NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2326-20
LINA DA SILVA,
Plaintiff-Appellant,
v.
AMARO DA SILVA,
Defendant-Respondent. ________________________
Submitted September 14, 2022 – Decided September 29, 2022
Before Judges Accurso, Firko and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1471-19.
Camacho, Gardner & Associates, LLP, attorneys for appellant (Donald L. Gardner, on the brief).
Abramson Law Group LLC, attorneys for respondent (Gregory S. Abramson, on the brief).
PER CURIAM
Plaintiff Lina Da Silva appeals from Law Division orders: (1) granting
defendant and ex-husband Amaro Da Silva's motion for summary judgment; (2) denying her motion for reconsideration; (3) granting defendant's application for
counsel fees; and (4) denying her motion for reconsideration relative to the
award of counsel fees. Because our review of the record convinces us there is
substantial credible evidence to support the trial court's findings, we affirm.
I.
Viewed in the light most favorable to plaintiff, Templo Fuente De Vida
Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016), the
pertinent facts are as follows. The parties were married in 2012 and divorced in
2017. On March 4, 2014, plaintiff's father, Luciano Sanchez, purchased a one-
family home in Lyndhurst. Sanchez allowed the parties to rent the house from
him. They accepted; however, before they moved in, construction work was
done on the house. Defendant, who is not a construction professional, undertook
the work himself without the knowledge or consent of plaintiff or her father.
According to plaintiff, 1 defendant failed to secure the proper permits, used
substandard materials, performed shoddy work, and consequently, caused
substantial damage to the house.
1 Plaintiff's version of events is taken from her complaint because there is scant discovery or other evidence presented in the record. A-2326-20 2 In an effort to remedy the situation, plaintiff claims she was immediately
forced to spend her own money to repair the substandard work before the parties
moved in. In January 2015, the parties moved into the house. In February 2016,
plaintiff filed a complaint for divorce in Bergen County, which contained a
demand for equitable distribution of all assets and debts acquired during the
marriage.2 Four months later, defendant vacated the home. On November 14,
2017, the judgment of divorce (JOD) was granted. A settlement agreement was
incorporated into the JOD. 3 The JOD provided "that all issues pleaded and not
resolved in the judgment are deemed abandoned."
During the pendency of the divorce action in April 2017, defendant filed
an action in the Law Division in Hudson County against Sanchez seeking
reimbursement for the value of the construction work done on the house, which
he claimed to have supervised and paid for. Ultimately, after a four-day jury
trial, defendant prevailed in the action and obtained a judgment in the amount
of $62,950.96, inclusive of interest and costs, against his former father-in-law—
Sanchez—on February 6, 2019. The record shows Sanchez did not appeal the
judgment.
2 Docket No. FM-02-1664-16. 3 The settlement agreement is not included in the appendices. A-2326-20 3 On February 26, 2019, shortly after the Hudson County judgment was
entered, plaintiff filed the complaint in the matter under review in the Law
Division in Bergen County against defendant seeking reimbursement of the
monies she asserts was spent on the same construction project. In her complaint,
plaintiff sought damages for breach of the implied covenant of good faith and
fair dealing, unjust enrichment, and conversion. Plaintiff also alleged defendant
misappropriated her funds and marital funds, causing the Lyndhurst Building
Department to conduct an investigation, and that he lied to her about deficiencies
with the construction. In the ad damnum clause, plaintiff sought an accounting
of the construction costs and a refund of monies to avoid defendant being
unjustly enriched.
On March 6, 2019, defendant's counsel served a notice on plaintiff's
counsel advising that her lawsuit was frivolous pursuant to Rule 1:4-8 because
plaintiff does not own the subject property and lacks standing to file a complaint.
The notice also stated plaintiff was "barred" from seeking further damages
"pursuant to the entire controversy doctrine recited in Rule 4:30A." The notice
provided plaintiff with a twenty-eight-day period of time to withdraw the
complaint or potentially face sanctions under Rule 1:4-8.
A-2326-20 4 In January 2019, plaintiff filed a motion in the Hudson County matter to
stay the judgment against her father and to consolidate the Hudson litigation
with her complaint in Bergen County. The motion was denied by the Hudson
County assignment judge and refiled in Bergen County. The Bergen County
assignment judge denied plaintiff's motion concluding: "No case law, New
Jersey [s]tatute or [c]ourt [r]ule allows a resolved lawsuit reduced to a judgment
by a jury trial to be consolidated into a pending complaint."
Following a period of discovery and upon receiving plaintiff's certified
answers to interrogatories, defendant moved to dismiss her complaint for
plaintiff's failure to answer or provide documentation in support of her claims.
The trial court denied defendant's motion without prejudice and ordered plaintiff
to provide more specific answers to interrogatories addressed to her demand for
reimbursement for negligent work allegedly performed by defendant. No
depositions were taken, and no expert reports were served.
On October 14, 2020, defendant filed a motion for summary judgment.
The court heard oral argument on November 19, 2020, and entered an order
granting defendant summary judgment and dismissing plaintiff's complaint. In
a decision from the bench, the court found: "All the causes of action alleged by
. . . plaintiff took place during the marital relationship."
A-2326-20 5 Relying upon a certification submitted in support of the summary
judgment motion by one of defendant's prior attorneys, the court also found the
"plan" was for Sanchez to "convey" the house to the parties "once their credit
was reestablished so they could afford to repay . . . Sanchez's down payment."
Further, the court explained:
[T]he parties were living separately. [Plaintiff] lived as a tenant in her father['s] . . . house[,] which was located [in] Lyndhurst . . . .
[Defendant] spent tens of thousands of dollars to upgrade and improve . . . Sanchez's house. The parties moved into . . . Sanchez's house in January 2015.
In the divorce, [defendant] repeatedly brought up the subject of repayment for all or part of the money he spent on improving his father-in-law's house. The money he spent was borrowed from his pension and his savings which existed prior to the marriage. Both [plaintiff] and her attorney . . . refused to even discuss claims against his father-in-law. [Plaintiff's] standard answer was, that's my father's problem. Take it up with him.
Sanchez was never a party to the divorce. In addition, . . . since [plaintiff] had no ownership in her father's house, it was not subject to the jurisdiction of the Family Court for purposes of equitable distribution. Any insinuation or statement by [her counsel] that [defendant's] claims against his former father-in-law . . . were resolved in the divorce is complete fabrication.
A-2326-20 6 The entire settlement between [defendant] and his former wife was placed on the record by [her counsel]. Because of the late hour, the terms were written by [her counsel] and initialed by the parties. [Plaintiff's counsel] was instructed to submit a more formal written agreement, but he never got around to it because two days after the divorce, his client changed her mind.
I have attached a copy of the [JOD][,] which was signed by the [c]ourt with [plaintiff's counsel's] handwritten addendum. There's absolutely nothing which refers to claims involving . . . Sanchez. Defendant sued and recovered from—well, now I'm— I'm seeing a [$]62,000[] judgment against . . . Sanchez to recoup the money he spent on . . . Sanchez's house. . . . Sanchez in that action did not—and, by the way, I just want to state again I'm not exactly sure of the amount of money. It's—it's in that range. . . . Sanchez did not join any third parties, or claim any credits or set offs for negligence against the contractors. He did not file a counterclaim against [defendant].
In many ways, the action here that's before this [c]ourt is an attempt to circumvent the entire controversy doctrine [Rule] 4:30[A]. This [c]ourt finds . . . plaintiff has not presented any evidence to create an issue of material fact. I have reviewed the answers to interrogatories which were supposedly the response to this [c]ourt's last order, and they have absolutely no information whatsoever as to any specific information as to any of plaintiff's claims in terms of anything other than vague allegations that she believes things are wrong in the house, and things were not done in the house as she would have wanted them to be.
There—there's no specifics. There's no documentation. There's no receipts. There's no proofs
A-2326-20 7 at all. There is no proof of any kind that plaintiff ever spent any of her own money to fix any substandard work. There's no expert reports or estimates by any craftsman asserting the need for repairs or potential problems. There's no proof at all . . . how much money and from where . . . defendant defrauded, misappropriated or embezzled funds from [plaintiff].
Thereafter, plaintiff filed a motion for reconsideration, and defendant
moved for counsel fees and costs on the grounds the litigation was frivolous.
