MICHAEL D'ANTONIO v. THOMAS CHORBA, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3635-04T23625-04T2

MICHAEL D'ANTONIO,

Plaintiff-Appellant,

v.

THOMAS CHORBA, CELESTE CHORBA

and KATHERINE FITZPATRICK,

Defendants-Respondents.

 

Argued: April 3, 2006 - Decided July 26, 2006

Before Judges Fall and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Number BER-L-3662-03.

Nancy C. Ferro argued the cause for appellant (Ferro and Ferro, attorneys; Ms. Ferro, on the brief).

Ira Karasick argued the cause for respondents.

PER CURIAM

In this intentional infliction of emotional distress action, plaintiff Michael D'Antonio appeals from various rulings preceding the voluntary dismissal of his complaint against defendants Thomas Chorba, Celeste Chorba and Katherine Fitzpatrick, and from a post-dismissal order awarding defendants counsel fees and costs under the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1.

This matter arises from an ongoing neighborhood dispute in a single-family residential zone in the Borough of Allendale. Plaintiff resides at 316 E. Allendale Road, an approximately three-acre parcel of property owned by Calm Development, Inc. That property contains a residence toward its front, a three-bay garage in back of the residence, and a barn-like carriage-house structure behind the garage that had been improved with a bathroom, kitchen and other rooms capable of being used for sleeping quarters. When plaintiff purchased the property in 1996, the temporary certificate of occupancy issued by the Borough provided, inter alia, that the carriage house shall not be rented, leased or used for business purposes.

In 1997, the carriage house on plaintiff's property was partially destroyed by a fire and, upon inspection, Borough officials determined that the structure should not be used until it was repaired in accordance with applicable code requirements. Thereafter, plaintiff conveyed the property to his sons, who then conveyed it to Calm Development less than two months later.

In March 1998 plaintiff, on behalf of Calm Development, applied to the Borough's Zoning Board of Adjustment for a variance to permit an addition to the carriage house structure and for a use variance. That application was ultimately withdrawn.

Following a property maintenance inspection of plaintiff's property, Borough officials issued a stop work order based on allegations that the carriage house building was being rented to third parties. However, construction permits were apparently issued, and the carriage house was repaired and residentially occupied.

Defendants Thomas and Celeste Chorba reside at 312 E. Allendale Avenue, property west and directly adjacent to the property where plaintiff resides. Defendant Katherine Fitzpatrick owns and resides at the property immediately adjacent to and east of plaintiff's property.

The subject dispute arose from the use by plaintiff of his property by his construction business, known as Atlantis Contracting Company. As a result of those business activities, purportedly encroaching upon their property, the Chorbas and Fitzpatrick filed separate trespass actions against plaintiff in municipal court in 1999. Complaints to Borough officials concerning plaintiff's activities on his land led to the Borough bringing suit against plaintiff and Calm Development in the Law Division, docket number BER-L-5058-99, seeking injunctive relief against them to cease and desist purported illegal commercial activities on the property.

Upon plaintiff's application, the trespass complaints were consolidated with the Law Division action. The Chorbas and Fitzpatrick amended their complaints to also seek injunctive relief, and plaintiff and Calm Development filed a counterclaim also seeking injunctive relief and relief similar to that sought in the present action.

The consolidated actions were tried non-jury in the Law Division before Judge Jonathan N. Harris, who issued an oral opinion on December 19, 2001. The judge found that plaintiff had been improperly engaging in commercial activities on the Calm Development property, and had otherwise violated municipal ordinances by permitting the parking of commercial vehicles on lawn areas, had otherwise violated the property maintenance code, and violated the soil importation ordinance. The judge further concluded that plaintiff had violated Borough ordinances by creating another access way on the west side of his property.

The judge did find that the carriage house had become an accessory structure to the principal residence and its residential use was permitted, "limited to whatever the single family is that resides on the premises."

In addressing plaintiff's counterclaim for "the tort of harassment," the judge noted that there is no such tort, noting there is a tort for negligent or intentional infliction of emotional distress. The judge found plaintiff had not sustained his burden on that cause of action, nor did he find that the Borough had engaged in selective enforcement activities.

Judge Harris issued a mandatory permanent injunction against plaintiff and Calm Development, prohibiting the parking of their vehicles on the lawn area of the property, requiring them to re-grade the property to the satisfaction of municipal officials, prohibiting the commercial use of the property, even as a staging area for commercial activities, and prohibiting use of the western access to the property. An order for judgment was entered in that action on January 23, 2002, memorializing the judge's oral decision. Post-judgment orders enforcing that judgment were issued on July 1, 2002, and on November 19, 2002.

The current action was initiated by plaintiff by a complaint filed against defendants in the Law Division on May 22, 2003. Plaintiff alleged that the Chorbas, in January 2000, "brought a frivolous and wrongful legal action" against him "by instituting a legal action against him and/or promoting of facilitating the Borough of Allendale to bring proceedings against" plaintiff, Calm Development and his family "thereby facilitating an invasion of [plaintiff's] privacy, tortuous interference with his business and personal relation, constituted harassment, and plaintiff . . . incurred physical injury and otherwise severe emotional distress[,]" count one; that the Chorbas, in or about January 2000, instituted frivolous litigation against plaintiff by improperly alleging that plaintiff had "engaged in the wrongful use of commercial vehicles on his property[,]" count two; that the Chorbas had wrongfully instituted frivolous litigation against plaintiff in or about January 2000, by alleging that he had parked "his vehicles on the grass in violation of municipal ordinance[,]" count three; that the Chorbas had improperly instituted a frivolous action against plaintiff in or about January 2000 by wrongfully alleging that plaintiff had engaged in "the use of a residential property for inappropriate commercial or business purposes as well as the wrongful gathering of workers on said property[,]" count four; that the Chorbas in or about January 2000, had improperly "engaged in the wrongful manipulation or promulgation of municipal zoning ordinances" causing him emotional distress, count five; that in or about January 2000, the Chorbas had engaged in unlawful conduct by subjecting plaintiff and his family members to site surveillance constituting ongoing harassment, causing emotional distress, count six; that Fitzpatrick, in or about January 2000, had "engaged in tortuous conduct in that she instituted an action, or facilitated an action by the Borough of Annandale in a frivolous and improper manner by alleging that [plaintiff] engaged in the wrongful use of commercial vehicles on his property[,]" count seven; and that Fitzpatrick had engaged in wrongful and unlawful surveillance of plaintiff and his family members, causing emotional distress, count eight.

On or about July 14, 2003, defendant filed an answer and asserted a counterclaim seeking punitive damages, attorneys' fees and costs. Prior to filing their answer, counsel for defendants sent plaintiff's counsel a letter demanding dismissal of the action, alleging the action was frivolous pursuant to R. 1:4-8.

On or about September 16, 2004, plaintiff sought amendment of his complaint to allege that new municipal court actions filed against plaintiff constituted part of his causes of action. On or about December 21, 2004, defendants moved for dismissal of plaintiff's complaint for failure to state a claim upon which relief could be granted on the basis that plaintiff's claim had been previously adjudicated in favor of defendants.

In a hearing before Judge Daniel P. Mecca on January 7, 2005, the judge denied the motion to dismiss without prejudice. An order memorializing that ruling was issued on January 18, 2005.

The matter was scheduled for trial on January 19, 2005. On or about January 18, 2005, defendants filed a motion in limine seeking an order precluding any evidence of conduct occurring prior to May 22, 2001, on statute-of-limitations grounds; an order precluding the plaintiff's proffered expert testimony of Dr. Goldschmidt on the ground that his report failed to establish proximate cause and otherwise constituted a net opinion; an order taking judicial notice of the proceedings in BER-L-5058-99; an order precluding any claims based on conduct that formed the basis of the issues in BER-L-5058-99; and an order severing the counterclaim for adjudication in defendants' favor.

