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Johnson v. DeBiaso


April 22, 2009


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-12045-06.

Per curiam.


Argued March 30, 2009

Before Judges Lisa and Sapp-Peterson.

Plaintiff, Mary Louise Johnson, appeals from a summary judgment dismissing her complaint for malicious prosecution and deprivation of her constitutional and civil rights under 42 U.S.C.A. § 1983. Judge Nugent dismissed the malicious prosecution claim based on his finding that no reasonable factfinder could find that defendants instituted the prosecution against plaintiff. In light of that determination, plaintiff conceded that the civil rights claim could not remain viable, and the judge dismissed that as well. Plaintiff argues that the judge erred and that whether defendants instituted the criminal proceedings against her is a jury question. Plaintiff also argues that defendants' summary judgment motion was procedurally deficient and should have been denied on that basis. We reject these arguments and affirm.


Plaintiff began working for the predecessor of defendant Atlantic County Special Services School District (District) as a cafeteria worker in 1978. She had begun a relationship with David Adams in 1973. The two began residing together in 1975 or 1976, and they had a son together in 1982. They never married. Plaintiff was provided health benefits by the District. When she completed a New Jersey State Health Benefits Application form on November 8, 1989, she specified her marital status as single and applied for "Employee & Child(ren)" coverage, identifying her son as the child to be covered along with her. During a subsequent open enrollment period, plaintiff completed a similar form on March 18, 1991. This time, she specified her marital status as married, inserting the date of marriage as October 25, 1975, noting that she kept her maiden name, and requesting "Family" coverage, listing her son and Adams as her spouse and dependent to be covered along with her.

In 1998, the District's benefits coordinator, defendant Helen Daher, heard a rumor that plaintiff and Adams were not married. Daher inquired of plaintiff. She claimed she and Adams were married and offered to provide Daher with a copy of her marriage license. Daher declined the offer but communicated this information to defendant Thomas R. DeBiaso, the District's Assistant Superintendent for Business & Operations. DeBiaso, in turn, passed this information on to the Southern New Jersey Public Education Employee's Benefits Fund (Fund), which handled the District's health benefits. The Fund determined that a random survey of employees should be performed, requesting documentation to substantiate spouse/dependent relationship and marital status.

From the summer of 1998 through December 1998, the Fund administrator sent five letters to plaintiff seeking verification of her marital status. Plaintiff did not respond. The last letter advised her that Adams would be removed from the health insurance coverage if she did not respond by January 1, 1999. The Fund's attorney, Louis Grecco, sent plaintiff a letter on February 8, 1999. On February 16, 1999, plaintiff contacted Grecco and admitted she was not married to Adams. According to Grecco's sworn testimony, plaintiff "said that they had lived together for a lengthy period of time and the words still stick in my mind, she said they had never gotten around to getting married is the way she described it." She further told Grecco "she knew that what she had done was wrong," and she never said "she had simply made a mistake and believed herself to be in a common law marriage."

At a meeting on February 18, 1999 with DeBiaso, plaintiff, accompanied by her New Jersey Education Association representative, stated that she had no legal marriage documents, and that she was unaware that New Jersey did not recognize common law marriage. After that meeting, DeBiaso contacted the District's solicitor, John Armstrong, who contacted the Atlantic County Prosecutor's Office and passed on the information. DeBiaso wrote a letter to the prosecutor's office on February 19, 1999. The two-page letter outlined the information regarding plaintiff substantially as we have described it. DeBiaso's letter did not request that a criminal prosecution be initiated or that any other action be taken by the prosecutor.

The prosecutor's office began an investigation. An investigator contacted DeBiaso and Grecco, requesting that he be supplied with financial records outlining benefits paid on behalf of Adams and other pertinent information. According to the investigator's reports, Grecco told him it would take five or six days to compile the records.

On March 5, 1999, Sergeant George Rochelle of the Atlantic County Prosecutor's Office signed a complaint against plaintiff, charging her with the crime of third-degree theft by deception, in violation of N.J.S.A. 2C:20-4a. Plaintiff was arrested on that day. On March 31, 1999, the prosecutor's office presented the matter to a grand jury, which returned an indictment against plaintiff for the charge in the complaint. The matter went to trial, and the jury acquitted plaintiff on September 14, 2000.

Plaintiff filed this complaint on September 13, 2006. Defendants moved for summary judgment. Judge Nugent heard oral argument on August 15, 2008, after which he rendered an oral decision.

He found that no material facts were in dispute as to whether defendants instituted the criminal prosecution against plaintiff. In addition to the facts that we have described, he also accepted as undisputed that plaintiff never made any effort to hide the fact that she and Adams were not married "in the sense that they had obtained a marriage license and gone through some formal ceremony and became married in accordance with the statutory laws of the State of New Jersey." He found that they were in what is "generically" referred to as a common law marriage. The judge also noted that in its materials, the District and the Fund did not provide definitions of "marriage" or "spouse" for employees to utilize in completing health coverage forms.

The judge then outlined the controlling legal principles and analyzed their application to the undisputed material facts with respect to the element of a malicious prosecution claim that the defendant instituted the criminal prosecution against the plaintiff:

The summary or the elements of a cause of action for malicious prosecution, particularly in cases arising out of a criminal prosecution, were set forth in what I think is the seminal and most often cited case of Lind v. Schmid, 67 N.J. 255, at pages 262 to 263, that's a 1975 Supreme Court decision. The [C]court held that the malicious prosecution action arising out of a criminal prosecution requires proof: one, that the criminal action was instituted by the defendant against the plaintiff; two, that it was actuated by malice; three, that there was an absence of probable cause for the proceeding; and four, that it was terminated favorably to the plaintiff. At pages 262 and 263 of the Lind v. Schmid decision the court also emphasized that the plaintiff must establish each element and that upon failure to prove any one the cause must fail. Each element is separate from the others, although evidence of one may be relevant with respect to another. Most often the courts cite as an example that proof of lack of probable cause may be appropriate evidence from which to infer but not necessarily establish the element of malice.

I want to discuss the first element. Most of the cases in New Jersey, a good deal of them, most that I could find, involved the initiation of a prosecution at the municipal level where either the defendant in the malicious prosecution action signed the complaint or reported to the police or the appropriate authorities that they wanted to file a complaint, a criminal complaint, or somehow encouraged the police or the appropriate authorities in the municipal court prosecutions to institute criminal proceedings. There's only one case that I was able to find that is somewhat different, although it's not - from the opinion I can't conclude that it was a grand jury presentation, and that's the case of Myrick v. Resorts International Casino and Hotel reported at 319 N.J. Super. 556, the Appellate Division case of 1999, and at page 563, 564 of that decision the court recounted, and I quote

"First, although not relied upon by the motion judge as a ground of the decision, we conclude that the casino defendants did not institute the prosecution of the defendant." MacLaughlin v. Lehigh Valley Railroad Company, 93 N.J.L. 263, [(Sup. Ct. 1919)], held that a company reporting suspected criminal activity to the authorities cannot be liable for malicious prosecution when the authorities decide to prosecute the suspected criminals. There the defendant railroad company security personnel saw some individuals break into and steal rolls of leather from one of its rail cars. The security guards called the Jersey City police and, based on their description of the individuals involved, the police arrested the plaintiff who was then identified by the guards. Ultimately the prosecutor dismissed the indictment because the security guards had moved and were unable to testify. At pages 5[6]6 and 567 the [Myrick] court goes on [to] state,

"Plaintiff contends that it was error to grant summary judgment to the bank . . . defendants concerning their claim of malicious prosecution because those defendants need only have been the proximate and efficient cause of maliciously putting the law in motion." Citing Seidel v. Greenberg, 108 N.J. Super. 248, Law Division 1969. In Seidel, however, it was the defendant's crimes that led to an investigation and eventual criminal prosecution of the plaintiff. Thus, that court held that the defendants are liable to plaintiff because his wrongful prosecution was proximately caused by the wrongful criminal acts for which they, the defendants in a criminal prosecution act or action, were convicted, and the court there rejected a but for proximate cause theory between the reporting to the authorities and the actual criminal prosecution.

