A.D.M. AND M.I. VS. A.M., W.M., M.R. (L-0626-16, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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 post ed 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-2612-17T1

A.D.M. and M.I.,

Plaintiffs-Appellants,

v.

A.M, W.M., M.R., J.R.,
P.M., JENNIFER E. PRESTI,
MANDELBAUM SALSBURG
PC, and E.M.,

Defendants-Respondents.
_________________________________

Submitted December 4, 2018 – Decided December 19, 2018

Before Judges Haas and Mitterhoff.

On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-0626-16.

A.D.M. and M.I., appellants pro se.

Mandelbaum Salsburg PC, attorneys for respondents
(Cheryl H. Burstein, on the brief).

PER CURIAM
 Plaintiffs A.D.M.1 and M.I. appeal from the Law Division's January 26,

2018 and March 9, 2018 orders granting summary judgment to defendants and

ordering plaintiffs to pay $24,594 in attorneys' fees to defendants' counsel. For

the reasons that follow, we affirm the trial court's grant of summary judgment

but reverse the trial court's award of attorneys' fees.

The dispute in this case is related to a domestic violence action pursuant

to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, brought

by A.M. and P.M. against A.D.M. in January 2015. A.M. is the mother of P.M.

and A.D.M. A.M. and P.M. alleged that A.D.M. had committed acts of

terroristic threats, harassment, and assault. On January 16, 2015, the court

issued temporary restraining orders ("TRO") preventing A.D.M. from

contacting A.M. and P.M. The TRO's also barred A.D.M from accessing the

family residence owned by A.M., where A.M. and P.M. reside. A.D.M. had

resided in the home prior to the entry of the TRO's. Additionally, A.D.M and

M.I. had previously used a first-floor office in this residence for both business

and personal activities.

1
We use initials to protect the confidentiality of the parties. R. 1:38-3(d)(10).

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2
 On April 21, 2015, after a three-day bench trial, the court found that

A.D.M. had committed acts of terroristic threats, harassment, and assault and

granted P.M. a final restraining order ("FRO") against A.D.M.2 The FRO also

extended protections to A.M. and P.M.'s sister, M.R., and continued to bar

A.D.M. from accessing the family residence. A.D.M. appealed the entry of the

FRO, and we affirmed. P.M. v. A.D.M., Jr., No. A-4289-14 (App. Div. May 8,

2017).

While the appeal of the domestic violence matter was pending, plaintiffs

filed the pro se complaint in this matter against defendants in May 2016.3 The

complaint alleged the following seven counts: (1) conversion; (2) intentional

interference with business by outsider; (3) concealment or destruction of

evidence; (4) intentional infliction of emotional distress; (5) negligent infliction

of emotional distress; (6) filing a false restraining order complaint; and (7)

conspiracy to commit a tort. In general, plaintiffs alleged that defendants

2
The court found that there was insufficient evidence to enter an FRO to A.M.
3
Plaintiff M.I. is A.D.M.'s long-time girlfriend and business partner. In
addition to P.M., A.M, and M.R., the complaint named A.D.M.'s brother-in-law,
J.R., and A.D.M.'s brother, E.M, as defendants. The complaint also named the
attorneys who represented P.M. in the domestic violence proceedings as
defendants.

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conspired to falsely obtain a restraining order against A.D.M. in order to eject

him from the family residence and ruin his real estate business. As to the

conversion claim, plaintiffs alleged that defendants did not provide A.D.M.

adequate opportunities to retrieve his personal property from the first-floor

office after the issuance of the restraining orders and had damaged or disposed

of personal property that he had in the residence and office.4

In June 2016, defendants served plaintiffs with a letter advising plaintiffs

that the complaint they had filed was frivolous and must be withdrawn.

Defendants then moved to dismiss the complaint. On August 5, 2016, the trial

court entered an order dismissing the complaint without prejudice, which

plaintiffs appealed.

On September 20, 2016, this court, sua sponte, vacated the August 5, 2016

order, stating:

[I]t appear that the trial court correctly observed that
the issues presented in this case are intertwined with the
issues presented in the appeal under A-4289-14
contesting the entry of a final restraining order, but the
trial court having erred in its ruling that it lacked
jurisdiction to rule on the merits of this property
damage and tort action, the trial court's order filed
August 5, 2016 is summarily vacated. It is further
ordered that the matter is remanded to the trial court to

4
Plaintiffs alleged that M.I. was the co-owner of this personal property.
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 consider whether this action should be stayed pending
the outcome of the appeal under A-4289-14.

Accordingly, on October 24, 2016, the trial court issued an order staying

the matter pending the outcome of the domestic violence appeal. After this court

affirmed the entry of the FRO, the trial court entered an order reactivating the

matter and directing defendants to respond to interrogatories. In August 2017,

defendants moved to dismiss the complaint or in the alternative for summary

judgment. After hearing oral argument on defendants' motion on January 26,

2018, the trial court issued a written decision, granting the motion in its entirety

and dismissing all claims with prejudice. The trial court also ordered plaintiffs

to reimburse defendants' for their costs and attorneys' fees in an amount to be

determined after receipt of a certification of services from defendants' counsel.

