July 30, 2008
MARTIN BRODSKY, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT, AND ALLISON BRODSKY, PLAINTIFF,*FN1 AND GAETANO TUDISCO, JULIEANN TUDISCO, JOSEPH TEUTONICO, CONSTANCE TEUTONICO, MICHAEL J. CULLEN, GARY BERGER, AND ANISSA STONE, PLAINTIFFS,
W.B. ASSOCIATES, INC. AND HARRY KANTOR, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS, AND CENTURY 21/MACK MORRIS AGENCY, DEFENDANT-RESPONDENT, AND VINTAGE COMMUNITIES*FN2 AND TED KANTOR, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-881-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 2, 2008
Before Judges Payne, Sapp-Peterson and Messano.
Plaintiff Martin Brodsky, the owner with his wife Allison of a home located in Morganville, New Jersey, appeals from a judgment for compensatory and punitive damages in the total amount of $456,118, entered against him on the counterclaims of the Brodsky's builder, W.B. Associates, and a principal of that entity, Harry Kantor, alleging tortious interference with a prospective business advantage and both intentional and negligent infliction of emotional distress. He also appeals from an order of summary judgment that dismissed plaintiffs' complaint. Harry Kantor and W.B. Associates cross-appeal from the trial judge's grant of a remittitur on the compensatory and punitive damage awards for emotional distress, his denial of pre-judgment interest on the punitive damage portion of the award, and his determination to award only a portion of the attorneys' fees sought by cross-appellants. We reverse the judgment against Martin Brodsky, finding it to be unsupported in fact and law, and for that reason, do not address the merits of the cross-appeal.
In a complaint filed in the matter, the Brodskys, along with the other named plaintiffs,*fn3 alleged that they had contracted with W.B. Associates for the construction of custom- built homes in a development known as Winding Brook in Morganville after being informed by defendants*fn4 that the "lots were adjacent to, bordered upon or were in close proximity to a dairy farm." In fact, the alleged "dairy farm" was a minimum security correctional facility, housing approximately 125 inmates from the East Jersey State Prison. In their complaint, plaintiffs alleged:
[S]ince purchasing the properties in question and living in the homes, plaintiff[s] have been exposed to noise and profanity emanating from the prison grounds, disturbance by the prison flood lights that illuminate their yards and homes, from the presence of inmates in and about the property and neighborhood when they have escaped from the facility or when they need to repair fencing along the property and they have suffered from the distress caused by having to live in such close proximity to an inmate prison facility with all of the inherent dangers and risks associated herewith.
Plaintiffs sought damages for the diminution of value of their properties and emotional distress on various legal theories including common law fraud, violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, negligence, and breach of an implied warranty of habitability. Additionally, in three counts, plaintiffs sought damages only against builders W.B. Associates and Harry Kantor based upon breach of contract, fraud in the inducement and breach of warranty. In a final count, Martin Brodsky alleged that realtor Ted Kantor, Harry Kantor's son, had tortiously interfered with Brodsky's contractual relationships by advising prospective purchasers not to retain Brodsky in connection with their property purchases. Defendants answered plaintiffs' complaint, and defendants W.B. Associates and Harry Kantor asserted the counterclaims that we previously described.
In June 2001, defendants moved to dismiss the counts of plaintiffs' complaint alleging undisclosed proximity to the prison for failure to state a claim upon which relief could be granted, arguing that compliance with the New Residential Real Estate Off-Site Conditions Disclosure Act (Disclosure Act), N.J.S.A. 46:3C-1 to -12, as construed in Nobrega v. Edison Glen Assocs., 167 N.J. 520 (2001), exonerated them from liability. Plaintiffs opposed the motion by submission of briefs, certifications and documentary evidence. The motion judge described plaintiffs' claims as set forth in their complaint and certifications as follows:
Plaintiffs contend that W.B. Associates and Harry Kantor both individually and as agents, servants and employees of W.B. Associates, Inc. and Vintage Communities and Ted Kantor, [Century] 21 Mack Morris Agency intentionally and negligently made certain statements and representations to each of these purchasers to induce them to buy their homes.
Plaintiffs allege that the defendants represented to the plaintiffs that they should buy lots in the development known as Winding Brook because the lots were in close proximity to, bordered upon and were adjacent to a dairy farm - no one knew that they were attended to, the cows were attended to by prisoners, - and would be a gateway to a final construction site consisting of million dollar homes. Who knew that a million dollar home was a jail?
