NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Building Inspection Underwriters, Inc. (BIU) brought suit against Municipal Code Inspections, Inc. (MCI), Michael Schaffer (Schaffer), Linda Schaffer, Luciano DiSalvatore (DiSalvatore), Marie DiSalvatore, Kathy Russo, Debra Simone, Victor Fabietti, Jr. (Fabietti), George Dilworth (Dilworth), and Debra Dilworth. The ten-page complaint alleging civil conspiracy, unjust enrichment, breach of loyalty, breach of fiduciary duty, and tortious interference with protective economic advantage, was dismissed by way of summary judgment. The Dilworths thereafter filed an unsuccessful motion for attorney's fees under the Frivolous Litigation Act, N.J.S.A. 2A:15-59.1, and Rule 1:4-8. BIU1 and the Dilworths appeal. We consolidate the matters and affirm.

We describe the relevant circumstances. BIU and MCI provide building, plumbing, electrical, and fire inspection services to municipalities throughout New Jersey. Schaffer worked for BIU from March 1993 through October 2008. By 2000, his responsibilities included the selection of municipalities to whom contract bids would be submitted and the preparation of bid documents. Dilworth worked at BIU from 1993 through January 2002; Debra Dilworth is his wife. In 1994 or 1995, Luciano DiSalvatore also worked at BIU. Fabietti performed accounting services for MCI.

The DiSalvatores formed MCI in 1999. Schaffer invested either $3500 or $5000 in the company, as did Dilworth. Meetings regarding the company's finances were conducted at Fabietti's offices.

In June 2009, a federal indictment issued against Dilworth, Fabietti, and Schaffer as a result of an alleged tax fraud in connection with a $165,000 payment made by MCI to Schaffer in 2004. Although not clear from the record, Dilworth was also tried criminally in the federal system.

As early as 2000, BIU and MCI participated in competitive bidding for contracts in Egg Harbor Township. BIU claims, however, that it only learned of MCI's existence after the indictments against Dilworth, Fabietti, and Schaffer were returned years later. In addition to Egg Harbor Township, BIU and MCI also engaged in competitive bidding for contracts in Bordentown.

When deposed, BIU's representative, Mark McLaughlin, stated the company was seeking compensation for the loss of contracts with Egg Harbor Township, for the years 2002, 2005, 2008, and 2011. Additionally, the company was seeking compensation for lost contracts with Bordentown for 2000 and 2003.

Municipal contract bids are determined by the percentage of the State fee that would be paid to the inspection service. In 2000, however, BIU was awarded the building, electrical, fire, and elevator inspections contracts for Bordentown. When the company bid for the same contracts in 2003, it was only awarded the contract for elevator inspections. BIU alleged this occurred because MCI won the contract based on a bid of eighty percent of Bordentown's fees. BIU bid ninety percent for plumbing and electric, and one hundred percent for building and fire.

MCI was awarded the Egg Harbor Township contracts for 2000, 2002, 2005, 2008, and 2011. BIU alleges that MCI won the contracts because Schaffer, who was in charge of preparing BIU bids, either disclosed to MCI the bids he was planning to submit on behalf of his employer, or failed to bid at all in order to give MCI an advantage in the contract award process. References are made in the record to Dilworth, while testifying in his federal criminal trial, claiming he heard tape recordings of DiSalvatore trying to convince Schaffer not to bid on an Egg Harbor Township contract.

Discovery in the matter was initially set to close on March 1, 2012. It was twice extended, finally ending on January 30, 2013.

No expert report regarding damages was ever submitted by BIU. No expert witness was named in discovery. When deposed, McLaughlin stated in response to a question about damages that he would leave those calculations "up to the direction of counsel as to how to determine damages."

On January 18, 2013, the Law Division judge granted the motions for summary judgment filed by MCI, the DiSalvatores, the Dilworths, Fabietti, and Russo. The judge granted Fabietti summary judgment because the record overwhelmingly established Fabietti's role was limited to providing accounting services to MCI, and hosting meetings of MCI officers at his office. There was absolutely no evidence of his involvement in any conspiracy to "inflict a wrong on plaintiff." The judge dismissed as to the remaining co-defendants because of the complete lack of evidence regarding damages. No expert was retained, and one was clearly required to establish a methodology for calculating damages and in order to estimate dollar amounts of losses.

The judge also concluded that granting BIU's request, made at oral argument, to extend discovery to allow it to retain an expert at that late date would not save the complaint. He said: "there is nothing factually available in this record" demonstrating that BIU suffered losses through the conduct of the named defendants.

Thereafter, the court denied the Dilworths' application for counsel fees on September 12, 2013. He reiterated his decision that "the existence of a cognizable legal theory under which damages could have been shown does not excuse [BIU's] failure to produce sufficient evidence to create a genuine issue of material fact as to damages." But he also noted that BIU might have been able to show damages under a disgorgement of profits theory, about which BIU did attempt to provide proof through the production of MCI's financials. Since under a disgorgement of profits theory recovery was at least theoretically possible, the lawsuit was not "frivolous" and fees would therefore be denied.

