Natacha Smith v. Jocelyne Vieceli ( 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NOT FOR PUBLICATION WITHOUT THE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-2699-21
NATACHA SMITH,
Plaintiff-Appellant,
v.
JOCELYNE VIECELI,
JOHN MALAVASI, and
CHELSIE MALAVASI,
Defendants-Respondents.
__________________________
Argued February 13, 2024 – Decided July 16, 2024
Before Judges Gooden Brown and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Hunterdon County, Docket No. C-
014025-19.
Lee B. Roth argued the cause for appellant.
David A. Avedissian argued the cause for respondent
Jocelyne Vieceli (The Law Offices of David A.
Avedissian, Esquire, LLC, attorneys; David A.
Avedissian, on the brief).
Marshall T. Kizner argued the cause for respondents
John Malavasi and Chelsie Malavasi (Stark & Stark PC,
attorneys; Marshall T. Kizner, of counsel and on the
brief).
PER CURIAM
This appeal, involving defendant Jocelyne Vieceli's purported breach of
an alleged oral contract to purchase a home in Ringoes where plaintiff Natacha
Smith lived as a long-term tenant, returns to us after our remand. Before us,
plaintiff challenges the court's order granting summary judgment and dismissing
the contract claims against Vieceli, as well as the intentional interference of
contract claim against the successful purchasers of the Ringoes property,
defendants John and Chelsie Malavasi (together, the Malavasis). Plaintiff also
appeals from a separate order awarding the Malavasis $8,549.97 in litigation
sanctions under Rule 1:4-8 and N.J.S.A. 2A:15-59.1. We affirm.
I.
The facts underlying the parties' dispute are detailed in our unpublished
opinion, see Smith v. Vieceli, No. A-2615-19 (App. Div. Mar. 9, 2021), as well
as in Judge Margaret Goodzeit's April 20, 2022 forty-seven page written
decision supporting her summary judgment rulings and June 3, 2022 thirteen
page written opinion supporting the order awarding the Malavasis litigation
sanctions. We direct the reader to our prior opinion and Judge Goodzeit's
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written decisions for a more detailed discussion of the facts, as we address only
those portions of the record necessary to place our decision in context.
In our previous unpublished opinion, we reversed the court's order
granting Vieceli summary judgment on plaintiff's oral contract claim and its
order denying reconsideration. We concluded the court's order was
improvidently entered shortly after the court denied Vieceli's motion to dismiss
under Rule 4:6-2(e), and before Vieceli responded to plaintiff's outstanding
discovery. We further determined that on the undeveloped record before us,
genuine and material factual questions existed regarding the alleged oral
agreement such that dismissal of plaintiff's complaint was therefore unwarranted
at such an early stage of the proceedings. See Smith, slip op. at 1-2.
On remand, plaintiff amended her complaint to add the Malavasis as
defendants and asserted a tortious interference of contract claim against them.
After the parties completed discovery, including the depositions of plaintiff and
Vieceli, all defendants moved for summary judgment. Plaintiff requested the
court enter partial summary judgment in her favor and conclude she and Vieceli
entered a binding contract to purchase the Ringoes property. In addition,
defendants moved for reimbursement of their fees and costs under Rule 1:4-8
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and N.J.SA. 2A:15-59.1 based on what they contended was plaintiff's frivolous
litigation conduct.
Judge Goodzeit granted defendants' summary judgment applications,
denied plaintiff's, and granted the Malavasis' fee request, in part, while denying
Vieceli's application. Judge Goodzeit determined plaintiff failed to establish
she had an agreement with Vieceli and her husband to purchase the property
prior to his death, and also noted plaintiff did not seek to enforce any such earlier
agreement by way of specific performance. In addition, the judge also
concluded the motion record failed to establish the existence of an enforceable
oral agreement during Vieceli's husband's lifetime based on partial performance.
