MARK OLYNYK VS. ROSA RICKETT, ESQ.(L-3302-13, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1493-14T3
MARK OLYNYK,
Plaintiff-Appellant,
v.
ROSA RICKETT, ESQ., THE LEVINE
LAW FIRM, LLC, a limited
liability company, and ELFANT
RICKETT LAW FIRM,
Defendants-Respondents.
Argued October 6, 2016 – Decided May 31, 2017
Before Judges Fuentes, Carroll and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-
3302-13.
Richard L. Ravin argued the cause for
appellant (Hartman & Winnicki, P.C.,
attorneys; Mr. Ravin, of counsel and on the
brief; Jon E. Linder, on the brief).
Michael P. Chipko argued the cause for
respondents Rosa Rickett, Esq. and Elfant
Rickett Law Firm (Wilson, Elser, Moskowitz,
Edelman & Dicker LLP, attorneys; Maxwell L.
Billek, of counsel; Brian S. Gatens, of
counsel and on the brief).
Meredith Kaplan Stoma argued the cause for
respondent the Levine Law Firm (Morgan
Melhuish Abrutyn, attorneys; Ms. Stoma, of
counsel; Petar Kuridza, on the brief).
PER CURIAM
Plaintiff Mark Olynyk filed a civil action against defendants
Rosa Rickett, Esq., The Levine Law Firm, L.L.C., and Elfant Rickett
Law Firm, alleging malicious prosecution, malicious abuse of
process, and intentional infliction of emotional distress.
Defendants represented plaintiff's former wife, Anna Olynyk, in a
matrimonial action that ended in a final judgment of divorce. In
lieu of filing responsive pleadings, defendants moved to dismiss
plaintiff's complaint pursuant to Rule 4:6-2(e), arguing plaintiff
failed to state a claim upon which relief can be granted.
Plaintiff opposed defendants' motion and filed a cross-motion
to amend his complaint to substitute malicious prosecution with
malicious use of process. Although defendants did not oppose
plaintiff's cross-motion, they argued that even as amended, the
complaint failed to state a viable cause of action as a matter of
law. Judge Rosemary E. Ramsay heard oral argument on the motions
on October 10, 2014. After considering the parties' presentations,
Judge Ramsay granted defendants' motion and dismissed the
complaint for failure to state a claim upon which relief can be
granted. See Rule 4:6-2(e).
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On appeal, plaintiff argues Judge Ramsay erred by: (1) denying
his cross-motion to amend the complaint; and (2) granting
defendants' motion to dismiss the complaint with prejudice. We
review a decision to dismiss a complaint as a matter of law under
Rule 4:6-2(e) de novo, using the same standards relied on by the
motion judge. Assuming arguendo that the facts stated within the
four corners of the complaint are true, and granting plaintiff the
benefit of all rational inferences that can be drawn from such
facts, we must determine:
whether a cause of action is "suggested" by
the facts. . . . In reviewing a complaint
dismissed under Rule 4:6-2(e) our inquiry is
limited to examining the legal sufficiency of
the facts alleged on the face of the
complaint. . . . However, a reviewing court
"searches 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." . . . At
this preliminary stage of the litigation the
Court is not concerned with the ability of
plaintiffs to prove the allegation contained
in the complaint. . . . For purposes of
analysis plaintiffs are entitled to every
reasonable inference of fact. . . . The
examination of a complaint's allegations of
fact required by the aforestated principles
should be one that is at once painstaking and
undertaken with a generous and hospitable
approach.
[Printing Mart-Morristown v. Sharp
Electronics Corp., 116 N.J. 739, 746 (1989)
(citations omitted).]
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In deciding defendants' motion, Judge Ramsay applied the
foregoing standard and accepted as true the following allegations
in plaintiff's complaint:
In or about December 2010, plaintiff's former
wife, Anna Olynyk, retained defendants to
represent her in the divorce proceedings.
Sometime in July 2011, police officers from
the Pompton Plains Police Department arrived
at plaintiff's home in response to a complaint
made by Anna Olynyk involving a disputed claim
over a lock box containing cash.
While the police were at plaintiff's home,
defendant Rickett contacted an officer at the
scene and demanded that he arrest plaintiff
for theft. Defendant lied when she told the
officer that plaintiff had stolen property
belonging to Anna Olynyk. The police officer
did not find probable cause to arrest
plaintiff, and the action was terminated in
plaintiff's favor.
When this incident was brought to the
attention of the Family Part judge who
presided over the matrimonial action, Rickett
made two knowing written misrepresentations in
which she denied requesting the police officer
to arrest plaintiff. Plaintiff engaged the
services of a private investigator to follow
up with the officer who had been at the scene.
Defendants engaged in a pattern of "lies and
[a] lack of candor" with the purpose of
protracting the litigation and extracting
legal fees from plaintiff. Defendants
continued this pattern of lies to the court
so plaintiff would be required to maintain a
litigation fund. Defendants used their "lies
and lack of candor to get the [c]ourt to
approve approximately $112,000.00 in funds
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from [p]laintiff to pay for Anna[] [Olynyk's]
litigation."
From these facts, Judge Ramsay found plaintiff had not made
out a cognizable claim of abuse of process, as that common law
tort is defined and discussed by this court in Tedards v. Auty,
232 N.J. Super. 541, 549–50 (App. Div. 1989) (citations omitted).
A brief description of the salient facts in Tedards is necessary
to provide context to our discussion. The plaintiff in Tedards
was arrested in his home by police officers executing an ex parte
judicial order obtained by his former wife. Id. at 547. The
record showed the plaintiff's former wife's attorney (the
defendant) knowingly submitted a certification containing material
misstatements of fact, and subsequently used the judicial order
obtained therefrom to coerce the plaintiff into paying his former
wife's legal fees, as well as the "full amount of her demands[.]"
Id. at 548.
The facts in Tedards stand in sharp contrast to what plaintiff
alleges here. Plaintiff was not arrested or even detained when
the police responded to his former wife's call about the lockbox
and the cash it allegedly contained. The police officers'
investigatory response did not satisfy the elements of either
malicious use or malicious abuse of process. See id. at 549–50.
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There is also no basis to find defendants liable for the tort
of malicious prosecution. As defined by the Supreme Court in
LoBiondo v. Schwartz, 199 N.J. 62 (2009), "[m]alicious prosecution
requires the plaintiff to prove four elements: (1) a criminal
action was instituted by [the] defendant[;] . . . (2) the action
was motivated by malice; (3) there was an absence of probable
cause to prosecute; and (4) the action was terminated favorably
to the plaintiff." Id. at 90 (citing Lind v. Schmid, 67 N.J. 255,
262 (1975)). Here, the record is undisputed that defendants did
not, at any time, institute criminal process against plaintiff.
Plaintiff alleges that defendants engaged in a campaign
driven by mendacity and obfuscation to deliberately prolong the
divorce proceedings and thereby support their claim for counsel
fees. Our Supreme Court has long recognized that appellate courts
must accord deference to the Family Part's factual findings, in
recognition of the Family Part's "'special jurisdiction and
expertise in family matters.'" Thieme v. Aucoin-Thieme, 227 N.J.
269, 282–83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413
(1998)). We presume the Family Part judge who presided over
plaintiff's matrimonial proceedings had the expertise,
responsibility, and authority to manage this contentious
litigation. Furthermore, as Judge Ramsay aptly noted, claims of
attorney misconduct predicated on violations of the Rules of
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Professional Conduct do not give rise to private tort causes of
action. Green v. Morgan Properties, 215 N.J. 431, 458 (2013); see
also Brundage v. Estate of Carambio, 195 N.J. 575, 602–03 (2008).
Finally, we address plaintiff's claim under the tort of
intentional infliction of emotional distress.
[T]o make out a prima facie case of
intentional infliction of emotional distress,
[the] plaintiff must show that: (1) [the]
defendant acted intentionally; (2) [the]
defendant's conduct was "so outrageous in
character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly
intolerable in a civilized community;" (3)
[the] defendant's actions proximately caused
him emotional distress; and (4) the emotional
distress was "so severe that no reasonable
[person] could be expected to endure it."
[Segal v. Lynch, 413 N.J. Super. 171, 191
(App. Div.) (quoting Buckley v. Trenton Saving
Fund Soc., 111 N.J. 355, 366 (1988)), certif.
denied, 203 N.J. 96 (2010).]
Applying our standard of review to the allegations in the
complaint, we conclude plaintiff did not make out a prima facie
case of intentional infliction of emotional distress. The acts
plaintiff attributes to defendants do not come close to describing
the type of "atrocious" and "utterly intolerable" behavior
required to establish a cognizable cause of action under this
tort.
Affirmed.
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