NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 15, 2013.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-8306-11.
Timothy P. Kane argued the cause for appellants (Charles Michael Damian, L.L.C., and Abdy & Kane, P.C., attorneys; Charles M. Damian, on the briefs).
Robert J. Nish argued the cause for respondent (Nish and Nish, L.L.C., attorneys; Mr. Nish, on the brief).
Before Judges Yannotti, Ashrafi and St. John.
James de Stefano and Charles Michael Damian, L.L.C. appeal from an order entered by the Law Division on November 27, 2012, requiring that they pay counsel fees to defendant pursuant to Rule 1:4-8. We reverse.
On August 19, 2011, de Stefano, an attorney with the Damian law firm, filed a complaint in the Special Civil Part on behalf of plaintiff Arthur Cuccurullo, Jr., against defendant John G. Volpecello, Sr. According to the complaint, plaintiff leased certain property from defendant, which plaintiff intended to use to grow plants and shrubs for sale.
Plaintiff alleged that the building on the leased premises lacked heat and a restroom. He claimed the structure was porous and permitted rain, snow and "the elements" to penetrate the interior. Plaintiff alleged that he notified defendant of the various defects in the premises, but defendant failed to take any remedial actions. Plaintiff alleged that defendant instructed him not to pay any rent until the various problems were corrected.
Based on these allegations, plaintiff asserted four causes of action. Plaintiff claimed that defendant breached the lease agreement, thereby causing plaintiff to sustain damages in the amount of $12, 903. Plaintiff additionally claimed that defendant was negligent and breached a duty of care owed to him. Plaintiff further alleged that defendant intentionally interfered with his business activities. Plaintiff also claimed that defendant perpetrated a fraud by causing him to rent property that was not fit for his business purpose.
On September 23, 2011, defendant filed an answer denying liability and asserted two counterclaims against plaintiff. Defendant sought unpaid rent allegedly due under the lease, along with late fees and attorney's fees. He additionally sought damages for the wrongful conversion of "a certain Christmas tree bailing device."
By letter dated October 3, 2011, defendant averred that plaintiff's claims were "frivolous." Defendant therein demanded the claims be withdrawn and advised that he would seek sanctions under Rule 1:4-8 should plaintiff fail to do so.
The case was scheduled for trial on January 30, 2012, and adjourned to February 21, 2012. On February 6, 2012, defendant filed a motion for summary judgment on the complaint and his counterclaim.
Plaintiff opposed the motion. Plaintiff argued that there were genuine issues of material fact as to whether defendant made representations to plaintiff concerning the repairs to the greenhouse, defendant's alleged interference with prospective clients, and an oral agreement between the parties allowing plaintiff to forgo rental payments for January, February and March 2011.
On the trial date, defendant's attorney told the court that he had filed a motion for summary judgment. The judge commented that he did not have the motion and he was "not dealing with it." After settlement efforts failed, a jury was selected and counsel gave their opening statements.
After the openings, defendant moved to dismiss plaintiff's claims based on negligence, diversion of customers from plaintiff's business and fraud because plaintiff's attorney had not mentioned these claims in his opening statement. The judge granted the motion, allowing the case to proceed solely as a breach-of-contract case.
Plaintiff testified that he was a landscaper and tried to start a nursery business on the leased premises. He stated that when he entered into the lease, there were problems with the property. The water was not operational. There were leaks in the plastic covering the greenhouse, and the fan in the greenhouse was not working. Plaintiff entered into the lease after defendant said these problems would be corrected.
Defendant did not correct the problems. In January 2011, plaintiff wrote to defendant and asked to be released from the lease because the problems with the premises had not been corrected. He also said he could not access the building because snow had been plowed in front of it and blocked the entrance. ...