On appeal from the Superior Court of New Jersey, Law Division, Morris County.
King, Shebell and Baime. The opinion of the court was delivered by King, P.J.A.D.
[239 NJSuper Page 142] The principal point on this appeal concerns the implication of the failure to cross-appeal from a dismissal on the merits of a count of the complaint. We conclude that this failure to cross-appeal on the dismissed count was fatal to an attempt to retry that count after reversal on the direct appeal.
This appeal is taken from a judgment in April 1988 in which the jury awarded plaintiffs an aggregate $20,000 in compensatory and $2,000 in punitive damages for nuisance claims (Count Five) and $30,000 in compensatory and $45,000 in punitive damages for defamation claims (Count Six). Defendants appeal from these verdicts, totalling $97,000. The jury decided the claims on Counts One and Two (malicious prosecution) in defendants' favor. The claims under the Third and Fourth Counts of the complaint, for malicious abuse of process and the Seventh Count for intentional infliction of emotional distress, were dismissed by the trial judge and not submitted to the jury. Plaintiffs cross-appeal from these rulings.
Plaintiffs Frank and Angela Burbridge, John and Mary Burbridge, and Joseph and Elaine Burbridge live on Thomastown Road in Mine Hill. Defendants John Paschal and Thomas Paschal live across the road from plaintiffs, where they also operate a junkyard. In 1977 John Paschal was cited and convicted in the Municipal Court for maintaining a nonconforming commercial use of his property, which had been zoned residential. His municipal court conviction was set aside on appeal de novo to the Law Division. In 1980 he applied for a license to operate the junkyard. The Township Committee granted the license for an expanded nonconforming use on the condition that he erect a ten-foot fence around the site. Defendant completed the fence later that year.
In February 1982 John Paschal began leasing a small, wooded area of land owned by Ann Fran Realty, located immediately adjacent to the houses of plaintiffs Joe and John Burbridge. The leased property contained mine holes about 30 feet deep and 30 feet in diameter. John Paschal alleges that before the lease began, the plaintiffs had illegally dumped refuse and chemicals into these mine holes. In what he claims was an effort to persuade plaintiff to remove the dumped material from the Ann Fran property, Paschal posted "no trespassing" and "no dumping" signs on trees between the two lots. He claims that plaintiffs responded by defacing or removing the
signs. Paschal then erected several more signs along this property line which read, "Joe Burbitch Landfill," "Joe Burbitch Dump," "24 Hr. Dumping for Family Members Only" and "Joe Burbitch Shit." These signs were visible from the plaintiffs' homes and from Thomastown Road. Plaintiffs also allege that defendants used various forms of harassment including "banging, laughing and jeering" at various times, all of which plaintiffs claim constituted a common-law nuisance interfering with the use of their property.
On September 1, 1982 plaintiffs started an action in lieu of a prerogative writ against the Township of Mine Hill, its officials and defendant John Paschal to stop Paschal from expanding the scope and use of his junkyard, a nonconforming use in this residential zone. Plaintiffs prevailed in that case in the Law Division and on appeal to this court but Paschal sought further relief by variance. The litigation over Paschal's variance application culminated recently in his favor. See Burbridge v. Mine Hill, 117 N.J. 376, 568 A.2d 527 (1990). That opinion contains a detailed history of both the use of the Paschal property and of the litigation between the parties.
On October 26, 1982 defendant John Paschal filed a municipal complaint charging plaintiffs with illegal dumping on the wooded property leased to him. On March 8, 1983 the municipal court found plaintiffs not guilty. That complaint was the subject of plaintiffs' claims for wrongful abuse of process and malicious prosecution, asserted in the Law Division in the present case.
