July 11, 2008
JOHN TAI AND SUE TAI, PLAINTIFFS-APPELLANTS,
CROWN VIEW MANOR I CONDOMINIUM ASSOCIATION, GLORIA SLIPOY, AND MARTIN ROBERT BONDA, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6701-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2008
Before Judges Sapp-Peterson and Messano.
Plaintiffs,*fn1 John and Sue Tai, appeal from the trial court order granting summary judgment to defendants, Crown View Manor I Condominium Association (the Association); Gloria Slipoy, Property Manager; and Martin Robert Bonda, Treasurer of the Association's Board of Directors (collectively "defendants"). We remand for further proceedings related to the Association's procedures for access to its records. We affirm the decision of the trial court in all other respects.
Plaintiffs are longtime owners and residents of a condominium that is part of a development known as Crown View Manor I in West Orange (Crown View). The administration and management of Crown View is undertaken by the Association. Although its elected governing body is the Board of Directors (Board), the day-to-day operations of Crown View are overseen by the property manager, Slipoy, and other paid staff.
In May 2005, Thomas Plaza, then Assistant Superintendent for the Association, observed someone whom he believed to be plaintiff walking off with a water jug from the lobby of Crown View. At the direction of the Board and relying on the information furnished by Plaza, Slipoy wrote a letter to plaintiff dated May 31, 2005, notifying him that two employees of Crown View observed him taking the water jug. She advised plaintiff that he "must reimburse the Association $10.00 for the deposit for the container and $4.99 for 5 gallons of water." Slipoy furnished a copy of the letter to the Association's five board members, its attorney, and to Gary Zepka, the managing agent of the property management company that managed Crown View. During the Association's regularly scheduled meeting held on June 9, 2005, plaintiff attempted to distribute copies of the letter to everyone in attendance. However, according to plaintiff, "the people in the front didn't want to take it and I gave a copy to the auditor that was sitting at a table and I remember the president[.]" Three months later, plaintiff filed a complaint against defendants. The claims asserted against defendants included defamation, infliction of emotional distress, and violation of the New Jersey Condominium Act, N.J.S.A. 46:8B-1 to -38.
Following the completion of discovery, defendants moved for summary judgment. The court granted the motion, stating,
[M]y position is counts one [defamation], two [legal malice and failure to retract], three [breach of duty to investigate and failure to retract], four [outrage and/or infliction of emotional harm] and seven [conspiracy] are dismissed as to Ms. Slipoy and Mr. Bonda. Her letter is under a qualified privilege. The letter was regarding a common interest, namely to protect the assets of the Association. It was only sent to seven individuals. The only one who published the letter was [plaintiff] by handing it out. It was -- it was going to be confidential until you chose to do otherwise. It wasn't reckless. There was no disregard either on Ms. Slipoy's or Mr. Bonda's behalf. You're a limited purpose public figure. You're well known, even by your own admission. You've made numerous requests to the Board. You've run for office up there. Everybody either likes you or they hate you up there, but everybody knows you. So you've made numerous, numerous requests.
The regulations that were  implemented by the Board -- there's two of them. They're in full compliance with [Mulligan v. Panther Valley Prop. Owners Ass'n] -- and that's Eleanor Mulligan, well known activist lawyer, condominium association member of Panther Valley. And the case is [337 N.J. Super. 293 (App. Div. 2001)]. An Appellate Division [j]udge has already reviewed all of the restrictions that were imposed in the Mulligan case and I think the lawyers for the Crown View Manor Board basically adopted the exact wording of those regulations. [T]hey've already been approved. There's nothing restrictive. It's a proper use of the homeowner[s'] association's money in allowing the efficient operation of the business office. You've already displayed here today at least [forty-three] separate requests you've made for records. I'm sure there's been more.
So counts five and six are also being dismissed. Count seven is just a general conspiracy count. There's absolutely no evidence of any conspiracy against anybody on this Board. These are all volunteers. The bottom line is this entire case is dismissed. You can file your appeal.
The present appeal followed.
In reviewing an appeal from a summary judgment order, we employ the same standard of review as the trial court. Prudential Prop. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004); Singer v. Beach Trading Co., 379 N.J. Super. 63, 80 (App. Div. 2005) (citing Manalapan Realty v. Twp. Committee, 140 N.J. 366, 378 (1995)). We first determine whether the moving party has demonstrated that there were no genuinely disputed issues of material facts. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We then decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-231 (App. Div.), certif. denied, 189 N.J. 104 (2006). In this case, the issues presented were primarily legal. Consequently, we owe no deference to the conclusions reached by the judge. Id. at 231 (citing Manalapan Realty, supra, 140 N.J. at 378).