On January 15, 2021, the court denied plaintiff's motion for reconsideration in
an oral opinion following argument. That same day, the court granted
defendant's motion for counsel fees and costs. In its decision, the court found
"[t]here are no legitimate causes of action of unjust enrichment, fraud, [or]
negligence." The court also found plaintiff's allegations in the complaint "are
false," and her counsel was "aware that there is no claim of non-compliance with
local building codes to justify expenditures of [plaintiff]."
The court concluded plaintiff violated N.J.S.A. 2A:15-59.1 because her
complaint "was commenced and continued in bad faith solely for the purpose of
harassment." In addition, the court emphasized "there was never any proof" to
support the causes of action alleged in the complaint. The court also determined
the law firm representing plaintiff violated Rule 1:4-8 because the complaint
was filed to "cause unnecessary delay and to increase the cost of the litigation."
A-2326-20 8 After reviewing the certification of services submitted by defendant's counsel,
the court awarded $17,600 in fees and $540 in costs for a total of $18,140 jointly
and severally against plaintiff and the law firm representing her.
On March 31, 2021, the court conducted oral argument on plaintiff's
motion for reconsideration. Following argument, the court gave an oral opinion
and comprehensively detailed the protracted nature of the litigation. For the
first time in opposition to defendant's cross-motion seeking additional counsel
fees and costs, the court emphasized plaintiff submitted exhibits, comprised
mostly of invoices, receipts, a bank statement, and a construction permit from
2014, ostensibly in support of the allegations in her complaint. The court found
none of the exhibits proved defendant stole money from plaintiff and nothing
new was provided. After reviewing defendant's certification submitted in
support of counsel fees, the court awarded an additional amount of $3,170.
Thus, the amount of fees awarded to defendant's counsel was $18,140 plus
$3,170—for a total of $21,310. This appeal ensued.
Plaintiff submits the following arguments for our consideration:
(1) the court erred when it failed to apply the proper standard of review in deciding defendant's motion for summary judgment;
A-2326-20 9 (2) the court erred when it considered Family Part issues without having jurisdiction to do so and improperly applied the law; and
(3) the court erred in its finding of frivolous litigation and the awarding of attorney's fees.
II.
We review motions for summary judgment de novo, applying the same
standard as the trial court. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582
(2021). Summary judgment is warranted where there is "no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment or order as
a matter of law." R. 4:46-2. A genuine issue exists "if, considering the burden
. . . the evidence submitted . . . together with all legitimate inferences therefrom
favoring the non-moving party, would require submission of the issue to the trier
of fact." Ibid.
Thus, "[o]n a motion for summary judgment, if the evidence of record—
the pleadings, depositions, answers to interrogatories, and affidavits—'together
with all legitimate inferences therefrom favoring the non-moving party, would
require submission of the issue to the trier of fact,' then the trial court must deny
the motion." Steinberg v. Sahara Sam's Oasis, L.L.C., 226 N.J. 344, 366 (2016)
(first quoting R. 4:46-2(c), then citing Brill v. Guardian Life Ins., 142 N.J. 520,
540 (1995)).
A-2326-20 10 Conversely, "[s]ummary judgment should be granted . . . 'against a party
who fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of
proof at trial.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Put another way, "[t]he
key inquiry is whether the evidence presented, when viewed in the light most
favorable to the non-moving party is 'sufficient to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-moving party.'" T.B. v.
Novia, 472 N.J. Super. 80, 93 (App. Div. 2022) (quoting Brill, 142 N.J. at 540).
Conclusory statements within the pleadings, without factual support in the
record, are insufficient to create a disputed question of fact. Sullivan v. Port
Auth. of N.Y. and N.J., 449 N.J. Super. 276, 279-80 (App. Div. 2007). Likewise,
a respondent's own self-serving attestations, without more, are not enough to
defeat the motion for summary judgment. Martin v. Rutgers Cas. Ins., 346 N.J.
Super. 320, 323 (App. Div. 2002).
It is unclear from the record exactly what information was before the trial
court at the time defendant's motion for summary judgment was decided.