Plaintiffs maintain that they were informed that the property zoning was restricted and that its use in the future would only be a dairy farm. Plaintiffs claim that Mr. Kantor told them that Marlboro Psychiatric Hospital, located on the other side of the dairy farm property, was closing.
Plaintiffs allege that the "dairy farm" is in fact a minimum security facility that houses approximately 125 inmates that were transferred from Rahway State Prison who have less than three years on their sentence[s]. Plaintiffs charge that one-third of the inmates were incarcerated for violent crimes. Plaintiffs contend that these inmates have jobs of repairing the fences that border the plaintiffs' homes and retrieving the cows who often break through the fences. I can just see this.
Plaintiffs assert that the floodlights from the prison shine into their windows and there is often noise and profanity coming from the inmates. Plaintiffs claim a 250 bed drug rehabilitation center has recently been approved for the prison facility and is qualified to house inmates that have less than 18 months left to serve [on] their sentences.
That's an interesting surprise when you buy that kind of house.
A Winter 2000 newsletter circulated by the builder, a copy of which was included with plaintiffs' opposition, purportedly reported upon the ecstatic response of homeowners Debbie and Michael to their home in the development, and included their statement: "We love this property - our home borders a dairy farm where we can look out in the morning and see cows in the pasture." Following argument, defendants' motion was denied by the judge on the ground that plaintiffs had alleged intentional and willful misrepresentation of the use of the adjoining property that was not statutorily immunized.
However, summary judgment was thereafter granted to defendants by a different judge by order dated March 1, 2004. In relevant part, the judge held that defendants' compliance with the statutory disclosure requirements of the New Residential Construction Off-Site Conditions Disclosure Act prevented plaintiffs from asserting causes of action based on the failure to disclose. Additionally, the judge held that plaintiffs had failed to produce evidence to support their claims arising from the construction of their homes; that no warranty of habitability had been breached; that plaintiffs' emotional distress was insufficient to warrant recovery; and that no admissible evidence supported Martin Brodsky's claims of intentional interference with contract by Ted Kantor. However, the judge denied the defendants' motion for sanctions pursuant to N.J.S.A. 2A:15-59.1a(1) for filing frivolous litigation.
Following a settlement between all plaintiffs other than the Brodskys and defendants, trial was held on the counterclaims asserted against Martin Brodsky by W.B. Associates and Harry Kantor. At the trial, the principal evidence introduced in support of counterclaimants' tortious interference with contract action was (1) three or four conversations between Harry Kantor and Martin Brodsky in which Brodsky accused Kantor of fraud, threatened suit, and threatened to disclose the fact that Kantor had a federal felony conviction for bribery in connection with a real estate matter; (2) Brodsky's solicitation of others to join as plaintiffs in the litigation; (3) a series of letters written by Brodsky or his attorney to Harry Kantor or Kantor's attorney seeking settlement of his claims for $300,000 and threatening, if the matter were not resolved, to file suit; (4) a letter from Brodsky to Kantor noting that Kantor was cutting trees along a shared property line, contrary to prior representations that the trees would be preserved as a barrier, and threatening to oppose Kantor's application to rezone undeveloped property from five acres to 1.25 acres, in order to permit its development; and (5) Brodsky's disclosure of the allegations of the complaint.*fn5
In testimony before the jury, Kantor admitted that, in the 1980s, he had pled guilty to paying a $75,000 bribe to a bank official, receiving a two-year probationary sentence with a $5,000 fine, and entering with his partners into a restitution agreement that required payment of $50 million in cash and $20 million in deeds in lieu of foreclosure. Kantor further acknowledged that the information regarding his indictment and guilty plea appeared on the front page of the Asbury Park Press, and he stated that the embarrassment and loss of business caused him to have a breakdown, for which he was treated for a number of days in a psychiatric facility.
