KELLY WILLIAMS VS. GLUCK, TOBIN, ESQS (L-4165-17, UNION COUNTY AND STATEWIDE)

K
                                NOT FOR PUBLICATION WITHOUT THE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-2220-19

KELLY WILLIAMS,

          Plaintiff-Respondent,

v.

GLUCK & TOBIN, ESQS.
and IRVING TOBIN,

     Defendants-Appellants.
__________________________

                   Submitted January 27, 2021 – Decided March 23, 2021

                   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 key



1
  In their notice of appeal and civil case information statement, defendants did
not designate the August 22, 2019 and August 30, 2019 orders as orders from
which they appealed, yet, contrary to Rule 2:5-1, they presented arguments in
their brief regarding these orders.
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replacement 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, as

2
  Congress enacted the FDCPA to "eliminate abusive debt collection practices
by debt collectors, to insure that those debt collectors who refrain from using
abusive debt collection practices are not competitively disadvantaged, and to
promote consistent State action to protect consumers against debt collection
abuses." 15 U.S.C. § 1692e. A person "who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or asserted to be owed or due
another" is deemed a debt collector under the FDCPA. 15 U.S.C. § 1692a6. The
Act prohibits a debt collector from using "any false, deceptive, or misleading
representation or means in connection with the collection of any debt" including
"[t]he false representation of the character, amount or legal status of [the]
debt[.]" 15 U.S.C. § 1692(e)(2)(A).
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                                        3
              well 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.



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      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.


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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 to

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                                          6
            do. 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 for

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reconsideration 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 well as reliance upon its erroneous decisions

that plaintiff was entitled to summary judgment."


3
  We do not address the January 10, 2020 denial of reconsideration in the instant
appeal, as this order was not designated as a challenged order in defendants'
notice of appeal or civil case information statement pursuant to Rule 2:5-1, and
any argument regarding this order was not briefed. Any issue not raised on
appeal or briefed is deemed waived. See Pressler & Verniero, Current N.J. Court
Rules, cmt. 5 on Rule 2:6-2 (2021).
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                                        8
      As a threshold matter, we observe that notwithstanding the arguments

raised in defendants' point headings, they appealed solely from the trial court's

November 22, 2019 order. Rule 2:5-1(e)(3)(i) requires the notice of appeal

"shall designate the judgment, decision, action or rule, or part thereof appealed

from," and defendants' notice of appeal did not include the August 22, 2019

order denying defendants' motion to amend, or the August 30, 2019 orders on

summary judgment.

      "[I]t is only the judgment or orders designated in the notice of appeal

which are subject to the appeal process and review," and, therefore, defendants

have "no right to our consideration" of their arguments concerning the validity

of the August 22, and August 30, 2019 orders. 1266 Apartment Corp. v. New

Horizon Deli, Inc., 

368 N.J. Super. 456

, 459 (App. Div. 2004); see also Park

Crest Cleaners, LLC v. A Plus Cleaners & Alterations, Corp., 

458 N.J. Super.

465

, 472 (App. Div. 2019) (explaining "[a] party's failure to seek review of

cognizable trial court orders or determinations — by identifying them in the

notice of appeal — is largely fatal.").      For that reason alone, we reject

defendants' arguments challenging the Law Division judge's rulings as

embodied in his August 22, and August 30, 2019 orders.




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                                       9
      If we were to review defendants' argument regarding the amendment of

their answer, we would note that "Rule 4:9-1 requires that a motion for leave to

amend be granted liberally" in the interest of justice, and that "the granting of a

motion to file an amended complaint always rests in the court's sound

discretion." Kernan v. One Wash. Park Urban Renewal Assocs., 

154 N.J. 437

,

457 (1998); R. 4:9-1. "That exercise of discretion requires a two-step process

[to determine] whether the non-moving party will be prejudiced, and whether

granting the amendment would nonetheless be futile." Notte v. Merchs. Mut.

Ins. Co., 

185 N.J. 490

, 501 (2005). Thus, "courts are free to refuse leave to

amend when the newly asserted claim is not sustainable as a matter of law,"

Interchange State Bank v. Rinalid, 

303 N.J. Super. 239

, 256-57 (App. Div.