In sum, the judge found the undisputed record after discovery failed to create a
genuine and material factual question that the parties agreed upon "essential
terms, including price" and therefore the alleged agreement was nothing more
than an "unenforceable indefinite promise."
Next, Judge Goodzeit concluded summary judgment was appropriate with
respect to plaintiff's claim she entered a binding oral agreement with Vieceli to
purchase the property for $295,000. After detailing the undisputed facts in the
motion record, the judge explained after plaintiff rejected Vieceli's initial offer
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to purchase the property for $400,000, plaintiff hired a realtor, 1 as did Vieceli,
and all communications proceeded between those respective representatives.
The judge acknowledged the undisputed fact plaintiff accepted Vieceli's reduced
offer of $295,000, but plaintiff's subsequent conduct, according to the judge,
supported the conclusion she "did not act as if she believed she had a binding
oral agreement."
That conduct, all of which occurred after plaintiff maintained she had a
binding oral agreement, included: 1) her awareness the property would be
shown to prospective buyers who intended to bid on the property; 2) assenting
to her agent forwarding a signed agreement with an attorney review provision
with a contemporaneous text to her agent that plaintiff believed Vieceli would
"sit" on the contract until the completion of all showings; 3) her comment the
night the written agreement was forwarded that she "did not know what to think"
regarding Vieceli's failure to sign the agreement, and 4) her inquiry to her realtor
as to what her lawyer would need to do in order to "officially get [the written
agreement] in attorney review today?"
1
In her deposition, plaintiff denied she hired a realtor, instead characterizing
Deborah Stefanelli as a "friend" who "gave [her] advice and then . . . jumped
in." The written agreement, however, lists Stefanelli as plaintiff's broker and
agent.
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Judge Goodzeit also considered the undisputed record regarding
communications between the brokers which "demonstrated . . . they did not
believe a binding agreement had been reached just because a price had been
agreed upon." Most notably, the judge highlighted the following exchanges
after the alleged binding oral agreement was entered: 1) plaintiff's realtor stated
the parties "really needed" to finalize the written agreement, 2) Vieceli's broker
noted errors in the agreement, and the need for her client to execute the
document which she had not yet done, 3) plaintiff's additional communications
through her realtor to Vieceli's realtor, without reservation as to the existence of
any alleged binding oral agreement, increasing her offer from $295,000 to
$300,000 and a supplemental written escalation clause up to $315,000, and 4)
the continued showings of the property, with plaintiff's full knowledge and
without objection. The judge concluded plaintiff's initial acceptance of Vieceli's
$295,000 offer, in light of the aforementioned undisputed facts and
circumstances, did not "overcome the high burden" plaintiff was required to
meet to establish the parties' intention to be bound by an oral agreement.
Further, Judge Goodzeit rejected plaintiff's contention she was not bound
by the attorney review period contained in the proposed written agreement. On
this point, the judge noted because plaintiff's realtor, who acted as plaintiff's
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agent, prepared the document, New Jersey law required it to contain the
mandatory three-day review period. The judge also observed that had Vieceli
signed the agreement, as plaintiff and her realtor were urging, she would have
been permitted, as would plaintiff, to cancel the agreement for any purpose.
According to the judge, the fact that plaintiff had prepared and executed a
contract with an attorney review period evidenced she clearly intended "to be
bound by the three-day attorney review period . . . [and] . . . must also have
contemplated that the deal would not be consummated until Vieceli signed the
contract as well."
Finally, Judge Goodzeit reviewed the parties' undisputed conduct to
support her finding they did not enter a binding oral agreement. In this regard,
the judge re-emphasized that plaintiff had acknowledged that Vieceli would "sit
on the agreement . . . [and] . . . showings would continue." Further, the judge
noted again plaintiff continued to increase her offer to purchase the property and
never requested her counsel take any timely "action to enforce her rights which
she now attempt[ed] to rely upon." Instead, Judge Goodzeit observed it was not
until "a month after" Vieceli entered into a written contract with another bidder
that plaintiff retained counsel, who for the first time alleged the existence of a
prior binding oral contract. Considering these facts against the standard set forth
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in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995),
the judge concluded plaintiff failed to establish, clearly and convincingly, the
existence of a binding agreement, "oral or otherwise," between plaintiff and
Vieceli.
