Opinion
DOCKET NO. A-4268-11T3
04-26-2013
GOLAN SHAZO, Plaintiff-Appellant, v. GREENTREE CLOSET DESIGN and PAUL SANTOS, Defendants, and NATIONAL CUSTOM INSTALLATION and JEFF MATTINGLY, individually, jointly and/or severally, Defendants-Respondents.
Golan Shazo, appellant pro se. Cecilia M.E. Lindenfelser, attorney for respondents (James J. Tutak, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Haas and Happas.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6495-10.
Golan Shazo, appellant pro se.
Cecilia M.E. Lindenfelser, attorney for respondents (James J. Tutak, of counsel and on the brief). PER CURIAM
Plaintiff Golan Shazo appeals from the December 19, 2011 order of the Law Division, entered following a bench trial, dismissing his complaint against defendants Jeff Mattingly and National Custom Installation, Inc. and from the court's March 2, 2102 order granting counsel fees to defendants. After reviewing the record in light of the contentions advanced on appeal, we affirm.
I.
Plaintiff filed a complaint on July 6, 2010 naming as defendants, Greentree Closet Design (Greentree) and its principal Paul Santos; and National Custom Installation (NCI) and its principal Jeff Mattingly. According to the complaint, plaintiff retained the services of Greentree to install a library and closet facility for $8,500. The contract was executed by Santos on behalf of Greentree. Plaintiff paid a deposit of $4,250 to Santos but never received any services or goods in return. Plaintiff asserted Greentree and Santos were defendants' agents and that defendants were vicariously responsible for their conduct.
The contract refers to the description of the job as "installation of library units." During trial, plaintiff often referred to the work as the installation of cabinets. For convenience, we refer to the project as the installation of a library.
Greentree and Santos were served with a summons and complaint, but never filed an answer. At some point during the pendency of the litigation, Greentree and Santos filed for bankruptcy. Defendants filed an answer with a counterclaim. The answer denied plaintiff's allegations. The counterclaim asserted the only relationship between defendants and Greentree and Santos was that of landlord-tenant, and the complaint constituted a frivolous pleading because plaintiff was aware of this relationship. Defendants demanded the withdrawal of the complaint pursuant to Rule 1:4-8. After plaintiff filed an answer to the counterclaim, limited discovery, consisting only of the exchange of interrogatories, was conducted.
The bench trial took place on December 6, 2011 before Judge Charles E. Powers, Jr. The judge acknowledged that Greentree and Santos were in bankruptcy and would not be participating in the trial. The only issue presented was whether Greentree and Santos had apparent authority to act on behalf of defendants.
Plaintiff, who was self-represented, testified to the following facts at the time of trial. Sometime in August 2009, plaintiff contacted Santos to install a library in his home. Previously, plaintiff had hired Santos to build cabinets for him. The contract plaintiff negotiated with Santos included "a price, everything." Shortly after the contract negotiations, plaintiff and his friend, Shlomo Cohen, went to Santos' workshop in Belleville, New Jersey, where plaintiff signed the contract and gave Santos two deposit checks. The checks were issued to Greentree.
While at the workshop, plaintiff observed Mattingly walking around and, at one point, Santos introduced Mattingly as his partner. Mattingly did not respond to this introduction. When plaintiff inquired as to how long the installation of the library would take, Santos replied "six to eight weeks." Santos then turned to Mattingly, who was walking around in the workshop, and asked him how long he thought it would take to install the library. Mattingly responded "six to eight weeks".
When Santos failed to comply with the terms of the contract, plaintiff became concerned. Plaintiff contacted Santos by phone and Santos requested additional time. When plaintiff did not hear from Santos, plaintiff returned to the workshop in November 2009 to look for him. At that time Mattingly told plaintiff he had no information as to the whereabouts of Santos. Furthermore, Mattingly stated that the contract plaintiff entered into with Santos had nothing to do with his business. On December 15, 2009, Santos advised plaintiff by letter that he was filing for bankruptcy and in that letter referred to Mattingly as his "ex-landlord."
On cross-examination, plaintiff admitted that the first time he met Mattingly was when he went to the Belleville workshop to sign the contract prepared by Santos. The contract did not mention defendants. The heading on the contract was "Greentree Closet Design" and it showed two addresses, one in Elizabeth and the other at the workshop in Belleville. The telephone number on the contract with Greentree was different from the telephone number depicted on defendants' letterhead. Furthermore, plaintiff testified the lease agreement naming Santos as the tenant and Mattingly as the landlord was "fake." Plaintiff offered no evidence to support this belief.
Plaintiff called Cohen as a witness. Cohen testified that he accompanied plaintiff to the Belleville workshop in August 2009. Cohen observed plaintiff sign a contract. Cohen believed the contract had been prepared before their arrival. Cohen saw that plaintiff had checks to give to Santos. Cohen did not remember Mattingly saying anything while at the workshop.
After the judge heard the testimony of plaintiff and Cohen, plaintiff asked the judge to admit into evidence rent checks made payable to NCI by Greentree. Counsel for defendants then moved for an involuntary dismissal. The judge granted defendants' motion, finding plaintiff failed to produce the appropriate proofs necessary to establish a claim for apparent authority. An order confirming the dismissal of plaintiff's complaint was entered on December 19, 2011.
On January 3, 2012, defendants filed a motion for counsel fees and costs and, on January 9, 2012, plaintiff filed a motion for reconsideration. The judge heard both motions on March 2, 2012. Plaintiff's motion for reconsideration was denied and the judge entered an order on March 2, 2012. The judge reserved decision on defendants' motion for counsel fees and costs. On March 16, 2012 the judge entered an order with a written explanation granting defendants counsel fees in the amount of $11,979.62. The judge found:
[Plaintiff] knew or should have determined during the course of discovery that he may not be able to meet his burden of establishing that [defendants] Jeff Mattingly and National Custom Installation had a principal/agent relationship or any other relationship with Paul Santos and Greentree Closet Design upon which [plaintiff] could establish liability. Although the Court finds that the initial filing of the Complaint was not subject to the statute, continued prosecution of [plaintiff's] claims against [defendants] Mattingly and National Custom Installation is sanctionable based on facts that became known to [plaintiff] after the filing of the initial pleading. . . . [Plaintiff] failed to demonstrate that a reasonable person would believe that there was any other relationship between the [defendants] and Santos, other than that of landlord and tenant, upon which to base liability. Although [plaintiff] had ample opportunity to engage in discovery to determine whether
he could establish implied or apparent authority, [plaintiff] failed to gather evidence that would support these claims.
This appeal ensued. On appeal, plaintiff argues:
POINT I:
THE TRIAL COURT ERRED IN ITS ASSESSMENT OF THE EVIDENCE PRESENTED AT TRIAL.
POINT II:
APPARENT AUTHORITY DID EXIST IN THIS MATTER.
POINT III:
THE TRIAL COURT DID NOT GIVE THE PLAINTIFF THE LEGITIMATE INFERENCES TO WHICH HE WAS ENTITLED AS THE NON-MOVING PARTY.
POINT IV:
THE TRIAL COURT FAILED TO CORRECTLY APPLY THE RULE REGARDING INVOLUNTARY DISMISSALS.
POINT V:
THE TRIAL COURT ERRED IN DETERMINING THIS ACTION TO BE FRIVOLOUS.
Subpoint A: The Application for Costs and Fees Was Based on Incorrect 'Facts' and/or Bad Law.
Subpoint B: The Court's Decision to Award Counsel Fees and Costs Appears to Have Been Rendered Pursuant to R. 1:4-8 Rather Than N.J.S.A. 2A:15-59.1.
Subpoint C: The Court's Failure to Determine Exactly When the Plaintiff Knew or Should have Known That the Action was Frivolous Resulted in an Award for an Incorrect Amount.
Subpoint D: There is No Substantive Evidence that the
Action Was Pursued in Bad Faith or For Improper Purposes.POINT VI:
THE TRIAL COURT'S DECISIONS IN THS MATTER CONSTITUTE PLAIN ERROR AND PRODUCED AN UNJUST RESULT.
Based on our review of the record and applicable law, we are not persuaded by plaintiff's arguments.
II.
Under Rule 4:37-2(b), the test for motions for involuntary dismissal is "whether the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor of the party opposing the motion[.]" Dolson v. Anastasia, 55 N.J. 2, 5 (1969) (alteration in original) (internal quotation marks and citations omitted). "[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according [the party] the benefit of all inferences which can reasonably and legitimately be deduced therefrom reasonable minds could differ, the motion must be denied." Potente v. Cnty. of Hudson, 187 N.J. 103, 111 (2006) (first alteration in original) (quoting Monaco v. Hartz Mt. Corp., 178 N.J. 401, 413 (2004)). The court's function on a motion for involuntary dismissal is "quite a mechanical one" as the "court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson, supra, 55 N.J. at 5-6.