There is a line of cases that suggest that if one encourages, induces, or significantly aids the charging entity to bring forth the criminal prosecution that that satisfies the first element, namely institution of the action, but in the case called Epperson v. Wal-Mart Stores, Inc., 373 N.J. Super. 522, Appellate Division 2004 at pages 531 and 532, the court stated, and I quote,

"We recognize that the absence of appellate direction as to the parameters of the first factor may have contributed to the trial court's mistaken determination" - I'm sorry, "trial judges," - "however two trial court decisions correctly acknowledged that this factor is more expansive than held by the trial judge here," and the court cites Seidel v. Greenberg and Robinson v. Winslow Township, [973 F. Supp. 461 (D.N.J. 1997),] "and moreover, there is no support for the proposition[,] adopted by the trial judge[,] that liability for malicious prosecution only attaches [to] the actual signers of the underlying criminal complaint. We reject the trial judge's approach to this factor and conclude that the broader parameters described in Dean Prosser's treatise[,] as followed in Seidel and Robinson, staked out the correct boundaries. As [a] result we conclude that the trial judge misconceived this factor by concluding that the fact that the police and not Wal[-M]art [executed the criminal complaint was determinative. We are satisfied that the jury could have inferred from the evidence offered by plaintiff that by bringing plaintiff to the police station, by remaining present while plaintiff was interrogated by the police, and by actually participating in the interrogation, Wal-Mart] encouraged, participated in, and perhaps even pressured the Franklin Township police to prosecute the plaintiff. In short, there was evidence in the record that the jury could have found credible and drawn inferences therefrom that Wal[-Mart] was the proximate and efficient cause of maliciously putting the law in motion."

A comparison of Myrick and Epperson and by the way, Myrick involved a case where casino employees reported to the Division of Gaming Enforcement a plaintiff in the malicious prosecution suit, defendant in the criminal action, that was erroneously given a co-employee's check and cashed it. It seems to me that the Appellate Division has drawn a line between on the one hand cases where, as the Appellate Division held in . . . Epperson there is evidence where a plaintiff can demonstrate a triable issue as to whether the defendant in the malicious prosecution action assisted the police in apprehending the . . . the plaintiff in the malicious prosecution action - by encouraging the police's - the police conduct and by actually participating in police questioning. In short, there must be encouragement, participation in, and perhaps even pressure asserted on the charging authorities. There has to be something more than merely reporting the activity when there is an independent agency involved, and that's the holding in Myrick. Crucial to that holding was the fact that the Division - the Division of Gaming Enforcement was an enforcement agency that was independent of the casino and that it was the D.G.E. that made or that decided to charge the plaintiff in that case.

I agree with counsel for the [D]istrict that New Jersey hasn't specifically addressed the issue of whether a plaintiff can establish the first element of malicious prosecution when there has been independent action on the part of the county prosecutor, and presentation to a grand jury that holds a case over for trial. I'm satisfied in this case, having read repeatedly and carefully the letter from Mr. D[e]Biaso to the school business administrator [sic - to the Atlantic County Prosecutor] dated February 19th, 1999, understanding that there may have been other communications to the Atlantic County Prosecutor's Office, that it was the prosecutor and it was the process of presenting this matter to the grand jury for indictment that was the proximate cause of the initiation of this criminal prosecution, and that the facts of this case and the conduct of Mr. D[e]Biaso fall within the parameters of Myrick and or more closely - or more closely resemble the facts of that case where there is an independent agency that evaluates the evidence and then makes the determination if to charge and what to charge and that this case really is not controlled by Epperson because there really is no evidence in which a jury could infer that the school district assisted in the process of presentation to the grand jury, encouraged the prosecutor, participated in the criminal investigation by the prosecutor of the charges. So for those reasons I'm satisfied that there is no triable issue as to the first element that the defendants in this case initiated the criminal prosecution. I conclude that there is no evidence to present that element to a jury and because plaintiffs have failed with respect to the first element, I will grant [the] summary judgment motion as to the cause of action for malicious prosecution. [Emphasis added.]