By 1991, Kantor had negotiated a resolution of his restitution obligation and had re-commenced his business as a builder, starting up once again "from scratch." By 1992 or 1993, he was "back in the saddle." In 1995 or 1996, he became involved in the Winding Brook development when W.B. Associates purchased the property from its prior owners. Although Kantor admitted that he had conducted a physical investigation of the area prior to the property purchase, and he was aware of the existence of the State-owned Marlboro Psychiatric Hospital, he claimed to have been unaware of the prison until, at an undisclosed time prior to the commencement of Brodsky's allegations of fraud, a property purchaser informed him of its presence, which Kantor then confirmed with the Township.*fn6
Kantor testified additionally that, once the contract between W.B. Associates and the Brodskys was "validated," Brodsky "turned into the customer from hell." His threats of litigation and its basis (termed by Kantor as constituting extortion) and his exposure of Kantor's felony conviction allegedly caused a fall-off of sales in the development that "extended the project by a year to its completion" and intense emotional distress to Kantor. He testified:
I was suffering. I mean I had tremendous conflict. Brodsky had thrown everything he could conceivably throw at me. He brought up, wanted to bring up my past again to make allegations that I had committed fraud and improprieties. And having already been a convicted felon, I was unsure as to whether or not other people like the five other plaintiffs would simply join in the suit because they thought that there was financial opportunity for them.
And, you know, I spent a long time since 1991 and this is 2001, trying to put myself and my business and my life back together on a positive road. And that this whole nightmare was going to relive itself and manifest itself in these allegations that these homeowners were making.
Kantor stated that he started to lose sleep and weight, started to manifest "the classic symptoms of depression [and] anxiety" and for a time, he "didn't consider himself capable of making any rational decisions." He was treated by a psychologist on twelve occasions for generalized anxiety disorder, and a psychiatrist prescribed anti-depressive medications. Kantor additionally testified that his application to rezone the adjoining property was denied, but he acknowledged that Brodsky had never appeared before the planning board to object, and he failed to identify any disparaging remarks by Brodsky in this context.
At the conclusion of the counterclaimants' case, Brodsky sought dismissal of the counterclaim, arguing that the information he provided was truthful and had not been published to a third party. Brodsky also argued that Kantor and W.B. Associates had failed to present any testimony that causally related his conduct to any damages suffered by defendant-counterclaimants. In fact, the defendants' damages expert assumed causation to exist and failed to examine relevant factors that might impact on sales in the period in question. Additional objections to the expert's methodology were also raised. As a final matter, Brodsky sought dismissal of the claims for negligent and intentional infliction of emotional distress, arguing that he should not be held accountable for Kantor's prior mental health problems and that the average person would not have reacted as Kantor did to Brodsky's complaints. Additionally, he argued that Kantor's distress was insufficiently severe to be compensable. In connection with the negligence claim, Brodsky also argued that he owed no duty to Kantor. The trial judge denied Brodsky's motion following oral argument.
Thereafter, Brodsky testified to Kantor's representation that the surrounding area was zoned for five-acre development, that the road adjoining the Brodsky property would remain as a one-lane dirt road through the woods, and that the adjoining property was a dairy farm, as it appeared to be. Brodsky additionally testified that he had contacted the town regarding off-site conditions, and he had been told that there were none to disclose. The Brodskys learned of the prison from a neighbor a few months after moving into their new home. After information regarding the prison had spread through the neighborhood, its residents met with the mayor, the police and representatives of the Department of Corrections. As a result, the fencing was improved along Igoe Road, the dirt road adjoining the Brodskys' property; the police commenced patrols; and a telephone alert system was instituted for use in case of an escape or other trouble at the facility. Although the Brodskys considered selling their home during this period, they determined that it was not economically feasible to do so. Ultimately the prison was shut down and replaced with a "landscape farm."
Brodsky testified that he learned of Kantor's criminal past from his attorney. He raised it during a settlement conference with Kantor and Kantor's attorney because it was relevant to Kantor's credibility, particularly since the conviction also concerned real estate. Brodsky stated that he "anticipated" the conviction would become public, but he denied ever threatening to disclose it. Brodsky stated further that he was contacted by the media, and had never initiated such contact. Any knowledge by the press of Kantor's conviction arose from public records.
In closing argument, counsel for W.B. Associates and Kantor told the jury that, when Brodsky learned of the prison's existence, "he could have filed his lawsuit which he eventually did and lost" and "there was certainly enough culpability from the testimony that you've heard on the part of the Township for not living up to their responsibilities and duties" and Brodsky "certainly could have filed a lawsuit against the Township which he didn't."*fn7 Counsel argued that the difference between what should have been done and shouldn't have been done and that's why we're here today, is looking at the other homeowners who joined the suit with him. They didn't go to the newspaper. They didn't run around trying to organize people.