On January 7, 2014, the judge granted the summary judgment motions filed by the remaining defendants, the Schaffers and DeSimone. He also denied BIU's cross-motions for reconsideration, to amend the complaint, and reopen discovery.

In rendering his decision on these applications, the judge again reiterated the earlier ruling that BIU had failed to make any showing regarding damages. Reinstatement would be improper because "[t]he defects in [BIU's] case were not limited to the quantification of damages. [BIU] also failed to produce sufficient evidence to demonstrate any genuine issue of material fact as to causation." BIU not only failed to produce any evidence of the likelihood "it would have been awarded any of the disputed contracts[,]" it also "failed to provide sufficient evidence for a reasonable factfinder to conclude any of the [d]efendants engaged in any of the wrongful acts alleged." Thus the court granted summary judgment to the remaining defendants and denied reconsideration.

The judge observed that BIU did not explain or justify its failure to diligently pursue discovery. Neither did BIU identify how any outstanding discovery would advance its claims. Therefore, extension of the time frame was unwarranted.

BIU further sought to amend its pleadings to add a count for fraudulent concealment based on the claim that the Dilworths did not produce a transcript of George Dilworth's criminal trial or of the IRS memorandum of an interview with him. The court noted that it appeared BIU actually did have copies of the trial transcript. BIU failed to offer any reason it could not obtain a copy of the memo from the IRS. Additionally, BIU offered no description of the materiality of items, or how it was prejudiced by the absence of the information presumably contained in the documents. Hence, the judge denied that application as well.

This appeal followed. BIU raises the following points of error2:

The Dilworths contend the court erred in denying their request for counsel fees as follows:

Appellate review of a trial court's summary judgment order is de novo. We employ the same standard used by the trial court. Globe Motor Co. v. Igdaleu, 436 N.J.Super. 594, 600 (App. Div. 2014). An appellate court should determine whether the evidence — when considered in the light most favorable to the non-moving party — is sufficient to "permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party". Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This court must determine whether there is a "genuine issue for trial." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)). "[W]hen the evidence `is so one sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Ibid. (quoting Liberty Lobby, supra, 477 U.S. at 252, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214).

I.

We first address the issue of damages. To succeed on a claim of tortious interference with business relations, a plaintiff must prove damages. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 751-52 (1989). Here, BIU was required to establish (1) the presence of a prospective economic advantage; (2) that the interference was intentional and committed with malice; (3) that absent the interference the plaintiff would have received the anticipated economic advantage within a "reasonable probability;" and (4) damages. Ibid.

Looking at the record in the light most favorable to BIU, it has failed to establish prospective economic advantage. BIU did not produce any evidence that it would have participated in the relevant bidding processes, or that it would have prevailed if it did. Other than by speculation, it does not suggest any connection between Schaffer's investment in MCI, employment in BIU, and any failure to submit bids, or the submission of the bids in amounts that made it unlikely it would be awarded contracts. The MCI payment to Schaffer raises a significant question. But a question alone is not sufficient to create a material issue of fact and withstand a motion for summary judgment. Pointing to the payment does not in and of itself establish some malfeasance on Schaffer's part towards BIU.

Nor can the significance of the failure to provide an expert to calculate either a methodology for arriving at damages or dollar amounts be understated. Even with the disgorgement of profits theory now advanced, we have no figures which establish MCI's profits resulting from tortious interference with BIU's business. Further, BIU did not provide figures based on its own financial records demonstrating that the unspecified activities of the defendants reduced its profits.

By failing to establish damages, plaintiffs cannot prevail. There was no genuine issue of material fact. Thus we affirm the judge's dismissal of the tortious interference cause of action.

II.

Next, we address BIU's claim for breach of loyalty against Schaffer. An employee owes the employer a duty of loyalty. Lamorte Burns & Co. v. Walters, 167 N.J. 285, 302 (2001). An employee should not "while employed act contrary to the employer's interest." Ibid. This includes not competing with the employer. Ibid. The duty of loyalty may be dependent on the nature of the relationship between the employee and employer: "[e]mployees occupying a position of trust and confidence . . . owe a higher duty than those performing low-level tasks." Cameco, Inc. v. Gedicke, 157 N.J. 504, 516 (1999). Assisting a competitor or an employee's self-dealing may constitute a breach of this duty. Ibid.

Additionally, an employee may have a duty to alert its employer if he or she establishes a business that might conflict with that of the employer. Id. at 517. Even slight assistance to a direct competitor might constitute a breach of the duty of loyalty. Ibid.

If a plaintiff establishes the existence of a duty of loyalty and breach, damages can include profits the employee earned in the other enterprise while still employed, compensation for injury caused by the breach, and forfeiture of the employee's compensation. Id. at 518.

Here we have Schaffer's initial investment in MCI and the payment he subsequently received. It is indisputable that a business of that nature would compete with BIU. But BIU presented no proof of Schaffer's "higher duty" to the company, or proof of how he misdirected or damaged BIU's bidding process. Speculation is no substitute for the necessary causal link.

Even if Schaffer's investment in MCI alone was an act of disloyalty, there is no measure of damages. Thus summary judgment was properly granted on this theory of recovery as well.

III.

