Marilyn Rukaj v. Jerry Puccio ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2878-21
MARILYN RUKAJ,
Plaintiff-Appellant/
Cross-Respondent,
v.
JERRY PUCCIO, INDIVIDUALLY
AND AS PROPRIETOR OF THE
ROCKLEIGH, GERRY PUCCIO JR.,
FRED PUCCIO, AND ROCKLEIGH
COUNTRY CLUB LLC.,
Defendants-Respondents/
Cross-Appellants.
_______________________________
Submitted October 25, 2023 – Decided July 12, 2024
Before Judges Gummer and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-3516-20.
O'Brien Thornton LLC, attorneys for appellant/cross-
respondent (Merrill M. O'Brien, on the briefs).
Newman & Denburg LLC, attorneys for
respondents/cross-appellants (Gary S. Newman, of
counsel and on the briefs and David F. Scheidel II, on
the briefs).
PER CURIAM
In this breach-of-contract dispute, plaintiff Marilyn Rukaj sued
defendants for the return of a $50,000 wedding deposit. Plaintiff appeals from:
a March 18, 2021 order granting partial summary judgment in favor of
defendants dismissing her Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20
claim; an August 6, 2021 order denying her motion for leave to amend her
complaint to add three additional counts alleging violations of the CFA, an
August 27, 2021 order dismissing the remaining counts in her complaint, and a
May 13, 2022 order denying her motion for attorney's fees following the
dismissal of defendants' counterclaims for defamation and slander per se.
Defendants cross-appeal from the March 18, 2021 order granting partial
summary judgment in favor of plaintiff on her breach of contract claim and
ordering the return of plaintiff's $50,000 deposit. Having reviewed the record,
the parties' arguments, and applicable law, we affirm each of the court's orders.
Defendants include Jerry Puccio, individually and as proprietor of the
Rockleigh, Gerry Puccio, Jr., Fred Puccio, and Rockleigh Country Club, LLC
(RCC). RCC owns and operates the banquet and catering facility known as The
Rockleigh. In early 2019, prior to the start of the COVID-19 pandemic, plaintiff
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and The Rockleigh entered into an Event Contract for plaintiff to have her
wedding and reception for 225 guests at RCC on June 20, 2020. The total
contract price was $68,000.63, and plaintiff paid a $50,000 deposit. The
Contract provided in pertinent part that "[t]his [a]greement may not be changed,
supplemented, or modified unless it is done in writing."
Pertinent to this appeal are Paragraphs 6 and 8 of the Contract. Paragraph
6 provided that The Rockleigh "shall not be liable to the client due to reasons
beyond the control of management, including floods, fire, strikes, accidents,
weather, emergency response situations, and any other reason that is not in the
direct control of [] [RCC]." Paragraph 8 provided that plaintiff would forfeit
the initial deposit "[i]n the event that [she] cancels, repudiates, or otherwise
breaches this Contract by any cause or reason whatsoever."
The COVID-19 pandemic hit in early 2020, prompting Governor Philip
D. Murphy to issue a series of Executive Orders (EOs) aimed at stopping the
spread of the COVID-19 virus. On March 16, 2020, the Governor issued EO
104, which, in relevant part, limited "[a]ll gatherings of persons in the State of
New Jersey to [fifty] persons or fewer, excluding normal operations at airports,
bus and train stations, medical facilities, office environments, factories,
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assemblages for the purpose of industrial or manufacturing work, construction
sites, mass transit, or the purchase of groceries or consumer goods."
On March 21, 2020, the Governor issued EO 107 further restricting New
Jersey residents from leaving their homes. In addition to ordering residents to
remain in their homes until further notice, EO 107 also, in relevant part, canceled
"[g]atherings of individuals, such as parties, celebrations, or other social
events," required the closure of "brick-and-mortar premises of all nonessential
retail businesses," and mandated the closure of "[a]ll recreational and
entertainment business" including RCC. In response, RCC closed its venue
pending further order from the Governor.
In the months leading up to plaintiff's scheduled wedding date, the parties
exchanged a number of communications to determine whether defendants could
proceed with plaintiff's 225-guest event. On May 22, 2020, plaintiff emailed an
employee of The Rockleigh, Michael Subarsky, stating: "I am writing as a
follow up to our telephone conversation today. I have confirmed with all my
vendors that they are all ready, willing and able to perform the services . . . I
need to know if [RCC] is ready, willing and able to provide the venue and
services as contracted for."
