JARMAINE R. JACKSON VS. GELDHAUSER SHIFFMAN & RIZZO (DC-006408-17, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 7, 2019
• Docket: A-1734-17T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1734-17T3

JARMAINE R. JACKSON and JOHNNY DELVALLE,

Plaintiffs-Appellants,

v.

GELDHAUSER SHIFFMAN & RIZZO,

Defendant-Respondent. ______________________________

Submitted January 28, 2019 – Decided February 7, 2019

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. DC-006408-17.

Roberta L. Stonehill, attorney for appellants.

Geldhauser & Rizzo, LLC, attorneys for respondent (John J. Rizzo, on the brief).

PER CURIAM Plaintiffs Jarmaine R. Jackson and Johnny Delvalle 1 appeal from the

Special Civil Part's October 31, 2017 order granting defendant Geldhauser

Shiffman & Rizzo, LLC's (the law firm's) motion for summary judgment, and

dismissing plaintiffs' complaint for breach of contract. We affirm.

We begin by reciting the most salient facts from the record, viewing them

in the light most favorable to plaintiffs, the non-moving parties. Polzo v. Cnty.

of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 523 (1995)).

This matter had its genesis in the McCormack action that the law firm

filed in 2013 on behalf of its client, William McCormack, against the local

chapter of the Elks Lodge (Lodge), Jackson, and Delvalle. 2 The parties have not

provided us with the complaint in that matter, but both sides represent that this

was a personal injury action in which McCormack sought damages against the

Lodge, Jackson, and Delvalle for injuries he sustained after he was allegedly

attacked during a fight that occurred in the Lodge parking lot following a party

1 We refer to Jackson and Delvalle collectively as plaintiffs when we are discussing the matter involved in the current appeal. However, they were defendants in an earlier action (the McCormack action) and, to avoid confusion, we refer to them by their surnames in connection with that action. 2 Docket No. OCN-L-3019-12. A-1734-17T3 2 in March 2011. Jackson and Delvalle were present at the party, and may have

been assisting a DJ or performing other work in connection with the event.

McCormack also asserted that Jackson and Delvalle booked the Lodge for the

party. However, McCormack did not "allege[] that . . . Jackson and Delvalle

committed the actual assault upon [him,] but [instead argued] that [Jackson and

Delvalle] were responsible for the actions of the guests attending 'their party.'"

Jackson and Delvalle denied all of McCormack's allegations. As the

litigation progressed, Jackson and Delvalle filed a motion to amend their answer

to include a counterclaim against McCormack that would allege that his claims

against them were frivolous under Rule 1:4-8 and N.J.S.A. 2A:15-59.1. On

October 11, 2013, the trial court denied this motion.

The matter proceeded to arbitration on July 10, 2014. Only a partner in

the law firm, acting as McCormack's attorney, and Jackson and Delvalle's

attorney participated in the arbitration. At the conclusion of the hearing, the two

arbitrators gave the attorneys a copy of the written "Report and Award of

Arbitrator(s)" as required by Rule 4:21A-5. The arbitrators found that the Lodge

was 100% liable for McCormack's injuries and set his damages at $10,000.

A-1734-17T3 3 The arbitrators each signed the report and gave it to McCormack's

attorney, who signed it to acknowledge receipt. 3 Jackson and Delvalle's attorney

then wrote on the form above her signature, "Subject to Jackson and Delvalle

being compensated for costs and attorneys['] fees subsequent to this."

Significantly, the arbitrators had not ordered that Jackson and Delvalle should

be compensated for their costs and fees by either McCormack or the Lodge, and

McCormack's attorney had not agreed to that relief at the arbitration hearing.

Thereafter, none of the parties filed a notice of rejection of the award, or

demanded a trial de novo as permitted under Rule 4:21A-6(b)(1). McCormack

settled his claim against the Lodge and, on September 16, 2014, the trial court

dismissed the matter pursuant to Rule 4:21-6(b)(1).

Over the next thirty-three months, Jackson and Delvalle's attorney asserts

that she sent the law firm several letters 4 asking that it pay Jackson and Delvalle

for their costs and fees in the McCormack action. The attorney asserted that the

law firm had "consented to and contracted" to pay these expenses when she

3 Directly above the spaces for the attorneys' signatures, the report stated: "Counsel and pro se litigants acknowledge receipt of this award by signing below. Print name next to signature." 4 Plaintiffs included only one of these letters in their appellate appendix. This letter was dated February 27, 2017, and had a draft complaint for breach of contract attached to it. A-1734-17T3 4 unilaterally wrote on the arbitration report that the award was subject to the

payment of Jackson and Delvalle's costs and attorneys' fees. The law firm

ignored these letters.

On June 8, 2017, plaintiffs filed a pro se breach of contract complaint in

the Special Civil Part against the law firm. The complaint alleged that a partner

in the law firm

executed an Arbitration Award form in which he consented, as agent for his firm, to be responsible for litigation expenses and attorneys['] fees incurred by [plaintiffs], for a lawsuit in which the defendant law firm named Jackson and Delvalle as defendants, neither of whom had a duty to the defendant law firm's client and they refused to dismiss the action, attempting to compel damages.

Plaintiffs demanded judgment against the law firm "for all damages permitted

by law, all costs and attorneys['] fees in the underlying frivolous [McCormack]

litigation and as necessitated by this present action."

The law firm filed an answer, followed by a motion for summary

judgment, supported by a brief. Plaintiffs then retained the same attorney who

had represented them in the McCormack action. At oral argument on August 8,

2017, the law firm suggested that the trial judge should refer the motion to the

judge who had presided over the McCormack action for handling due to his

A-1734-17T3 5 familiarity with the matter. 5 The judge agreed to speak to his colleague,

adjourned the argument on the motion, and advised the attorneys that he would

notify them of the new date.

On August 16, 2017, however, the judge issued an order denying the law

firm's motion for summary judgment. The court clerk then sent the parties a

notice stating that the matter was scheduled for trial on September 12, 2017.

At the beginning of the proceedings on September 12, the law firm's

attorney reminded the judge that its summary judgment motion had been

adjourned so that the judge could discuss the future management of the case with

his colleague. The judge agreed that the order denying the motion had been

issued by mistake, and stated he would vacate it. Plaintiffs' attorney objected to

the court hearing the motion on September 12, and stated that she felt

"disadvantaged now because [she] didn't know the motion . . . was on until this

minute." The judge immediately offered to adjourn the argument, but the

attorney stated she would "argue the motion."

5 The law firm also objected to plaintiffs' attorney appearing at the argument because she had not filed a Substitution of Attorney pursuant to Rule 1:11- 2(a)(1). However, the attorney had submitted a Notice of Appearance under Rule 1:11-2(c) and, therefore, properly assumed representation for plaintiffs in this matter. A-1734-17T3 6 During the argument, plaintiffs' attorney made clear that her clients' sole

cause of action was based on their claim that a contract with the law firm had

been formed when she wrote on the arbitration report that the award was subject

to Jackson and Delvalle being paid their costs and attorneys' fees in the

McCormack action. The attorney stated that "[t]he complaint in this action is a

complaint in contract," based upon plaintiffs' contention that the law firm's

partner implicitly consented to paying their costs and attorneys' fees when he

failed to "complain about" the language she added to the arbitrators' award after

the arbitration was concluded. Specifically, the attorney stated that "[w]e are

now in a contract case because [the law firm's partner] got this form, he signed

this form, and he took this form with him when he left."

Plaintiffs' attorney also made clear that plaintiffs were not seeking counsel

fees and costs under Rule 1:4-8 and N.J.S.A. 2A:15-59.1. According to the

attorney, "the frivolous lawsuit is over. It's a settled issue, it's a done issue, and

[plaintiffs] have a right to a subsequent contract that [the law firm partner]

signed to expect to be compensated."

At the conclusion of the argument, the judge found there was no meeting

of the minds between the parties and, therefore, no contract had been formed.

In response to plaintiffs' assertions to the contrary, the judge stated, "You cannot

A-1734-17T3 7 subsequently add something to what you call a contract and expect that piece of

it to be enforceable." However, the judge gave plaintiffs the opportunity to

subpoena the arbitrators to see if they could shed any further light on the July

10, 2014 arbitration and, therefore, he did not make a final decision on the law

firm's motion at that point.

Prior to the next argument date on October 31, 2017, the law firm filed a

"cross-motion for summary judgment on short notice." The law firm's attorney

explained that he did so as a prophylactic measure to ensure the summary

judgment motion would be resolved.

Plaintiffs did not subpoena the arbitrators. Nevertheless, the judge and

the attorneys spoke to one of the arbitrators during a telephone call held in the

judge's chambers during the October 31 oral argument. However, the record is

not clear what information the arbitrator provided to the court and the parties

during this unusual procedure. 6 Therefore, in reviewing this matter de novo, we

do not consider either parties' representations concerning the substance of the

telephone call.