They didn't go on a smear campaign. They didn't make threats to Mr. Kantor. They didn't do any of those things.
Counsel contrasted Brodsky's conduct to that of Kantor, which he described as follows:
He felt he was right. It ended up the Court here in this courthouse upheld what he did.
But someone wants to sue him, fine.
But not to take the road that Mr. Brodsky took. Not to go after him as, at his jugular. Not to do the lowest thing possible which is to threaten to publicize a criminal act. That he could not take.
Addressing the basis for the counterclaim for tortious interference, counsel argued that it was the lawsuit, the news article, the "entire smear campaign," "rounding up the public," and "going door to door." Additionally, it was "going to the Township and raising hell there. It was going around the neighborhood to various different agencies and besmirching and bad mouthing the developer." In connection with the claims for emotional distress, counsel argued:
What that claim is is that the actions of Mr. Brodsky and again we're talking about the threats, the holding over of the lawsuits and going up to the, going around, spreading negative things about him in the community, going to the papers, et cetera, that that was intentional or reckless.
Additionally counsel cited the allegedly "threatening" letters by Brodsky to Kantor and his attorney, and argued among other things:
Again, it's outrageous this, making these kinds of threats. Threatening criminal charges that by the way never were forthcoming. Threatening that Mr. Kantor, who all he did was comply with the law and put in the contract what he was supposed to put in, was, committed a fraud, a criminal fraud.*fn8
And you don't just take this letter by itself because again, you've got to look at the letters that preceded it. The letter demanding the $300,000. The constant threat of suits. The constant threats of, we're going to go around and besmirch you in the community. That's outrageous conduct that cannot be sanctioned and should not be sanctioned.
Counsel additionally pointed out to the jury that, although Kantor had cut down trees along Brodsky's property line, he had a right to do so, since the trees were not on Brodsky's property. Brodsky's threat to oppose Kantor's application for a zoning change was characterized as a means to extort $300,000 in settlement from Kantor. "If I don't get the $300,000 that I want, this is what I'm going to do. I'm going to object and wreck your approval."
In his instructions to the jury, the trial judge did not delineate any of the specific facts claimed to underlie the various counts of the counterclaim, and as a result, the jury was likely dependent upon the characterization by counsel that we have described - a characterization that in many respects was factually and legally inaccurate. Following deliberation, the jury found in favor of W.B. Associates and Kantor on all claims, awarding W.B. Associates $50,000 in compensatory damages for tortious interference, awarding Kantor $150,000 in compensatory damages for intentional infliction of emotional distress, and awarding Kantor $100,000 for negligent infliction of emotional distress. When required to redeliberate on the emotional distress claims so as to arrive at a single figure, the jury returned a damages award of $250,000 "notwithstanding whether it was the intentional count of the emotional distress, or the negligent count of emotional distress or both." Following a further trial on the issue of punitive damages, the jury awarded W.B. Associates an additional $50,000 and Kantor $150,000.
In motions for a new trial or judgment notwithstanding the verdict, Brodsky claimed that his communications with Kantor were protected by the absolute litigation privilege. However, that argument was rejected by the trial judge, who found "the privilege was misplaced" because "there's no defamation claim advanced," and "therefore the immunity isn't to be given." Rather, the judge observed, Brodsky's conduct met all the elements of criminal extortion. As a result, the judge stated that he "felt that [he] properly allowed the fact finder to hear" Brodsky's communications, and that they were not privileged or within the exception to N.J.R.E. 408 (settlement offers and negotiations). The judge also rejected Brodsky's argument that counterclaimants' damages expert had offered a net opinion, and he likewise rejected the argument that Kantor's emotional distress claim lacked foundation because Brodsky's statements to him were true and because Kantor's distress was not sufficiently severe. However, the judge did grant a remittitur with respect to the emotional distress verdict, reducing the amount awarded from $250,000 to $150,000, and reducing the punitive damages awarded to Kantor from $150,000 to $100,000. Pre-judgment interest was awarded on the compensatory damage award, but not on the punitive damage award. Additionally an attorneys' fee award of $52,638.03 was made.
Brodsky has appealed the order of summary judgment dismissing his complaint as well as the order of judgment on the counterclaim of W.B. Associates and Harry Kantor.
