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Devivo v. Ascher

Decided: October 25, 1988.


On appeal from the Superior Court of New Jersey, Law Division, Somerset County.

Petrella and Shebell. The opinion of the court was delivered by Shebell, J.A.D.


[228 NJSuper Page 454] Plaintiff Eileen DeVivo appeals from an order of the Law Division granting summary judgment in favor of defendant

Michael Ascher. 221 N.J. Super. 28. The complaint alleged that defendant, an attorney, had caused to be published defamatory statements regarding plaintiff. The grant of summary judgment was based upon the motion judge's finding of absolute privilege. Defendant cross-appeals from an order compelling him to produce certain personal financial records relating to plaintiff's punitive damage claim.

Defendant Ascher was acting as attorney for Triangle Travel in litigation involving Triangle Travel and DeVivo when the present allegations of defamation arose. In Triangle Travel v. DeVivo, Triangle Travel sued its ex-employee Eileen DeVivo, the plaintiff in the present case, for wrongful and malicious diversion of funds, interference with business relations, destruction of business records, interference with prospective economic advantage, and breach of fiduciary duty allegedly owed by her to Triangle Travel. DeVivo filed a counterclaim seeking $4,515.19 in commissions, although it appears she may have already filed a separate action for this claim.

From January 1978 to August 31, 1984, DeVivo was employed as a sales representative by Triangle Travel. She was paid commissions for sales, including sales of travel services to the Personal Products Division of Johnson & Johnson which primarily involved the booking of travel arrangements for Johnson & Johnson employees attending company meetings. Johnson & Johnson would pay Triangle Travel in advance for the travel services and in the event that Johnson & Johnson personnel did not make the trip, a refund would be sent by Triangle Travel.

In late July 1984, a newly-hired part-time bookkeeper for Triangle Travel reviewed the Johnson & Johnson account and noted errors and omissions which required a complete audit. This apparently delayed the payment of commissions to plaintiff. During August 1984, plaintiff visited an attorney to discuss funds due to her from Triangle Travel.

The attorney advised plaintiff that one of her options would be to draw a check on Triangle Travel's account for the amount allegedly owed her and to endorse the check to the attorney so that he might hold it in trust. Plaintiff had authority only to write checks for payment of agency bills, and not commissions. Plaintiff drew a check on Triangle Travel's account for $4,516.19 and endorsed it to her attorney. She also removed various account records from the office including some for the Johnson & Johnson account. Plaintiff subsequently returned some of these records, but according to the bookkeeper, portions were altered.

Plaintiff's complaint against Triangle Travel for commissions is dated October 8, 1984. The chancery action on behalf of Triangle Travel seeking the monies plaintiff had transferred to her lawyer, the original business records she had taken and related relief was filed on November 8, 1984, by defendant Ascher. These suits were consolidated and the funds which had been in plaintiff's attorney's trust account were transferred to the trust account of the Clerk of the Superior Court. Both suits were settled and formally terminated on December 10, 1985, by entry of an order.

During the course of the litigation between Triangle Travel and DeVivo, certain records were subpoenaed from Johnson & Johnson. After receiving this subpoena, the attorney for Johnson & Johnson made a claim against Triangle Travel for $7,749.82 allegedly due his client for bookings canceled by Johnson & Johnson employees. Attorney Ascher responded to this claim by letter dated July 12, 1985. In the letter he explained the problems that Triangle Travel was having with the Johnson & Johnson records which were allegedly altered by plaintiff. Ascher further maintained that it had become apparent from the litigation between his client and DeVivo that DeVivo was engaged in "unlawful activity" and that she and another "were engaged in a skimming operation which inured to the detriment not only of [Triangle Travel] but of Johnson & Johnson." These statements, contained in Ascher's July 12,

1985 letter to Johnson & Johnson's attorney, formed the basis for DeVivo's libel action.

Defendant maintains that the alleged defamatory statements were made in relation to and during the course of the litigation between his client and plaintiff, and therefore the statements are clothed with absolute immunity. Plaintiff asserts that no privilege is conferred upon defendant under existing case law. The trial court noted that no New Jersey cases have dealt with the issue of whether absolute privilege should attach to a communication by an attorney to a third party regarding a matter relevant to pending litigation.

An absolute privilege may be extended to statements made in the course of judicial proceedings even if the words are written or spoken maliciously, without any justification or excuse, and from personal ill will or anger against the party defamed. Fenning v. S.G. Holding Corp., 47 N.J. Super. 110, 118 (App.Div.1957); see also Fees v. Trow, 105 N.J. 330, 337 (1987); Middlesex Concrete, etc. v. Carteret Industrial Ass'n., 68 N.J. Super. 85, 91 (App.Div.1961). In explaining the distinction between absolute privilege and qualified privilege, our Supreme Court stated in Rainier's Dairies v. Raritan Valley Farms Inc., 19 N.J. 552, 558 (1955):

The most noteworthy illustration of the absolute privilege or immunity is that afforded in judicial proceedings where judges, attorneys, witnesses, parties and jurors are fully protected against defamation actions based on utterances made in the ...

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