                        NOT FOR PUBLICATION WITHOUT THE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-4629-15T2

DENNIS ACKERMAN, AS ADMINISTRATOR
AD PROSEQUENDUM AND GENERAL
ADMINISTRATOR OF THE ESTATE OF
KATELYN ACKERMAN,

        Plaintiff-Respondent,

v.

GENERAL MOTORS, LLC, CHEVROLET,
GEARHART CHEVROLET and EAGLE
AUTOBODY,

        Defendants,

and

COLLISION RESTORATION
INC. (Improperly pleaded as Autobody
by Collision Restoration),

     Defendant-Appellant.
______________________________________

              Submitted October 24, 2017 – Decided November 6, 2017

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Morris County, Docket No. L-
              2898-14.

              Gold, Albanese & Barletti, LLC, attorneys for
              appellant (Robert Francis Gold, of counsel and
           on the briefs;          Kevin   M.   Eppinger,     on   the
           brief).

           Rothenberg, Rubenstein, Berliner & Shinrod,
           LLC, attorneys for respondent (Craig M.
           Rothenberg, on the brief).

PER CURIAM

       Defendant Collision Restoration (Collision) appeals from a

March 29, 2016 order granting plaintiff's cross-motion to dismiss

the complaint with prejudice pursuant to Rule 4:37-1(b); a March

31, 2016 order denying its motion for summary judgment as moot;

and a May 13, 2016 order denying its motion for attorney's fees.

We affirm.

       Plaintiff    commenced      litigation      against    General       Motors,

Chevrolet,   Gearhart    Chevrolet,        Eagle   Autobody,       and   Collision

(collectively defendants).         In August 2015, plaintiff settled the

case with General Motors and then filed a stipulation of dismissal

with   prejudice,    which   all    parties     executed     except      Collision.

Collision's failure to sign the stipulation required plaintiff to

file the Rule 4:37-1(b) motion seeking dismissal of the complaint

against Collision.     Thereafter, the judge entered the orders under

review.

       On appeal, Collision argues the judge erred by denying its

request for attorney's fees pursuant to Rule 1:4-8 and its related

request for damages pursuant to the frivolous litigation statute,


                                       2                                    A-4629-15T2
N.J.S.A. 2A:15-59.1(a)(1); and by failing to set appropriate terms

and conditions upon granting the dismissal of the complaint with

prejudice.

     We   conclude    that    Collision's       arguments     are   "without

sufficient merit to warrant discussion in a written opinion."                R.

2:11-3(e)(1)(E).     We add the following remarks.

     We review a trial judge's determination of whether to grant

attorney's fees for an abuse of discretion.              McDaniel v. Man Wai

Lee, 419 N.J. Super. 482, 498 (App. Div. 2011).              Such an "abuse

of discretion is demonstrated if the discretionary act was not

premised upon consideration of all relevant factors, was based

upon consideration of irrelevant or inappropriate factors, or

amounts to a clear error in judgment."          Masone v. Levine, 382 N.J.

Super. 181, 193 (App. Div. 2005).          There is no abuse here.

     "Rule 4:37-1(b), requiring court review prior to granting

dismissal, 'was adopted to protect defendants from the duplication

of   litigation    costs.'"   Burns       v.   Hoboken    Rent   Leveling    &

Stabilization Bd., 429 N.J. Super. 435, 445 (App. Div. 2013)

(quoting Shulas v. Estabrook, 385 N.J. Super. 91, 97 (App. Div.

2006)).   When a plaintiff seeks dismissal with prejudice, the

concern of duplicative future litigation costs is eliminated.               Id.

at 447.      Here, the dismissal of the complaint with prejudice



                                      3                              A-4629-15T2
against Collision, at plaintiff's own request, eliminated the

concern for duplicative future litigation costs.

     The    frivolous   litigation       statute,   N.J.S.A.   2A:15-59.1,

provides:

            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, cross-claim or defense of the
            nonprevailing person was frivolous.

            [N.J.S.A. 2A:15-59.1(a)(1).]

     To find a complaint frivolous, the judge shall conclude:

            (1) The complaint . . . 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 . . . 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.

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

There is no credible evidence in this record demonstrating that

plaintiff filed the complaint in bad faith without any reasonable

basis.

     Rule 1:4-8 requires the attorney signing a pleading to certify

that "the claims, defenses, and other legal contentions therein


                                     4                             A-4629-15T2
are warranted by existing law or by a non-frivolous argument for

the extension, modification, or reversal of existing law or the

establishment    of   new   law."    R.    1:4-8(a)(2).    An     action    is

considered frivolous "when no rational argument can be advanced

in its support, when it is not supported by any credible evidence,

when a reasonable person could not have expected its success, or

when it is completely untenable."           Belfer v. Merling, 322 N.J.

Super. 124, 144 (App. Div.), certif. denied, 162 N.J. 196 (1999).

A motion for sanctions under Rule 1:4-8 will be denied where the

pleading attorney had a reasonable and good faith belief in the

merits of the claim.        Wyche v. Unsatisfied Claim & Judgment Fund

of N.J., 383 N.J. Super. 554, 561 (App. Div. 2006).              Such is the

case here.

     Plaintiff filed the complaint against Collision alleging that

Collision's work on plaintiff's vehicle contributed to a fatal

accident.       Plaintiff     reasonably    maintained    that     Collision

contributed to the accident.             We do not interpret the early

settlement reached with General Motors and subsequent stipulation

of dismissal against the remaining defendants to amount to an

admission that plaintiff's complaint against Collision was somehow

unfounded.   Certainly, the settlement prevented full discovery on

the issue of the cause of the accident.



                                     5                               A-4629-15T2
     Collision's contention that the judge erred in finding it not

to be a prevailing party, a requirement for relief under N.J.S.A.

2A:15-59.1(a)(1), is also without merit.               Although "facts of a

case could demonstrate a prevailing party even where a 'settlement'

resolved the litigation," here, the judge did not find any credible

evidence    that   the    settlement      equated   to   Collision    being     a

prevailing party.        Chernin v. Mardan Corp., 244 N.J. Super. 379,

383 (Ch. Div. 1990); see also First Atl. Fed. Credit Union v.

Perez, 391 N.J. Super. 419, 432 (App. Div. 2007) (stating "if the

matter settles, one party may be deemed to have 'prevailed' for

the purposes of [N.J.S.A. 2A:15-59.1]").            The record reflects that

plaintiff decided to dismiss the complaint after it settled with

General Motors, presumably for an amount that fairly and adequately

compensated plaintiff, not because it filed a baseless complaint

against    Collision.       The   judge    therefore     did   not   abuse   his

discretion when he denied Collision damages or fees pursuant to

N.J.S.A. 2A:15-59.1 and Rule 1:4-8.

     Affirmed.




                                       6                                A-4629-15T2
