DONALD E. PARTINGTON and SIOBHAN M. PARTINGTON v. JOHN J. PANARIELLO and MARTINE PANARIELLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3020-08T33020-08T3

DONALD E. PARTINGTON and

SIOBHAN M. PARTINGTON,

husband and wife,

Plaintiffs-Appellants,

v.

JOHN J. PANARIELLO and

MARTINE PANARIELLO, husband

and wife, SWIM & TRIM, LLC,

t/a ALL POOL DEMOLITION,

HILLTOP FARM, A.M.

PANARIELLO, JR. and ALICE

PANARIELLO, husband and

wife,

Defendants-Respondents.

_______________________________________

 

Argued January 19, 2010 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4807-06.

Anthony P. Ambrosio argued the cause for appellants.

Joseph Lubertazzi, Jr., argued the cause for respondents (McCarter & English, L.L.P., attorneys; Mr. Lubertazzi, Jr., of counsel; Meena Untawale, on the brief).

PER CURIAM

Plaintiffs Donald E. Partington (Partington) and Siobhan M. Partington appeal from orders entered by the trial court awarding defendants attorneys' fees and costs pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1. Partington also appeals from the judgment entered by the trial court on February 29, 2008, for defendant John Panariello (Panariello) on his counterclaim for malicious prosecution. For the reasons that follow, we affirm in part and reverse in part.

I.

On November 13, 2006, plaintiffs filed a nine-count pro se complaint against defendants asserting an assortment of claims. Plaintiffs alleged that they reside and own residential property in Township of West Milford (Township), adjacent to residential property owned by defendants Panariello and his wife, Martine. In count one, plaintiffs asserted that Panariello, individually and as an agent for defendant Hilltop Farm, conducted wood logging, storage, and splitting activities on the Panariello property. Plaintiffs did not, however, seek any particular claim regarding such actions.

In count two, plaintiffs alleged that Panariello constructed an accessory building on his property in violation of the Township's zoning ordinance. Plaintiffs claimed that Panariello's accessory building was a nuisance and tortiously interfered with plaintiffs' property rights, devalued plaintiffs' property and prevented plaintiffs from the peaceful enjoyment of their property. Plaintiffs further alleged that they were forced to expend monies to conceal the accessory building.

In count three, plaintiffs alleged that defendants "conspired" with each other to construct the accessory building in close proximity to plaintiffs' property "with the intent and purpose" of reducing the value of the property and preventing them from the peaceful enjoyment of the same. Plaintiffs claimed that the accessory building created a nuisance, tortiously interfered with their property rights, devalued their property, and prevented them from the peaceful enjoyment of the property. They also claimed that the structure will affect the value of and their ability to sell their property.

In count four, plaintiffs further alleged that Panariello and agents or employees of defendant Swim & Twim, LLC had installed a fence along the line between their property and the Panariello property. Plaintiffs asserted that the fence was installed after the Township denied Panariello's variance application for the accessory building. Plaintiffs stated that the fence was in poor condition, contained several different patterns and colors and constituted a nuisance.

In count four, plaintiffs also asserted that Panariello installed the fence with the intent and purpose to harass and retaliate against plaintiffs. They claimed that the fence tortiously interfered with their property rights, devalued their property, prevented them from the peaceful enjoyment of their property and will in the future affect the value of and their ability to sell their property.

In the fifth count of the complaint, plaintiffs alleged that Panariello, individually and as an agent of Hilltop Farm, was conducting wood logging, storage, and splitting activities in close proximity to plaintiffs' property. Plaintiffs claimed that Panariello did so with the intent to harass and retaliate against them, prevent them from the peaceful enjoyment of their property and "affect the value, desirability and re-sale" of the property.

In count five, plaintiffs claimed that Panariello's activities created a nuisance, tortiously interfered with plaintiffs' property rights, prevented the peaceful enjoyment of their property and "will in the future affect the property value, desirability and re-sale value of the plaintiffs' property." They asserted that Panariello's actions were willful and malicious and undertaken in reckless disregard of their rights.

In count six, plaintiffs alleged that Panariello and Swim & Trim, LLC constructed the accessory building on the Panariello property for the purpose of using the building for commercial purposes. Plaintiffs alleged that this use of the Panariello property created a nuisance, interfered with plaintiffs' property rights, devalued their property and prevented them from the peaceful enjoyment of their property. Plaintiffs further alleged that the commercial use of the Panariello property will adversely affect the future value of the property and its value for purposes of re-sale.

In addition, in count seven, plaintiffs alleged that defendant A.M. Panariello, Jr. (A. Panariello) is a business and personal advisor and had been involved in the personal and business activities of Panariello, Swim & Trim, LLC and Hilltop Farm. Plaintiffs alleged that A. Panariello conspired with Panariello to place the accessory building "closer to plaintiffs' property." Plaintiffs claimed that defendants' actions were willful and malicious and in reckless disregard of plaintiffs' rights.

In count eight, plaintiffs alleged that A. Panariello had a mortgage interest in their property. They alleged that in November 2005, A. Panariello commenced a foreclosure action against them for the non-payment of real estate taxes, despite being told that the real estate taxes would be paid with proceeds of a refinancing. Plaintiffs alleged that Panariello, his wife, A. Panariello and Alice Panariello conspired to institute the foreclosure action "in order to obtain plaintiffs' property and to sabotage and prevent the" refinancing of the property.

In count eight, plaintiffs alleged that, during the aforementioned foreclosure proceedings, A. Panariello submitted "fraudulent mortgage computations" to the court in a "further attempt to proceed with foreclosure[.]" Plaintiffs alleged that defendants' actions were malicious and in reckless and wanton disregard of their rights. Plaintiffs claimed that they had been deprived of their liberty, pursuit of happiness, suffered mental anguish and "were greatly exposed and injured in their personal and credit reputation[.]"

In count nine, Partington alleged that he suffered emotional distress and was hospitalized as a result of having to testify with regard to Panariello's variance application for the accessory building. Partington sought compensatory damages, punitive damages and costs on this claim. Plaintiffs sought the same relief on the other claims asserted in the complaint.

By letter dated December 26, 2006, counsel for defendants wrote to plaintiffs and demanded that they withdraw the complaint. Counsel stated that the facts as alleged did not support the legal requirements of the claims being asserted, and plaintiffs were attempting to make a collateral attack upon decisions previously made in other proceedings. Counsel said that if the complaint was not withdrawn, he reserved the right to seek attorneys' fees and costs under the frivolous litigation rule. Plaintiffs did not withdraw the complaint.

Defendants filed an answer dated December 28, 2006, which generally denied plaintiffs' allegations. In addition, Panariello asserted counterclaims against Partington for trespass, nuisance and malicious prosecution. He alleged, among other things, that Partington filed several complaints about Panariello's actions that were determined to be without basis.

In April 2007, defendants filed a motion for summary judgment, which plaintiffs opposed. The court considered the motion on May 11, 2007, and placed its decision on the record on that date. The court noted that count one of the complaint merely identified the parties and did not state a cause of action. The court found there was no genuine issue of material fact as to the claims asserted in counts two, three, five, six, seven, eight and nine and defendants were entitled to judgment on these claims. However, regarding count four, the court found that there was a genuine issue of material fact as to whether the fence was a nuisance. The court entered an order dated May 30, 2007, memorializing its decision.

On June 20, 2007, plaintiffs filed a motion for reconsideration of the dismissal of count five of the complaint. The court denied the motion. After the completion of discovery, defendants filed another motion seeking summary judgment on count four and Partington filed a cross-motion for summary judgment on Panariello's counterclaims.

The court considered the motions on November 13, 2007, and placed its decision on the record on that date. The motion judge found that defendant's motion for summary judgment on count four should be denied because the court had previously denied summary judgment on that count and because there is a "significant question of fact" as to whether the fence is a nuisance and that issue can only be decided by a jury. The motion judge further found that plaintiffs were not entitled to summary judgment because there were material issues of fact as to Panariello's counterclaims. The court entered an order dated November 13, 2007, denying the motions.

After plaintiffs waived their demand for a jury trial, plaintiffs' nuisance claim in count four and Panariello's counterclaims were tried before the court, sitting without a jury. The court rendered a decision from the bench, in which it determined that plaintiff had not presented sufficient evidence to support his nuisance claim. The court further determined that Panariello had presented sufficient evidence to prevail on his counterclaims. On February 29, 2008, the court entered judgment for defendants on plaintiff's nuisance claim and for Panariello on his counterclaims. The court awarded Panariello $99 on each claim and costs in the amount of $200.

On March 27, 2008, defendants filed a motion for the award of attorneys' fees and costs pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1. On April 25, 2008, the trial court considered the motion as it related to the fees and expenses incurred by defendants from the filing of the first summary judgment motion through the trial.

The court found that plaintiffs' nuisance claim in count four was frivolous and "should never have been brought." The court also found that plaintiffs had not submitted competent evidence disputing the hourly rates charged or the amount of time spent on any of the activities detailed in the certification submitted by defendants' attorneys. The trial court entered an order dated May 1, 2008, awarding defendants $40,239 in attorneys' fees and costs from the date of the summary judgment motion through the trial.

The judge who handled defendant's first summary judgment motion, and ordered the dismissal of seven of the eight claims in the complaint, considered defendants' motion for the award of attorneys' fees and costs pursuant to N.J.S.A. 2A:15-59.1 from the inception of the litigation through to the filing of that motion. The judge filed a written opinion dated December 24, 2008, in which he determined that the seven dismissed claims were without any basis in fact or law. The judge found that plaintiffs' intent in bringing those claims was to harass defendants and the claims had been brought in bad faith. The judge stated that "[p]laintiffs knew or should have known that their allegations were without [any] basis in law or equity."

The judge further found that the attorneys' fees and costs sought by defendants for this part of the litigation were fair and reasonable; however, the judge reduced the amount requested by one-eighth to reflect the fact that summary judgment had been denied on one of the eight claims in the complaint. The court entered an order dated January 9, 2009, awarding defendants $30,915 in attorneys' fees and costs. This appeal followed.

II.

We turn first the issue of the scope of plaintiffs' appeal. Plaintiffs' notice of appeal stated that they were appealing from the trial court's orders of December 24, 2008, and January 9, 2009. As we stated previously, the court filed an opinion on December 24, 2008, but did not enter an order on that date. Plaintiffs' amended notice of appeal stated that plaintiffs were appealing the court's January 9, 2009 order. Defendants contend that plaintiffs' appeal should be limited to the January 9, 2009 order.

We recognize that, in their notices of appeal, plaintiffs did not state that they were appealing from the trial court's orders of February 29, 2008 and May 1, 2008. However, in the amended case information statement filed on March 10, 2009, plaintiffs indicated that they were appealing from both awards of attorneys' fees and costs. Plaintiffs also indicated that they intended to argue that the trial court erred by ruling for Panariello on his malicious prosecution claim. We therefore conclude that plaintiffs' have perfected an appeal from the trial court's orders of February 29, 2008, May 1, 2008 and January 9, 2009.

III.

We turn to plaintiffs' appeal from the court's order of May 1, 2008, which awarded defendants attorneys' fees and costs from the filing of the first summary judgment motion through the trial. Plaintiffs argue that the court erred by awarding counsel fees and costs for this part of the litigation. We agree.

As we stated previously, by order dated May 30, 2007, the motion judge granted partial summary judgment and dismissed seven of the eight claims in the complaint. The judge denied summary judgment on the nuisance claim in count four, which pertained to the fence on the line between plaintiffs' property and the Panariello property. The court found that there was a genuine issue of material fact as to whether the fence was a nuisance.

Later, after the completion of discovery, defendants filed another summary judgment motion, seeking dismissal of count four of the complaint. Another judge denied that motion, again concluding that there was a genuine issue of material fact as to whether the fence was a nuisance. The court conducted a trial on the claim and ruled that plaintiffs' nuisance claim was without merit. Thereafter, the court found that the claim was frivolous and awarded attorneys' fees and costs to defendants pursuant to N.J.S.A. 2A:15-59.1.

The trial court's decision to award defendants counsel fees and costs for this part of the case was rendered before our decision in United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379 (App. Div. 2009). There, we stated that a pleading cannot be deemed frivolous for purposes of the award of attorneys' fees and costs pursuant to Rule 1:4-8 where the trial court had denied summary judgment on one of the claims asserted therein and allowed the matter to proceed to trial. Id. at 394.

The same conclusion applies in this case. Here, the trial court awarded defendants attorneys' fees and costs because plaintiffs pursued the claim in count four. However, two motion judges had denied defendants' motions for summary judgment on that count and allowed the claim to proceed to trial. We conclude, as we did in United Hearts, that plaintiffs cannot be deemed to have pursued that particular claim in bad faith where two motion judges determined that there were genuine issues of material fact and defendants were not entitled to summary judgment on the claim.

Accordingly, we reverse the trial court's order of May 1, 2008, awarding defendants attorneys' fees and costs from the filing of defendant's first summary judgment motion through the trial.

IV.

Plaintiffs also argue that the court erred by awarding attorneys' fees and costs pursuant to N.J.S.A. 2A:15-59.1 from the commencement of the litigation to the filing of defendants' first summary judgment motion. Plaintiffs argue that the court erred in doing so because the court failed to reasonably calculate the amount of fees. Plaintiffs additionally argue that the court erred by finding that they pursued their claims in bad faith because they allegedly consulted with an attorney when they filed their pro se complaint.

We are satisfied that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We accordingly affirm the trial court's order of January 9, 2009, awarding defendants attorneys' fees and costs in the amount of $30,915 substantially for the reasons stated by the motion judge in his written opinion dated December 24, 2009. We add the following.

We are convinced that the record fully supports the judge's findings that the claims asserted in counts two, three, five, six, seven, eight and nine were frivolous because they were without any basis in law or fact. We note that, although plaintiffs' complaint contained eight claims and one claim survived summary judgment, the seven dismissed claims were separate and distinct from the claim that was tried. Thus, it was proper to award attorneys' fees and costs for the filing and pursuit of the seven dismissed claims. We are also convinced that the record supports the judge's finding that plaintiffs pursued the seven dismissed claims with the intent of harassing defendants.

We reject plaintiffs' assertion that they should be deemed to have pursued their claims in good faith because they filed a pro se complaint and an attorney purportedly assisted them in the pursuit of these claims. The fact that litigants choose to file a lawsuit without an attorney is not a license to pursue frivolous claims. Furthermore, plaintiffs submitted a certification from an attorney, who stated that he had consulted with plaintiffs concerning their disputes with defendants. The attorney did not state, however, that he advised plaintiffs that the claims pursued in this matter had merit.

We also reject plaintiffs' contention that the motion judge arbitrarily determined the amount of attorneys' fees and costs. The motion judge reduced the amount sought by defendants for this part of the case by one-eighth because the court had granted summary judgment on seven of the eight claims. We do not believe that the court abused its discretion in doing so. In our view, it was not unreasonable for the court to assume that counsel had devoted an equivalent amount of time to each of the eight counts in the complaint.

We accordingly affirm the trial court's order of January 9, 2009, awarding defendants attorneys' fees and costs in the amount of $30,915.

V.

We turn to Partington's argument that the trial court erred by entering judgment for Panariello on his malicious prosecution counterclaim. Here, Panariello alleged, among other things, that Partington filed certain criminal complaints against Panariello that were found to be without any basis.

To prevail on a claim for malicious prosecution of a criminal complaint, a plaintiff must prove the following: "(1) a criminal action was instituted by [the] defendant against this plaintiff; (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." LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009) (citing Lind v. Schmid, 67 N.J. 255, 262 (1975)).

In its decision from the bench, the trial court noted that Partington had filed a criminal complaint alleging that Panariello had harassed him by constructing the fence between their properties. The court stated that "[p]utting up a fence, no matter how ugly it is, just [does not] constitute criminal harassment." The court also stated that Partington's assertion that he believed Panariello was harassing him was "just not objectively reasonable[.]"

The court determined that Panariello had proven all of the elements of the cause of action for malicious prosecution. The court noted that Partington had filed a criminal complaint and the proceeding had terminated favorably to Panariello. The court further found that there was a lack of reasonable and probable cause for the complaint. The court assessed nominal damages against Partington but denied Panariello's application for punitive damages.

The standard for our review of the trial court's factual findings is well established. The court's findings of fact are binding on appeal unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting from Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). In our view, the record fully supports the trial court's findings.

Partington argues, however, that Panariello failed to establish that he was motivated by malice when the filed his criminal complaint. Partington notes that, when the trial court refused to award Panariello punitive damages on this claim, the court stated that it did not believe Partington's prosecution of the complaint was "accomplished with a malicious intent" or to "harass" Panariello.

Although the court found that the record did not establish that Partington acted with sufficient malice to warrant the imposition of punitive damages, the court's finding does not negate its determination that there was sufficient evidence to support the malicious prosecution claim. Indeed, malice for purposes of establishing a claim for malicious prosecution "'may be inferred . . . from a lack of probable cause.'" Galafaro v. Kuenstler, 53 N.J. Super. 379, 386 (App. Div. 1958) (quoting Earl v. Winne, 14 N.J. 119, 134 (1953)). The court specifically found that Partington did not have probable cause for his harassment complaint. Therefore, we affirm the judgment entered for Panariello on his malicious prosecution claim.

Affirmed in part, reversed in part.

(continued)

(continued)

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A-3020-08T3

February 22, 2010