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Plaintiff requested "a formal and final determination" on whether or not
they could perform their obligations under the Contract "and . . . [RCC's] ability
to provide full services, in the room and at full capacity as agreed." On May 27,
2020, Fred Puccio responded:
[W]e are more than ready, willing, and able to perform
on your original date under our contract. . . . [I]f you
choose to move forward with your original date we will
perform and will additionally provide you with some
additional space to assist with social distancing which
is your responsibility. Please be advised that adhering
to social distancing guidelines during your
event . . . will also remain your responsibility. [RCC]
will provide PPE for all its employees but will not be
responsible if a third party shuts down your event.
On this same date, plaintiff responded:
While you confirmed that you were ready, willing and
able to perform under our original date, the legality
aspect of being "able" was not addressed. . . . [W]e
were primarily concerned about whether a gathering of
at least 225 people would be legal. . . . Please be
advised that [paragraph] 1 of our [a]greement . . . bars
any changes to the [a]greement unless modified in
writing and consented to by the parties. To be clear, we
are not consenting to any change, revision, or
amendment to the [a]greement. . . . While you may be
able to perform with such social distancing guidelines,
performance in violation of the Governor's executive
orders would be illegal and could not be performed
under the contract. . . . We believe that if you become
aware of sufficient and credible information that would
give us notice that the wedding will not be barred by
any law, rule, [EO], or any public policy by May 30th,
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2020 . . . we would have no problem in moving forward
with the event. . . . Should you be unable to secure such
information we would expect a full refund.
On June 5, 2020, counsel for defendants wrote to plaintiff, stating:
[Y]our Contract with [RCC] governs the rights and
duties of the parties. I encourage you to read it in its
entirety—not just portions of it. In doing so you will
realize that [] [RCC] is not responsible if unrelated third
parties interfere with your event. Your previous
question was whether [] [RCC] was ready willing and
able to perform and the answer is they are. . . . They
cannot guarantee the police will not shut down your
event in the middle of the event.
[RCC] [is] more than happy to work out an amicable
resolution but absorbing 100% of the loss when they are
not responsible and [are] ready [,] willing and able to
perform is not one of them.
On June 9, 2020, the Governor issued EO 152, which eased restrictions
imposed by EO 107 and permitted limited indoor gatherings to: "[twenty-five
percent] of the capacity of the room in which it takes place, but regardless of the
capacity of the room, such limit shall never be larger than [fifty] persons or
smaller than [ten] persons[.]"1
1
During the argument on the summary-judgment motion, RCC contended that
EO 152, effective on June 9, 2020, replaced EO 107 "such that RCC could
legally perform the event [p]laintiff cancelled." EO 152 provided for certain
businesses including RCC, and banquet facilities to reopen with restrictions on
the number of person who could gather indoors. Specifically, it limited indoor
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On the same date, counsel for plaintiff sent a letter to counsel for
defendants, asserting that the Contract "expressly states that the agreement is
contingent on the ability of [RCC] . . . to perform. Because the present law
prohibits [RCC] from performing, [RCC] must issue our client a full refund[.]"
Plaintiff requested a refund of the entire deposit she had paid to RCC for
the venue and services. When RCC failed to issue the refund, plaintiff
commenced this action in the Law Division alleging a violation of the CFA
(count one), intentional and negligent breach of a constructive trust (counts two
and three), breach of contract (count four), and malicious refusal to return
unearned payments in breach of the implied covenant of good faith and fair
dealing (count five).2 Defendants answered the complaint, and RCC and Fred
Puccio asserted counterclaims for breach of contract (count one), slander per se
gatherings to "[twenty-five percent] of the capacity of the room in which it takes
place, but regardless of the capacity of the room, such limit shall never be larger
than [fifty] persons or smaller than [ten] persons[.]"
2
The allegations in plaintiff's complaint are alleged against all defendants
named in the complaint and make no distinction between the separate
defendants.
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(count two), and defamation (count three), citing to derogatory social media
posts it claimed plaintiff had made.3
After a period of discovery, plaintiff moved for partial summary judgment
on her breach of contract claim and dismissal of defendant's counterclaim for
breach of contract. Defendants opposed and cross-moved for summary
judgment dismissing plaintiff's CFA claim. The court heard argument on the
cross motions and on March 18, 2021, entered two concurrent orders along with
its written statements of reason.
The court granted plaintiff's motion for partial summary judgment on the
breach of contract claim and ordered defendants to return her $50,000 deposit,
finding defendants were unable to perform under the Contract "because of
[COVID-19] and Governor Murphy's Executive Orders." Relying on our
decision in Facto v. Pantagis, 390 N.J. Super. 227, 234 (App. Div. 2007), the
court also determined the COVID-19 pandemic constituted a "force majeure"
which relieved both parties of their duty to perform under the Contract.4
3
RCC cross-claimed against Hartford Insurance Group for indemnification and
contribution based on an insurance policy Hartford had issued to RCC. The
cross-claim is not at issue in this appeal.
