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Soon Y. Chung v. Young Hee Jang

June 3, 2011


On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-27765-09.

Per curiam.


Submitted March 29, 2011

Before Judges Waugh and St. John.

Plaintiff Soon Y. Chung appeals from an order dismissing her complaint with prejudice and an order directing her to pay defendant Young Hee Jang's counsel fees in the amount of $2,000 as a sanction for frivolous litigation. After reviewing the record and applicable law, we affirm.

In March 2007, IBC Realty acted as a broker and plaintiff's husband as the IBC salesperson for a house sale. Plaintiff alleges that her husband received a commission of $13,750 for that sale. Two years later, her husband wrote a check for $6,000, payable to defendant, drawn on the couple's joint bank account. On the memo line of the check, plaintiff's husband wrote a notation that the payment was for "comm. Air Purifier." Plaintiff characterizes the components of the check as being a $4,500 commission payment for the 2007 real estate sale and a $1,500 reimbursement for equipment replacement. Plaintiff contends that the commission payment by her husband to defendant violated plaintiff's rights under the Real Estate Licensing Act, N.J.S.A. 45:15-1, which states in pertinent part, that "[n]o person shall engage either directly or indirectly in the business of a real estate broker, broker-salesperson or salesperson . . . without being licensed so to do as hereinafter provided." She asserts that, in 2009 when the payment was made by her husband, defendant lacked such a license.

Plaintiff filed a complaint in the Special Civil Part, alleging that defendant's receipt of the alleged "commission," in violation of N.J.S.A. 45:15-1, was wrongful, and that plaintiff is entitled to the return of the funds paid out of her joint bank account.

On October 21, 2009, defendant's attorney sent a letter to plaintiff's attorney, in compliance with Rule 1:4-8(b)(1), demanding that the complaint be dismissed. A default judgment was entered against defendant on November 9, 2009, but upon defendant's application, the matter was reinstated.

On the trial date, defendant moved to dismiss the complaint based on plaintiff's lack of standing. The judge took testimony, and the plaintiff admitted that:

The real purpose of this litigation is not to collect money. I wanted to prevent my husband from conducting an illegal business in secret. At first I only found out about this one transaction with this house right after that and I have no idea about various telephone numbers.

The motion judge ruled that plaintiff lacked standing and dismissed the complaint with prejudice. The judge gave the defendant an opportunity to respond in writing to defendant's motion for attorney's fees, but the record does not indicate any response. On June 1, 2010, the judge entered the order dismissing the case and ruled that the litigation was frivolous pursuant to N.J.S.A. 2A:15-59.1. Plaintiff was ordered to pay defendant $2,000 in attorney's fees as a sanction. Plaintiff now appeals from that order.

On appeal, plaintiff contends that the judge erred in dismissing her complaint and awarding counsel fees. We disagree.

In assessing the dismissal of a complaint under Rule 4:6-2(e),*fn1 the trial judge must "'search . . . the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)); see also Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165 (2005). The review must be performed in a manner that is "generous and hospitable." Printing Mart, supra, 116 N.J. at 746. The judge's role is simply to determine whether a cause of action is "'suggested'" by the complaint. Ibid. (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)).

To the extent that the trial court's decision implicates legal principles, we independently evaluate those legal assessments de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Finderne Mgmt. Co., Inc. v. Barrett, 402 N.J. ...

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