On the same date, August 15, 2008, the judge issued an order granting summary judgment in favor of defendants, dismissing the complaint in its entirety.


Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."

R. 4:46-2(c). In determining whether a material fact exists, a judge must determine whether "the competent evidential materials presented, when viewed in the light most favorable to the non- moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Thus, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. On appellate review, we apply the same standard and determine de novo whether, applying the Brill standard, summary judgment was properly granted. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

We are in complete agreement with Judge Nugent's analysis. We reject plaintiff's argument that, contrary to Myrick, supra, 319 N.J. Super. at 561, 564-65, defendants did much more than merely pass along information to the appropriate law enforcement agency. Plaintiff contends that defendants conducted a complete investigation and turned over the results of that investigation to the prosecutor, which, in turn, provided the basis for institution of criminal charges against her. We are unpersuaded by plaintiff's effort to distinguish Myrick.

Plaintiff concedes that all of the factual information defendants provided to the prosecutor was true and accurate. There is no evidence in this record to suggest that defendants did anything more than pass along the information they obtained through their investigation. They did not exert any pressure on the prosecutor to bring criminal charges against plaintiff. Indeed, they did not even request that the prosecutor do so. As public officials, it was their fiduciary duty to investigate the apparent wrongdoing engaged in by plaintiff, resulting in the payment, out of public funds, of substantial sums for the benefit of someone not entitled to them. According to information provided by the prosecutor's office, the District paid more than $24,000 in premiums for Adams' coverage and more than $26,000 in medical expenses for him, for a total of more than $51,000 in expenditures. Although these figures were not certified, plaintiff did not dispute them. Thus, this was a matter of substantial magnitude, and there was nothing unreasonable or unusual about the District's determination to pass the information along to the prosecutor in addition to taking appropriate administrative action (that resulted in plaintiff's termination from employment).

The prosecutor then conducted its own investigation. It reached out to representatives of the District and the Fund to verify relevant information and to obtain documentation to support it. Based upon its independent investigation, the prosecutor's office determined that probable cause existed to issue a complaint, and a law enforcement officer from the prosecutor's office signed that complaint. The matter was then presented to an independent grand jury, which found probable cause to return an indictment. Throughout this entire process, defendants remained on the sidelines, neither encouraging nor participating in the prosecutor's actions. Indeed, as in Myrick, defendants did nothing more than report accurate factual information to the prosecutor.

We affirm the dismissal of plaintiff's malicious prosecution claim for the reasons expressed by Judge Nugent in his comprehensive and well-reasoned oral decision of August 15, 2008.

Plaintiff's remaining argument is that defendants' summary judgment motion should have been denied on procedural grounds. Defendants had previously moved for summary judgment on two occasions, and on each of those occasions Judge Nugent denied the motion because it was returnable within thirty days of the scheduled trial date. See R. 4:46-1. After various trial adjournments, requested by each side for legitimate reasons, a new trial date was established. Defendants again filed their summary judgment motion, this time returnable more than thirty days from the rescheduled trial date. Judge Nugent determined that it was appropriate under the circumstances to decide the motion on the merits, explaining in detail the basis for his good cause determination and his exercise of discretion. We are satisfied that the judge did not err in his interpretation of the applicable court rules, nor did he exceed the broad discretion afforded trial judges on such issues. No further discussion on this point is warranted. See R. 2:11-3(e)(1)(E).



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