With respect to plaintiff's tortious interference claim against the
Malavasis, the judge similarly concluded plaintiff failed to raise a genuine and
material factual question warranting resolution of the claim by a factfinder. As
Judge Goodzeit explained, among other requirements, to assert successfully
such a cause of action under New Jersey law, a plaintiff must establish that a
defendant's purported interference was both intentional and improper. Based on
the motion record, the judge determined plaintiff failed to "provide any evidence
to establish the Malavasis[] knew that plaintiff intended to purchase the property
or that their act of bidding on the property was improper."
The judge further explained that even if the Malavasis knew plaintiff
remained interested in purchasing the property and was submitting a bid, that
knowledge did not support a tortious interference claim as it was undisputed
"the property was listed for sale and Vieceli was accepting bids ," and the
Malavasis were simply the highest bidders. Further, the judge noted the fact
the Malavasis' contract permitted them to terminate the contract if the seller was
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involved in litigation did not create a genuine and material factual question
because the provision was permissive, and at the time they entered the purchase
agreement, no lis pendens was filed nor was the litigation disclosed on the
affidavit of title. In sum, the judge concluded nothing in the motion record
established the Malavasis' purchase was in any way "malicious or wrongful."
Judge Goodzeit wrote a separate written opinion with respect to the
parties' sanctions applications. Relying on Tagayun v. AmeriChoice of N.J.,
Inc., 446 N.J. Super. 570, 580 (App. Div. 2016), the judge first rejected Vieceli's
motion after finding plaintiff did not act in bad faith when prosecuting her oral
contract claims. On this point, the judge noted the mere "fact that plaintiff did
not prevail on her claims" did not serve as a basis to award sanctions under
N.J.S.A. 2A:15-59, or Rule 1:4-8.
Judge Goodzeit reached a different conclusion, however, with respect to
the Malavasis' application. As the judge explained, despite permitting plaintiff
to amend the complaint to assert a claim of tortious interference and seek
specific performance, after plaintiff's deposition, "it became apparent that there
was no rational argument with a 'reasonable basis in law or equity' to continue
a claim of tortious interference against the Malavasis or seek to disgorge them
from their home. See N.J.S.A. 2A:15-59.l(b)(2)."
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The judge also determined "discovery produced a complete dearth of
evidence suggesting that the Malavasis had any knowledge of Smith's alleged
agreement with Vieceli, or of the litigation involving the property, when the
Malavasis made their contract with Vieceli" and plaintiff failed to "point to any
action taken by the Malavasis" to interfere with the purported oral agreement
besides their purchase of the property. As noted, the judge awarded the
Malavasis $8,549.97, representing the reduced fees and costs incurred for
services rendered by their counsel following plaintiff's deposition. This appeal
followed.
II.
Before us, plaintiff first contends Judge Goodzeit improperly resolved
genuine and material factual disputes with respect to the existence of a binding
oral agreement contrary to Brill. As she explains, the record established plaintiff
accepted Vieceli's offer to purchase the property for $295,000 and mere
discussions about altering the agreement, without assent by both parties,
regarding additional conditions or price adjustments should not result in the
nullification of a binding oral agreement, a conclusion plaintiff further argues
remains unaffected notwithstanding the involvement of licensed real estate
agents.
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Plaintiff also argues the judge committed reversible error, warranting a
further remand for a trial on the merits, because she granted summary judgment
when the parties' "state of mind, motive, or credibility" were at issue. Finally,
plaintiff contends Judge Goodzeit erred when she concluded the amended claims
against the Malavasis were frivolous and should have been withdrawn, rendering
her subsequent $8,549.97 fee award improper.
