January 22, 2010
JOHN E. ROONEY, PLAINTIFF-RESPONDENT,
ARTHUR CARLOMAGNO, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
BOROUGH OF NORTHVALE, THIRD-PARTY DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1258-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Grall, Messano and LeWinn.
Defendant Arthur Carlomagno appeals from the dismissal of his counterclaim against plaintiff John E. Rooney, and his third-party complaint against the Borough of Northvale (Northvale). Having considered the arguments raised in light of the record and applicable legal standards, we affirm.
Defendant is the owner of a lawnmower repair business in Northvale. In October and November, 2006, he had two verbal disputes with plaintiff, who, at the time, was the mayor of Northvale and a member of the State Assembly. These disputes centered on plaintiff's perceived condition of defendant's business property, and a campaign sign supporting plaintiff's opponent that defendant maintained on another property he owned in town.
After the first incident and shortly before Election Day, defendant verbally registered a complaint with the Northvale Police Department, contending that the municipal fire inspector threatened him and his mother regarding the condition of his property. No summons, however, was issued by the fire inspector. Defendant continued to maintain the political sign on his property without incident at least through Election Day.
On November 4, 2006, defendant filed a complaint for harassment, N.J.S.A. 2C:33-4, against plaintiff. Plaintiff's attorney directed a letter to defendant, characterizing the complaint as "abusive process and malicious prosecution." On February 2, 2007, the Northvale municipal court judge dismissed the harassment complaint after a hearing, concluding it lacked probable cause.
On February 20, 2007, plaintiff filed a complaint against defendant alleging intentional infliction of mental and emotional distress, malicious prosecution, and defamation. Defendant answered and counterclaimed, alleging harassment, defamation, intentional infliction of emotional distress, malicious prosecution, and violations of the Law Against Discrimination (the LAD) and the First, Fourth, and Fourteenth Amendments of the United States Constitution, as well as a claim on behalf of his mother. Defendant sought ten million dollars in damages. Defendant ultimately filed an amended counterclaim on February 19, 2008, and a third-party complaint against Northvale alleging, for the first time, that the municipality failed to respond to a request he made on January 10, 2007, pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.
A non-jury trial was conducted on July 28-30, 2008 before Judge Robert L. Polifroni. After consideration of plaintiff's motions in limine, the judge dismissed defendant's claims for intentional infliction of emotional distress, violation of the LAD, harassment, and the claim on behalf of his mother.*fn1 The judge also dismissed defendant's OPRA claim on motion.
After considering the testimony from both sides, on August 25, 2008, Judge Polifroni rendered his decision orally on the record, dismissing plaintiff's complaint and the balance of defendant's counterclaim. On September 8, 2008, Judge Polifroni entered an order formalizing his decision. After denial of his motion for reconsideration, defendant filed this appeal.*fn2
Defendant's pro se brief is difficult to decipher. Nonetheless, we are convinced that all of the arguments he now raises on appeal are without sufficient merit to warrant extensive discussion in this opinion. See R. 2:11-3(e)(1)(E). We add these brief comments.
Defendant argues that the judge erred in dismissing his third-party complaint under OPRA as time-barred. Defendant's OPRA request was denied on January 10, 2007; his third-party complaint challenging the denial was not filed until thirteen months later. A requester challenging the denial of an OPRA request must do so within forty-five days of the decision. Mason v. City of Hoboken, 196 N.J. 51, 69-70 (2008). Defendant has no independent claim "for an action in lieu of mandamus."
See id. at 69 (noting that OPRA claims are subsumed within actions in lieu of prerogative writs). Judge Polifroni properly dismissed defendant's third-party complaint.
Defendant argues that without the information his OPRA request would have garnered, he was hindered in adducing additional information supporting his counterclaim for harassment. As a result, he contends Judge Polifroni should not have dismissed that count of his counterclaim as collaterally estopped. We affirm the dismissal of defendant's claims for harassment, but for a reason other than collateral estoppel. See El-Sioufi v. St. Peter's University Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005).