On April 25, 1983 plaintiffs filed this civil complaint for damages which resulted in the aggregate $97,000 judgment of April 1988 and which is the subject of this appeal. Plaintiffs Frank Burbridge and Angela Burbridge, John E. Burbridge and Mary Burbridge, and Joseph Burbridge and Elaine Burbridge (collectively, plaintiffs) filed the seven-count complaint against John Thomas Paschal (Thomas) and John George Paschal (John)
(collectively, defendant or defendants).*fn1 The first and second counts of the complaint alleged that defendants instituted, with malice and without probable cause, a municipal court action resulting in a not-guilty verdict against plaintiffs Joseph and John Burbridge. The third and fourth counts alleged that John Paschal utilized that legal process to intimidate and harass plaintiffs, Joseph and John Burbridge. The fifth count alleged that both defendants created a common-law nuisance with regard to the property they leased near the homes of the three plaintiff couples which interfered with the use and enjoyment of plaintiffs' homes. The fifth, or nuisance count stated:
6. During the term of such lease, Defendant John Paschal has utilized this property in a manner which has caused noise, dust and fumes to emanate from such property. In addition, Defendant John Paschal has caused such property to be strewn with trash, litter, scrap materials and other debris. Defendant John Paschal has also caused to be erected on such property certain signs and placards which are derogatory in nature and which are located so as to be constantly visible from Plaintiffs' properties and Thomastown Road.
7. As a result of Defendant John Paschal's use of the above described property as set forth herein, Plaintiffs have suffered serious and unreasonable interference with the use and enjoyment of their respective properties and have suffered a diminution of the residential property value of their respective properties.
WHEREFORE, Plaintiffs demand judgment against the Defendant John Paschal:
A. Directing John Paschal to cease and desist in the utilization of such property in such a manner as constitutes a nuisance;
B. Awarding to Plaintiffs damages, reasonable attorney's fees and costs of suit.
The sixth, or defamation count alleged that defendants had erected scandalous and derogatory signs which were visible from plaintiffs' homes as well as to the public, and that plaintiffs were thereby defamed in reputation and character. The sixth count stated:
2. Defendant John Paschal has erected, or caused to be erected, certain signs which present Plaintiffs in a false and derogatory light as aforesaid.
3. Defendant Thomas Paschal has knowingly and willingly taken part in the construction and design of these scandalous and derogatory signs.
4. The aforesaid signs are visible from Plaintiffs' respective properties as well as from Thomastown Road.
5. These aforesaid signs, aside from being an eyesore and blight upon the neighborhood in themselves, convey the false message that the condition of John Paschal's leasehold property as set forth previously, that is that it is strewn with litter, scrap and debris, is the result of actions by Plaintiffs.
6. These signs were constructed by Defendants John Paschal and Thomas Paschal with reckless disregard for the truth, and with the intent to injure the name and reputation of Plaintiffs to subject them to public scorn, and by portraying them in this false light, to embarrass and humiliate Plaintiffs in the eyes of the community.
7. These signs have been seen and read by a large number of people.
8. As a result of these aforesaid actions by Defendants the Plaintiffs have sustained injury to their reputation, fame or character, have suffered personal humiliation, embarrassment and mental anguish, suffering and distress.
WHEREFORE, Plaintiffs demand judgment against Defendants John Paschal and Thomas Paschal for compensatory damages, punitive damages, interest and costs of suit.
The seventh count alleged that defendants had intentionally inflicted severe emotional distress upon plaintiffs. Plaintiffs asserted that the Paschals had used the leasehold property "consistently and systematically [to] harass, impede and prevent plaintiffs from all reasonable use and enjoyment of [their] properties." Plaintiffs alleged that defendants knew that their actions would "inflict severe emotional shock and trauma upon plaintiffs" and that as a result "of the extreme and outrageous actions of defendant . . . plaintiffs have suffered severe and debilitating emotional shock and trauma."
These events took place as the trial date approached. On February 14, 1985 a notice of trial was issued assigning a trial date of March 25, 1985. On February 9, 1985 plaintiffs had obtained orders compelling defendant John Paschal to respond to certain interrogatories and compelling defendant Thomas Paschal to appear for depositions. On March 7, 1985 plaintiffs obtained an order compelling both defendants to disclose their financial status.
John Paschal failed to make discovery in accordance with the March 7, 1985 order. Further, he failed to ...