We have considered all of plaintiff's arguments against the record, as
applied to the applicable standards of review and relevant substantive legal
principles and affirm substantially for the reasons expressed in Judge Goodzeit's
comprehensive written decisions. We provide the following comments to
amplify our decision.
"We review a ruling on summary judgment de novo, applying the same
legal standard as the trial court." Birmingham v. Travelers N.J. Ins. Co., 475
N.J. Super. 246, 255 (App. Div. 2023). That standard requires courts to
"determine whether '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.'" Branch v. Cream-O-Land
Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)).
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"To decide whether a genuine issue of material fact exists, the trial court
must 'draw[ ] all legitimate inferences from the facts in favor of the non-moving
party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original)
(quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). Although
summary judgment is "ordinarily improper . . . when a party's state of mind,
intent, motive or credibility is in issue," In re Est. of DeFrank, 433 N.J. Super.
258, 266 (App. Div. 2013), as our Supreme Court explained, "[e]ven when
credibility may be an issue, '[i]f there exists a single, unavoidable resolution of
the alleged disputed issue of fact, that issue should be considered insufficient to
constitute a "genuine" issue of material fact,'" Liberty Surplus Ins. Corp. v.
Nowell Amoroso, P.A., 189 N.J. 436, 450 (2007) (second alteration in original)
(quoting Brill, 142 N.J. at 540).
Summary judgment is properly granted "when the evidence 'is so one-
sided that one party must prevail as a matter of law.'" Brill, 142 N.J. at 540(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)); see also
Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014); Memudu v.
Gonzalez, 475 N.J. Super. 15, 19 (App. Div. 2023). In other words, the court
must "consider whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party, are sufficient to
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permit a rational factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill, 142 N.J. at 540.
Against this standard of review, we consider the applicable legal
principles governing oral agreements for the purchase of real property. "A
contract arises from [an] offer and acceptance, and must be sufficiently definite
'that the performance to be rendered by each party can be ascertained with
reasonable certainty.'" Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992)
(quoting W. Caldwell v. Caldwell, 26 N.J. 9, 24-25 (1958)). "Thus, if parties
agree on essential terms and manifest an intention to be bound by those terms,
they have created an enforceable contract." Ibid. In certain circumstances, the
Statute of Frauds permits enforcement of an oral agreement for the sale of real
property if "a description of the real estate sufficient to identify it, the nature of
the interest to be transferred, the existence of the agreement and the identity of
the transferor and the transferee are proved by clear and convincing evidence."
N.J.S.A. 25:1-13(b).
"[T]he focus of inquiry in a situation involving an agreement for the sale
of an interest in real estate . . . should be whether an agreement has been made
between the parties by which they intend to be bound." Morton v. 4 Orchard
Land Trust, 180 N.J. 118, 126 (2004) (second alteration in original) (quoting
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New Jersey Law Revision Comm'n, Report & Recommendations Relating to
Writing Requirements for Real Est. Transactions, Brokerage Agreements &
Suretyship Agreements 2, 10 (1991) ("Revision Commission Report")).
"[A] 'high standard of proof' must be met to establish that intent." Ibid.(quoting Revision Commission Report at 10). "Specifically, 'the existence of an
[oral] agreement between the parties as well as its essential terms must be proved
by clear and convincing evidence.'" Ibid. (alteration in original) (quoting
Revision Commission Report at 10). Further, the parties must "manifest[ ] an
intent to enter into an oral agreement," id. at 130 (emphasis added), not just the
written agreement. In determining whether parties intended to enter into a
binding oral agreement, we evaluate: 1) the circumstances surrounding a
transaction; 2) the nature of the transaction; 3) the relationship between the
parties; 4) the parties' contemporaneous statements; and 5) the parties' prior
dealings. Id. at 126 (quoting Revision Commission Report at 10).