We have specifically declined the opportunity to consider whether an act of harassment under N.J.S.A. 2C:33-4 creates a civil cause of action for damages. See Aly v. Garcia, 333 N.J. Super. 195, 203 (App. Div. 2000), cert. denied, 167 N.J. 87 (2001). As an intermediate appellate court, it is inappropriate for us to now recognize defendant's claim under such a theory. See Tynan v. Curzi, 332 N.J. Super. 267 (App. Div. 2000) (noting we "should normally defer to the Supreme Court . . . with respect to the creation of a new cause of action.") Moreover, defendant's factual allegations in this regard were subsumed within his claims for defamation, malicious use of process, violation of the LAD, and his Constitutional claims, all of which were properly dismissed by Judge Polifroni.
Defendant claims Judge Polifroni erred in dismissing his complaint for "constitutional violations." On appeal, we discern only an argument that defendant's First Amendment rights were violated by plaintiff. However, Judge Polifroni noted that plaintiff's conduct had no effect on defendant's freedom to express his political opposition. Plaintiff did not prohibit defendant from posting a sign in support of his opponent, nor did he use his powers of office to have it removed; indeed, Judge Polifroni found that defendant "was a willing combatant and expressed his disappointment and displeasure with [plaintiff's] activity . . . ." He took note of defendant's vigorous letter-writing campaign directed to other public officials in which he protested plaintiff's stewardship of Northvale's government. Defendant's proofs were clearly insufficient to demonstrate that his Constitutional rights had been violated, and the judge properly dismissed his claims.
Defendant argues that his "action [for] wrongful litigation in retaliation for [the] exercis[e] [of] his rights" was improperly dismissed by Judge Polifroni. We discern this to be an argument that defendant had established all the elements of a claim for malicious use of process in that plaintiff's civil complaint was filed against him without probable cause and with actual malice.
The elements of the tort of malicious use of process include: "the filing of a complaint, without probable cause, that was actuated by malice, that terminated in favor of the party now seeking relief, and that caused the party now seeking relief to suffer a special grievance . . . ." LoBiondo v. Schwartz, 199 N.J. 62, 72 (2009). "The tort of malicious use of process is disfavored out of fear that its use could chill free access to the courts." Baglini v. Lauletta, 338 N.J. Super. 282, 299 (App. Div. 2001) (citations omitted), certif. denied, 169 N.J. 607 (2001). The "assertion" of such a claim must "abide the favorable resolution of the litigation to which it responds." LoBiondo, supra, 199 N.J. at 72.
"The concept of special grievance is an elusive concept. It has been defined as consisting of interference with one's liberty or property. If [a] plaintiff['s] only damages consist of costs of defending the original suit, then the special grievance requirement is not met." Baglini, supra, 338 N.J. Super. at 300 (citations and quotations omitted). As the Court recently said, a party may "satisfy the special grievance element of the cause of action" if he proves "his . . . right to free speech or to petition was actually infringed . . . ." LoBiondo, supra, 199 N.J. at 72.
Judge Polifroni noted that defendant's claim was not ripe since plaintiff's complaint against him had just been dismissed. Nonetheless, the judge considered the merits of defendant's proofs and determined that he had failed to prove any "special grievance."
Assuming arguendo that defendant adduced sufficient proofs regarding the first three elements of the tort, we agree with Judge Polifroni that he failed to establish the necessary "special grievance." As the judge noted, defendant suffered no adverse business consequences as a result of plaintiff's complaint; he continued to challenge plaintiff's actions as an elected official and to otherwise seek redress for government conduct that he believed had been wrongfully directed toward him, his business or his property. In short, defendant's proofs were insufficient to establish the claim.
Defendant's other arguments regarding the failure to sanction plaintiff or Northvale for alleged discovery violations, and his claim that the municipal excess liability carrier wrongfully provided representation to plaintiff, lack sufficient merit to justify further comment. See R. 2:11-3(e)(1)(E).