Plaintiff asserts she submitted a statement of disputed facts but does not note
A-2326-20 11 which, if any, exhibits were included. 4 The record indicates the only materials
provided to the trial court were the complaint, answer, defendant's statement of
undisputed facts (including the JOD, deed, certification of counsel, and
information obtained from answers to interrogatories), and plaintiff's
counterstatement of facts. We will address the three counts set forth in plaintiff's
complaint.
A. Count One: Breach of the Implied Covenant of Good Faith and Fair Dealing
Plaintiff's first cause of action alleges breach of the implied covenant of
good faith and fair dealing. She avers defendant used her money to make various
payments related to the construction and argues this obligated defendant to
"verify that proper materials and services were being . . . purchased" and "ensure
the work that [contractors] performed complied with what is standard in the
industry."
"[E]very contract in New Jersey contains an implied covenant of good
faith and fair dealing." Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420
(1997). This covenant amounts to a promise that "neither party shall do anything
which will have the effect of destroying or injuring the right of the other party
4 The majority of exhibits included in plaintiff's appellate appendix were only submitted in connection with her motions for reconsideration. A-2326-20 12 to receive the fruits of the contract." Ibid. (quoting Palisades Props., Inc. v.
Brunetti, 44 N.J. 117, 130 (1965)).
As the trial court aptly pointed out, "[t]here can be no breach of the
implied covenant of good faith and fair dealing unless the parties have a
contract." Where there is no contract, there can be no implied covenant and
where there is no covenant, there can be no breach. Cumberland Farms, Inc. v.
N.J. Dep't of Env't Prot., 447 N.J. Super. 423, 443 (App. Div. 2016).
Plaintiff did not and does not argue that a contract existed between the
parties for whatever construction work was actually performed on the house. No
reasonable trier of fact could find that the elements of this claim were met.
Because the case did not "require submission of the issue to the trier of fact,"
we conclude the trial court did not err in granting summary judgment with
respect to count one. Steinberg, 226 N.J. at 366.
B. Count Two: Unjust Enrichment
The second count of plaintiff's complaint alleged unjust enrichment
because defendant "diverted and converted money and property belonging to
[her]," "never had a legal or equitable right to take the money and property," and
that "it would be inequitable for . . . defendant to retain the money and
property." Plaintiff contends that the court should have denied defendant's
A-2326-20 13 motion for summary judgment because there are factual disputes on this point,
as shown by the pleadings and statements of material facts.
"The doctrine of unjust enrichment rests on the equitable principle
that . . . person[s] shall not be allowed to enrich [themselves] unjustly at the
expense of another." Goldsmith v. Camden Cnty. Surrogate's Off., 408 N.J.
Super. 376, 382 (App. Div. 2009) (quoting Assocs. Com. Corp. v. Wallia, 211
N.J. Super. 231, 243 (App. Div. 1986)). "A cause of action for unjust
enrichment requires proof that 'defendant[s] received a benefit and that retention
of that benefit without payment would be unjust.'" Ibid. (quoting Cnty. of Essex
v. First Union Nat'l Bank, 373 N.J. Super. 543, 549-50 (App. Div. 2004), rev'd
on other grounds, 186 N.J. 46 (2006)) (alteration in original).
Most commonly, such a claim arises in the situation where a party "has
not been paid despite having had a reasonable expectation of payment for
services performed or a benefit conferred." Cnty. of Essex, 373 N.J. Super. at
550. Here, since plaintiff performed no services for defendant for which she
claims recovery is due, the "benefit" received by defendant would purportedly
be the money that he allegedly received from plaintiff to facilitate the
construction.
A-2326-20 14 The record clearly supports the trial court's finding that plaintiff did not
include any evidence—whether documentary or testimonial—supporting her
version of events, describing what construction was done, what damage
defendant caused, or what expenditures she made to cure any damages.
Moreover, plaintiff's claim of unjust enrichment was only supported by her own
self-serving attestations that she paid an unspecified amount to correct
unidentified damages. "A key aim 'of the summary judgment rule is to isolate
and dispose of factually unsupported claims or defenses.'" Friedman, 242 N.J.
at 472 (quoting Celotex Corp., 477 U.S. at 323-24).