Against these principles and the record before us, we agree with the judge
plaintiff failed to establish a material factual question as to whether clear and
convincing evidence showed the parties' intent to be bound by an oral agreement
to sell the property for $295,000. We are satisfied the "competent evidential
materials presented, [even] when viewed in the light most favorable to
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[plaintiff], are [not] sufficient to permit a rational factfinder to resolve the
alleged disputed issue in [her] favor." Brill, 142 N.J. at 540.
The objective actions of both parties around the time of the purported oral
agreement were inconsistent with an intent to be bound absent a written
agreement. Vieceli, through her realtor, continued to show the property after
the agreement, with plaintiff's cooperation. Plaintiff acknowledged to her
realtor that she believed Vieceli would "sit on" the written agreement "until all
the showings" were completed, and noted there were "a ton of showings,"
indicating her belief that Vieceli was considering other offers.
When her realtor informed her Vieceli had received other offers, plaintiff
did not contact Vieceli, Vieceli's realtor, or her own realtor to enforce what she
believed to be a binding oral agreement which would preclude Vieceli from
accepting another offer to purchase the same property. Rather, she increased
her offer and included an escalation clause. Although plaintiff testified at her
deposition she was "forced to do it to try to salvage what was left," plaintiff's
submission of an additional offer at a different price, without reservation or
reference to the oral agreement, indicates there was no binding agreement at that
stage.
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Further, the written agreement itself does not support the proposition that
it was intended to memorialize any existing oral agreement. It includes no such
language or reference to any oral agreement. The written agreement also
contained inspection provisions and other contingencies, contrary to the oral
agreement, which according to Vieceli's realtor's certification, was "as is."
Significantly, the written agreement also provided for a three-day attorney
review period, during which either party could cancel the agreement. If the
parties believed they had already entered a binding agreement, such a provision
would be unnecessary.
Additionally, despite plaintiff's contentions to the contrary, the record
reflects both parties contemplated a written agreement. Plaintiff testified at her
deposition she "needed a signed contract" for her mortgage company, which was
consistent with her realtor's certification that "the mortgage people would want
a written agreement for their file." Plaintiff also testified she did not know if
she could have obtained a mortgage or bought the property without a signed
agreement.
Vieceli, for her part, testified at her deposition she would not "have sold
the property without a binding written agreement." Although plaintiff
challenges the propriety of Vieceli's testimony, the undisputed facts we have
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described lead us to the conclusion "there exists a single, unavoidable resolution
of the alleged disputed issue of fact," Liberty Surplus, 189 N.J. at 450 (quoting
Brill, 142 N.J. at 540), regardless of Vieceli's credibility.
In sum, we are satisfied the facts in the record demonstrate the parties did
not intend to be bound by their oral agreement absent a further written
agreement, and "no reasonable jury could conclude otherwise." Brill, 142 N.J.
at 545. Accordingly, the judge did not err in granting Vieceli summary judgment
on plaintiff's contract claims.
III.
We reach a similar conclusion with respect to Judge Goodzeit's decision
to dismiss plaintiff's claims against the Malavasis. To establish a claim for
tortious interference with contractual relations, a plaintiff must prove four
elements: "(1) actual interference with a contract; (2) that the interference was
inflicted intentionally by a defendant who is not a party to the contract; (3) that
the interference was without justification; and (4) that the interference caused
damage." Dello Russo v. Nagel, 358 N.J. Super. 254, 268 (App. Div. 2003).
This claim must be based, in part, on "facts claiming that the interference was
done intentionally and with 'malice.'" Ibid. (quoting Printing Mart-Morristown
v. Sharp Elecs. Corp., 116 N.J. 739, 751 (1989)).
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"For purposes of this tort, [t]he term malice is not used in the literal sense
requiring ill will toward plaintiff," but instead is "defined to mean that the harm
was inflicted intentionally and without justification or excuse." Ibid. (alteration
in original) (quoting Printing Mart, 116 N.J. at 751). "An individual acts with
malice when he or she intentionally commits a wrong without excuse or
justification." Ibid. (quoting Cox v. Simon, 278 N.J. Super. 419, 433 (App. Div.
1995)).
A defendant's interference with a contract "is intentional 'if the actor
desires to bring it about or if he [or she] knows that the interference is certain or
substantially certain to occur as a result of his [or her] action.'" Ibid. (quoting
Restatement (Second) of Torts § 766A, cmt. e (Am. Law Inst. 1977)). A party
acting to "advance [its] own interest and financial position," however, fails to
"establish the necessary malice or wrongful conduct." Ibid. (alteration in
original) (quoting Sandler v. Lawn-A-Mat Chem. & Equip. Corp., 141 N.J.
Super. 437, 451-52 (App. Div. 1976)).
As the judge correctly determined, plaintiff failed to establish a material
factual question as to whether the Malavasis intentionally and maliciously
interfered with the oral agreement. As we explained, the oral agreement
between plaintiff and Vieceli was not intended to be binding absent a written
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agreement, and thus was not a legally enforceable contract with which the
Malavasis could interfere. Even setting that aside, plaintiff presented no
evidence beyond bald assertions to support her contention the Malavasis
improperly bid on the property.
Plaintiff did not depose either of the Malavasis, but when asked at her
deposition how they interfered with the alleged oral contract, plaintiff answered
"they bought a property that was in the middle of litigation." When pressed by
the Malavasis' counsel, plaintiff could identify no other interference than
purchasing the property. The Malavasis acting to "advance [their] own interest
and financial position" by bidding on the property fails to "establish the
necessary malice or wrongful conduct" for plaintiff's claim to succeed. Dello
Russo, 358 N.J. Super. at 268 (quoting Sandler, 141 N.J. Super. at 451-52).
Chelsie Malavasi certified she and her husband "did not know that
[p]laintiff was one of the bidders" at the time they, and "several other interested
parties," bid on the property. While plaintiff claims she and Chelsie Malavasi
were friends and Malavasi "knew [she] intended to buy the property," Malavasi
disputes this, and plaintiff presents no competent evidence to show the
Malavasis had any knowledge of the oral agreement at the time they bid on the
property. Even if they did know, however, as the judge noted, that would not
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make their bid improper, as the property was for sale and Vieceli was accepting
bids. The Malavasis simply submitted a higher bid than plaintiff.
Additionally, the record reflects plaintiff had not yet filed her complaint
against Vieceli at the time of bidding. The Malavasis' attorney review letter
disapproving the contract for sale unless specified amendments were made was
dated August 15, 2019, while plaintiff's complaint was filed September 22,
2019. Indeed, it is undisputed there was no lis pendens on the property at that
time, and the Affidavit of Title signed by Vieceli represented "[n]o other persons
have legal rights in this [p]roperty" and "[t]here are no pending lawsuits or
judgments against us or other legal obligations which may be enforced against
this [p]roperty." The provision in the contract permitting, but not requiring, the
Malavasis to terminate the purchase in the event of litigation regarding the
property did not mean the Malavasis knew litigation was forthcoming.
In sum, the motion record overwhelmingly demonstrates the parties did
not intend to be bound by plaintiff's acceptance of Vieceli's $295,000
counteroffer and the Malavasis did not intentionally interfere with plaintiff's
purported agreement. Summary judgment was appropriate here given how one-
sided the evidence was.
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IV.
We turn next to plaintiff's challenge to the court's order directing her and
her counsel to pay the Malavasis $8,549.97 in partial litigation sanctions for her
continued prosecution of the lawsuit against them after it became clear the
intentional interference claim was meritless.2 Essentially, plaintiff argues her
claim was not frivolous as the previous opinion found material questions of fact
existed, and reprises her argument the Malavasis were not "innocent purchasers"
but rather "gambled on the outcome of the then-pending appeal." We disagree
with each of these points.