1997), or when made on the eve of trial, Verni ex rel. Burstein v. Harry M.

Stevens, Inc., 

387 N.J. Super. 160

, 190 (App. Div. 2006) (citing Pressler &

Verniero, Current N.J. Court Rules, cmt. 2.2.2 on R. 4:9-1 (2006)). "Other

considerations include whether the newly-asserted claim would unduly

prejudice the opposing party, survive a motion to dismiss on the merits, cause

undue delay of the trial, or constitute an effort to avoid another applicable rule

of law." Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 

424 N.J. Super. 448

,

485 (App. Div. 2012). In short, a motion to amend is properly denied where its


                                                                             A-2220-19
                                       10
"merits are marginal" and "allowing the amendment would unduly protract the

litigation or cause undue prejudice." Pressler & Verniero, Current N.J. Court

Rules, cmt. 2.21 on R. 4:9-1 (2021).

      Based on these principles, we would perceive no basis to disturb the Law

Division judge's denial of defendants' proposed amendment.                  It is

uncontroverted they waited close to a year to seek the amendment, and did so

after the time for discovery had ended and plaintiff had moved for summary

judgment. Also, we cannot ignore that before defendants sought to amend their

answer at the end of June 2019, they requested and received two lengthy

adjournments, further delaying this matter. Their only justification for their

belated request to amend the answer was that they "inadvertently" forgot to add

the ECD defense. Further, as plaintiff highlights in her brief, "the parties could

have consented to consolidate the claims" either in the Special Civil Part or the

Law Division, if defendants had timely raised their purported concerns over

piecemeal litigation.

      Additionally, to the extent defendants' amendment sought to preclude

plaintiff's cause of action, we observe that our Supreme Court characterized

preclusion as "a remedy of last resort." Dimitrakopoulos v. Borrus, Goldin,

Foley, Vignuolo, Hyman and Stahl, P.C., 

237 N.J. 91

, 111 (2019). In Mitchell


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                                       11
v. Charles P. Procini, D.D.S., P.A., the trial judge relied on the ECD to preclude

plaintiff's action against the defendant for failure to join the defendant and

dismissed the case. 

331 N.J. Super. 445

, 449 (App. Div. 2000). On appeal, the

court reversed the judgment and concluded that the sanction of preclusion was

not warranted.

Id. at 456.

"Since dismissal with prejudice is the ultimate

sanction, it will normally be ordered only when no lesser sanction will suffice

to erase the prejudice suffered by the non-delinquent party, or when the litigant

rather than the attorney was at fault."

Id. at 452

(quoting Abtrax Pharms., Inc.

v. Elkins-Sinn, Inc., 

139 N.J. 499

, 514 (1995)).        "Preclusion is, therefore,

available as a sanction in the limited circumstances where a lesser sanction is

not sufficient to remedy the problem."

Id. at 453-54.

      As we have indicated, because defendants did not formally appeal from

the August 30, 2019 orders, those orders are not properly before us for review.

Nevertheless, we recognize that summary judgment is appropriate if the

evidence presented "show[s] that there is no genuine issue as to any material

fact challenged and that the moving party is entitled to a judgment or order as a

matter of law." R. 4:46-2(c). In determining whether there is a genuine issue

of fact, courts ask whether "the competent evidential materials presented, when

viewed in the light most favorable to the non-moving party, are sufficient to


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                                       12
permit a rational factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520

, 540

(1995).

      "Summary judgment must be granted if 'the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show there is no genuine issue as to any material fact challenged and that

the moving party is entitled to a judgment . . . as a matter of law.'" Town of

Kearny v. Brandt, 

214 N.J. 76

, 91 (2013) (quoting R. 4:46-2(c)). "If there is no

genuine issue of material fact, [reviewing courts] must then 'decide whether the

trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.

Support Servs. v. Rochman, 

430 N.J. Super. 325

, 333 (App. Div. 2013) (quoting

Massachi v. AHL Servs., Inc., 

396 N.J. Super. 486

, 494 (App. Div. 2007)).

      Here, defendants contest the summary judgment rulings by relying on the

ECD. As we have indicated, the request to amend their answer to assert this

defense was denied. More importantly, when the Law Division judge ruled on

the parties' competing summary judgment motions, he found

            plaintiff submitted a statement of material facts
            consisting of [seventeen] points . . . . [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

                                                                             A-2220-19
                                       13
            that . . . . 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, . . . plaintiff is entitled to
            summary judgment in this matter.


      Defendants do not take issue with these findings, and in particular, do not

dispute the fact they did not appeal from the Special Civil Part decision whereby

they were deemed debt collectors under the FDCPA. They also do not contest

they knew plaintiff was a Section 8 tenant or that they sought to collect late

charges and attorneys' fees from her, in violation of the FDCPA. Thus, if we

considered the merits of defendants' summary judgment argument, we are

persuaded we would have no basis to reverse the August 30, 2019 order.

      Lastly, defendants contend the trial court erred in awarding counsel fees

and costs to plaintiff. We are not persuaded.

      The FDCPA provides for the award of costs and "reasonable attorney's

fees as determined by the court." 15 U.S.C. § 1692k(a)(3). Additionally, Rule

4:42-9(a)(8) permits the award of attorney's fee "[i]n all cases where attorney's

fees are permitted by statute."     "In order to determine what constitutes a

reasonable attorney's fee under the FDCPA, the [c]ourt must employ the well-

recognized 'lodestar' method applicable under other fee-shifting statutes which

entails multiplying the total number of hours reasonably expended by a

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                                       14
reasonable hourly rate." Bilazzo v. Portfolio Recovery Assocs., LLC, 876 F.

Supp. 2d 452, 458 (D.N.J. 2012) (citing Graziano v. Harrison, 

950 F.2d 107

,

114 (3d Cir. 1991)). "When the applicant for a fee has carried his burden of

showing that the claimed rates and number of hours are reasonable, the resulting

product is presumed to be the reasonable fee to which counsel is entitled."

Loughner v. Univ. of Pittsburgh, 

260 F.3d 173

, 178 (3d Cir. 2001) (quoting

Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 

478 U.S. 546

,

564 (1986)).

      "The amount of attorney fees usually rests within the discretion of the trial

judge, but the reasons for the exercising of that discretion should be clearly

stated." Khoudary v. Salem Cnty. Bd. of Soc. Servs., 

281 N.J. Super. 571

, 578

(App. Div. 1995) (citations omitted).           Here, the Law Division judge

comprehensively addressed all eight factors outlined under RPC 1.5(a),

including the hourly rate of, and services expended by, plaintiff's attorney, both

of which he deemed reasonable. The judge observed, "not that many attorneys

. . . are familiar with the requirements of the Fair Debt Collections Act and

[plaintiff's counsel] does meet that" and "has some specialty in that area."

The judge also found

            the troubling part about this motion and the opposition
            is that it is apparent . . . defendants Irving Tobin and his

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                                        15
            law firm, Gluck & Tobin, have taken a scorched earth
            policy and approach in litigation of this matter.

                  ....

            The opposition from Mr. Tobin essentially wants to
            repeat all of the litigation and he submits an extensive
            single-spaced letter brief attempting to go over the
            history of the entire case since it started out with [the
            Special Civil Part judge] who found against Mr. Tobin
            and his firm . . . . Mr. Tobin elects, once again, to repeat
            his arguments at length that this matter presently before
            me shouldn't be considered because of his claim it's
            barred by the entire controversy doctrine.

                  ....

            So what really is going on here is Mr. Tobin, again, with
            a scorched earth policy wants to keep repeating and
            delaying and forestalling the day when the defendants,
            including himself, have to pay.

      The judge's factual findings and legal conclusions are well supported on

this record. Accordingly, we are satisfied he did not abuse his discretion when

awarding plaintiff counsel fees and costs in this matter.

      To the extent not addressed, defendants' remaining arguments lack

sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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