First addressing plaintiff's claims arising out of the Slipoy letter, plaintiff argues the letter was not protected by a qualified privilege. He also argues that he was not a limited purpose public figure. A statement is defamatory if it "is false and 'injurious to the reputation of another' or exposes another person to 'hatred, contempt or ridicule' or subjects another person to 'a loss of the good will and confidence' in which he or she is held by others." Romaine v. Kallinger, 109 N.J. 282, 289 (1988) (citations omitted). A plaintiff seeking to prove an action for defamation "must establish, in addition to damages, that the defendant (1) made a defamatory statement of fact (2) concerning the plaintiff (3) which was false, and (4) which was communicated to a person or persons other than the plaintiff." Feggans v. Billington, 291 N.J. Super. 382, 391 (App. Div. 1996) (citations omitted). A plaintiff must also prove a fifth element, fault. Ibid. Additionally, where a plaintiff is a limited purpose public figure, a plaintiff must also prove that publication of the allegedly defamatory statement was actuated by malice. Gulrajaney v. Petricha, 381 N.J. Super. 241, 255, 257 (App. Div. 2005); Verna v. The Links at Valley Brook Neighborhood Ass'n Inc., 371 N.J. Super. 77, 97 (App. Div. 2004).
Statements that are otherwise defamatory may not be actionable against the publisher if the statement was published under privileged circumstances. Gallo v. Princeton Univ., 281 N.J. Super. 134, 142 (App. Div. 1995). Privileges may be "absolute," which means that the statements are completely immune, or "qualified," meaning that the statements are entitled to limited protection. Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 136 (1986). The motion judge concluded that Slipoy's letter and the circumstances surrounding its publication were entitled to protection under a qualified privilege.
A qualified privilege shields the defamatory statements made in furtherance of the interest that the qualified privilege is meant to accommodate, regardless of whether those remarks turn out to be false or defamatory. Feggans, supra, 291 N.J. Super. at 392-93. Nonetheless, a qualified privilege, if abused, will cease to protect the publisher against a claim of defamation. Id. at 394. A publisher has abused a conditional or qualified privilege if "(1) the publisher knows the statement is false or the publisher acts in reckless disregard of its truth or falsity; (2) the publication serves a purpose contrary to the interests of the qualified privilege; or (3) the statement is excessively published." Ibid.
The existence or absence of a qualified privilege in a defamation action is a question of law for the court to decide. Lawrence v. Bauer Publishing & Printing, 89 N.J. 451, 462 (1982). "[T]he burden of establishing the existence of a [qualified] privilege is on the defendant and the burden of proving an abuse of the privilege reposes on the plaintiff." Feggans, supra, 291 N.J. Super. at 394-95. Moreover, addressing a plaintiff's ultimate burden, the Supreme Court in Fees v. Trow, 105 N.J. 330, 342 (1987), stated that "[b]ecause a qualified privilege is favored with a presumption that there was no express malice, plaintiff carries the burden of establishing that the statements complained of were made 'from an indirect or improper motive, and not for a reason which would otherwise render them privileged.'" See also Lutz v. Royal Ins. Co. of Am., 245 N.J. Super. 480, 499 (App. Div. 1991); Sokolay v. Edlin, 65 N.J. Super. 112, 127 (App. Div. 1961).
The determination of whether there has been an abuse of a qualified privilege is generally a jury question. We have, however, previously recognized that "[p]ublic policy considerations favor the use of summary judgment motions to eliminate baseless defamation claims." Feggans, supra, 291 N.J. Super. at 395 (citing Dairy Stores, supra, 104 N.J. at 157) (finding that the fear of a lawsuit can stifle commentary on matters of public concern); Costello v. Ocean County Observer, 136 N.J. 594, 605 (1994) (explaining that summary judgment constitutes an important tool for dispensing with non-meritorious claims of defamation).
The motion judge concluded that the circumstances surrounding the publication of Slipoy's letter rendered that letter qualifiedly privileged. We agree. The letter was written in connection with a common interest, protecting Crown View's assets, and was sent only to those persons with a corresponding interest and duty to protect Crown View's property: board members, the Association's attorney, and one of the owners of the property management company. Gulrajaney, supra, 381 N.J. Super. at 256. Further, it was plaintiff who appeared at a regularly scheduled board meeting and distributed the letter to others. From these undisputed facts, we are persuaded that the motion judge properly concluded that Slipoy's letter and its limited publication were entitled to a qualified privilege, irrespective of whether plaintiff was the person observed removing the water bottle from the lobby of Crown View. Thus, the court did not err in dismissing plaintiff's defamation and related claims of legal malice, failure to retract, breach of duty to investigate, outrage and/or infliction of emotional harm.*fn2 Feggans, supra, 291 N.J. Super. at 393-94.