4
In Facto, the parties signed a contract for a wedding reception at a banquet
hall owned by the defendant. Id. at 228. The wedding reception was forced to
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Specifically, the court found plaintiff did not breach the Contract by notifying
defendants the original event date could not be honored as a result of restrictions
limiting indoor gatherings because "[t]he initial contract . . . contemplated that
all of plaintiff's guests would be in the same room, an occurrence defendant [s]
could not guarantee."
The court also found plaintiff's failure to renegotiate a later date for her
event did not constitute a breach because nothing in the Contract "compelled
either side to agree on a subsequent date." The court rejected defendants'
argument they were entitled to recover under a quantum merit theory because
"[n]o specific expenses unique to the planned event (in identification, in cost,
and when the expenses were incurred) were brought to the court's attention" and
it was not sufficient for defendants to "merely state that meetings were held
end early due to a power outage. The plaintiffs filed a breach of contract action
against the defendant for the return of their deposit. Id. at 228-30. In dismissing
the plaintiffs' claims, the trial court found that the plaintiffs' breach of contract
claim was barred by the force majeure clause in the contract, finding the
defendant's performance had been excused because the power outage constituted
an unforeseen event "that could not be avoided by reasonable human foresight."
Id. at 230 (internal quotations omitted). We reversed and remanded the case,
holding that the "court erred in concluding that because the defendant did not
breach the contract, the plaintiffs are not entitled to recover the money they
prepaid for the wedding reception." Id. at 233. Accordingly, we held the power
outage was a force majeure event excusing the parties' contractual performance
and the plaintiffs were not obligated to pay the entire contract amount for the
wedding reception. Id. at 234.
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concerning [the] reception as those meetings occur regularly in the catering
business."
The court granted defendants' motion for partial summary judgment
dismissing plaintiff's CFA claim, finding she had failed to "describe a potential
or prima facie CFA violation, with aggravating circumstances resulting in any
ascertainable loss." At the outset of the court's statement of reasons, it
emphasized that "the crux of this case involves plaintiff's attempt to recover
[her] reception deposit, nothing else." The court did not find evidence that
defendants had negotiated in bad faith once it became clear they could not
perform under the Contract. Rather, the court found the parties could not
amicably renegotiate the Contract and disagreed over how much money was
owed to plaintiff.
The court also rejected plaintiff's allegation that defendants' offer to move
the date of her event or reduce the size were deliberate attempts to induce
plaintiff and her guests to "violate the executive order in place and expose
themselves to the virus or to wrongfully retain plaintiff's deposit." Instead, the
court concluded her allegations were based on her subjective perceptions of
defendants' representations and were unsupported by the record.
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Following the court's disposition of the parties' cross-motions for
summary judgment, plaintiff filed a writ of execution to enforce the court's
March 18, 2021 order. In response, defendants filed an order to show cause
(OTSC) to stay the return of the $50,000 deposit and sought summary dismissal
of the remaining three counts of plaintiff's complaint. The court then entered a
second order requiring defendants to pay the $50,000 judgment as previously
ordered. On June 21, 2021, defendants reimbursed plaintiff her $50,000 deposit.
On June 23, 2021, plaintiff moved to amend her complaint to add three
additional counts alleging additional CFA violations and add defendants'
counsel as a named party.5 Plaintiff claimed her motion "incorporated further
newly discovered facts" from two documents she alleged defendants had
improperly withheld during discovery.6 On July 21, 2021, defendants moved
5
In the proposed count six, plaintiff alleged defendants had conspired to violate
N.J.S.A. 56:8-2 in the performance of services offered to plaintiff. Count seven,
against defendant Fred Puccio, alleged a violation of N.J.S.A. 56:8-2 in the
performance of the services offered to plaintiff as to defendant Fred Puccio and
defendants' counsel Gary Newman and Newburg & Denburg, LLC, respectively.
6
Plaintiff alleged the two documents were requested in her December 2, 2020
request for production of documents. Defendants did not respond to the request
until March 17, 2021. The first document was an announcement posted on
defendants' business website addressed to the public about its plans to
accommodate previously scheduled wedding events, which plaintiff maintains
indicated defendants' intent to comply with ongoing COVID-19 restrictions
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under Rule 4:6-2(e) to dismiss the remaining three counts in plaintiff's complaint
alleging intentional and negligent breach of constructive trust (counts two and
three), and malicious refusal to return unearned payments in breach of the
implied covenant of good faith and fair dealing (count five).
The court denied plaintiff's motion to amend her complaint in an order and
written statement of reasons dated August 6, 2021. The court found the motion
procedurally and substantively flawed because it was: untimely, having been
filed approximately one year after the complaint and after the end of the second
discovery end date; submitted without a motion for an extension of discovery;
and lacked merit.