Turning to BIU's claim that the judge erred in denying reconsideration of the summary judgment granted to Dilworth, we review familiar principles. A trial court's decision denying reconsideration is reviewed for abuse of discretion. Cummings v. Bahr, 295 N.J.Super. 374, 384 (App. Div. 1996). We ask whether there are "good reasons" for the appellate court to defer to the trial court's decision. Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002).

Dilworth was present at a number of meetings with other MCI "principals" in which they discussed topics regarding the operation of MCI, such as the towns in which to submit bids. Dilworth did no work for MCI while employed by BIU. There is no evidence that he was employed in a position of trust or confidence while at BIU, and his employment ended in 2002. There is less of a basis for speculation connecting his conduct to losses suffered by BIU than is the case with Schaffer. And in the absence of any proof of damages, even if causation had been established, summary judgment dismissal was proper.

IV.

BIU argues that

The above is the extent to which BIU discusses the civil conspiracy in its brief.3 Summary judgment was proper because BIU failed to produce facts which would sustain its tortious interference claim, or to articulate an argument or theory under which a breach of the duty of loyalty could be attributed to the members of the alleged conspiracy.

"[A] civil conspiracy is `a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage.'" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177 (2005) (quoting Morgan v. Union Cty. Bd. of Chosen Freeholder, 268 N.J.Super. 337, 364 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994)). The members of a conspiracy must "understand the general objectives of the scheme, accept them, and agree, either explicitly or implicitly, to do [their] part to further them." Ibid. The "gist" of a conspiracy is not the agreement but "the underlying wrong which, absent the conspiracy would give a right of action." Id. at 177-78 (quoting Morgan, supra, 268 N.J. Super. at 364). Since no evidence sufficient to show any wrongful act was produced, summary judgment dismissing the conspiracy claims was also properly granted.

V.

We now turn to BIU's contention that summary judgment was improper because discovery had not been completed. In reviewing decisions regarding discovery, we apply an abuse of discretion standard. Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 371 (2011). We "generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Ibid. (quoting Rivers v. LSC P'ship, 378 N.J.Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005)).

In this case, although as a general proposition we agree with BIU that summary judgment should not be granted before discovery is complete, that principle is not relevant here. See James v. Bessemer Processing Co., 155 N.J. 279, 310-11 (1998). BIU engaged in seemingly comprehensive discovery, including depositions and the exchange of interrogatories. Importantly, after the discovery end date passed, BIU did nothing to either extend the discovery date or compel production of any missing items. As the judge noted, in this case, BIU "argues it is entitled to reconsideration based its own on lack of due diligence prosecuting [this] matter." Cf. Velentzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988). Extension of the discovery end date would only reward BIU's failure to pursue it diligently. Therefore, the judge did not abuse his discretion in denying BIU's application.

VI.

Finally, we address the issue of the judge's denial of counsel fees as to the Dilworths. Clearly, the history of this case lends itself to a great deal of speculation regarding the conduct of some parties, including Schaffer and Dilworth, in light of the federal tax fraud charges. Although BIU could not provide sufficient proof to defeat a motion for summary judgment, its claims based upon the conduct of Dilworth investing in MCI, while employed by BIU and his relationship with Schaffer, were not spurious. Debra Dilworth, as Dilworth's wife, would have benefitted from Dilworth's gains if wrongfully taken from BIU — had any been proven.

An appellate court's review of an award of sanctions under Rule 1:4-8 or N.J.S.A. 2A:15-59.1 is subject to an abuse of discretion standard. United Hearts, L.L.C. v. Zahabian, 407 N.J.Super. 379, 390 (App. Div.), certif. denied, 200 N.J. 367 (2009). An abuse of discretion occurs when the 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." Ibid. (quoting Masone v. Levine, 382 N.J.Super. 181, 193 (App. Div. 2005).

Rule 1:4-8(a) permits sanctions for "frivolous" claims. Id. at 389. A claim is "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." Ibid. (quoting First Atl. Fed. Credit Union v. Perez, 391 N.J.Super. 419, 432 (App. Div. 2007)). Rule 1:4-8 allows sanctions against the party to the action or its attorney. Zahabian, supra, 407 N.J. Super. at 389; R. 1:4-8(f).

N.J.S.A. 2A:15-59.1 provides for sanctions for frivolous litigation if either

Sanctions are not appropriate when the party has an objectively reasonable belief in the merits of an argument. J.O. v. Twp. of Bedminster, 433 N.J.Super. 199, 221 (App. Div. 2013), certif. denied, 217 N.J. 295 (2014). The term "frivolous" should be construed restrictively in order to reflect the legislative intent that citizens' ready access to the judiciary is an important premise of democratic society. McKeown-Brand v. Trump Castle Hotel & Casino. 132 N.J. 546, 561-62.

As we noted, Dilworth's prior relationship with BIU, his relationship with Schaffer, and his employment with MCI starting in 2002 after leaving BIU was a reasonable basis for BIU to suspect wrongful conduct once the federal proceedings became generally known. We therefore agree that the complaint was not frivolous within the meaning of the law and that sanctions were reasonably denied. Finding no abuse of discretion, we affirm.

Affirmed.