Finally, because applicability of a qualified privilege is not dependent upon a finding that a plaintiff is a public figure, we decline to address whether plaintiff is a limited purpose public figure. Gulrajaney, supra, 381 N.J. Super. at 259.
In the fifth count of plaintiff's complaint, plaintiff alleged that the resolution adopted by the Association in September 2002 and filed with the Clerk of Essex County on October 15, 2002 "impermissibly restrict[ed] the unit owners access to the records of Crown View." Sometime in late April 2006, plaintiff circulated a proposed amended complaint that referenced "the Board's adoption of the Access to Records by Association Members Policy Resolution, which was allegedly adopted on May 24, 2005." There is no indication in the record that the amended complaint was filed. However, in both the initial and amended complaint, plaintiff alleged that
[t]he impermissible restrictions created by the Policy Resolution include (a) creating a class of permitted documents that is not contemplated by law, (b) imposing an invalid written request policy, (c) imposing an invalid statement of purpose requirement, (d) limiting access to records to production only, at the discretion of the Board, thus impairing the unit owners' rights to inspect and copy same, (e) imposing illegal administrative and copying charges to view records, (f) imposing illegal limitations on the inspection time permitted to the unit owners and (g) failing to obligate the Crown View to maintain records for a reasonable period of time.
Although plaintiff addresses these contentions on appeal, the focus of his argument before the trial court was that defendants refused to turn over documents he requested, despite the fact that plaintiff claimed he had filled out the document request form, gave notice for the request and paid the copying charges.
The trial court did not specifically address whether there was a factual dispute regarding plaintiff's compliance or non-compliance with Crown View's policies for inspection of records, although it did acknowledge that defendant displayed forty-three requests before the court. Therefore, a remand is necessary to afford the trial court an opportunity to make specific findings as to whether a factual dispute exists as to this issue. Brill, supra, 142 N.J. at 540.
Next, the trial court specifically considered the procedures for access to records Crown View adopted in its resolution. The court found that the procedures Crown View adopted were not restrictive and contained the exact language as those adopted by the homeowners' association in Mulligan, supra, which we upheld as reasonable. 337 N.J. Super. at 303-04.
In Mulligan, supra, we had occasion to review a condominium association's amendment to its bylaws that the plaintiff challenged as being partly illegal and overbroad. Id. at 308. We first determined that as amendments, rather than the original provisions contained in the "declaration and bylaws to which [the plaintiff] gave her assent by her decision to purchase a home at Panther Valley in 1976," they were not entitled to "the very strong presumption of validity that some courts have attached to a common interest community from the outset of its development." Mulligan, supra, 337 N.J. Super. at 302-03 (quoting Ridgely Condo. Ass'n v. Smyrnioudis, 660 A.2d 942, 947 (Md. App. 1995), aff'd, 681 A.2d 494 (Md. 1996)). We concluded that the appropriate standard of review for subsequent amendments is reasonableness. Mulligan, supra, 337 N.J. Super. at 303.
Against the reasonableness standard, we upheld the trial court's determination in Mulligan that the procedures for inspection of the association's books were reasonable. Id. at 308. Those procedures imposed restrictions upon the time and number of inspections, established time frames for notice of a request to inspect, and authorized the association to draft reasonable rules and regulations governing inspections. Ibid.
While comparisons of the procedures adopted by Crown View with those we upheld in Mulligan, supra, reveal similarities, we disagree with the trial court's conclusion that Crown View's procedures essentially mirrored those found reasonable in Mulligan. For example, Crown View requires that the written request to inspect a document explain the purpose for the inspection. No such condition was imposed upon the homeowners in Mulligan, supra. Ibid. Additionally, the homeowners in Mulligan, supra, were permitted to review financial records not only for the current year but also for the two preceding years. Ibid. On the other hand, under Crown View's procedures, financial records, with the exception of unemployment tax returns, are retained for one year. Therefore, a remand is necessary to permit the trial court to make specific findings as to the reasonableness of those procedures adopted in the resolutions that do not mirror those we agreed were reasonable in Mulligan, supra.
Finally, it is unclear from the record which resolution was before the court. The original complaint referenced the 2002 resolution. An amended complaint incorporating the 2005 resolution was apparently circulated, but there is no indication from the record that it was ever filed. However, the court, in its colloquy with plaintiff during oral argument, references both resolutions.*fn3 In view of our remand, the trial court should make clear whether its findings are intended to address the 2002 resolution or the 2005 resolution or both.
Affirmed in part, remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction.