VORTEX INVESTMENT, LLC v. RICCO CONSTRUCTION CORP

NOT FOR PUBLICATION WITHOUT THE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-0555-16T1

VORTEX INVESTMENT, LLC,
a/k/a VRTX INVESTMENTS,
INC., and ILYA CHEBOTAR,

        Plaintiffs-Respondents,

v.

RICCO CONSTRUCTION CORP.,
a/k/a RICCO DEMOLITION
and DREW RICCO,

     Defendants-Appellants.
——————————————————————————————————

              Submitted November 8, 2017 – Decided December 6, 2017

              Before Judges Reisner and Hoffman.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Docket No.
              L-0232-15.

              Law Offices of Conrad J. Benedetto, attorneys
              for appellants (Conrad J. Benedetto, of
              counsel and on the brief).

              Law Offices of David A. Avedissian, attorneys
              for respondents (David A. Avedissian, on the
              brief).
PER CURIAM

      Defendants Ricco Construction Corp. and Drew Ricco appeal

from an Amended Order for Judgment entered against them on August

30, 2016.     The order awarded plaintiffs damages and attorney's

fees in connection with an action they filed against defendants

for breach of contract, malicious prosecution and malicious abuse

of civil process.    After reviewing the record and applicable legal

principles, we affirm.

                                    I

      This case arises from a $15,000 contract for the demolition

of a building.      The parties dispute whether plaintiffs made a

scheduled payment of $5500. The parties agree plaintiffs initially

gave defendants a check for the $5500, which was returned for

insufficient funds.      Plaintiffs allege they then paid the $5500

in cash, but defendants dispute this claim.

      Both parties filed separate complaints against the other,

which the court consolidated.       Defendants filed a Special Civil

Part complaint alleging non-payment of services.            Although the

record contains no evidence that plaintiffs received service of

the complaint, the clerk entered default.         At the proof hearing,

counsel for defendants appeared, but defendants themselves were

not there to testify.      Nevertheless, the judge entered judgment

in   favor   of   defendants   without   any   supporting   testimony    or

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affidavits.     Defendants then obtained a writ of execution and a

levy on plaintiffs' bank account for over $15,000.          After learning

of the levy, plaintiffs filed a motion to vacate the default

judgment, which the court granted.           Notwithstanding the court

granting plaintiffs this relief, defendants once again levied upon

plaintiffs' bank account.     Defendants thereafter failed to provide

discovery and the court dismissed their complaint.               Defendants

also filed a criminal complaint against plaintiffs for passing a

bad check, which was eventually dismissed.

     Meanwhile, plaintiffs filed their own complaint alleging

breach of contract and malicious abuse of civil process for

defendants obtaining a levy for more than the amount owed and

obtaining a second levy after the court vacated the                initial

judgment.   Plaintiffs later amended their complaint to add a claim

of malicious prosecution, alleging defendants maliciously filed a

criminal complaint against plaintiffs for passing a bad check.

The court entered default after defendants failed to answer.

Following   a   proof   hearing,   the   court   executed   an   order   for

judgment, ordering defendants to pay plaintiffs $11,990 for breach

of contract and counsel fees. The court issued a writ of execution

and subsequently, an order to turnover funds.

     In their brief, defendants challenge: (1) the trial court's

judgment awarding attorney's fees, (2) the trial court's order

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denying their motion to vacate the defaults entered against them,

and   (3)   the   trial      court's    order   dismissing   their   complaint.

Defendants also argue we should quash the writ of execution and

the turnover order against them.

                                          II

      For the reasons set forth below, we only consider the appeal

of the August 30, 2016 order awarding                   plaintiffs a judgment

including attorney's fees.             We affirm that order.

      "[T]he notice of appeal . . . shall designate the judgment,

decision, action or rule, or part thereof appealed from . . . ."

Rule 2:5-1(f)(3)(A).           Therefore, "it is only the judgments or

orders or parts thereof designated in the notice of appeal which

are   subject     to   the   appeal     process   and   review."     Pressler   &

Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1(f)

(2018); see also Campagna v. Am. Cyanamid Co., 
337 N.J. Super.
 530, 550 (App. Div.) (refusing to consider an order not listed in

the notice of appeal),           certif. denied, 
168 N.J. 294 (2001).

Furthermore,      when    procedural      deficiencies     prevent   meaningful

appellate review, dismissal is appropriate.                In re Zakhari, 
330 N.J. Super. 493, 495 (App. Div. 2000).

      Defendants' notice of appeal lists only the order entered on

August 30, 2016. However, defendants' brief, in Points Two, Three,

and Four, references orders entered on June 9, 2015, June 8, 2015,

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1 December 23, 2015, and November 18, 2016.           Not only did defendants

fail to list these four orders in their notice of appeal, they

also failed to provide the transcripts necessary for a proper

review of the issues raised.       See R. 2:8-2; R. 2:9-9. We therefore

limit our review to the August 30, 2016 order awarding attorney's

fees, as raised in defendants' brief as follows:

                                   POINT ONE

            THE COURT ERRED BY AWARDING DAMAGES, INCLUDING
            ATTORNEY'S FEES, BASED ON A THEORY OF
            MALICIOUS ABUSE OF CIVIL PROCESS.

     We grant substantial deference to the trial judge's findings

of fact.    Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 
65 N.J. 474,

484 (1974).   However, "[a] trial court's interpretation of the law

and the legal consequences that flow from established facts are

not entitled to any special deference."               Manalapan Realty v.

Manalapan Twp. Comm., 
140 N.J. 366, 378 (1995).             Our standard of

review of a trial court's ruling on an application for sanctions

is limited. We only must determine whether the court's disposition

constituted an abuse of discretion.             Gilbert v. Electro-Steam

Generator    Corp.,   
328 N.J.    Super.   231,   236   (App.   Div.     2000)

(affirming a trial court's denial of sanctions and its rejection

of claims that a litigant's pleadings were frivolous).                    "[F]ee

determinations by trial courts will be disturbed only on the rarest

occasions, and then only because of a clear abuse of discretion."

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Stoney v. Maple Shade Twp., 
426 N.J. Super. 297, 317 (App. Div.

2012) (quoting Rendine v. Pantzer, 
141 N.J. 292, 317 (1995)).

     "[W]here there is a civil wrong, there should be a remedy."

Triffin v. Automatic Data Processing Inc., 
394 N.J. Super. 237,

251 (App. Div. 2007).     "[T]he court may exercise inherent power

to sanction a party when he or she has, 'acted in bad faith,

vexatiously, wantonly or for oppressive reasons.'"           Id. at 252

(quoting Chambers v. Nasco, Inc., 
501 U.S. 32, 45-46, 
111 S. Ct. 2123, 2133, 
115 L. Ed. 2d 27, 45 (1991)).        In addition, for a

malicious   prosecution   claim,   "[c]ounsel   fees   and    costs    in

defending the action maliciously brought may be an element of

damage in a successful malicious prosecution . . . ."            Penwag

Prop. Co. v. Landau, 
76 N.J. 595, 598 (1978).

     The trial court here relied on the reasoning in Triffin for

sanctions in malicious abuse of civil process cases, and the policy

of awarding attorney's fees in malicious prosecution cases to

include an award of attorney's fees for malicious abuse of civil

process.    We agree with the trial court's determination to award

attorney's fees in connection with plaintiffs' malicious abuse of

civil process claim.

     Here, even if defendants filed the original $5500 claim in

good faith, defendants clearly acted in bad faith by obtaining a

levy for more than their claim, and then continuing collection

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efforts after the court vacated the judgment.   The trial court was

therefore within its discretion to impose sanctions.   See Triffin,

supra, 
394 N.J. Super. at 251.       The trial court was also well

within its discretion to award damages including attorney's fees

on the malicious prosecution claim.     See Penwag, supra, 
76 N.J.

at 598.   Therefore we conclude the trial court did not abuse its

discretion in awarding attorney's fees.

     Affirmed.




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