We review a trial judge's decision to award counsel fees on a motion for
frivolous litigation sanctions under an abuse of discretion standard. McDaniel
v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div. 2011). Reversal is
warranted "only if [the decision] 'was not premised upon consideration of all
relevant factors, was based upon consideration of irrelevant or inappropriate
factors, or amounts to a clear error in judgment.'" Ibid. (quoting Masone v.
Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)).
2
Before us, plaintiff challenges only the propriety of the award and not its
quantum or enforceability as against both her and her counsel. We limit our
discussion accordingly.
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The Frivolous Litigation Act, N.J.S.A. 2A:15-59.1, governs sanctions for
frivolous litigation against a party. Under that statute, a court is permitted to
"award reasonable attorney's fees and litigation costs to a prevailing party in a
civil action if the court finds 'at any time during the proceedings or upon
judgment that a complaint . . . of the non-prevailing person was frivolous.'"
Bove v. AkPharma Inc., 460 N.J. Super. 123, 147-48 (App. Div. 2019) (quoting
N.J.S.A. 2A:15-59.1(a)(1)). A complaint is frivolous if the judge "find[s] on the
basis of the pleadings, discovery, or the evidence presented" that either: (1) the
complaint "was commenced, used or continued in bad faith, solely for the
purpose of harassment, delay or malicious injury;" or (2) "[t]he non[-]prevailing
party knew, or should have known, that the complaint . . . was without any
reasonable basis in law or equity and could not be supported by a good faith
argument for an extension, modification or reversal of existing law." N.J.S.A.
2A:15-59.1(b)(1) to (2).
Similarly, Rule 1:4-8 provides a pleading is frivolous if: (1) it is
"presented for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation;" (2) the claims therein are
not "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)
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the factual allegations lack evidentiary support; or (4) the denials of factual
allegations are not warranted. R. 1:4-8(a). "For purposes of imposing sanctions
under Rule 1:4-8, an assertion is deemed 'frivolous' when 'no rational argument
can be advanced in its support, or it is not supported by any credible evidence,
or it is completely untenable.'" Bove, 460 N.J. Super. at 148 (quoting United
Hearts, LLC v. Zahabian, 407 N.J. Super. 379, 389 (App. Div. 2009)). In the
order imposing sanctions, the court "shall describe the conduct determined to be
a violation of this rule and explain the basis for the sanction imposed." R. 1:4-
8(d).
Applying these principles, we discern no abuse of discretion in the judge's
decision to award partial attorney's fees pursuant to Rule 1:4-8 and N.J.S.A.
2A:15-59.1. As the judge found, at Smith's deposition she presented no
evidence of interference by the Malavasis beyond their purchase of the property,
which, as detailed supra, we conclude did not constitute tortious interference.
Similarly, further discovery revealed nothing to establish the Malavasis had
knowledge of the alleged oral agreement or of the forthcoming litigation at the
time they bid on the property. At that point, it became clear there was no
"reasonable basis in law or equity" to continue the claim against the Malavasis.
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Plaintiff's reliance upon our earlier opinion is misplaced. The Malavasis
were not defendants at the time of that decision and we did not opine as to
whether material factual questions existed as to plaintiff's claim against them.
Additionally, one of the primary bases for our earlier opinion was the timing of
summary judgment being granted prior to completion of discovery. Even with
the benefit of further discovery, however, plaintiff presented no credible
evidence to support her claim against the Malavasis.
Additionally, the record clearly demonstrates the judge considered all
relevant factors in her decision. She reasonably and properly limited the fee
award to the Malavasis to the period following plaintiff's deposition. Further,
the judge considered and rejected Vieceli's fee application, indicating she
appropriately reviewed the record and facts surrounding plaintiff's claims. As
such, we affirm the judge's decision granting partial counsel fees as a frivolous
litigation sanction.
Affirmed.
A-2699-21
24