Our review of the record in this matter, together with the arguments of counsel and applicable precedent satisfies us that judgment was improperly entered in favor of W.B. Associates on its claim of wrongful interference with contractual relationships. Our decision to reverse judgment on this claim is based on our recognition of the applicability of the litigation privilege to much of the evidence introduced against Brodsky, and upon our review of the elements of a claim for wrongful interference and our determination that some of those elements were not proven.
An absolute privilege applies to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Hawkins v. Harris, 141 N.J. 207, 206 (1995) (quoting Silberg v. Anderson, 786 P.2d 365, 369 (Cal. 1990)). The privilege is not limited to statements made in the courtroom during trial, but instead, "extends to all statements or communications in connection with the judicial proceeding," Ruberton v. Gabage, 280 N.J. Super. 125, 133 (App. Div.), certif. denied, 142 N.J. 451 (1995), including statements made in settlement negotiations, id. at 132-34. As stated in Hawkins, To be privileged, a defamatory statement must have some relation to the course of the proceedings. Fenning [v. S.G. Holding Corp.], 47 N.J. Super. [110,] 117 [(App. Div. 1957)]. "The pertinency thus required is not a technical legal relevancy, such as would, necessarily, justify its admission into evidence, but rather a general frame of reference and relationship to the subject matter of the action." Id. at 118.
That requirement "was never intended as a test of a participant's motives, morals, ethics or intent." Silberg, supra, [786 P.2d at 374].
Whether a litigant is entitled to invoke the privilege is an issue of law. Hawkins, supra, 141 N.J. at 216 (citing Devlin v. Greiner, 147 N.J. Super. 446, 460 (Law Div. 1977)).
Contrary to the ruling of the trial judge, the litigation privilege does not apply solely in actions claiming defamation, but has been recognized also as a bar to other causes of action arising from the conduct of parties in connection with a judicial proceeding. Devlin, supra, 147 N.J. Super. at 455 (citing Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 564 (1955) (malicious interference with business in quasi-judicial proceeding) and Middlesex Concrete Prods & Excavating Corp. v. Carteret Indus. Assn., 68 N.J. Super. 85, 91 (App. Div. 1961) (tortious interference)). As the Court stated in Rainier, If the policy, which in defamation actions affords an absolute privilege or immunity to statements made in judicial and quasi-judicial proceedings is really to mean anything then we must not permit its circumvention by affording an almost equally unrestricted action under a different label.
[19 N.J. at 564.]
The privilege arises from the strong public policy "that persons in such circumstances be permitted to speak and write freely without the restraint of fear of an ensuing defamation [or other] action, this sense of freedom being indispensable to the due administration of justice." Middlesex Concrete, supra, 68 N.J. Super. at 91 (quoting Fenning v. S.G. Holding Corp., 47 N.J. Super. 110, 117 (App. Div. 1957)). "Even actual malice does not affect the absolute immunity provided the statement is made in the course of judicial proceedings and has some relation thereto." Ibid.
It is clear that virtually all the evidence introduced against Brodsky in this matter was privileged under the standards that we have articulated. That evidence included testimony regarding verbal communications between Brodsky and Kantor. It also consisted of a letter dated June 23, 2000 from Brodsky's counsel to counsel for W.B. Associates and Kantor conveying Brodsky's settlement demand of $300,000; a letter from counsel, dated August 10, 2000, enclosing a proposed complaint in the matter; an October 26, 2000 letter from Brodsky to Kantor requesting a response to the settlement demand, evaluating the positions of the parties, and enumerating the negative consequences to defendants if suit were filed; and a December 7, 2000 letter from Brodsky to Kantor claiming retaliatory conduct by Kantor in "knocking down all trees that fall along our shared property line," contrary to a prior agreement to preserve the trees, and threatening to oppose Kantor's application to rezone his 133-acre parcel if settlement of the prison-farm dispute were not reached prior to filing of suit. We find that each of these oral communications and letters is privileged under the standards articulated in Hawkins and thus cannot form a basis for a tortious interference claim. Moreover, because the communications were not published to a third party, their contents could not, as a matter of fact, have interfered with any relationship between W.B. Associates and such a party.
