NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0713-15T3
APPROVED FOR PUBLICATION MAIN STREET AT WOOLWICH, LLC, WOOLWICH COMMONS, LLC, and July 25, 2017 WOOLWICH CROSSINGS, LLC, APPELLATE DIVISION
Plaintiffs-Appellants,
v.
AMMONS SUPERMARKET, INC., BENJAMIN AMMONS, R.S. GASIOROWSKI, ESQUIRE, and GASIOROWSKI & HOLOBINKO,
Defendants-Respondents. ______________________________________________
Argued November 29, 2016 – Decided July 25, 2017
Before Judges Messano, Espinosa, and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1477-14.
Marc B. Kaplin (Kaplin Stewart Meloff Reiter & Stein, P.C.) of the Pennsylvania bar, admitted pro hac vice, argued the cause for appellants (Kaplin Stewart Meloff Reiter & Stein, P.C., attorneys; Daniel R. Utain and Mr. Kaplin, on the briefs).
Theodora McCormick argued the cause for respondents Ammons Supermarket, Inc. and Benjamin Ammons (Epstein Becker & Green, P.C., attorneys; Anthony Argiropoulos and Ms. McCormick, on the brief). Christopher J. Carey argued the cause for respondents R.S. Gasiorowski, Esq. and Gasiorowski & Holobinko (Graham Curtin, P.A., attorneys; Mr. Carey, of counsel and on the brief; Jared J. Limbach, on the brief).
The opinion of the court was delivered by
GUADAGNO, J.A.D. (retired and assigned on recall).
Plaintiffs, Main Street at Woolwich, LLC (Main Street),
Woolwich Commons, LLC (Commons), and Woolwich Crossings, LLC
(Crossings), successfully defended against litigation brought by
defendants Ammons Supermarket, Inc. and Benjamin Ammons (Ammons
defendants) challenging the approval of a general development
plan (GDP) submitted by plaintiffs to build a shopping complex
in Woolwich Township (Woolwich Shopping Complex or Complex).
Plaintiffs then filed a three-count complaint against the Ammons
defendants, their attorney, R.S. Gasiorowski, and his firm,
Gasiorowski & Holobinko (collectively Gasiorowski), alleging
malicious abuse of process (count one), tortious interference
with a prospective contract (count two), and civil conspiracy
(count three). Plaintiffs claimed defendants filed "sham
litigation," intended solely to prevent competition with their
supermarket.
2 A-0713-15T3 The motion judge found defendants' litigation challenging
the GDP was protected by the Noerr-Pennington doctrine1 and was
not objectively baseless. The judge dismissed plaintiffs'
complaint pursuant to Rule 4:6-2(e) for failure to state a claim
upon which relief can be granted.
While we agree with the motion judge that the Noerr-
Pennington doctrine applies here, the judge provided no support
for her conclusion that the Ammons challenge to the GDP was not
objectively baseless, and she failed to consider the findings of
a prior judge who dismissed the complaint. In addition, and as
a matter of first impression, we adopt the holding in Hanover
3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162,
180 (3d Cir. 2015), cert. denied, ___ U.S. ___, 136 S. Ct. 2451,
195 L. Ed. 2d 264 (2016), and conclude that the motion judge was
required to consider the allegations in plaintiffs' complaint
that the Ammons action was part of a pattern of sham litigation
brought by defendants for the purpose of injuring market rivals
rather than to redress actual grievances.
1 The Noerr-Pennington doctrine draws its name from the United States Supreme Court opinions in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965), and provides that those who petition the government for redress are generally afforded immunity unless the action is objectively baseless.
3 A-0713-15T3 We note that Rule 4:6-2(e) motions to dismiss "should be
granted in only the rarest of instances." Printing Mart-
Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989); see
also Lieberman v. Port Auth. of N.Y. & N.J., 132 N.J. 76, 79
(1993). The Rule requires that plaintiffs must receive "every
reasonable inference of fact" and a reviewing court must search
the complaint "in depth and with liberality to ascertain whether
the fundament of a cause of action may be gleaned even from an
obscure statement of claim, opportunity being given to amend if
necessary." Printing Mart, supra, 116 N.J. at 746 (quoting
DiCristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252
(App. Div. 1957)).
Applying the Printing Mart standard, we are satisfied that
sufficient facts were alleged to suggest defendants engaged in
sham litigation for the sole purpose of impeding the development
of plaintiffs' shopping center and to stifle competition.
I.
Plaintiffs Main Street, Commons, and Crossings are the
collective owners of 244 acres of land in Woolwich Township. In
2007, plaintiffs began efforts to develop the property as a
shopping complex. In 2008, the New Jersey State Planning
Committee approved the Township's petition for initial plan
endorsement which designated areas of the town as the regional
4 A-0713-15T3 center. The Township then amended its zoning ordinance to
create zoning, subdivision, and land development regulations for
the regional center and re-zoned the property to accommodate the
Complex.
In 2009, plaintiffs submitted a GDP to Woolwich Township
seeking to develop approximately 1,500,000 square feet of
commercial and retail space on the property. The GDP proposed
the construction of Main Street, Commons, and Crossings, as
three separate retail and commercial developments. In 2010, the
Woolwich Township Joint Land Use Board (Board) approved the GDP
permitting Main Street, Commons, and Crossings to be developed
in three phases. At the time of the approval, there was no
mention of which stores would occupy the Complex.
In April 2012, Commons submitted an application for site
plan approval for the development of the first phase of the
Complex. From the proposed site plan, it was learned for the
first time that a Wal-Mart Supercenter would be located within
the Commons. Because the proposed square footage of the Wal-
Mart exceeded that which was contained in the original GDP,
plaintiffs sought to amend the GDP. In December 2012, the Board
approved an amended GDP which increased the building area and
added forty-one acres to the Crossings development parcel. On
5 A-0713-15T3 October 3, 2013, the Board approved the plaintiffs' unopposed
final site plan.
On January 17, 2013, Gasiorowski filed a complaint in lieu
of prerogative writs on behalf of the Ammons defendants against
plaintiffs and the Board. The complaint asserted improper
change of the phasing dates of the Complex; inadequate water and
sewer resources; improper addition of acreage to the Crossings
parcel; violations of the Municipal Land Use Law (MLUL),
N.J.S.A. 40:55D-1 to -163; inadequate proof to support the
variances and waivers; failure to comply with notice
requirements; and failure to set forth findings of fact and
conclusions of law.
Frank Pagano, a Woolwich Township resident and a member of
the United Food and Commercial Workers Union, filed a similar
lawsuit. The Ammons and Pagano complaints were subsequently
consolidated.
On April 24, 2014, the Chancery Judge2 granted summary
judgment to defendants and dismissed both complaints with
prejudice. On May 28, 2014, Gasiorowski filed a notice of
appeal on behalf of the Ammons defendants arguing that the GDP
2 The summary judgment motion was heard in the Law Division by the Presiding Judge of the Chancery Division (herein the Chancery Judge).
6 A-0713-15T3 was void, therefore rendering the amended GDP invalid, and that
the Board committed errors during the approval process. Pagano
did not appeal from the dismissal.
While the Ammons appeal was pending, Richard Matwes, a
Senior Real Estate Director of the Wakefern Food Corporation
(Wakefern),3 telephoned Steven Wolfson, a representative of
plaintiffs, and inquired whether plaintiffs would be willing to
lease space at the Complex to the Ammons defendants.
On August 7, 2015, we affirmed the Chancery Judge's
decision to grant summary judgment. We rejected Ammons' claim
that the Board did not have authority to consider the original
GDP or its amendments, and found several of Ammons' arguments to
be without sufficient merit to warrant discussion. Pagano v.
Woolwich Twp. Joint Land Use Bd., No. A-4432-13 (App. Div. Aug.
7, 2015) (slip op. at 13, 17).
On October 21, 2014, plaintiffs filed a complaint against
Ammons and Gasiorowski alleging malicious abuse of process in
filing the Ammons lawsuit; tortious interference with
prospective business contracts, specifically the prospective
tenants in the Woolwich Shopping Complex; and civil conspiracy
3 Plaintiffs allege the Ammons defendants are members of Wakefern, a retailer-owned food cooperative, and own and operate a number of ShopRite supermarkets in New Jersey and Pennsylvania.
7 A-0713-15T3 to employ sham litigation to impede, hinder, and delay competing
developments such as Wal-Mart.
On September 18, 2015, a different judge (motion judge)
heard arguments on defendants' motions to dismiss and determined
that defendants enjoyed immunity conferred by the Noerr-
Pennington doctrine, and plaintiffs failed to prove the sham
exception to that doctrine as the complaint was not objectively
baseless. The motion judge dismissed the complaint as to all
defendants.
On appeal, plaintiffs argue that their complaint is not
barred by Noerr-Pennington as it falls under the sham exception;
the Ammons litigation was objectively baseless; the Noerr-
Pennington doctrine is not applicable to plaintiffs' claim for
abuse of process; and the complaint stated valid claims for
malicious abuse of process, tortious interference with
prospective business contracts, and civil conspiracy.
II.
The Noerr-Pennington doctrine holds that petitioners for
"government . . . redress are generally immune from antitrust
liability" when defending against antitrust claims predicated on
this petitioning activity. Prof'l Real Estate Inv'rs., Inc. v.
Columbia Pictures Indus., Inc., 508 U.S. 49, 56, 113 S. Ct.
1920, 1926, 123 L. Ed. 2d 611, 621 (1993) (PRE). "The
8 A-0713-15T3 doctrine's provenance lies in the field of antitrust law, but
its reach has since then been extended to include common-law
torts such as malicious prosecution and abuse of process." Nader
v. Democratic Nat'l Comm., 555 F. Supp. 2d 137, 157 (D.D.C.
2008) (citing Whelan v. Abell, 48 F.3d 1247, 1254 (D.C. Cir.
1995)), aff’d, 567 F.3d 692 (D.C. Cir. 2009).
New Jersey courts have recognized the Noerr-Pennington
doctrine and applied it to afford immunity to those who petition
the government for redress. See Structure Bldg. Corp. v. Abella,
377 N.J. Super. 467, 471 (App. Div. 2005) (Noerr-Pennington
doctrine affords immunity to persons who object to land use
applications); Fraser v. Bovino, 317 N.J. Super. 23, 37-38 (App.
Div. 1998) (objectors to land use applications are immune from
tort liability under the Noerr-Pennington doctrine unless "the
conduct at issue 'is a mere sham to cover . . . an attempt to
interfere directly with the business relationships of a
competitor.'" (quoting PRE, supra, at 60-61, 113 S. Ct. at 1928,
123 L. Ed. 2d at 624)), certif. denied, 160 N.J. 476 (1999).
However, the Noerr-Pennington doctrine does not provide
putative plaintiffs with an unlimited right to challenge
competitors. Sham litigation receives no protection, and the
presumption of immunity is dispelled when a lawsuit is
"objectively baseless in the sense that no reasonable litigant
9 A-0713-15T3 could realistically expect success on the merits" and is brought
with the specific intent to further wrongful conduct "through
the 'use [of] the governmental process—as opposed to the outcome
of that process.'" PRE, supra, 508 U.S. at 60-61, 113 S. Ct. at
1928, 123 L. Ed. 2d at 624 (alteration in original) (emphasis
omitted) (quoting City of Columbia v. Omni Outdoor Advert., 499
U.S. 365, 380, 111 S. Ct. 1344, 1354, 113 L. Ed. 2d 382, 398
(1991)). The second prong of the test is only reached if the
challenged litigation is found to be objectively meritless under
the first prong. Id. at 60, 113 S. Ct. at 1928, 123 L. Ed. 2d at
624.
