On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-739-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Parker and Lyons.
Defendant Rosemary Ciesielski appeals from an order entered on April 13, 2007 granting summary judgment in favor of plaintiffs and against defendant on her counterclaim, which sought damages for plaintiffs' alleged assault, intentional infliction of emotional distress and harassment.
This case was before us previously when Rosemary appealed from the trial court's dismissal of the complaint and counterclaim because she was unable to pay counsel fees assessed against her for seeking a trial de novo after an arbitration award granted plaintiffs $100,000 in compensatory damages and $50,000 in punitives. We reversed and remanded. In our prior opinion, rendered on June 9, 2006, we set forth the facts underlying the case.
[Defendant] Rosemary is the former wife of [plaintiff] John. John and his new wife, [plaintiff] Carol, attended the graduation of John and Rosemary's son, Thomas, at Gloucester County Community College. Following the graduation, Rosemary and Carol engaged in an altercation. John entered the fray and knocked Rosemary to the ground.
Their son, Thomas, pulled John off Rosemary and helped her up.
This appeal arises after plaintiffs' claim was settled by insurance counsel and a partial stipulation of dismissal was entered. Rosemary did not settle her counterclaim at the time, however, and plaintiffs moved for summary judgment. With respect to Count One of the counterclaim, which alleged that Carol assaulted and intentionally inflicted emotional distress on Rosemary, the trial court found that there was "no contact at all [between Carol and Rosemary] from which pain can actually occur." Since there was no actual injury, that is a physical injury that arises from [Carol getting in Rosemary's face] . . . . All we have is just standing too close. Never any allegation of any contact whatsoever, and as a result of that, never any allegation of any bodily injury - injury caused to - Rosemary by Carol being too close.
The court further found that there's no description of any effort by [Carol] to attempt to cause, purposely, knowingly, or recklessly, bodily injury. There's no allegation . . . of putting a hand back, clenching of a fist, hand up in some motion or a kicking motion or a kneeing motion. It's simply someone standing in front of you without anything that comes close to being an effort to cause bodily injury.
On the second count of the counterclaim alleging that John and Carol intentionally harassed defendant, the court found that there were no facts upon which to ascribe harassment to Carol. With respect to John, the court indicated that there were two separate sets of facts. One set of facts arose out of the divorce action in which Rosemary alleged that John mistreated their child, did not pay the insurance and sought to emancipate their child, all with a purpose to impose financial strain on Rosemary. Rosemary further alleged that John hired a private investigator to check on repairs to the marital home with the purpose to harass her. The court found that none of those allegations reached the level of harassment under N.J.S.A. 2C:33-4.
The second set of facts involved John allegedly striking, kicking, shoving or other offensive touching of Rosemary in what he claimed was his effort to break up the altercation. The court found that even taking Rosemary's allegations as true, a reasonable juror would find that John was trying to break up the altercation between Carol and Rosemary, rather than acting with a purpose to harass Rosemary. Accordingly, the motion to dismiss the counterclaim was granted.
In this appeal, Rosemary argues that the trial court erred in granting summary judgment because there were genuine issues of material fact in dispute. Although we ordinarily defer to the trial court's finding of facts, In re Taylor, 158 N.J. 644 (1999), we do not see how the trial court determined that there was no physical contact between Carol and Rosemary when Carol, herself, alleged that there was a physical altercation that resulted in various injuries. Carol cannot now deny such contact after her complaint against Rosemary was settled. The prior history of the case, as well as the pleadings, clearly indicates that there was some contact, although the parties certainly dispute the extent of that contact and the resulting damages. The trial court must consider all of the pleadings and the history of the case in determining whether there is a material dispute of fact. Here, summary judgment was improvidently granted on Count One against Carol. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
With respect to the allegations in the second count against Carol and John, the trial court made a factual finding that John did not intend to harass Carol when he joined the fray. The trial court must not decide issues of fact; rather, its role is to decide whether there are any material issues of fact in dispute. Ibid. John's intent in allegedly knocking Rosemary to the ground is for the jury to decide. Moreover, the court made no finding with respect to allegations that Carol intentionally harassed Rosemary. ...