In addition, W.B. Associates and Kantor called as witnesses three former plaintiffs who testified that Brodsky had told them of the existence of the prison and of Kantor's prior criminal conviction. There is no question that the former plaintiffs relied on these communications as a basis for joining Brodsky's lawsuit, and as such, they too were protected by the litigation privilege. The communications were conveyed to parties to the eventual litigation in order to achieve the objects of the litigation, and they directly concerned its subject matter.*fn9
Additionally, like the letters from Brodsky to Kantor, Brodsky's communications to the other plaintiffs could not have tortiously interfered with any prospective contracts or business relationships anticipated by W.B. Associates, since the other plaintiffs had already consummated the purchase of their homes, and any future sale would not involve the builder.
Indeed it appears to us that, although counsel for counterclaimants conceded Brodsky's right to file a lawsuit against them, the fact of that lawsuit and the tone of pre-complaint communications regarding the suit clearly formed the principal foundation for W.B. Associates' claim of tortious interference with contract, as well as Kantor's claims of negligent and intentional infliction of emotional distress. That litigation-related evidence should not have been admitted in support of counterclaimants' position.
We recognize that Brodsky's statements to the press were not protected by the litigation privilege, because such statements served only Brodsky's purposes. Williams v. Kenney, 379 N.J. Super. 118, 135-36 (App. Div.), certif. denied, 185 N.J. 296 (2005). Nonetheless, these non-defamatory statements, constituting essentially the only other evidence utilized against Brodsky, provide an insufficient foundation for W.B. Associates' tortious interference claim. To establish a cause of action for tortious interference with a contractual or business relationship, a party must demonstrate that (1) he had a reasonable expectation of advantage from the relationship; (2) the defendant interfered with that advantage intentionally and without justification or excuse; (3) the interference caused the loss of the expected advantage, in that without the interference, there was a reasonable probability that the plaintiff would have received the anticipated economic benefit; and (4) the plaintiff was damaged as a result. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 751-52 (1989). Here, the act of accurately reporting to the press matters of public knowledge - the contents of a complaint and, possibly, of a criminal record - while litigation was in progress cannot be considered unjustifiable or inexcusable so as to satisfy the second requirement of a tortious interference claim. Nor, under the Noerr-Pennington*fn10 doctrine, can the mere fact of filing the complaint in the circumstances presented support a tortious interference claim. See Fraser v. Bovino, 317 N.J. Super. 23, 37-39 (App. Div. 1998), certif. denied, 160 N.J. 476 (1999).*fn11
As in LoBiondo v. Schwartz, 323 N.J. Super. 391, 404 (App. Div.), certif. denied, 162 N.J. 488 (1999), a case in which a town resident, complaining about the illegal transformation of a small beach club across from her home into a two-story nightclub, was sued for tortious interference with the business prospects of the club's owners, we find it difficult to determine what it was that Brodsky did to subject himself to this litigation or to justify the verdict against him for tortious interference. In good faith, he contracted with counterclaimants for the construction of an expensive house that he was assured adjoined a dairy farm. When he found those assurances to be inaccurate, and likely intentionally so, he sought monetary damages and, when unsuccessful in obtaining a settlement of his claim for diminution of property value, he filed suit, enlisting as co-plaintiffs similarly-situated residents of the development. Additionally, he repeatedly contacted local and state officials seeking a cure, as he was entitled to do, id. at 416, ultimately succeeding in that respect. His endeavors attracted sufficient interest to have been reported, accurately, by the press. During this process Brodsky made certain comments that could be deemed intemperate, although perhaps not unjustifiably so. However, we see no legal basis for concluding that they were actionable.
As a result, we reverse the trial judge's denial of Brodsky's motion for judgment notwithstanding the verdict on the claim of tortious interference with contract or prospective business opportunity and enter judgment in Brodsky's favor. Dolson v. Anastasia, 55 N.J. 1, 5-6 (1969).
We similarly invoke LoBiondo in connection with Brodsky's appeal from the award of compensatory and punitive damages against him and in favor of Kantor for "negligent and intentional" infliction of emotional distress*fn12 - a claim based upon the same factual circumstances giving rise to the claim of tortious interference. As Judge Pressler stated in LoBiondo:
As to the intentional infliction of emotional distress, it is well-settled that that cause of action requires as an essential element that defendant's conduct must have been outrageous. As defined by Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988) (quoting Restatement (Second) of Torts, § 46 comment d) "[t]he conduct must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" We cannot avoid the impression that if there were any qualifying outrageous conduct here, it was certainly not defendant's.