As our Supreme Court has held, summary judgment is appropriate as
against a party "who fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that party will bear the
burden of proof at trial." Ibid. (quoting Celotex Corp., 477 U.S. at 322). By
failing to adduce any evidence or genuine material issues of fact, plaintiff failed
to establish the essential elements of an unjust enrichment claim, and summary
judgment was properly granted to defendant.
C. Count Three: Conversion
Plaintiff's third cause of action alleged the tort of conversion. Plaintiff
contends the trial court's grant of summary judgment on this count was error,
A-2326-20 15 again reiterating her argument there were factual disputes evinced in the
pleadings and issues of material fact. Again, we disagree.
"The crux of conversion is wrongful exercise of dominion or control over
property of another without authorization and to the exclusion of the owner's
rights in that property." Chicago Title Ins. v. Ellis, 409 N.J. Super. 444, 456
(App. Div. 2009). While conversion has historically been applied to chattels, it
has been applied to monetary claims as well. Id. at 454.
Because plaintiff failed to marshal prima facie evidence that defendant
exercised wrongful control over her money, she failed to establish—even
viewing the record in the light most favorable to her—a critical element of
conversion. Based upon our careful review of the record, we are satisfied
defendant's motion for summary judgment was properly granted as to count
three of the complaint.
III.
In her brief on appeal, plaintiff does not argue that her motion for
reconsideration relative to the grant of summary judgment was wrongly denied.
Thus, we could consider the argument waived. See Sklodowsky v. Lushis, 417
N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is
deemed waived."). However, plaintiff's motion for reconsideration and the
A-2326-20 16 documents submitted to the trial court are intertwined with both the motion for
summary judgment and the motion for counsel fees, and the case information
statement indicates that it is being appealed. We therefore add the following
brief remarks.
A trial court's denial of a motion for reconsideration is reviewed for abuse
of discretion. Branch, 244 N.J. at 582. A motion for reconsideration "shall state
with specificity the basis on which it is made, including a statement of the
matters or controlling decisions [which] counsel believes the court has
overlooked or as to which it has erred." R. 4:49-2. Reconsideration should be
reserved for situations where: "(1) the [c]ourt has expressed its decision based
upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt
either did not consider, or failed to appreciate the significance of probative,
competent evidence." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.
1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
In the alternative, "if a litigant wishes to bring new or additional
information to the [c]ourt's attention which it could not have provided on the
first application, the [c]ourt should, in the interest of justice (and in the exercise
of sound discretion), consider the evidence." Ibid.
A-2326-20 17 We are convinced none of these three criteria is met here. The court's
decision rested soundly on the case as it was presented and was consonant with
existing legal principles. While plaintiff provided certifications and
accompanying documents with her motion for reconsideration, all of those
documents could have and should have been provided on the initial motion.
First, plaintiff provided a certification from plaintiff's counsel's law
partner who briefly represented plaintiff during her divorce proceedings. The
attorney's certification addressed the divorce proceedings and the prior
relationship between the parties. Appended to the certification were a series of
letters between plaintiff's counsel, defendant's divorce counsel, and the Family
Part regarding the JOD, authored at the time of the initial divorce settlement.
Second, plaintiff provided her own certification and attached two of her
prior certifications, prepared during the divorce proceedings. Plaintiff's
certification in support of her motion for reconsideration discussed her
relationship with defendant. She denied harassing him and instead accused him
of harassing her and of lying.
Third, plaintiff's counsel provided his own certification, which claimed
that the gaps in evidence were due to the COVID-19 pandemic; defendant's
refusal to comply with discovery; and the court's refusal to extend discovery
A-2326-20 18 deadlines. These documents were largely from the parties' divorce proceedings
and were certainly available at the time of the summary judgment motion.
Where newly offered information could have been adduced at the time of the
original motion, it will not serve as the basis to grant a motion for
reconsideration. See Del Vecchio v. Hemberger, 388 N.J. Super. 179, 189 (App.
Div. 2006). Saliently, none of the documents submitted by plaintiff in
connection with her motion for reconsideration actually addressed the court's
finding that the specific descriptions of the work allegedly done, and the monies
allegedly spent, were fatally missing from the record. Consequently, the court
did not abuse its discretion in denying plaintiff's motion for reconsideration as
to the grant of summary judgment to defendant.
IV.