Sham litigation is found where a defendant's activities are
"not genuinely aimed at procuring favorable government action,"
Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492,
500 n.4, 108 S. Ct. 1931, 1937 n.4, 100 L. Ed. 2d 497, 505 n.4
(1988), and may be "evidenced by repetitive lawsuits carrying
the hallmark of insubstantial claims." Otter Tail Power Co. v.
United States, 410 U.S. 366, 380, 93 S. Ct. 1022, 1031, 35 L.
Ed. 2d 359, 369 (1973).
In California Motor Transport Co. v. Trucking Unlimited,
404 U.S. 508, 513, 92 S. Ct. 609, 613, 30 L. Ed. 2d 642, 648
(1972), the Court discussed repetitive meritless claims:
One claim, which a court or agency may think baseless, may go unnoticed; but a pattern of
10 A-0713-15T3 baseless, repetitive claims may emerge which leads the factfinder to conclude that the administrative and judicial processes have been abused. That may be a difficult line to discern and draw. But once it is drawn, the case is established that abuse of those processes produced an illegal result, viz., effectively barring respondents from access to the agencies and courts. Insofar as the administrative or judicial processes are involved, actions of that kind cannot acquire immunity by seeking refuge under the umbrella of "political expression."
California Motor "recognized that the filing of a whole
series of lawsuits and other legal actions without regard to the
merits has far more serious implications than filing a single
action, and can serve as a very effective restraint on trade."
USS-POSCO Indus. v. Contra Costa Cty. Bldg. & Constr. Trades
Council, 31 F.3d 800, 811 (9th Cir. 1994). In USS-POSCO, the
Ninth Circuit held that "[w]hen dealing with a series of
lawsuits, the question is not whether any one of them has merit
. . . but whether they are brought pursuant to a policy of
starting legal proceedings without regard to the merits and for
the purpose of injuring a market rival." Ibid.
In determining whether the petitioning activity is a sham
to cover what is actually nothing more than an attempt to
competitor, courts must first examine "whether there is a single
11 A-0713-15T3 filing or a series of filings." Hanover, supra, 806 F.3d at
180.
Hanover involved a claim that the owner of a ShopRite near
Morristown and its subsidiary filed numerous administrative and
court challenges to Hanover 3201 Realty's (Hanover Realty)
permit applications to develop a Wegmans approximately two miles
away. Id. at 166-67. Hanover Realty sued the defendants in
federal district court alleging violations of the Sherman Act,4
and claiming the defendants' filings were baseless and intended
only to frustrate the entry of a competing Wegmans into the
market. Id. at 170. The complaint also alleged five state-law
violations. Ibid.
The district judge dismissed the suit, holding that Hanover
Realty lacked antitrust standing as it was not a competitor,
consumer, or participant in the restrained markets and thus did
not sustain the type of injury the antitrust laws were intended
to prevent. Ibid. After dismissing the Sherman Act claims, the
judge declined to exercise supplemental jurisdiction as to the
state-law claims. Ibid.
Hanover Realty appealed and the Third Circuit determined
that Hanover Realty demonstrated antitrust injuries:
4 15 U.S.C.A. §2.
12 A-0713-15T3 The end goal of Defendants' alleged anticompetitive conduct was to injure Wegmans, a prospective competitor. To keep Wegmans out of the market, Defendants sought to impose costs not on their competitor, but on Hanover Realty, the party tasked with obtaining the necessary permits before construction could begin. . . . And Defendants would succeed in their scheme either by inflicting such high costs on Hanover Realty that it was forced to abandon the project or by delaying the project long enough so that Wegmans would back out of the agreement. In both scenarios, injuring Hanover Realty was the very means by which Defendants could get to Wegmans; Hanover Realty's injury was necessary to Defendants' plan.
[Id. at 174.]
The defendants in Hanover argued their petitioning activity
was protected by the Noerr-Pennington doctrine. Id. at 178. The
Third Circuit discussed both California Motor and Professional
Real Estate and determined that, in assessing whether the
defendants engaged in sham litigation, courts should first
determine whether there is a single filing or a series of
filings:
Where there is only one alleged sham petition, Professional Real Estate's exacting two-step test properly places a heavy thumb on the scale in favor of the defendant. With only one "data point," it is difficult to determine with any precision whether the petition was anticompetitive. . . . In contrast, a more flexible standard is appropriate when dealing with a pattern of petitioning. . . .
13 A-0713-15T3 Accordingly, when a party alleges a series of legal proceedings, . . . the sham litigation standard from California Motor should govern. This inquiry asks whether a series of petitions were filed with or without regard to merit and for the purpose of using the governmental process (as opposed to the outcome of that process) to harm a market rival and restrain trade. In deciding whether there was such a policy of filing petitions with or without regard to merit, a court should perform a holistic review that may include looking at the defendant's filing success—i.e., win-loss percentage—as circumstantial evidence of the defendant's subjective motivations.
[Id. at 180-81.]
Here, plaintiffs' complaint alleges Gasiorowski and Ammons,
through their actions in this case and their association with
Wakefern, engaged in an extensive course of conduct, including
sham litigation, to interfere with the development of
supermarkets that would compete with ShopRite stores.
Plaintiffs provided the following examples of alleged attempts
by defendants to thwart ShopRite competitors: opposing the
expansion of a Wal-Mart in Hamilton Township; opposing
development of a shopping center in Egg Harbor Township which
would include a Wal-Mart and appealing the approvals; opposing
the conversion of a vacant store in Springfield Township to a
Stop & Shop supermarket and appealing approvals; opposing the
development of a shopping center in Linden which would include a
Wal-Mart; opposing the construction of Wal-Marts in Old Bridge,
14 A-0713-15T3 Manchester Township, and Middle Township; opposing a
redevelopment plan in Harrison Township permitting the
construction of a supermarket; appealing the issuance of an
accessory use certificate issued for a Philadelphia,
Pennsylvania Wal-Mart; opposing the upgrade to a Stop & Shop
supermarket in Westfield Township; opposing the expansion of
Wal-Marts in Cinnaminson and Millville; opposing the
construction of an Aldi supermarket in Union Township; opposing
a shopping center which would include a Wegmans in Moorestown;
challenging a land use approval granted to the developer of a
shopping complex in Clark Township; and opposing the expansion
of a Kings supermarket in Bernardsville.
In determining whether defendants were protected by the
Noerr-Pennington doctrine, the motion judge considered only the
merits of this action:
Now, I recognize that there is an exception to the Noerr-Pennington Doctrine under the sham exception. But one has to be concerned whether we have such an exception as noted in this case. The lawsuit, the Court finds, to qualify as a sham must be objectively baseless. The Court is not to consider the underlying motivation. And I have to determine under this Doctrine whether this is just an exercise of a legitimate right by a Defendant in this matter who had standing to voice his concerns.
I find that the Defendant did have standing that he should have been able to
15 A-0713-15T3 voice his concerns. I think despite the fact that we have a denial in the Appellate Division, I still find that these Defendants were exercising what is permissible under the law.
The mere fact that the Defendants appealed is not in any way an abuse of this process. They were not in any way, shape or form using the Court process to [effectuate] an illegal goal.
I find that the Noerr-Pennington Doctrine is applicable in this matter. It is there for a reason. And it is to place the Defendants in a position that they can enjoy immunity from claims for damages based upon that exercise of their right to object. And I believe that these Defendants did have such a right in this instance.
Even under the standard that I have to employ, I find that the Plaintiff has failed to demonstrate that there was an abuse of process. And, therefore, I am dismissing that claim.
While the motion judge purported to apply the "objectively
baseless" test set forth in Professional Real Estate, she
provided only cursory and unsupported conclusions in finding
defendants exercised a "permissible right" in filing this
litigation.
There is no indication the motion judge considered the
conclusions of the Chancery Judge who dismissed the
Ammons/Pagano complaint, or our opinion affirming that decision.
The Chancery Judge found the Woolwich ordinance was valid, the
initial GDP was proper, and the challenge to the GDP was time-
16 A-0713-15T3 barred. In addition, the Chancery Judge found the Ammons/Pagano
plaintiffs "were aware of Woolwich's interpretation of the
ordinance at the time the original GDP was approved;" their
challenge to the Board's action adding 41,000 acres to the
project was without merit; and their challenge to the water and
sewer issues were "not supported by the MLUL or the case law."
On appeal, we affirmed the Chancery Judge's decision that
the appeal regarding the original GDP was untimely, the amended
GDP was valid, and found that defendants' remaining arguments
raised on appeal were meritless and did not warrant discussion.
Pagano, supra, slip op. at 13-17.
From the record before us, we find no support for the
motion judge's finding that the Ammons/Pagano complaint raised
"real concerns about the validity of the Woolwich GDP
ordinance." Moreover, the motion judge did not mention, let
alone consider, plaintiffs' claims that this action was part of
a pattern of successive filings, used by ShopRite/Wakefern as an
anticompetitive weapon for the purpose of injuring market
rivals. Had the motion judge examined the filings referenced in
plaintiffs' complaint and found "[a] high percentage of
meritless or objectively baseless proceedings," it would "tend
to support a finding that the filings were not brought to
redress any actual grievances." Hanover, supra, 806 F.3d at 181.
17 A-0713-15T3 In Waugh Chapel South, LLC v. United Food & Commercial
Workers Union Local 27, 728 F.3d 354, 364 (4th Cir. 2013), the
Fourth Circuit held that when applying California Motor "the
subjective motive of the litigant and the objective merits of
the suits are relevant, but other signs of bad-faith litigation
. . . may also be probative of an abuse of the adjudicatory
process." The Waugh Chapel panel affirmed a finding of sham
litigation where only one of fourteen proceedings were
successful. Id. at 365.
While the circuit court decisions in Hanover and Waugh
Chapel do not have binding effect, see Dewey v. R.J. Reynolds
Tobacco Co., 121 N.J. 69, 79-80 (1990), we accord them "due
respect" and adopt their reasoning here. Guided by these
principles, we conclude that the motion judge failed to consider
plaintiffs' claim that defendants had engaged in sham litigation
for the purpose of gaining a competitive advantage.
III.
Plaintiffs also maintain that Noerr-Pennington does not
apply to claims of malicious abuse of process and the trial
court erred in finding that defendants are protected by the
doctrine. Defendants' motion to dismiss alleged that
plaintiffs' malicious abuse of process claims were barred by the
Noerr-Pennington doctrine. Alternatively, defendants argue that
18 A-0713-15T3 plaintiffs have failed to allege that defendants "caused any
judicial process to issue improperly." After determining that
defendants were immune under Noerr-Pennington, the motion judge
found simply that plaintiffs failed to demonstrate that there
was an abuse of process.
As we are remanding the matter for the court to consider
plaintiffs' claim that defendants engaged in a pattern of sham
litigation, we need not address the insufficiency claims as to
the three counts in plaintiffs' complaint. However, we provide
the following guidance.
IV.
"The gist of the tort of malicious abuse of process is
. . . the misuse, or 'misapplying process justified in itself
for an end other than that which it was designed to
accomplish.'" Baglini v. Lauletta, 338 N.J. Super. 282, 293
(App. Div.) (quoting Prosser & Keeton on Torts § 121 at 897 (5th
ed. 1984)), certif. denied, 169 N.J. 607, appeal dismissed, 169
N.J. 608 (2001). To establish malicious abuse of process, it
must be shown that the defendant "perform[ed] further acts after
the issuance of process which represent the perversion or abuse
of the legitimate purposes of that process." Penwag Prop. Co. v.
Landau, 148 N.J. Super. 493, 499 (App. Div. 1977), aff'd, 76
N.J. 595 (1978).
