On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8819-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Alvarez and Skillman.
This is an appeal from an award of attorney's fees against a litigant and its attorney under the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1, and Rule 1:4-8.
In 2006, defendant, an orthodontist, leased professional office space in a building in Saddle River from plaintiff's predecessor in title. The lease was for a term of three years running from June 1, 2006 through May 31, 2009. The lease also provided in paragraph 42 that "[T]enant shall have the option of two three (3) year renewal periods as described in the Addendum attached hereto and made a part hereof." The Addendum referred to in paragraph 42 was also the only place in the lease where the rent for the initial three-year term was set forth.
Paragraph 40 of the lease provided that "Landlord shall be responsible for electric (including air conditioning) heat, and hot water, sewer and gas."
In August 2009, plaintiff acquired the building containing defendant's professional office space. Plaintiff has three principals, one of whom, Piera Barcia, had dealings with defendant after the closing and testified at trial.
According to Barcia, the seller of the building provided her with a copy of defendant's lease, but not the addendum.
Barcia also testified that when she met with defendant in October 2009, she informed him that he would be receiving a letter informing him that he would be responsible for the payment of his electric bill. However, defendant informed her that under his lease plaintiff was responsible for the payment of his electric bill.
Nevertheless, on January 20, 2009, Barcia sent defendant a letter, which stated:
Due to the rapid increase in operating costs at 50 Market Street it is necessary that you will be responsible for your own electric bill as of February 10, 2009. Please contact PSE&G to make the proper changes.
Defendant informed Barcia by telephone that he would not assume responsibility for payment of electricity because that was plaintiff's responsibility under the terms of his lease. According to defendant, he sent a letter to Barcia on or around February 28, 2009, which stated in pertinent part:
I would like to exercise my lease renewal option as described in the Addendum sheet of the lease for the three-year period commencing on June 1, 2009 and ending on May 31, 2012.
The rent breakdown as stated is:
June 1, 2009-May 31, 2010 $1425.00 June 1, 2010-May 31, 2011 $1450.00 June 1, 2011-May 31, 2012 $1475.00
Defendant testified that he also handed an envelope containing a copy of this letter and the lease, with the addendum, to Barcia's son, who was doing maintenance work in the office building. Barcia denied receiving the letter either through the mail or from her son.
On May 13, 2009, an associate in the law office of Richard Malagiere, which represents plaintiff, sent defendant a letter ...