On appeal, "we apply the same standard as the trial court[.]" Bennett v. Lugo, 368 N.J. Super. 466, 479 (App. Div.), certif. denied, 180 N.J. 457 (2004). We do not give any special deference to the legal conclusions of the trial court. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
Plaintiff argues the judge erred in dismissing his claim against defendants because his proofs substantiated that Santos was acting as an agent for Mattingly. Specifically, plaintiff asserts he established apparent authority by showing that: Santos and Mattingly shared work space, Santos introduced Mattingly as his partner, and Mattingly confirmed Santos' assessment that the installation of the library would take six to eight weeks. We conclude that plaintiff's proofs lacked the elements necessary to prove apparent authority.
The critical question in every apparent authority case focuses on whether the principal held out the agent such that "a person of ordinary prudence" is justified in presuming that such agent has authority to perform the particular act in question. C.B. Snyder Realty Co. v. Nat'l Newark & Essex Banking Co. of Newark, 14 N.J. 146, 154 (1953). A party seeking to rely on the theory of apparent authority must establish:
(1) that the appearance of authority has been created by the conduct of the alleged principal and it cannot be established alone and solely by proof of [conduct by] the supposed agent; (2) that a third party has relied on the agent's apparent authority to act for a principal; and (3) that the reliance was reasonable under the circumstances.
[AMB Prop., LP v. Penn Am. Ins. Co., 418 N.J. Super. 441, 454 (App. Div. 2011) (quoting Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 318 (App. Div. 1999)).]
Plaintiff asserts that the appearance of apparent authority was created by the conduct of Mattingly. First, plaintiff relies on the statement made by the supposed agent, Santos, that Mattingly was his partner. However, there is nothing in the record suggesting that Mattingly responded to, or even heard this statement. It is well-settled that "the appearance of authority . . . cannot be established alone and solely by proof of [conduct by] the supposed agent." Mercer, supra, 324 N.J. Super. at 318; see also Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 476 (App. Div. 1997) ("[T]he [agent's] words or acts alone are insufficient to cloak the [agent] with apparent authority.").
Second, plaintiff asserts that an appearance of authority existed because of Mattingly's confirmation of Santos' estimate of time needed to complete the work. We disagree. Plaintiff testified he asked Santos how long the project would take and Santos replied six to eight weeks. Santos then asked Mattingly, who was "walking [around] in the shop" how long it would take and Mattingly responded "six to eight weeks." "A person of ordinary prudence" would not be justified in presuming that this exchange between Santos and Mattingly, two individuals involved in the same trade, created an appearance of authority. C.B. Snyder Realty Co., supra, 14 N.J. at 154.
Furthermore, plaintiff's claim that he relied on Santos' apparent authority to act for Mattingly is without merit. The record reveals that plaintiff decided to rehire Santos to install a library in his home because of a prior business dealing with Santos. Plaintiff did not know who Mattingly was when he negotiated his contract with Santos. In fact, the contract was already prepared when plaintiff went to the Belleville workshop in August 2009 to sign it. Plaintiff offered no credible proof that he would not have entered into the contract with Santos but for his reliance on Mattingly's conduct. The judge correctly considered the evidence, together with the legitimate inferences therefrom, and found that judgment could not be sustained in favor of plaintiff. Dolson, supra, 55 N.J. at 5.
III.
We turn now to plaintiff's argument that the judge erred in determining this action to be frivolous and awarding defendants counsel fees. "[A]n assertion is deemed 'frivolous' when 'no rational argument can be advanced in its support, or it is not supported by any credible evidence, or it is completely untenable.'" United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 389 (App. Div.) (quoting First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432 (App. Div. 2007)), certif. denied, 200 N.J. 367 (2009). Claims for counsel fees against pro se litigants for pursuing frivolous litigation are governed by Rule 1:4-8 because such litigants are regarded as lawyers for purposes of the rule. Trocki Plastic Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399, 405 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002); In re Farnkopf, 363 N.J. Super. 382, 397 (App. Div. 2003).
On appeal, we consider the imposition of Rule 1:4-8 counsel fee sanctions under the abuse of discretion standard. United Hearts, supra, 407 N.J. Super. at 390 (citing Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)). "An 'abuse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error of judgment.'" Id. at 390 (quoting Masone, supra, 382 N.J. Super. at 193).
A review of the record reflects the only relationship shared by defendants, Greentree and Santos, was that of landlord-tenant. Plaintiff was informed of this fact before he filed his complaint and during the course of discovery. Moreover, the only discovery plaintiff pursued was the exchange of answers to interrogatories. He chose not to conduct any further discovery to elicit evidence supporting his claim of apparent authority. Consequently, the plaintiff was unable to establish the elements necessary to prove his case at the time of trial. We conclude the judge did not abuse his discretion. Masone, supra, 382 N.J. Super. at 193.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION