On appeal from Superior Court of New Jersey, Law Division, Camden County, L-6350-99.
Before Judges King, Wecker and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff, Joseph J. Hopkins, Sr., *fn1 appeals from an order granting summary judgment in favor of defendants, dismissing his complaint for defamation, and denying plaintiff's motion for partial summary judgment to determine statements by defendants constitute slander per se. On appeal, plaintiff contends the trial judge erred by granting summary judgment in favor of defendants because the record contains sufficient evidence to withstand summary judgment that defendant, William C. Johnson, made slanderous statements about plaintiff with actual malice. Plaintiff further contends the uncontroverted facts in the record establish slander per se, and therefore the trial judge erred in denying his cross-motion for partial summary judgment. We agree with plaintiff's first contention and reverse the portion of the order granting summary judgment dismissing plaintiff's complaint. We reject plaintiff's second contention and affirm the portion of the order denying plaintiff's cross- motion for partial summary judgment.
Viewing the evidential materials most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), these are the facts. Plaintiff was a public accountant and real estate investor in the City of Gloucester. In August 1998, Helen Danella contacted plaintiff, upon a referral from a friend of hers, for assistance. Danella was delinquent in the real estate taxes on her home, which was in danger of being put up by the City for tax sale. Plaintiff and Danella say they entered into a verbal agreement, providing that plaintiff would pay her back taxes in exchange for which Danella would later negotiate a favorable sale price of the house to him.
On August 21, 1998, plaintiff went to the City tax collector's office. He presented two checks to pay Danella's taxes current. The City would not accept a personal check for the amount due on the tax title lien. Thus, plaintiff presented a certified check *fn2 issued by Equity National Bank in the amount of $3,162.12 payable to "Gloucester City" to satisfy the tax title lien. To pay the current taxes due, plaintiff presented his business check, which was acceptable for this purpose, in the amount of $1,830.97. The tax collector's office issued receipts for the payments and deposited the checks in an account at PNC Bank.
On August 27, 1998, Johnson received a notice from PNC stating the $3,162.12 check was being returned unpaid. The reason for the return was "ENDORSEMENT IRREGULAR." The notice clearly designated the payee as "GLOUCESTER CITY." Johnson acknowledged that he knew from the time he received the notice -- "from day one" -- the certified check "can't bounce. I mean, it can't be returned for non-sufficient funds. So [I] ruled that out." He elaborated "in all the bounced check things, it will say in the return thing NSF."
Johnson called PNC Bank to inquire about the check. When he told the PNC representative the notice identified the problem as irregular endorsement, the representative replied "that's probably what it was, the name on the ba[c]k may not match the name that was on the front." Johnson testified his office sometimes gets checks payable to Gloucester Township or Gloucester County and sometimes there is a mixup. Johnson made no further inquiries of PNC.
Yet, on September 8, 1998, Johnson and an employee in his office, Lisa, informed Danella that plaintiff's check bounced. According to Danella, Johnson "said that he's going to send the cops around for Mr. Hopkins because he's passing bad checks." Distressed with this information, Danella called plaintiff and spoke to him and his son Michael T. Hopkins on a speaker phone. Michael relates that Danella said Johnson "was going to send the police to have [plaintiff] arrested, his checks bounced, that he was taking advantage of the elderly and that she should have no dealings with him."
On the same date, plaintiff called Johnson, who informed plaintiff that "both his checks bounced; that he was going to have the cops come and arrest him." When plaintiff asked how a certified check could bounce, Johnson responded for a number of reasons, including insufficient funds. It is undisputed that the business check for $1,830.97 was paid without incident.
Plaintiff immediately called Equity National Bank, which issued the certified check. He spoke to Gerald McKee, a vice president, who stated it was impossible for a certified check to bounce, and it is possible that the check did not clear the Federal Reserve Bank because the endorsement was too light or did not match the named payee. The return notice identified an irregular endorsement as the problem. Of course, that problem is attributable to some action or inaction by the payee, the City of Gloucester. Plaintiff asked McKee to call Johnson, which he did. Johnson believed he called McKee, although he is not sure who initiated the call. In any event, McKee assured Johnson the check was good. Plaintiff then called Johnson and asked for an apology, to which Johnson replied "you'll get no apology from this office . . . you'll get your apology in jail."
The check was eventually paid and Johnson informed Danella by letter on September 11, 1998 that the two checks from plaintiff cleared, her property was removed from the tax sale and her account was current. Several local residents gave testimony confirming statements made to them by Danella about the derogatory statements made by Johnson about plaintiff.
In a September 9, 1998 internal memorandum to the City Administrator, Johnson explained the course of events surrounding the checks for Danella's property. In describing what happened on September 8, 1998, he stated Lisa had been on the phone with Mrs. Danella after which he "then informed Lisa of the bounced check and told her to call Mrs. Danella back in reference to the check. I stated that we had received a notice of the bounced check, . . . ." (emphasis added). This, of course, contradicts Johnson's deposition testimony that he knew on August 27, 1998 the certified check could not and did not bounce. It appears from Johnson's ...