6 We believe that the telephone call, if it was appropriate to have been made in the first place, should have taken place on the record. A-1734-17T3 8 At the conclusion of the argument, the judge granted the law firm's motion

for summary judgment. In his oral decision, the judge explained that the

arbitrators issued their award at the conclusion of the July 10, 2014 hearing, and

did not require anyone to pay plaintiffs' costs and attorneys' fees. Thereafter,

plaintiffs' attorney unilaterally added language to the award purporting to

require this payment. However, because the partner in the law firm never agreed

to pay any of plaintiffs' litigation expenses in the McCormack action, the judge

concluded that no contract was formed between the parties. This appeal

followed.

On appeal, plaintiffs raise the following contentions:

POINT I

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT, IN VIOLATION OF THE COURT RULES AND PROCEDURE, HAVING PREVIOUSLY DENIED SUMMARY JUDGMENT, WHICH WAS NOT APPEALED BY DEFENDANT.

POINT II

RULE 1:4-8 IS NOT RELEVANT; NO JUDGMENT WAS ENTERED, NO MOTION WAS REQUIRED WITHIN 20 DAYS; THE PRIOR CASE ENDED WITH ARBITRATION, DEFENDANT FILED NO RULE 4:21A-6, TRIAL DE NOVO [SIC] NOR TOOK ANY ACTION ON THE "CONDITION SUBSEQUENT."

A-1734-17T3 9 POINT III

THE COMMON LAW TORT, "ABUSE OF PROCESS," ENCOMPASSES THE ALLEGATIONS AND ELEMENTS OF PLAINTIFFS' COMPLAINT, GIVING RISE TO THE ACTION AGAINST DEFENDANT, AND NOT SUBJECT TO DISMISSAL BY SUMMARY JUDGMENT, AS THERE ARE GENUINE ISSUES OF MATERIAL FACT.

POINT IV

DEFENDANTS' [SIC] STATEMENTS, BY, [THE NAMED PARTNER IN THE LAW FIRM], SHOULD APPLY TO DEFENDANT, WHEN HE STATED ON THE RECORD "WE HAVE RULES THAT WE HAVE TO FOLLOW" AND "WE HAVE TO FOLLOW THE RULES." . . . THE COURT SHOULD BE CONCERNED WITH DEFENDANTS' [SIC] MULTIPLE COURT RULES NONCOMPLIANCE AND ABUSES OF PROCESS.

We conclude that plaintiffs' arguments are without sufficient merit to

warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), and we affirm

substantially for the reasons set forth by the trial judge in his oral decision. We

add the following comments.

Contrary to plaintiffs' assertion in Point I of their brief, the trial judge

never denied defendant's motion for summary judgment on a substantive basis.

Instead, the judge recognized that the August 16, 2017 order had been entered

in error, and immediately vacated it. When plaintiffs' attorney complained that

A-1734-17T3 10 she did not know that the motion would be argued on September 12, the judge

offered to adjourn the matter to another date, but the attorney decided to proceed.

Under these circumstances, there was certainly nothing untoward in the judge's

correction of the mistake, and both sides had the opportunity to fully present

their arguments prior to the judge's October 31 decision. 7

Turning to Point II, plaintiffs again assert that the law firm was

contractually bound to pay them the costs and attorneys' fees they incurred in

the McCormack litigation because their attorney unilaterally added a "condition

subsequent" to the report after the arbitrators rendered their award. This

argument is meritless.

Our review of a ruling on summary judgment is de novo, applying the

same standard as the trial court, namely, the standard set forth in Rule 4:46-2(c).

Conley v. Guerrero, 228 N.J. 339, 346 (2017). Thus, we consider, as the trial

judge did, whether "the competent evidential materials presented, when viewed

7 Even if the judge had made a substantive ruling denying the law firm's summary judgment motion, nothing would have prevented the judge from later addressing the matter again. This is so because an order denying a motion for summary judgment "decides nothing and merely reserves issues for future disposition." Gonzalez v. Ideal Tile Imp. Co., Inc., 371 N.J. Super. 349, 356 (App. Div. 2004), aff’d, 184 N.J. 415 (2005). Because the order is interlocutory, the trial court may revisit it at any time, in the interests of justice, prior to the entry of final judgment. R. 4:42-2; Lombardo v. Masso, 207 N.J. 517, 534 (2011). A-1734-17T3 11 in the light most favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party." Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting

Brill, 142 N.J. at 540). If there is no genuine issue of material fact, we must

then "decide whether the trial court correctly interpreted the law." Prudential

Prop. & Cas. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). We

accord no deference to the trial judge's conclusions on issues of law and review

issues of law de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Here, it is abundantly clear from the record that the law firm never entered

into a contract with plaintiffs to pay their expenses in the prior litigation. It is

well established that "[a] contract arises from offer and acceptance, and must be

sufficiently definite 'that the performance to be rendered by each party can be

ascertained with reasonable certainty.'" Weichert Co. Realtors v. Ryan, 128 N.J.

