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Grubbs v. Knoll4/15/2005
is responsible to pay attorney fees and cost/expenses incurred in the trial in the amount of $44,293.54 (ten percent of total fees and costs awarded for the underlying lawsuit) and attorney fees and costs/expenses incurred in the fee application proceedings in the amount of $80,244.14 ($68,696.42 for fees plus $11,547.72 for costs/expenses) for a total of $124,537.68, plus the damages award of $7594.45 for a total sum of $132,132.13.
III.
Chapman contends that the trial judge erred in refusing to impose a monetary sanction on Stevens, in lieu of an award of counsel fees to the Knolls, because Stevens failed to produce the 1993 site plan indicating that there were wetlands in the rear of the Knolls' property, prior to trial.
On December 26, 2001, the Knolls filed an application for an award of attorney's fees against Chapman, the only party with whom they had not settled. On January 14, 2002, Chapman cross-moved for monetary sanctions against Stevens in lieu of any fee award in light of her failure to produce the 1993 site plan which indicated that there were wetlands in the rear of the Knolls' property. Chapman argued that it would be more appropriate to compensate the Knolls for their counsel fees in this manner since Stevens' discovery violation, as well as her refusal to make any settlement offer until after the verdict, likely prevented the matter from settling prior to trial. The trial judge, however, denied Chapman's motion on the ground that Stevens had already settled with the Knolls for $500,000 and was no longer in the case.
Trial courts have the "inherent discretionary power to impose sanctions for failure to make discovery." Aetna v. Imet Mason Contractors, 309 N.J. Super. 358, 365 (App. Div. 1998). Such sanctions will be not be disturbed on appeal provided "they are just and reasonable under the circumstances." Ibid. (quoting Hirsch v. General Motors Corp., 266 N.J. Super. 222, 261 (Law Div. 1993).
Spoliation of evidence in a prospective civil action occurs when evidence relevant to the action is destroyed, causing interference with the action's proper administration and disposition. Manorcare Health v. Osmose Wood, 336 N.J. Super. 218, 226 (App. Div. 2001). Whether the spoliator acted negligently or intentionally does not affect the spoliator's liability, but merely is a factor to be considered when determining the appropriate remedy. Ibid. An appropriate remedy may even include an award of counsel fees in exceptional cases, particularly where there is a finding of intentional spoliation and where the non-spoliating party's ability to defend itself was compromised. Id. at 237; Aetna, supra, 309 N.J. Super. at 365.
Chapman argues that Stevens' failure to produce the site plan and admit to her knowledge of the wetlands notation contained thereon until the second-to-last day of trial amounted to an "effective," if unintentional, spoliation of evidence for which sanctions should have been imposed. At the time Chapman made this argument Stevens had settled and was no longer in the case. Further, even assuming that the trial court could have imposed sanctions upon Stevens, Chapman has conceded that Stevens' discovery violation was not intentional. Chapman's ability to defend himself ultimately was not compromised since the site plan was eventually produced, and he was found liable for only ten percent of the Knolls' damages, due in part to the jury's probable consideration of Stevens' conduct in this regard. As such, and as we noted in Manorcare Health, supra, 336 N.J. Super. at 237, counsel fees have never been awarded in a spoliation case. We discern no abuse of discretion by the trial judge's refusal to impose monetary sanctions on
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