On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4543-05.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Koblitz.
Plaintiff Howard D. Brunson appeals from an order entered on March 30, 2007 granting summary judgment dismissing the complaint against defendants Affinity Federal Credit Union (Affinity) and Jim Wilcox. We reverse and remand.
This is a malicious prosecution action that began with the theft of plaintiff's identity. In October 2002, an individual opened an account at Affinity in plaintiff's name, using plaintiff's social security number and a New Jersey non-driver's identification card with plaintiff's date of birth and address. The identification card showed plaintiff's address in the City of Paterson, but misspelled the city name by including two "t"s. The individual then deposited $25.00 and withdrew fraudulent checks totaling $9,506.82.
Defendant Wilcox is a Certified Fraud Examiner employed as Affinity's Fraud and Loss Prevention Specialist. Wilcox investigated the losses on the account. He identified the individual who opened the account on seven different surveillance tapes and had photographs of that individual each time he engaged in a transaction on the account. Moreover, Wilcox obtained a description of the individual from the bank personnel who dealt with him. He was described as a black male, five feet six inches tall. The fraudulent identification card also listed the individual's height at five feet six inches.
Plaintiff is six feet three inches -- nine inches taller than the individual who perpetrated the fraud. Wilcox verified that no one named Howard Brunson was an employee of Viva International Group (Viva), the organization against which the fraudulent checks were drawn, nor was he authorized to sign checks for the company.
Wilcox had been advised by the police that an individual named Howard D. Brunson had a criminal record. Nevertheless, Wilcox never reviewed a photo array that included plaintiff's photograph to determine whether he was the same person identified in Affinity's surveillance photos, nor did he review plaintiff's height and weight descriptions, which were included in his criminal record, nor did he note the misspelling of "Patterson" on the identification card.*fn1 Wilcox further failed to secure photos of plaintiff for Affinity's personnel to identify. Based upon this limited information, however, Wilcox signed two criminal complaints against plaintiff for uttering a forged document and theft by deception.
After signing the criminal complaints, and without further investigation to verify the identity of the individual who cashed the fraudulent checks, Wilcox appeared and testified before a Bergen County Grand Jury, resulting in an indictment against plaintiff and the issuance of an arrest warrant. Wilcox acknowledged that he made no attempt to positively identify the individual from a photo lineup before filing the criminal complaint or testifying before the grand jury. Moreover, he apparently failed to show the police the surveillance photos of the individual who opened the account for comparison with plaintiff's photo.
Plaintiff was arrested on the warrants while visiting his father in Virginia on Father's Day. He was detained in Virginia and extradited to New Jersey, where he was finally released after thirteen days of incarceration. The charges against plaintiff were ultimately dismissed.
In his complaint, plaintiff alleged malicious prosecution, negligent investigation, and negligent hiring of Wilcox by Affinity. As damages, plaintiff seeks only compensation for the thirteen days of incarceration.
In granting defendants' motion for summary judgment, the trial court indicated that the malicious prosecution count should be dismissed because the criminal charges against defendant were dismissed. The court noted, however, that when plaintiff was arrested, the criminal judge and the prosecutor observed that plaintiff's appearance was not consistent with the height and weight of the individual described in the criminal complaint. Nevertheless, the motion judge found that when Wilcox testified before the grand jury, he did not willfully withhold or misrepresent any information in his testimony. The motion judge further found that:
Certainly, it was tragically a mistake that the individual [plaintiff] who appeared at the first hearing . . . in fact, had his identity pilfered by another individual, another actor. That Mr. Brunson was a victim the same as the bank was but there is no showing that there was any conscious withholding of the information from the grand jury in an attempt to indict someone falsely; only, . . . an innocent mistake.
And then that innocent mistake was resulting in Mr. Brunson's indictment. But one which was corrected.
There is no showing that Mr. Wilcox was negligently hired . . . nor any showing that a cause of action for negligent prosecution exists in this State. That there will always be, unfortunately, some mistakes that can occur in any grand jury presentment. If that is the standard for . . . wrongful prosecution, that will have to be a rule created by a higher court than this one.
In this appeal, plaintiff argues that the trial court erred (1) in granting summary judgment when there were disputed issues of fact; (2) in finding that the grand jury indictment precluded a claim for malicious prosecution; (3) in failing to consider all of the facts and issues; (4) in finding that plaintiff must be present to pursue his claim at trial; and (5) in failing to grant plaintiff's cross-motion for summary judgment.
We first address plaintiff's malicious prosecution claims.
It has generally been stated that malicious prosecution is not a favored cause of action because citizens should not be inhibited in instituting prosecution of those reasonably suspected of crime. On the other hand, one who recklessly institutes criminal proceedings without any reasonable basis should be responsible for such irresponsible action. Development of the malicious prosecution cause of action as we know it today is the result of a balancing of these antithetical considerations. [Lind v. Schmid, 67 N.J. 255, 262 (1975) (internal citations omitted) (emphasis added).]
In a civil claim for malicious prosecution arising out of a criminal prosecution, the plaintiff must prove by a preponderance of the evidence:
(1) that the criminal action was instituted by the defendant against the plaintiff, (2) that it was actuated by malice, (3) that there was an absence of probable cause for the proceeding, and (4) that it was terminated favorably to the plaintiff. Prosser, Law of Torts, § 119 at 835 (4th ed. 1971); Evans v. Jersey Central Power Co., 119 N.J.L. 88 (E. & A. 1937). The plaintiff must establish each element. Upon failure to prove any one, the cause must fail. Each element is separable from the others, although evidence of one may be relevant with respect to another. For example, proof of lack of probable cause may be appropriate evidence from which to infer but not necessarily establish malice. [Ibid.]
Defendants cite the Model Civil Jury Charge 3.12 which articulates the elements for malicious prosecution based ...