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Lobiondo v. Schwartz

August 1, 2007

JAMES LOBIONDO, JR. AND DENISE LOBIONDO, INDIVIDUALLY AND T/A D. LOBI ENTERPRISES, INC., PLAINTIFFS-RESPONDENTS,
v.
GRACE SCHWARTZ, JANICE DEMARCO, KAREN SCHWARTZ AND MARILYN KALLAREOU, DEFENDANTS/THIRD-PARTY PLAINTIFFS-APPELLANTS,
v.
GIORDANO HALLERAN & CIESLA, P.C., MICHELE A. QUERQUES, ESQ. AND STEVEN BERLIN, ESQ., THIRD-PARTY DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-7699-91.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 23, 2006

Before Judges Lintner, Seltzer and C.L. Miniman.

Grace Schwartz and her three adult daughters, Karen Schwartz, Marilyn Kallareou and Janice DeMarco (collectively "Schwartz"), appeal from an April 18, 2005, summary judgment dismissing their counterclaim against James Lobiondo, Jr. and Denise Lobiondo (collectively "Lobiondo") and a March 9, 2005, summary judgment dismissing her third-party complaint against Lobiondo's attorneys, Giordano, Halleran & Ciesla, P.C., Michelle A. Querques, and Steven Berlin (collectively "Giordano"). We affirm the order of March 9, 2005; we affirm in part and reverse and remand in part the order of April 18, 2005.

The factual background of the dispute giving rise to this appeal has been recounted in our published opinion, Lobiondo v. Schwartz, 323 N.J. Super. 391 (App. Div.), certif. denied, 162 N.J. 488 (1999), and we need not repeat it here. For purposes of this opinion, it is sufficient to note that Lobiondo owned "a modest one-story beach club directly across the street from [Grace] Schwartz." Id. at 395. Schwartz objected to Lobiondo's attempts to increase the size of the beach club and intensify its function. Ibid. Her objections took the form of communications to local officials and to the community in general. Seven of her written communications were described in our prior opinion. Id. at 405-07. As the result of Schwartz's activities, Lobiondo retained Giordano and filed a complaint alleging defamation, intentional infliction of emotional distress and tortuous interference with business advantage. Id. 395-96. Schwartz "counterclaimed, asserting causes of action sounding in malicious abuse of process, malicious prosecution, and intentional infliction of emotional distress." Id. at 396. The jury verdict resulted "in a judgment against Grace Schwartz for both compensatory and punitive damages and a modest judgment in favor of two of her daughters on their counterclaims." Ibid.

We reversed, holding that Schwartz's activities were nondefamatory, id. at 412, did not constitute a tortuous interference, id. at 415, and were not so outrageous as to permit a verdict imposing liability for intentional infliction of emotional distress. Id. at 416. We also held that the facts were sufficient to justify, although not compel, a conclusion, as Schwartz had alleged in the counterclaim, that Lobiondo had committed the tort of malicious abuse of process. Id. at 422.

Accordingly, we reversed and remanded for a dismissal of Lobiondo's claims with prejudice and for further consideration of the counterclaims, including those of the daughters who had received only a modest verdict.

On remand, Schwartz filed an amended counterclaim against Lobiondo alleging that Lobiondo had "abused and misused the litigation process" in filing the original complaint and had intentionally inflicted emotional distress upon them. Schwartz also filed a third-party complaint against Giordano alleging malicious use of process by "intentionally and in bad faith institut[ing] this litigation" and continuing "this litigation after they knew or should have known that there was no reasonable basis for doing so." The complaint also alleged Giordano's action was "an improper, illegal and perverted use of the legal process" which was intended to inflict emotional harm*fn1

and was undertaken "in concert with the Lobiondos to abuse the litigation process." On motions for summary judgment by Schwartz and Lobiondo, the motion judge, in separate orders, dismissed all claims and Schwartz appealed.

Because the dismissals were reached on motions for summary judgment, we apply the same standard as did the motion judge to resolve the issue, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), without affording any special deference to the judge's interpretation of the law. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). That is, we review the record in the light most favorable to plaintiff and determine if the record thus viewed requires judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

I.

We consider first the dismissal of the counterclaim against Lobiondo. The counterclaim alleged causes of action for malicious use of process,*fn2 malicious abuse of process and intentional infliction of emotional distress. To prevail on a claim of malicious use of process, a plaintiff must produce proof that: "(1) the suit was brought without probable cause, (2) it was actuated by malice, (3) it has been terminated favorably to plaintiff and (4) plaintiff suffered a special grievance." Penwag Prop. Co. v. Landau, 148 N.J. Super. 493, 500 (App. Div. 1977) (citing Mayflower Indus. v. Thor Corp., 15 N.J. Super. 139, 151-52 (Ch. Div. 1951), aff'd o.b., 9 N.J. 605 (1952)), aff'd, 76 N.J. 595 (1978).

We need not analyze the elements of the cause of action against the evidence produced because we have previously held that Schwartz had made a sufficient showing to require submission to a jury of the claim that Lobiondo's original suit constituted a malicious use of process. Lobiondo, supra, 323 N.J. Super. at 423-24. The motion judge, nevertheless, dismissed this claim accepting an "advice of counsel" defense that had not been considered previously and by referring to ...


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