The court concluded plaintiff's "perception of adversary counsel's [May
13, 2020] letter to [] [RCC's] insurance carrier in a different case, as being
inconsistent with [RCC's] factual position in this case, relative to the scope of
one (or more) executive order(s), is subjective in nature. The issues were [and]
are not identical[.]"
pursuant to Executive Orders restricting public gatherings. The second
document was a letter from defendant RCC to its insurer—Hartford Insurance
Group—in connection with its then-pending COVID-19 business interruption
suit against Hartford.
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On August 27, 2021, following oral argument, the court granted
defendants' motion to dismiss the remaining three counts in plaintiff's complaint.
The court rendered its opinion from the bench finding, "[c]onstructive trusts are
not a cause of action. It is an equitable remedy if unjust enrichment exists. . . .
There has to be a benefit conferred to the [d]efendant[s] . . . There is no
constructive trust if the money is returned."
Following the court's August 27, 2021 order, plaintiff moved to dismiss
defendants' defamation counterclaims, which the court granted in an order dated
March 18, 2022. Plaintiff then sought attorney's fees related to her successful
defense against defendants' counterclaims for defamation and slander per se
arguing pursuant to Rule 1:4-8 and N.J.S.A. 2A:15-59.1 (the frivolous litigation
statute) defendants' counterclaims were filed in bad faith. Defendants also
crossed moved for an award of attorney's fees. The court heard argument and
denied both motions in an order dated May 13, 2022. In denying plaintiff's
motion for fees under Rule 1:4-8, the court concluded that "just because one
party prevails doesn't mean they become frivolous, [] claims."
Both parties appealed.
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I.
We review a trial court's summary-judgment order de novo, applying the
same standard as the trial court. Stewart v. N.J. Tpk. Auth., 249 N.J. 642, 655
(2022). We accord no deference to the trial court's legal conclusions. Rowe v.
Bell & Gossett Co., 239 N.J. 531, 552 (2019). Rule 4:46-2(c), which guides our
analysis, provides summary judgment is proper "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment or order as a matter of law."
Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting R. 4:46-2(c)).
An issue is genuine if "the evidence submitted by the parties on the
motion, together with all legitimate inferences therefrom favoring the non -
moving party, would require submission of the issue to the trier of fact." R.
4:46-2(c). In other words, if the "competent evidential materials presented,
when viewed 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[,]" then the movant is not entitled to summary judgment.
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
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II.
Plaintiff argues the court erred in granting defendants' motion for partial
summary judgment dismissing her CFA claim. Plaintiff claims the court
erroneously limited its application of the CFA "only to the formation of a
contract" and ignored defendants' "repeated representations that [they were]
'able' to perform the contracted for event[,]" which she alleges "were not only
false in light of [EOs] prohibiting public indoor gathering[s] but made in bad
faith[.]" Additionally, plaintiff avers the $50,000 deposit she paid "was
wrongfully retained as a coercive device in an attempt to force [her] capitulation
to an entirely different event or simply to pocket her money for the cancelled
event[.]" Plaintiff further argues that combined, defendants' actions "constitute
substantial aggravating circumstances sufficient to support a CFA claim for
unconscionable practices."
Defendants maintain the "instant matter was nothing more than a simple
contract dispute whereby the parties were contesting the allocation of loss on
their written contract," and plaintiff failed to "provide a scintilla of evidence of
the requisite ascertainable loss and aggravating circumstances required to prove
a [CFA] claim." And defendants also argue a breach of contract is not per se
unfair or unconscionable and does not violate the CFA. We are persuaded that
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with the return of plaintiff's deposit, plaintiff suffered no ascertainable losses as
required to sustain a CFA claim against defendants. Thus, we reject plaintiff's
arguments and affirm the court's dismissal of plaintiff's CFA claim.
"The CFA provides a remedy for any consumer who has suffered an
ascertainable loss of moneys or property as a result of an unlawful commercial
practice and allows him or her to recover treble damages, costs, and attorneys
[sic] fees." Heyert v. Taddese, 431 N.J. Super. 388, 411 (App. Div. 2013). The
elements of a CFA claim are: (1) an unlawful practice, (2) an ascertainable loss,
and (3) a causal relationship between the unlawful conduct and the ascertainable
loss. Lee v. Carter-Reed Co., 203 N.J. 496, 521 (2010). The CFA defines an
"unlawful practice" as:
any unconscionable commercial practice, deception,
fraud, false pretense, false promise, misrepresentation,
or the knowing, concealment, suppression, or omission
of any material fact with intent that others rely upon
such concealment, suppression or omission, in
connection with the sale or advertisement of any
merchandise or real estate, or with the subsequent
performance of such person as aforesaid, whether or not
any person has in fact been misled, deceived or
damaged thereby.
[N.J.S.A. 56:13-21(a).]
"An 'unlawful practice' contravening the CFA may arise from (1) an
affirmative act; (2) a knowing omission; or (3) a violation of an administrative
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regulation." Dugan v. TGI Fridays, Inc., 231 N.J. 24, 51 (2017) (quoting
Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 245 (2005)). "The
language of the CFA specifically identifies a variety of affirmative acts,
including 'deception, fraud, false pretense, false promise, [and]
misrepresentation,' and it also identifies as actionable 'the knowing[]
concealment, suppression or omission of any material fact,' if intentional[.]"
Allen v. V & A Bros., Inc., 208 N.J. 114, 131, (2011) (alterations in original)
(quoting N.J.S.A. 56:8-2).
To withstand a motion for summary judgment in a CFA action, plaintiff
must make a showing of ascertainable loss attributable to unlawful conduct by
defendant. Thiedemann 183 N.J. at 248. An ascertainable loss under the CFA
is one that is "quantifiable or measurable, not hypothetical or illusory." Ibid."In cases involving breach of contract or misrepresentation, either out-of-pocket
loss or a demonstration of loss in value will suffice to meet the ascertainable
loss hurdle and will set the stage for establishing the measure of damages." Ibid.(citing Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 13 (2004)) ("In an ordinary
breach-of-contract case, the function of damages is simply to make the injured
party whole. . . .").
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Conduct constituting a breach of contract may present grounds for a CFA
claim, but not invariably so. Cox v. Sears Roebuck & Co., 138 N.J. 2, 18 (1994).
In that regard, our Supreme Court explained in Cox:
In respect of what constitutes an "unconscionable
commercial practice" . . . unconscionability is an
amorphous concept obviously designed to establish a
broad business ethic. The standard of conduct that the
term "unconscionable" implies is lack of good faith,
honesty in fact and observance of fair dealing.
However, a breach of warranty, or any breach of
contract, is not per se unfair or unconscionable [] and a
breach of warranty alone does not violate a consumer
protection statute. Because any breach of warranty or
contract is unfair to the non-breaching party, the law
permits that party to recoup remedial damages in an
action on the contract; however, by providing that a
court should treble those damages and should award
attorneys' fees and costs, the Legislature must have
intended that substantial aggravating circumstances be
present in addition to the breach.
[Ibid. (citations and internal quotation marks omitted).]
Applying the foregoing principles, we conclude there is insufficient
evidence of substantial aggravating circumstances to support plaintiff's claim
that defendants' actions in retaining her deposit—based on alleged
misrepresentations about their ability to host her wedding and reception during
the height of the COVID-19 pandemic—constituted unlawful conduct under the
CFA. We are persuaded plaintiff failed to establish, through competent proofs,
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that defendants negotiated in bad faith once it became clear RCC could not
perform under the Contract. Brill, 142 N.J. at 529 (explaining insubstantial
issues of fact based on assumptions or speculation are not enough to overcome
summary judgment). Rather, the issue at hand is the parties' disagreement over
how much money was owed to plaintiff under the Contract: whether defendants
were entitled to retain any of the deposit and whether plaintiff's loss was
"different and/or additional to the loss of the deposit money allegedly suffered
due to the consumer contract breach."
We further conclude that even if plaintiff could establish defendants'
conduct in retaining her $50,000 deposit was unlawful, plaintiff cannot meet the
second element requiring proof of an ascertainable loss as a result of defendants'
alleged CFA violation. Thiedemann, 183 N.J. at 249 ("[B]y the time of a
summary judgment motion, it is the plaintiff's obligation to be able to make . . .
a demonstration [of ascertainable loss] or risk dismissal of the cause."). We
reach this conclusion based on our reading of the summary-judgment record,
which shows plaintiff was paid in full and we are persuaded that absent proof of
ascertainable loss, the court correctly determined plaintiff could not sustain her
CFA claim and defendants are entitled to judgment as a matter of law.
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Plaintiff's CFA claim was properly dismissed because she failed to:
identify any unlawful conduct that encompassed an unconscionable practice or
violation of law; detail material misrepresentations, reasonable reliance, or
resulting damages; proffer facts demonstrating a business practice to materially
conceal information that ultimately induced her to act; and establish she suffered
an ascertainable loss. As plaintiff's unsupported assertions fail to create a
material dispute requiring determination by the factfinder, defendant s were
entitled to judgment as a matter of law on plaintiff's CFA claim. See Brill, 142
N.J. at 540.
III.