427, 435 (1992) (quoting West Caldwell v. Caldwell, 26 N.J. 9, 24-25 (1958)).

"As a general principle of contract law, there must be a meeting of the minds for

an agreement to exist before enforcement is considered." Kernahan v. Home

Warranty Adm'r of Fla., Inc., ___ N.J. ___, ___ (2019) (slip op. at 19) (citing

Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 538 (1953)).

A-1734-17T3 12 Acceptance of a contract "must be absolute" and "unequivocally shown."

Cumberland Farms, Inc. v. New Jersey Dep't of Envtl. Prot., 447 N.J. Super.

423, 439 (App. Div. 2016) (quoting Johnson & Johnson, 11 N.J. at 538). That

said, acceptance can take the form of either words or conduct. Graziano v Grant,

326 N.J. Super. 328, 340 (App. Div. 1999) (citing Weichert Co. Realtors, 128

N.J. at 436). Typically, silence alone is insufficient to constitute acceptance;

however "the relationships between the parties or other circumstances may

justify the offeror's expecting a reply and, therefore, assuming that silence

indicates assent to the proposal." Weichert Co. Realtors, 128 N.J. at 436 (citing

Johnson & Johnson, 11 N.J. at 539).

Applying these principles, we conclude that the trial judge correctly

determined that there was no contract between plaintiffs and the law firm. The

law firm partner who attended the July 10, 2014 arbitration hearing never

through words, conduct, or silence acknowledged or accepted the "condition

subsequent" plaintiffs' attorney boldly attempted to include in the arbitration

award after the arbitrators and the partner signed the report. The attorney was

not authorized to add this one-sided provision to the award, and it had absolutely

A-1734-17T3 13 no legal effect.8 Simply stated, there was no offer or unqualified acceptance

under the circumstances presented in this case and, therefore, the trial judge

correctly rejected plaintiffs' baseless argument on this point.

Plaintiffs' arguments under Point III also lack merit. Although plaintiffs

made clear at the oral arguments held on the motion for summary judgment that

they were only presenting a breach of contract claim, they now argue for the

first time on appeal that they made out a case for "abuse of process" and,

therefore, the matter should be remanded for a trial on that claim. We disagree.

We will ordinarily decline consideration of an issue not properly raised

before the trial court, unless the jurisdiction of the court is implicated or the

matter concerns an issue of great public importance. Zaman v. Felton, 219 N.J.

199, 226-27 (2014) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973)). Neither situation exists here and, because plaintiffs limited their

8 The attorney's unsupported statement also did not even require any specific party to pay plaintiffs' litigation expenses. The Lodge was the only party the arbitrators believed was liable for anything, and neither the law firm nor its partner were parties to the McCormack action.

A-1734-17T3 14 arguments before the trial court to the breach of contract, we need not consider

their contention on this point. 9

In any event, we are satisfied that there is no merit to plaintiffs' malicious

abuse of process claim.

The gist of the tort of malicious abuse of process is not commencing an action without justification . . . it is the misuse, or "misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which process is used, once it is issued, is the only thing of importance."

[Baglini v. Lauletta, 338 N.J. Super. 282, 293 (App. Div. 2001) (quoting Prosser & Keaton on Torts § 121 (5th ed. 1984)).]

"Basic to [a cause of action for] malicious abuse of process is the requirement

that the [party] perform 'further acts' after the issuance of process 'which

represent the perversion of abuse of the legitimate purposes of that process.'"

Id. at 294 (quoting Penwag Prop. Co., Inc. v. Landau, 148 N.J. Super. 493, 499

(App. Div. 1997), aff’d, 76 N.J. 595 (1978)). Further acts which may constitute

malicious abuse of process may include "attachment, execution, garnishment,

sequestration proceedings, arrest of the person and criminal prosecution and

9 We also reject any attempt by plaintiffs to seek costs and attorneys' fees for frivolous litigation for the same reason. As previously discussed, plaintiffs represented to the trial court that the frivolous litigation was "a settled issue." A-1734-17T3 15 even such infrequent cases as the use of a subpoena for the collection of a debt."

Ibid. (quoting Prosser & Keeton on Torts, § 121).

Here, plaintiffs' complaint is devoid of any allegations of further acts of

misuse of process beyond the law firm's filing of a complaint on behalf of its

client against Jackson and Delvalle in the McCormack action. Because the

complaint failed to establish a claim for malicious abuse of process as a matter

of law, we discern no basis for disturbing the entry of summary judgment in

favor of the law firm.

Finally, plaintiffs' arguments in Point IV are merely repetitive of their

assertions in their first three points. These contentions continue to lack merit.

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

Affirmed.

A-1734-17T3 16