreover, Sylvan is entitled to attorney's fees independent of N.J.S.A. 

2A:15-59.1 and Rule 1:4-8 based upon its settlement agreement with the 

Borough that if the municipality unsuccessfully seeks judicial relief related to 

the declaratory judgment action it is liable for Sylvan's attorney's fees. Lastly, 

the Borough did not provide any evidence demonstrating it could not withdraw 

its complaint in response to defendants' demands. 

ii. Certification of Services 

Defendants did not provide certifications of services with their motions 

for sanctions, N.J.S.A. 2A:15-59.1(c), but filed them in accordance with the 

court's order after it granted their motions. We reject the Borough's argument 

that this process warrants reversal of the attorney's fees awards. 

The trial court did not abuse its discretion in requesting the certifications

after ordering sanctions. The Borough, which did not challenge defendants' 

certifications of service, cites no authority for its assertion that the procedure 

was contrary to the law. The court complied with the FLS by initially deciding

whether the Borough engaged in frivolous litigation under N.J.S.A. 2A:15-

59.1(b) and then considering the amount of reasonable fees that should be 
26 A-2765-21

awarded based on defendants' certifications, which included the information 

listed in N.J.S.A. 2A:15-59.1(c). The court limited attorney's fees for services 

rendered after the twenty-eight-day safe harbor period. 

As for the Borough's assertion that defendant attorneys' malpractice 

insurance coverage must be considered in calculating attorney's fees, it cites no 

authority or reasonable basis for its position. Neither N.J.S.A. 2A:15-59.1 nor 

Rule 1:4-8 require any disclosure by prevailing parties concerning the payment 

of attorney's fees by a malpractice insurance carrier. 

IV. 

Finally, we address the Borough's contention that the trial court abused 

its discretion in finding the Borough engaged in frivolous litigation. The FLS 

contemplates two bases for a trial court to find frivolous litigation. The 

"nonprevailing party" must have advanced its claim in "bad faith, solely for the 

purpose of harassment, delay or malicious injury," or "[t]he nonprevailing party 

knew, or should have known," its claim had no "reasonable basis in law or 

equity and could not be supported by a good faith argument for an extension, 

modification or reversal of existing law." N.J.S.A. 2A:15-59.1(b). 

"For purposes of imposing sanctions under Rule 1:4-8, an assertion is 

deemed 'frivolous' when 'no rational argument can be advanced in its support, 
27 A-2765-21

or it is not supported by any credible evidence, or it is completely untenable.'" 

United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 389 (App. Div. 2009) 

(quoting First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432 (App. 

Div. 2007)). "The nature of litigation conduct warranting sanction under [Rule 

1:4-8] has been strictly construed." Pressler & Verniero, Current N.J. Court 

Rules, cmt. 2 on R. 1:4-8 (2024). An attorney's fees sanction pursuant 

to Rule 1:4-8 "is not warranted where the plaintiff has a reasonable good faith 

belief in the merit of [their] action." J.W. v. L.R., 325 N.J. Super. 543, 548 

(App. Div. 1999). 

Accordingly, sanctions will not be imposed against an attorney who 

mistakenly files a claim in good faith. Horowitz v. Weishoff, 346 N.J. Super. 

165, 166-67 (App. Div. 2001). Sanctions should be awarded only in 

exceptional cases. Fagas v. Scott, 251 N.J. Super. 169, 181 (Law Div. 1991). 

The party seeking sanctions must "prov[e] that the non-prevailing party 

acted in bad faith." Ferolito, 408 N.J. Super. at 408 (quoting McKeown-Brand 

v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)). A prevailing 

party's allegation that the non-prevailing party's claim lacked "a reasonable 

basis in law or equity," when the non-prevailing party is represented by an 

attorney, cannot sustain an award without proof the non-prevailing party 
28 A-2765-21

"'act[ed] in bad faith in asserting' or pursuing the claim." Ibid. (quoting 

McKeown-Brand, 132 N.J. at 549). Thus, a non-prevailing party whose 

"conduct bespeaks an honest attempt to press a perceived, though ill-founded 

and perhaps misguided, claim, [absent] . . . bad faith," cannot be ordered to pay 

sanctions. Belfer v. Merling, 322 N.J. Super. 124, 144-45 (App. Div. 1999) 

(citing McKeown-Brand, 132 N.J. at 563). 

Applying these principles, we discern no abuse of discretion in the trial 

court's finding that the Borough's litigation was frivolous, as it was supported 

by credible evidence in the record and consistent with the law. In its written 

decision, the court found: 

The [Borough's] bad faith was demonstrated by the 

fact that it knew or should have known, when it filed 

suit against its former attorney[s] and the developer 

which had successfully sought and obtained a builders 

remedy seeking $10,000,000 in damages, that its 

claims were contrary to the clear evidence of its 

satisfaction with the representation of its counsel and 

that in refusing to settle the underlying litigation and 

thereby disregarding their attorneys' advice the 

Borough lacked proximate cause for its alleged injuries 

due to the alleged malpractice and alleged civil 

conspiracies. As to the alleged civil conspiracies and 

aiding and abetting there was no foundation for such 

claims and the court concludes the sole purpose of the 

litigation was to harass, delay and cause malicious

injury to . . . Sylvan particularly, as well as . . . attorney 

defendants. 
29 A-2765-21

Support for the court's findings of frivolous litigation was grounded in its 

decision dismissing the Borough's complaint for failure to state a claim. The 

court determined: 

[T]he record is replete with evidence that the Borough 

resolved to pursue a trial in the affordable housing 

litigation despite the attempts of their attorneys to 

dissuade them. 

 . . . . 

. . . [T]he Borough's undisputed refusal to settle 

and in so doing disregarding [defendant] attorneys'

advice, the Borough cannot establish proximate cause 

for their alleged injury. Without proximate cause the 

action must fail. 

. . . . 

. . . The Borough has acknowledged that . . . 

defendant attorneys handled the litigation with 

knowledge, skill and diligence, and that their advice 

was reasonable. That is all that is required of counsel. 

. . . . 

. . . [H]aving failed to allege facts showing . . .

defendant[] [attorneys], or any of them committed an 

underlying wrong, there is no basis upon which the 

Borough can sustain a civil conspiracy claim. Further, 

there is no basis upon which the Borough may sustain 

a claim for aiding and abetting liability as the 

pleadings fail to allege facts which demonstrate . . . 

defendant[] [attorneys] performed a wrongful act 

which caused injury, that . . . defendant[] [attorneys] 

were generally aware of their role in the part of an 
30 A-2765-21

overall illegal or tortious activity at the time of their 

representation, or that . . . defendant[] [attorneys] 

knowingly and substantially assisted the principal 

violation. 

It is apparent that when political control of the Borough Council changed 

hands after the election, the newly constituted Council took issue with the prior 

Council's action in resolving the affordable housing controversy. But in suing 

defendants, the Borough's former attorneys and the developer, the Borough 

proffered no facts and articulated no law to substantiate its allegations. There 

was no honest, creative advocacy in the Borough's claims. See Ellison v. 

Evergreen Cemetery, 266 N.J. Super. 74, 85 (App. Div. 1993). 

We find no support for the Brough's argument that a "fact[-]sensitive 

review" indicates that "it is clear that [its] intent, purpose and actions . . . could 

not possibly be deemed frivolous." The Borough relies upon an unproduced 

email between its attorney and the new Council after the first amended 

complaint was filed, stating an affidavit of merit will be provided by another 

attorney that "based upon . . . review of [the] amended complaint, documents, 

briefing and other materials, it appears . . . [d]efendant attorneys deviated from 

a standard of care and committed malpractice." Because the email was neither 

part of the trial court record nor supported by counsel's certification from 

counsel as required by Rule 1:6-6, it cannot be considered. Moreover, because 
31 A-2765-21

the email was sent three months after the amended complaint was filed, it was 

not a basis for the Borough's decision to sue defendant attorneys. 

We recognize that a trial court should only award sanctions for frivolous 

litigation in exceptional cases. Iannone v. McHale, 245 N.J. Super. 17, 28 

(App. Div. 1990). This is one such case. 

 To the extent we have not addressed any of the Borough's arguments, it 

is because they lack sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E). 

Affirmed.