We next turn to plaintiff's argument the August 6, 2021 order denying her
motion for leave to amend her complaint constituted error. Under Rule 4:9-1, a
motion seeking to amend a complaint always rests in the court's sound
discretion. Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501-02 (2006) (quoting
Kernan v. One Wash. Park Urb. Renewal Assocs., 154 N.J. 437, 456-57 (1998)).
As such, we review a trial court's decision to grant or deny a motion to amend
the complaint for abuse of discretion. Port Liberte II Condo. Ass'n v. New
Liberty Residential Urb. Renewal Co., 435 N.J. Super. 51, 62 (App. Div. 2014).
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"That exercise of discretion requires a two-step process: whether the non-
moving party will be prejudiced, and whether granting the amendment would
nonetheless be futile." Notte, 185 N.J. at 501.
Defendants argue plaintiff's amended pleading was fatally flawed and that
the court did not abuse its discretion in denying the motion. Defendants also
insist that their position in this litigation has been entirely consistent: that they
were closed due to EO 107 prior to the date of plaintiff's June 2020 wedding
reception, and when they informed plaintiff that they were "ready, willing and
able" to conduct the event, subject to the EOs, that statement was entirely
accurate.
Plaintiff moved to amend her complaint to add three additional CFA
counts which she claimed were based on newly discovered evidence—a May 13,
2020 correspondence from RCC to its insurance carrier, Hartford Insurance
Group, stating that defendants' venue was "primarily closed to the public"
pursuant to EO 107, and an online article entitled "Wedding Venues Ask for
Patience in Uncertain Time."7 With regard to the correspondence sent to
Hartford, plaintiff argues that it showed RCC was representing to its insurance
7
Nanina's In The Park, Wedding Venues Ask for Patience in Uncertain Time,
https://naninasinthepark.com/naninas-in-the-park-covid-19-update (last visited
July 1, 2024).
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carrier that RCC was closed to the public while simultaneously advising her that
they were "ready, willing and able to host her wedding reception." She
maintains this correspondence is evidence of defendants' bad faith in support of
her CFA claim. With respect to the article, however, the court correctly
concluded plaintiff had offered no explanation for its introduction or use and
found it did not establish bad faith, and we concur.
In denying plaintiff's motion for leave to amend her complaint, the court
further concluded "[p]laintiff knew of [RCC's] insurance related claim from the
outset of this case, upon defendant[s]' filing an answer," the proposed
amendment was without merit, and "plaintiff ha[d] not identified an
ascertainable loss above the contract deposit, caused by defendant[s]' conduct ."
Applying the requisite standard, we discern the court did not abuse its
discretion in denying plaintiff's motion to amend her complaint to re-plead three
additional CFA counts that were "not sustainable as a matter of law." C.V. by
& through C.V. v. Waterford Twp. Bd. of Educ., 255 N.J. 289, 306 (2023)
(quoting Notte, 185 N.J. at 501). Additionally, plaintiff filed the motion more
than one year after she had filed the complaint and made returnable
approximately four months after the court's dismissal of the CFA count in her
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original complaint and within one month of the expiration of the second
discovery end date.
"The court determines whether the proposed amendment would be futile
by asking 'whether the amended claim will nonetheless fail and, hence, allowing
the amendment would be a useless endeavor.'" Notte, 185 N.J. at 501 (quoting
Kernan, 154 N.J. at 456-57). Moreover, we note plaintiff's proposed amended
complaint included no allegations of additional losses beyond those for which
she had already been compensated—which the court expressly relied on in
dismissing the prior CFA count—the sole exception being a vague reference to
"attorneys' fees and court costs plaintiff incurred to recover her $50,000." We
are persuaded plaintiff's proposed amendment was fatally flawed and, therefore
futile. Thus, the court did not abuse its discretion in denying plaintiff's motion.
IV.
Plaintiff also argues the court erred in dismissing the remaining counts in
her complaint alleging intentional breach of constructive trust (count two),
negligent breach of constructive trust (count three), and malicious refusal to
return the unearned payments in breach of the implied covenant of good faith
(count five) and consequently erred in denying her request for punitive damages.
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Plaintiff claims the court erred in its treatment of defendants' motion to
dismiss, arguing defendants' counsel's submission of a certification that included
several attachments in addition to the complaint required the court to consider
the motion under the summary judgment standard. Plaintiff also argues that the
court erred by failing to accept as true, evidence in the record that supported
inferences of bad faith as required in deciding a Rule 4:6-2(a) motion to dismiss.
We disagree.
"If the court considers evidence beyond the pleadings in a Rule 4:62-2(e)
motion, that motion becomes a motion for summary judgment, and the court
applies the standard of Rule 4:46." Dimitrakopoulos v. Borrus, Goldin, Foley,
Vignuolo, Hyman and Stahl, P.C., 237 N.J. 91, 107 (2019). However, there is
no support for plaintiff's contention that the court considered evidence beyond
the pleadings in rendering its August 27, 2021 oral opinion. Myska v. N.J. Mfrs.
Ins. Co., 440 N.J. Super. 458, 482 (App. Div. 2015) (quoting Banco Popular N.
Am. v. Gandi, 184 N.J. 161, 183 (2005)) ("In evaluating motions to dismiss,
courts consider allegations in the complaint, exhibits attached to the complaint,
matters of public record, and documents that form the basis of a claim."). Thus,
plaintiff's argument is without sufficient merit to warrant further discussion. R.
2:11-3(e)(1)(E).
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We also reject plaintiff's contention defendants' delay in returning the
$50,000 deposit to her following the entry of the order for summary judgment
in her favor resulted in the creation of a constructive trust or that the court should
have imposed such an extraordinary remedy. It is well-settled that a constructive
trust is an extraordinary equitable remedy. Flanigan v. Munson, 175 N.J. 597,
611 (2003) (holding the imposition of a constructive trust is a powerful tool to
be used only when the equities of a given case clearly warrant it). Although
defendants were initially ordered to return plaintiff's deposit on March 18, 2021
and did not return the deposit until June 21, 2021, the court determined plaintiff
had failed to demonstrate defendants had been unjustly enriched because the
deposit was ultimately returned; thus, plaintiff could not show unjust
enrichment. See Flanigan, 175 N.J. at 608 (internal citation omitted) (stating
that such a trust is designed to "prevent unjust enrichment and force a restitution
to the plaintiff of something that in equity and good conscience [does] not
belong to the defendant."). We agree.
We note that after the court's initial order granting summary judgment in
favor of plaintiff on her breach of contract claim and ordering the return of her
deposit, defendants filed an order to show cause seeking to stay the judgment
and a determination of how much of the deposit was to be returned to plaintiff.
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Based on our review of the record, we are not persuaded that plaintiff is entitled
to the extraordinary relief she seeks because defendants returned the entire
deposit and thus, they were not unjustly enriched, and, with the return of her
entire deposit, plaintiff was entitled to any other equitable relief. As we
previously stated, the creation of a constructive trust is an extraordinary
equitable remedy to be used only when the equities of a given case clearly
warrant it. Flanigan, 175 N.J. at 611. There are no such equities here.
Moreover, defendants' delay in returning the deposit in full prior to the
court's order compelling them to do so is not indicative of actual malice or a
wanton and willful disregard of persons who foreseeably might be harmed by
defendants' alleged acts or omissions, N.J.S.A. 2A:15-5.12(a), within the
meaning of the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17. See
N.J.S.A. 2A:15-5.10 (defining "[a]ctual malice" and "[w]anton and willful
disregard" under the Punitive Damages Act). Defendants placed the $50,000 in
a trust account pending final resolution of all claims and counterclaims and
remitted the full amount to plaintiff on June 21, 2021, pursuant to the court's
June 17, 2021 judgment following resolution of the OTSC. And, by the time
the court decided defendants' motion to dismiss on August 27, 2021, plaintiff's
money had been returned.
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Defendants' actions do not support a punitive damages award under the
Punitive Damages Act. See id. at 451-52 ("The mere fact that a court has found
that the weight of the evidence is balanced in favor of one side rather than the
other . . . does not furnish the basis for a finding of the type of wrongful,
malicious conduct which could support a claim for punitive damages[.]"). And,
as the court noted, defendants had returned plaintiff's deposit in full. Quinlan
v. Curtiss-Wright Corp., 204 N.J. 239, 274 (2010) (citing Rendine v. Pantzer,
141 N.J. 292, 313 (1995)) (explaining liability under the Act is reserved for
intentional wrongdoing that is "especially egregious.").
V.
We similarly reject plaintiff's argument the court erred in denying her
application for attorney's fees and costs pursuant to N.J.S.A. 2A:15-59.1 (the
frivolous litigation statute) and Rule 1:4-8,8 which she had filed after the court
dismissed the counterclaims for defamation and slander per se. The court found
that the contents of the social-media posts that was the basis of the counterclaim
were not defamatory "based on the nature of the post, based on what was in the
post" and defendants had not established that plaintiff authored any of the posts
8
Plaintiff alleged she had incurred $21,540.00 in attorneys' fees, plus $100.00
for the motion filing fees as a result of defendants' failure to withdraw their
counterclaims.
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or that any of the posts related to her wedding. Thus, there was no basis on
which to award fees.
We review a court's decision to award fees for an abuse of discretion.
Tagayun v. AmeriChoice of N.J., Inc., 446 N.J. Super. 570, 577, (App. Div.