19 A-0713-15T3 In Tedards v. Auty, 232 N.J. Super. 541, 543-44 (App. Div.
1989), an attorney obtained a writ in a matrimonial matter
resulting in the plaintiff's incarceration. The attorney then
made misrepresentations to a judge which resulted in the setting
of a substantial bail before the plaintiff's release. Id. at
544, 548. After the plaintiff brought an action for abuse of
process, the trial judge granted the defendant's motion for
summary judgment. Id. at 549-51. We reversed, because the
misrepresentations made after the writ was obtained satisfied
the "further acts" requirement. Id. at 550-51.
Here, plaintiffs' complaint alleges improper use of the
legal process by filing the Ammons lawsuit with knowledge that
the claims were without merit. The further acts alleged include
the filing of the appeal and approaching a representative of
plaintiffs to lease space at Commons while the appeal was
pending. Plaintiffs argue that this action undermines
defendants' claim that they opposed the development in good
faith and clearly demonstrates that defendants only engaged in
litigation for competitive advantage. Plaintiffs also point to
the timing of the litigation, noting that defendants did not
appeal the original GDP approval and only initiated litigation
after learning a ShopRite competitor would be a tenant at
Commons.
20 A-0713-15T3 On remand, the court must consider each of these claims and
afford plaintiffs every reasonable inference of fact. Printing
Mart, supra, 116 N.J. at 746.
Plaintiffs argue the motion judge's dismissal of their
tortious interference claim is clearly erroneous. To survive
defendants' motion to dismiss, plaintiffs' tortious interference
claim must rest on facts plausibly supporting a conclusion that
defendants' actions were "improper" or "wrongful." Nostrame v.
Santiago, 213 N.J. 109, 123 (2013). In determining whether the
conduct complained of is improper, there must be "an evaluation
of the nature of and motive behind the conduct, the interests
advanced and interfered with, societal interests that bear on
the rights of each party, the proximate relationship between the
conduct and the interference, and the relationship between the
parties." Id. at 122 (citing Restatement (Second) of Torts §767
(1979)).
We note that no appeals were taken from the approval of the
original GDP plan and it was not until after plaintiffs
identified Wal-Mart as a tenant in the Commons development in
April 2012 that the Ammons defendants retained Gasiorowski to
challenge the amended GDP approval. That litigation began in
January 2013 and continued until August 2015, when we affirmed
21 A-0713-15T3 the order dismissing the Ammons complaint. Plaintiffs'
complaint alleges that during the two-and-one-half-year pendency
of this litigation, they were unable to proceed with the
development of Commons, could not enter into leases with
prospective tenants, and lost "credibility in the marketplace."
VI.
The motion judge found that her dismissal of the tortious
interference and malicious abuse of process claims precluded an
independent cause of action for the civil conspiracy claim.
A civil conspiracy occurs when "two or more persons acting
in concert to commit an unlawful act, or to commit a lawful act
by unlawful means, the principal element of which is an
agreement between the parties to inflict a wrong against or
injury upon another, and an overt act that results in damage."
Morgan v. Union Cty. Bd. of Chosen Freeholders, 268 N.J. Super.
337, 364 (App. Div. 1993) (quoting Rotermund v. U.S. Steel
Corp., 474 F.2d 1139, 1145 (8th Cir. 1973)), certif. denied, 135
N.J. 468 (1994).
On remand, if plaintiffs have sufficiently pled claims for
tortious interference or malicious abuse of process, either may
serve as the underlying tort required for a claim for civil
conspiracy.
22 A-0713-15T3 VII.
Finally, Gasiorowski alleges that plaintiffs' claims
against him are premature as the Ammons defendants have not
asserted an advice of counsel defense. This claim was not
raised before the motion judge and is not properly before us.
See State v. Robinson, 200 N.J. 1, 20-22 (2009).
VIII.
The September 18, 2015 orders dismissing plaintiffs'
complaint are reversed and the matter is remanded for
proceedings consistent with this opinion. We do not retain
jurisdiction.
23 A-0713-15T3