In light of our conclusion that the trial court properly granted defendant's
motion for summary judgment, plaintiff's next contention the court erred when
it considered Family Part issues without having jurisdiction to do so is moot.
However, we add the following.
The trial court held:
All the causes of action alleged by . . . plaintiff took place during the marital relationship. . . . [P]laintiff may have some claim for misappropriating her separately-owned funds or an alleged claim for . . .
A-2326-20 19 misappropriating her separately-owned funds. But once she filed for divorce, she was required to address those claims within the context of the divorce action.
Rule 4:30A provides, relevantly: "Non-joinder of claims required to be
joined by the entire controversy doctrine shall result in the preclusion of the
omitted claims to the extent required by the entire controversy doctrine. . . ."
"The entire controversy doctrine requires that all claims between parties 'arising
out of or relating to the same transactional circumstances . . . be joined in a
single action.'" Brennan v. Orban, 145 N.J. 282, 290 (1996) (quoting Brown v.
Brown, 208 N.J. Super. 372, 377-78 (App. Div. 1986)). This "policy of
mandatory joinder applies to family actions," and, more particularly, divorces.
Ibid. (citing Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 5:1-2
(1996)). Indeed, our Supreme Court determined in Tevis v. Tevis, 79 N.J. 422
(1979), that "marital torts, as a class, are to be considered as related to, not
'independent' of, divorce suits" for the purposes of the doctrine. Ibid. (citation
omitted).
When torts occur during the pendency of the marriage, joinder is
available. Id. at 291. In Brennan, 145 N.J. at 291, the court dealt with a case of
assault which occurred during the marriage and found:
[T]he assault underlying Brennan's personal injury claim occurred before she filed for divorce. The tort
A-2326-20 20 arose out of her marital relationship. In addition, the tort complaint alleges many of the same factual circumstances as the divorce complaint that plaintiff had filed two weeks earlier. Thus, joinder under the entire controversy doctrine is appropriate in this case.
As in Brennan, the causes of action alleged here indisputably occurred
during the marriage and thus "arose out of the marital relationship." The original
construction at issue, whatever that may have consisted of, and the correction of
alleged damages plaintiff claimed she paid for, would have occurred in 2014,
prior to the filing of the complaint for divorce, and should have been litigated in
the divorce case. Based on our de novo review of this legal issue, we discern
no basis to disturb the trial court's finding that there was no basis to relax
application of the entire controversy doctrine here.
In a seemingly alternative argument, plaintiff asserts the trial court lacked
jurisdiction to rule on defendant's summary judgment motion because the
motion should have been heard in the Family Part. Plaintiff's argument is devoid
of merit. Contrary to plaintiff's attestation, this issue was not raised below. We
will overturn a decision only in the event of plain error. R. 2:10-2. In any event,
plaintiff's argument is procedurally barred. Rule 4:3-1(b) specifies that:
A motion to transfer an action from one trial division of the Superior Court or part thereof to another . . . shall be made within [ten] days after expiration of the time prescribed by [Rule] 4:6-1 for the service of the last
A-2326-20 21 permissible responsive pleading. . . . Unless so made, objections to the trial of the action in the division specified in the complaint are waived. . . .
Because plaintiff filed the matter in the Law Division and at no point moved to
transfer the action to the Family Part, she waived any objection to the Law
Division's ability to decide the case.
Lastly, we address plaintiff's contention that the court improvidently
found the litigation was frivolous and erred in awarding counsel fees and costs
to defendant. We review an award of sanctions and attorney's fees for an abuse
of discretion. Occhifinto v. Olivo Constr. Co., 221 N.J. 443, 453 (2015);
Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 407 (App. Div. 2009). 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 Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting
Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985)). "Reversal is
warranted when 'the discretionary act was not premised on consideration of all
relevant factors, was based upon consideration of irrelevant or inappropriate
factors, or amount[ed] to a clear error in judgment.'" Ferolito, 408 N.J. Super.
at 407 (quoting Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)).
A-2326-20 22 However, we review a trial judge's legal conclusions de novo. Occhifinto, 221
N.J. at 453.