2016). The frivolous-litigation statute permits a court to award reasonable
counsel fees and litigation costs to a prevailing party in a civil action if the court
determines that the complaint, counterclaim, cross-claim, or defense is
frivolous. N.J.S.A. 2A:15-59.1. A claim is considered frivolous when: "no
rational argument can be advanced in its support"; "it is not supported by any
credible evidence"; "a reasonable person could not have expected its success";
or "it is completely untenable." Belfer v. Merling, 322 N.J. Super. 124, 144
(App. Div. 1999). "[F]alse allegations of fact [will] not justify [an] award . . .
unless they are made in bad faith, 'for the purpose of harassment, delay or
malicious injury.'" McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J.
546, 561 (1993) (quoting N.J.S.A. 2A:15-59.1(b)(1)). However, an honest
attempt to pursue a perceived, though ill-founded, claim is not considered to be
frivolous. Id. at 563. The burden of proving bad faith is on the party who seeks
fees and costs. Id. at 559.
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On this record, we discern no abuse of discretion in the court's decision to
deny plaintiff's motion for attorneys' fees. The court concluded defendants had
presented limited proofs in support of their defamation and slander per se
claims; but we find no support in the record for plaintiff's argument defendants'
counterclaims were frivolous or unsupported "by any credible evidence" and
"completely untenable." Merling, 322 N.J. Super. at 144. We therefore discern
no abuse of discretion in the court's denial of plaintiff's motion for attorney's
fees.
VI.
We now turn to defendants' arguments raised in their cross-appeal: (1)
the court erred by voiding the contract as a whole rather than finding there was
an enforceable contract that plaintiff had breached by cancelling the event and
shifting the risk of loss from plaintiff to defendants, (2) the court erred by failing
to conduct a proof hearing on their quantum-meruit theory, and (3) plaintiff
breached the Contract by failing to make the final payment and by cancelling
the event.
From this record, we discern no support for defendants' contentions.
Again, it is undisputed that defendants were fully aware of the then-existing
limitations on indoor gatherings by May 22, 2020—as reflected in plaintiff's
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correspondence to Fred Puccio—and defendants also knew plaintiff had not
sought to modify the Contract by reducing the number of invited guests in order
to comply with EO 152. Given the limitations imposed by EO 152, which was
in effect at the time plaintiff's wedding date was approaching, both parties
questioned whether the wedding could proceed consistent with the terms of the
Contract, which contemplated a 225-guest wedding. We need not look any
further than the email exchanges, which were carefully crafted to avoid stating
the obvious: that neither party wanted to be the first to admit that plaintiff's
wedding reception could not take place as stated in the Contract.
As the court found, plaintiff had not breached the Contract by notifying
defendants "within three month[s] of [the June 20, 2020] reception date that the
date could not be honored" due to the EOs in place at the time. The court also
found that plaintiff had not breached the Contract by refusing to renegotiate a
later reception date, stating "[n]othing compelled either side to agree on a
subsequent date." Importantly, the court recognized that the Contract
"contemplated that all of plaintiff's guests would be in the same room, an
occurrence that [defendants] could not guarantee." We therefore find no basis
in the summary judgment record on which the court could have excused
defendants from performance under the Contract and at the same time enforced
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only the provisions in the Contract that would require plaintiff to bear the risk
of loss.
In the alternative, defendants argue they are entitled to quantum merit for
services performed under the Contract and that the court erred in not granting
them some financial relief. We likewise reject defendants' quantum-merit claim
because defendants failed to support their claim by providing proof of expenses.
The court rejected defendants' claim, citing a lack of evidence—specifically that
"[n]o specific expenses unique to the planned event (in identification, in cost,
and when the expenses were incurred) were brought to the court's attention." As
defendants' unsupported assertions failed to create a material dispute requiring
determination by the factfinder, the court properly granted summary judgment
on defendants' breach-of-contract claim. See Brill,142 N.J. at 540.
We therefore affirm the court's orders in all respects, granting defendants'
motion for partial summary judgment against plaintiff and dismissing plaintiff's
CFA claim; granting defendants' motion to dismiss the remaining three counts
of plaintiff's complaint; denying plaintiff's motion for leave to amend her
complaint and application for fees; and we similarly affirm the court's order
granting plaintiff's motion for partial summary judgment and the return of the
$50,000 deposit. In sum, we note the parties do not dispute that plaintiff's 225-
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guest wedding and reception plans were drastically and unfortunately
interrupted by the COVID-19 pandemic and the Governor's mandated
restrictions, including requiring the closure of defendants' venue for a period of
time.
To the extent we have not expressly addressed any arguments presented by
the parties, we note that we have considered the arguments and determined they
are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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