[LoBiondo, supra, 323 N.J. Super. at 416.]
Moreover, to the extent that Kantor's claim was based upon conduct by Brodsky that we have found to be privileged, it is not actionable. Id. at 416-17; cf. also Decker v. The Princeton Packet, 116 N.J. 418, 432 (1989). Even in the absence of the explicit protection of the litigation privilege, we find that public policy precludes Kantor from maintaining a cause of action for emotional distress based upon the threat of litigation. As the District Court observed in Yourman v. People's Sec. Life Ins. Co., 992 F. Supp. 696, 705 (D.N.J. 1998), a party's threats to pursue litigation cannot form the basis of an emotional distress claim:
[T]he thought of having to defend a legal action can be the cause of stress and consternation. However, resort to the legal system for the resolution of such disputes, while perhaps too common an occurrence, nevertheless remains one of the essentials of a civilized community. If [the] claims were without merit, [defendant] would have had the opportunity to vindicate [himself] in the appropriate judicial forum. This Court cannot agree that [the] threat, without more, constituted "extreme and outrageous" conduct.
We therefore conclude that the trial court also erred in denying Brodsky's motion for judgment notwithstanding the verdict on Kantor's counterclaims for negligent and intentional infliction of emotional distress.
As a final matter, we address Brodsky's claim that summary judgment was improperly granted dismissing plaintiffs' complaint on the legal ground that defendants had no obligation of disclosure beyond compliance with the statutory notice provisions of the Disclosure Act. On appeal, he argues that (1) because the Act does not require disclosure of prison facilities, it cannot provide a safe haven to defendants; (2) the Act does not immunize conduct constituting an affirmative misrepresentation; (3) the affirmative misrepresentations diluted the effect of the statutory notice; and (4) the judge improperly took judicial notice of the "well-known" fact that there was a prison in the area.
As the result of our review of the record in this matter, we are satisfied that defendants' acknowledged compliance with the Disclosure Act, as interpreted by the Supreme Court in Nobrega, supra, 167 N.J. 520, bars any claim against W.B. Associates and Kantor for nondisclosure of the existence of the prison facility. See N.J.S.A. 46:3C-3 (defining "off-site conditions"); N.J.S.A. 46:3C-5 and -6 (submission of lists of off-site conditions to municipal clerk); N.J.S.A. 46:3C-8 (specifying the notification regarding off-site conditions required in sale contract); N.J.S.A. 46:3C-10 (seller's provision of required notice deemed full disclosure); N.J.S.A. 46:3C-11 (sellers not required to compile lists of off-site conditions); Nobrega, supra, 167 N.J. at 532-35 (barring Consumer Fraud Act claims). It is immaterial that prison facilities are not included among those conditions for which disclosure is required. In the absence of any statutory provision imposing a specific off-site disclosure obligation with respect to prisons, no such obligation can be imposed.
N.J.S.A. 46:3C-2 (establishing that the Act defines the entirety of the disclosure duties of sellers); Nobrega, 167 N.J. at 535.
On appeal, Brodsky claims that liability for intentional misrepresentations with respect to off-site conditions is exempted from the Act. However, our review of the record discloses that plaintiffs offered no evidence to the motion judge in opposition to defendants' summary judgment motions that would support their allegations that misrepresentations were made.
[A] motion for summary judgment pierces the allegation of the pleadings to demonstrate that the facts are otherwise than those alleged. Rankin v. Sowinski, 119 N.J. Super. 393, 400 (App. div. 1972). Moreover, motions for summary judgment do not admit even well-pleaded facts in a complaint. Id. at 399. Summary judgment is proper if the supporting papers for the motion show an absence of any material issue of fact even though the pleadings alone raise such issues of fact. Eisen v. Kostakos, 116 N.J. Super. 358, 370-71 (App. Div. 1971). [Borough of Franklin Lakes v. Mutzberg, 226 N.J. Super. 46, 52 n.2 (App. Div. 1988).]
In fact, plaintiffs made no effort to comply with summary judgment rules that set forth the procedural requirements for opposition to a summary judgment motion. See R. 4:46-2(b). Summary judgment was thus properly granted. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
The judgment against Martin Brodsky is reversed. Summary judgment in defendants' favor is affirmed.