After receiving an extension of time from the trial court, defendants

submitted a certification of services, requesting $53,226.16 in costs and fees.

Plaintiffs filed objections to the certification of services. On March 9, 2018, the

trial court issued a written opinion on the certification of services , ordering

plaintiffs to pay defendants $24,594.00 in costs and fees. Plaintiffs appealed

from both the order granting summary judgment and the order granting

attorneys' fees.

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 On appeal, plaintiffs contend that the trial court erred in granting summary

judgment and awarding attorneys' fees because their claims were not frivolous.

They argue that the evidence showed that their safe and file cabinets were broken

into and damaged. They also argue that the trial judge cut A.D.M. off from

testifying at oral argument and failed to properly evaluate all of the evidence.

Having reviewed the record and applicable legal principles, we find that the trial

court properly granted summary judgment with respect to each count of the

complaint.

As to the conversion claim (count one), we agree with the trial court that

plaintiffs cannot establish the elements of this claim as a matter of law.

"Conversion is 'the wrongful exercise of dominion and control over property

owned by another inconsistent with the owners' rights.'" LaPlace v. Briere, 404

N.J. Super. 585, 595 (App. Div. 2009) (quoting Sun Coast Merch. Corp. v.

Myron Corp., 393 N.J. Super. 55, 84 (App. Div. 2007)). To sustain an action

for conversion when another has lawful possession of the property, generally a

plaintiff must demand the return of the property. Mueller v. Tech. Devices

Corp., 8 N.J. 201, 207 (1951). "The demand must be made . . . at a time and

place and under such circumstances as defendant is able to comply with if he is

so disposed, and the refusal [to return the property] must be wrongful." Ibid.

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 In this case, plaintiffs are unable to demonstrate any wrongful interference

with the rights to their personal belongings by defendants, as A.D.M. was barred

from accessing the family residence by the TRO's and FRO. Defendants submit

a certification, letter, and emails reflecting that A.D.M. was able to retrieve

some personal property while escorted by the police on January 31, 2015 and

that A.D.M.'s worker picked up additional items on February 2, 2015. The

emails also show that P.M.'s attorney corresponded with A.D.M. and his former

attorney throughout March and April 2015 about scheduling another time for

A.D.M.'s worker to retrieve items from the residence.

Additionally, on May 8 2015, defendant's attorney emailed A.D.M. to

coordinate a time for his worker to retrieve the remainder of his property and

instructed that if no response was received within fifteen days, the property

would be deemed abandoned and disposed of. Plaintiffs submit no evidence

showing that they availed themselves of these opportunities. Plaintiffs' bald

assertions that defendants did not let them retrieve their property and damaged

their safe and file cabinets are insufficient to rebut defendants' evidence that

they provided plaintiffs with reasonable opportunities to retrieve the personal

property before they disposed of it. See Ridge at Back Brook, LLC v. Klenert,

437 N.J. Super. 90, 97-98 (App. Div. 2014) ("Bald assertions are not capable of

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either supporting or defeating summary judgment."). In light of the

opportunities that defendants provided plaintiffs to retrieve the property without

violating the restraining orders, plaintiffs are unable to establish that defendants

denied a reasonable request for the return of the property or wrongfully

interfered with plaintiffs' rights to the property. See Mueller, 8 N.J at 207.

Therefore, even viewing the evidence in the light most favorably to them,

plaintiffs cannot sustain an action for conversion as a matter of law.

As to the remaining counts in plaintiffs' complaint, we affirm the trial

court's grant of summary judgment and dismissal of those claims with prejudice

for substantially the sound reasons expressed in the trial judge's opinion. We

also reject plaintiffs' argument that the trial judge failed to properly evaluate all

of the evidence. At oral argument, the trial court provided A.D.M. with ample

opportunity to present his contentions and allowed plaintiffs to supplement the

record by submitting additional documents.

Turning to the trial court's award of attorneys' fees, we reverse and vacate

the award. We review a trial court's award of attorneys' fees and costs for an

abuse of discretion. McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498 (App.

Div. 2011). Reversal is warranted "only if [the trial court's decision] 'was not

premised upon consideration of all relevant factors, was based upon

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consideration of irrelevant or inappropriate factors, or amounts to a clear error

in judgment.'" Id. at 498 (quoting Mason v. Levine, 382 N.J. Super. 181, 193

(App. Div. 2005)).

Under New Jersey's frivolous litigation statute, the court may award a

prevailing party reasonable litigation costs and reasonable attorneys' fees "if the

judge finds at any time during the proceedings or upon judgment that a

complaint . . . of the nonprevailing person was frivolous." N.J.S.A. 2A:15 -

59.1(a)(1). A complaint is frivolous where:

(1) The complaint . . . was commenced, used or
continued in bad faith, solely for the purpose of
harassment, delay or malicious injury; or

(2) The nonprevailing 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).]

"[F]alse allegations of fact [do] not justify the award of counsel fees, unless they

are made in bad faith, 'for the purpose of harassment, delay or malicious injury.'"

McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 561 (1993)

(quoting N.J.S.A. 2A:15-59.1(b)(1)). "When the plaintiff's conduct bespeaks an

honest attempt to press a perceived, though ill-founded and perhaps misguided,

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claim, he or she should not be found to have acted in bad faith." Belfer v.

Merling, 322 N.J. Super. 124, 144-45 (App. Div. 1999) (citing McKeown-

Brand, 132 N.J. at 563).

A party seeking to recover litigation costs or attorneys' fees under the

frivolous litigation statute must also comply, to the extent practicabl e, with the

procedural provisions of Rule 1:4-8. Toll Bros. v. Twp. of W. Windsor, 190

N.J. 61, 69 (2007). Before making a motion for sanctions, "[t]he litigant is

required to serve a written notice and demand on the attorney or pro se party,

which must include a request that the allegedly frivolous paper be withdrawn."

Ibid. (citing R. 1:4-8(b)(1)). "The written notice and demand serves as a

warning that the litigant will apply for sanctions 'if the offending paper is not

withdrawn within 28 days of service of the written demand.'" Ibid. (quoting R.

1:4-8(b)(1)). "This rule subjects not only attorneys but pro se litigants . . . to

the attorney fee sanction prescribed thereunder." Trocki Plastic Surgery Ctr. v.

Bartkowski, 344 N.J. Super. 399, 405 (App. Div. 2001) (citing R. 1:4-8(f)).

"The rule and statute must both be interpreted strictly against the applicant

for an award of fees." Tagayun v. AmeriChoice of New Jersey, Inc., 446 N.J.

Super. 570, 579 (App. Div. 2016). "The statute should not be allowed to be a

counterbalance to the general rule that each litigant bears his or her own

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litigation costs, even when there is litigation of marginal merit." Ibid. (quotation

omitted). The grant of a dispositive motion, without more, does not establish

that an action is frivolous; the party seeking fees and costs must prove that

plaintiff filed the complaint in bad faith. See Ferolito v. Park Hill Ass'n, Inc.,

408 N.J. Super. 401, 408 (App. Div. 2009).

In this case, neither the trial court's opinion on the motion for summary

judgment nor its opinion on the certification of services makes specific findings

as to how plaintiffs' complaint was frivolous as defined by the statute. 5 See id.

at 410-11 ("It was error to award fees pursuant to N.J.S.A. 2A:15-59.1(b)(2)

without considering whether defendants established that plaintiff commenced or

continued this action in bad faith."); R. 1:4-8(d) ("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."). Although the trial

court found "that if it were to allow any of these [c]ounts to proceed, it would

5
Additionally, the trial court's opinion did not address whether defendants filed
a separate motion for attorneys' fees, as required by Rule 1:4-8(b)(1). R. 1:4-
8(b)(1) ("An application for sanctions under this rule shall be by motion made
separately from other applications and shall describe the specific conduct
alleged to have violated this rule."). From our review of the record, it appears
that defendants made the application for attorneys' fees in the same motion as
their motion to dismiss and summary judgment motion, in violation of Rule 1:4-
8(b)(1).
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effectively subvert the ruling of Judge Shanahan, the Appellate Division, and

the Final Restraining Order in effect" and granted summary judgment on this

basis, "a grant of a motion for summary judgment in favor of a defendant,

without more, does not support a finding that the plaintiff filed or pursued the

claim in bad faith." Ferolito, 408 N.J. Super. at 408.

Moreover, in addressing plaintiffs' conversion claim, the trial court

considered evidence beyond the pleadings and relied on defendants' attorney's

certification and the accompanying letter and emails to conclude that defendants

had given plaintiffs reasonable opportunities to retrieve the property. "Simply

because 'some of the allegations made at the outset of litigation later proved to

be unfounded does not render [the complaint] frivolous[.]'" McDaniel, 419 N.J.

Super. at 499 (alterations in original) (quoting Iannone v. McHale, 245 N.J.

Super. 17, 32 (App. Div. 1990)). Considering that plaintiffs filed their

complaint pro se, plaintiffs may not have understood the intricacies of a

conversion claim and may have made "an honest attempt to press a perceived,

though ill-founded and perhaps misguided, claim" to recover damages for

defendants' alleged wrongful damaging of their property. Belfer, 322 N.J.

Super. at 145.

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 Given that the statute and rule are to be "interpreted strictly against the

applicant for an award of fees," we find the trial court mistakenly exercised its

discretion in awarding attorneys' fees and costs to defendants. Tagayun, 446

N.J. Super. at 579. Without specific findings by the trial court on plaintiffs' bad

faith or attempts to harass defendants in pursuing this litigation, we are unable

to conclude that the trial court "consider[ed] . . . all relevant factors" under the

frivolous litigation statute in awarding attorneys' fees and costs to defendants.

Masone, 382 N.J. Super. at 193. Therefore, we reverse and vacate the trial

court's order granting attorneys' fees and costs to defendants.

Affirmed in part, reversed in part.

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