On January 19, 2005, the trial judge, Judge Isabel B. Stark, first addressed the issues raised in defendants' motion, granting the relief sought. The judge noted, in pertinent part:

I mean, if, in fact, Judge Harris found that the complaints made by the defendants were valid and, in fact, [plaintiff] was enjoined from continuing his behavior, I don't see how anything that revolves around those particular complaints made by Chorba could be couched in the framework of intentional infliction of emotional distress because they obviously had some cogency, and, in fact, were sustained as being violations. So you can't use as a basis for anyone's intentional infliction of emotional distress. . . .

* * * *

How can I allow a claim that occurred before the statute of limitations here and that is no longer a claim available to him which was available to him when he pled only harassment?

* * * *

All right. Well, all of [the previous Law Division action] is evidential and there's . . . the judgment of the court and in the findings of the court which can be evidential on the question whether there was an ongoing intentional harassment, and I'll have to frame the charge to . . . explain to the jury that we're only discussing this for the purpose of their understanding the continuing relationship between the parties[.] . . .

* * * *

Every single claim that [plaintiff] wants to make here is framed in a way that requires some information concerning all of the issues that were adjudicated by Judge Harris. Everything that happened through May of 2001 was . . . either before Judge Harris, or if it wasn't, it necessarily had to be because it's framed in exactly the same context as the issues that were before Judge Harris. . . . So there is no possible way that that information can now again be used for the purposes of pursuing claims that were not framed in the correct language at the time, namely intentional infliction of emotional distress or malicious use of process. But, in either event, neither could possibly prevail because in the malicious abuse of process, I agree with defense, you'd have to have a favorable finding. There is none here. . . . So I agree with defense, I bar any . . . reference to any of the information concerning prior complaints by Mr. Chorba before May of 2001.

The doctor repeatedly throughout his [deposition] testimony indicates that it is high blood pressure and genetics that are the probable reasons why some people react to stress the way they do, and unfortunately [plaintiff] was one of those people. He says that [plaintiff] should really move away from here to avoid stress in his life. [Plaintiff] has repeatedly put himself in a stressful position even though the doctor recommended that he desist.

There is no possible way that this report or this testimony could substantiate any special damages in a case for intentional infliction of emotional distress. There is virtually no connection that the doctor can make between . . . the atrial fibrillation and the events in this particular case as opposed to all the other litigants that [plaintiff] had involved himself in exactly the same time. So the court cannot allow that testimony to go before the jury, there's no causal connection presented, there is no medical connection given between this particular case and any atrial fibrillation, so the court cannot allow the [Dr.] Goldschmidt testimony to go before the jury.

* * * *

[T]he court is satisfied that [plaintiff] failed to tell Dr. Goldschmidt about the other litigations that were continuing in his life as a pro se plaintiff which involved foreclosure to property . . . , issues with his ex-wife about stealing things and assault against each other, there's no reasonable jury that could find that the litigation that, in fact, that was caused by the town and not by Chorba and Fitzpatrick could be causally connected to the atrial fibrillation sufficient to get before a jury. . . .

* * * *

So [plaintiff] has no damages, as far as I can tell he has no claim. So I don't hear there's a voluntary dismissal, but the court is going to have to dismiss [plaintiff's] claim.

Following those rulings, plaintiff agreed to take a voluntary dismissal of his complaint, and defendants agree to withdraw their counterclaim "except for the defendants pursuing a claim for costs and attorneys fees based on the rules of court and a demand for voluntary dismissal before today." On February 15, 2005, the court entered a judgment that dismissed both the complaint and the counterclaim with prejudice, and permitted defendants to proceed at their option under the frivolous litigation rule and statute.

On March 7, 2005, defendants filed a motion seeking an award of attorneys' fees and costs pursuant to R. 1:4-8 and N.J.S.A. 2A:15-59.1. Prior to that motion being heard, plaintiff file a notice of appeal on March 23, 2005. On or about that same date, plaintiff filed opposition to defendants' motion and a cross-motion for fees and costs or, alternatively, a stay of any award.

On April 28, 2005, we entered an order remanding the matter to the trial court to hear and adjudicate these motions. The motions were argued before Judge Stark on May 19, 2005. On May 27, 2005, Judge Stark issued a written decision on the limited remand finding, in pertinent part:

The totality of these circumstances militates a finding that [plaintiff] clearly and convincingly brought the within case against Mrs. Chorba and Dr. Fitzpatrick without one shred of fact or law to support it and against Mr. Chorba without a colorable fact and no law to support it and solely for the purpose of costing him as much money and aggravation as possible which is exactly what N.J.S.A. 2A:15-59.1 proscribes. He must pay for the inordinate time defendants' attorney had to expend and costs required to finally expose this frivolous suit. D'Antonio's is the greatest share because he either didn't tell his own attorneys everything or was willing to pay fees sufficient to blind them to the frivolity of his claims. Judgment against D'Antonio is entered in the sum of $12,000.

For the same reasons as described above and because each attorney was so lax in asking the correct fact questions and/or ordering transcripts and/or doing legal research that would have clarified the baselessness of the plaintiff's claims and let fees distract them in violation of RPC 3.1, the court is compelled to find that they must share in paying defendants' fees and costs pursuant to R. 1:4-8. . . . Plaintiff's attorney Sommer, Englehardt, Esqs., whose partner Michael L. Pescatore, Esq. started this morass must pay $5146 and Peter D. Russo, Esq. their former associate who didn't see the reasons for terminating the case before the trial date must pay $1672. . . .

A supplemental judgment entered on June 14, 2005, entered the judgment against plaintiff for $12,000 and against Mr. Russo for $1,672, but omits the $5146 against Mr. Pescatore. An amended notice of appeal was filed on July 14, 2005, including an appeal from the June 15, 2005 order.

On appeal, plaintiff presents the following arguments for our consideration:

POINT ONE

THE COURT ERRED IN COMPELLING PLAINTIFF TO VOLUNTARILY DISMISS HIS ACTION BY LIMITING PLAINTIFF'S CLAIMS AND BY BARRING PLAINTIFF'S EXPERT'S TESTIMONY.

POINT TWO

THE COURT BELOW ERRED IN RULING THAT PLAINTIFF'S ACTION WAS FRIVOLOUS AND AWARDING COUNSEL FEES BASED ON THAT FINDING.

After analyzing the record in the light of the written and oral arguments presented by the parties, we conclude that the issues presented by plaintiff are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(A) and (E), and we affirm substantially for the reasons articulated by Judge Stark in her oral decision delivered on January 19, 2005, and in her written opinion dated May 27, 2005. The record fully supports the conclusion that plaintiff's action against defendants was baseless and without merit, particularly in light of the result of the prior action. The record also supports the conclusion that plaintiff's action was commenced to inflict harm intentionally and without justification or excuse, in bad faith solely for the purpose of harassment or malicious injury. See Printing Mart-Morristown v. Sharp Electronics, 116 N.J. 739, 751 (1989); Port-O-San Corp. v. Teamsters Local Union No. 863 Welfare & Pension Funds, 363 N.J. Super. 431, 438 (App. Div. 2003). The judge's finding that plaintiff failed to disclose everything to his attorneys when pursuing the claims against defendants, and that he filed the action for the purpose of costing defendants as much money and aggravation as possible is also fully supported by the record, warranting the imposition of counsel fees and costs pursuant to N.J.S.A. 2A:15-59.1.

 
Affirmed.

(continued)

(continued)

14

A-3625-04T2

July 26, 2006