"Sanctions for frivolous litigation against a party are governed by the
Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1." Bove v. AkPharma, Inc.,
460 N.J. Super. 123, 147 (App. Div. 2019). Rule 1:4-8 "authoriz[es] similar fee-
shifting consequences as to frivolous litigation conduct by attorneys." Ibid. The
Frivolous Litigation Statute establishes a "disjunctive, two-prong" test for
determining whether "the action of the non-prevailing party [was] frivolous." In
re K.L.F., 275 N.J. Super. 507, 524 (Ch. Div. 1993). However,
[w]hen a prevailing party's allegation is based on an assertion that the non-prevailing party's claim lacked a reasonable basis in law or equity, and the non- prevailing party is represented by an attorney, an award cannot be sustained if the [non-prevailing party] did not act in bad faith in asserting or pursuing the claim.
[Bove, 460 N.J. Super. at 151 (alteration in original).]
When an attorney or pro se party signs, files, or advocates a "pleading,
written motion, or other paper," that attorney or pro se party "certifies that to the
best of [their] knowledge, information, and belief":
(1) [T]he paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
A-2326-20 23 (2) the claims, defenses, and other legal contentions therein 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;
(3) the factual allegations have evidentiary support or, as to specifically identified allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support; and
(4) the denials of factual allegations are warranted on the evidence or, as to specifically identified denials, they are reasonably based on a lack of information or belief or they will be withdrawn or corrected if a reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.
[R. 1:4-8(a)(1)-(4).]
"A court may impose sanctions upon an attorney if the attorney files a
paper that does not conform to the requirements of Rule 1:4-8(a), and fails to
withdraw the paper within twenty-eight days of service of a demand for its
withdrawal." United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 389 (App.
Div. 2009). "The nature of conduct warranting sanction under Rule 1:4-8 has
been strictly construed. . . ." First Atl. Fed. Credit Union v. Perez, 391 N.J.
Super. 419, 432 (App. Div. 2007). In fact, the term "frivolous" has a restrictive
meaning. McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 561
A-2326-20 24 (1993). Thus, "[a] claim will be deemed frivolous or groundless [only] 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. 1999).
An award of attorney's fees and costs is not warranted where the plaintiff
"had a reasonable, good faith belief in the merits of the action." Wyche v.
Unsatisfied Claim & Judgment Fund of N.J., 383 N.J. Super. 554, 561 (App.
Div. 2006) (citing DeBrango, 328 N.J. Super. at 227). Likewise, sanctions
should not be "imposed because a party is wrong about the law and loses [their]
case." Tagayun v. AmeriChoice of N.J., Inc., 446 N.J. Super. 570, 580 (App.
Div. 2016). Hence, a judge should only award sanctions for frivolous litigation
in exceptional cases. See Iannone v. McHale, 245 N.J. 17, 28 (App. Div. 1990).
This restrictive approach recognizes the principle that: citizens
presumptively should have ready access to our courts, Belfer v. Merling, 322
N.J. Super. at 144; "honest, creative advocacy" should not be discouraged,
DeBrango, 328 N.J. Super. at 226-27; and litigants generally should bear their
own costs, where the litigation at least possesses "marginal merit[,]" Belfer, 322
A-2326-20 25 N.J. Super. at 144 (citing Venner v. Allstate, 306 N.J. Super. 106, 113 (App.
Div. 1997)).
N.J.S.A. 2A:15-59.1 outlines the conditions under which counsel fees can
be assessed against a litigant. The statute 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).]
It continues:
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.
A-2326-20 26 [N.J.S.A. 2A:15-59.1(b).]
With these principles in mind, we have carefully reviewed the record,
including certifications submitted by defendant's counsel in support of the
motion for sanctions. Based on our examination and aware the trial court was
intimately familiar with the facts of this case, as well as the facts of the parties'
divorce action and the Hudson County litigation, we cannot conclude the court
abused its discretion in finding defendant showed plaintiff displayed the
"requisite bad faith or knowledge of lack of well-groundedness" in pursuing her
claims. Iannone, 245 N.J. Super. at 31. We also do not ignore the fact that
plaintiff failed to withdraw her complaint even though defendant notified her in
writing the complaint was utterly baseless.
To the extent we have not addressed plaintiff's remaining arguments, we
are satisfied they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
A-2326-20 27