On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. L-6357-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Parker.
Defendant Jon Tilli appeals from a trial court order denying his application for counsel fees under N.J.S.A. 2A:15-59.1, the frivolous claims statute. After reviewing the record in light of the contentions on appeal, we affirm.
Plaintiff is a teacher employed by defendant Ramapo Indian Hills Board of Education at Ramapo High School. One of the extra-curricular activities at the high school is Interact Club, a program sponsored by Rotary Club and aimed at developing leadership skills and promoting community service. For many years, plaintiff has been the faculty advisor for Interact Club at Ramapo High School.
Defendant Tilli is a graduate of the high school. While he was a student, he was very involved with Interact Club and, in his senior year, became its president. Tilli has a sister two years his junior who followed him at the high school. She also joined Interact Club and in her senior year, became its president. While serving as president, Ms. Tilli and plaintiff had a dispute; the nature of that dispute is not contained in the record before us. Ms. Tilli informed her brother of what had occurred. He then wrote a letter dated June 18, 2004, to defendant Board of Education in which he set forth his complaints about plaintiff's performance as faculty advisor to Interact Club and his view that she should not continue in that capacity. The record does not indicate whether defendant Tilli received any response to this letter.
The Board held a regularly-scheduled meeting on September 27, 2004, the first regularly scheduled meeting of the fall term. One of the items on the agenda was whether plaintiff should be named to serve as the faculty advisor to Interact Club for the coming school year. Defendant Tilli appeared at that meeting and, in the public portion of the meeting, spoke against her reappointment in a manner that was highly critical of plaintiff. Plaintiff was not present at the meeting but was informed the next day of what had occurred.
The president of the Ramapo Indian Hills Education Association, who was present at the meeting, sent a letter to the Board protesting what had occurred, and the Board's apparent failure in this situation to enforce its stated policy that criticism of staff members had to be addressed to district officials and would not be permitted in public meetings.
On September 12, 2005, plaintiff filed a complaint naming the Board, an individual member of the Board, a member of Rotary and Tilli as defendants. She asserted claims against Tilli for defamation, intentional interference with economic advantage, civil conspiracy and intentional infliction of emotional distress. After being served, Tilli retained counsel.*fn1 Tilli's attorney wrote to plaintiff's counsel, demanding that the complaint be withdrawn and asserting that fees would be sought under N.J.S.A. 2A:15-59.1 if it were not. Plaintiff refused to withdraw the action.
Some discovery ensued, principally the exchange of interrogatories and production of documents. Eventually Tilli moved for summary judgment. His motion was granted by order entered December 1, 2006. The record before us does not contain the record of that motion or the court's opinion, but we infer from portions of the record that plaintiff's inability to identify the exact language Tilli had used in his criticism of plaintiff led the court to grant his motion.
Defendant's counsel then filed a motion seeking counsel fees, contending that the action had been frivolous. Defendant appeals from the order denying that motion.
N.J.S.A. 2A:15-59.1 contains two prongs under which an action may be characterized as frivolous for purposes of awarding counsel fees. Under N.J.S.A. 2A:15-59.1(b)(1) an action is frivolous if the trial court finds that it "was commenced, used or continued in bad faith." The statute specifically qualifies the term "bad faith" with the phrase "solely for the purpose of harassment, delay or malicious injury."
Under N.J.S.A. 2A:15-59.1(b)(2) an action is frivolous if [t]he non-prevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith ...