February 25, 2010
JOHN GOOD, PLAINTIFF-APPELLANT,
PATRICK OBU, AND DEXTER NELSON, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-041636-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 1, 2010
Before Judges Yannotti and Chambers.
Plaintiff John Good appeals from a judgment entered by the trial court on May 20, 2009, dismissing his complaint against defendants Patrick Obu (Obu) and Dexter Nelson (Nelson) with prejudice. We affirm.
On November 1, 2008, plaintiff filed a complaint against defendants in the Special Civil Part. Plaintiff alleged that he owns and leases rental apartments in premises on South 18th Street in Newark. He further alleged that Obu owns property on an adjacent lot and leases the same to Nelson. Plaintiff claimed that Nelson had placed his garbage on plaintiff's property. Plaintiff also claimed that Nelson threatened him with bodily harm, slandered him and defamed him by telling neighbors that plaintiff was "a thief man[,]" and a "neighborhood thief man."
Plaintiff also alleged that he tried to rent his apartment but when prospective tenants would come to see the apartment, Nelson would sometimes appear, call him "thief man" and slander him. Plaintiff also said that Nelson would slander and defame him to other neighbors and persons passing by. In addition, plaintiff claimed that he lost rent because he could not lease his apartment due to Nelson's actions.
Plaintiff further alleged that he brought Nelson's behavior to Obu's attention and demanded that he stop Nelson from engaging in the same. Plaintiff said that Nelson continued to harass him, dump his garbage on his property and threaten him with bodily harm. He alleged that he suffered emotional stress as a result of Nelson's slander, defamation of character, humiliation and abusive language. Plaintiff sought compensatory damages of $15,000, punitive damages of $10,000, as well as fees and costs of the litigation.
On December 11, 2008, Obu filed an answer denying the allegations made against him. Nelson did not file an answer and on January 2, 2009, default was entered against him. On January 8, 2009, plaintiff requested that the court schedule a proof hearing so that a default judgment could be entered against Nelson. It appears, however, that the proof hearing was not scheduled.
The matter was listed for trial on February 18, 2009. On that date, the court entered an order which adjourned the trial, required Nelson to file an answer and any counterclaims by February 27, 2009, allowed the parties to engage in discovery and re-scheduled the matter for trial on May 20, 2009.
Thereafter, plaintiff filed a motion for reconsideration of the February 18, 2009 order, which the court denied. Although Nelson's pleading its not included in the record, it appears that he filed a counterclaim, seeking damages for the expenses he incurred responding to plaintiff's complaints and lawsuit.
On May 20, 2009, the court conducted a trial in the matter, sitting without a jury. At the trial, plaintiff testified that he is the owner of a two-family home on South 18th Street in Newark, which is adjacent to Obu's property. Plaintiff stated that Nelson, a tenant in the Obu property, had been harassing him since September of 2006, when plaintiff had new windows installed on his property. According to plaintiff, Nelson cursed at the workers and told them to get off of his property.
Plaintiff presented excerpts from videotapes that he had made over several years. Plaintiff said that the tapes showed Nelson throwing garbage on his property, harassing him and calling him "thief man[.]" As he watched the tapes, the court commented that he heard some yelling in the background but did not see any anger or temper. At another point, the court commented that he observed Nelson on one of the tapes saying good morning to several people. Later, the court stated that it had "yet to see any garbage thrown."
After another excerpt from the tapes was shown, the court commented that it did not show Nelson acting "in a threatening or menacing manner." Plaintiff played another excerpt and stated that it showed Nelson "throwing [garbage] here on [his] property." The following colloquy ensued:
[THE COURT]: Well, I wouldn't call that throwing. He placed a garbage can.
[THE COURT]: My idea of throwing was a lot different in my mind's eye than what I see on this video.
Plaintiff called Janice Davis (Davis) as a witness on his behalf. She testified that in July of 2008, she came to look at an apartment in plaintiff's house. Plaintiff was not at home at the time but the first-floor tenant was at home. Davis said that Nelson came out of his house and started calling plaintiff "neighborhood thief" and "garbage man." Davis left.
Davis stated that she returned to plaintiff's property the following day. She said that Nelson came out and started "hollering down" that plaintiff "is the neighborhood thief" who stole "a fan[.]" Davis testified that Nelson called plaintiff "all different types of names."
Davis further testified that the rent for plaintiff's apartment was $1,100 a month. She decided against renting the apartment because Nelson had been yelling obscenities at plaintiff. She said that she had been living on 22nd Street and her neighbors there were the "same way."
Davis stated that she was looking for another apartment to get away from her neighbors and move to "a nicer area." Davis conceded on cross-examination that she was plaintiff's friend and occasionally worked for him as his secretary.
Plaintiff also called Tanya Coaxum (Coaxum) as a witness on his behalf. Coaxum testified that she knew plaintiff because previously she lived next door to his house. She stated that she had moved to another area, where she was paying $1,375 a month for an apartment, but she "got tired of paying that much rent." She knew that plaintiff was trying to rent an apartment in his building on South 18th Street. She signed a lease to rent plaintiff's apartment at $1,100 per month.
However, Coaxum testified that she never moved into the apartment. She had lived on South 18th Street for four years before she moved. Coaxum stated that in that time, she saw "the commotion going on" between plaintiff and Nelson. She observed police cars in the area about eight times.
Coaxum asserted that she knew that plaintiff and Nelson were fighting "over the garbage and, . . . putting the stuff on [plaintiff's] property[.]" The day after she signed the lease, Coaxum returned and told plaintiff she did not want to move in. She testified that when she signed the lease, she did not "know [plaintiff and Nelson] were still going through that."
In addition, plaintiff called Robert Wright, III (Wright) as a witness. Wright was plaintiff's tenant. He had moved in to the apartment in plaintiff's house in April 2009. Wright was asked whether he had seen any actions by Obu or Nelson that caused him to be concerned or in a state of stress. Wright said that he saw "[them] putting the garbage on [plaintiff's] side of the property." However, the court observed that plaintiff did not present any competent proof as to the precise location of the line between his and Obu's property.
Plaintiff asserted that he lost rent on the apartment from September 2008 through mid-April 2009, because of Nelson's actions. He said that Obu also should be held liable because, even if he told Nelson where to place his garbage, Nelson failed to comply with those directions. Plaintiff stated that if Obu had "corrected" Nelson, the "problem wouldn't go on."
Neither Obu nor Nelson testified at the trial. After hearing argument from plaintiff and Nelson's attorney, the court rendered a decision from the bench. The court noted that plaintiff's videotape showed Nelson leaving for work and calling to people but the court could not discern what was being said. The court also noted that on the videotape, Nelson was seen placing garbage "at or near or over the property line[,]" and plaintiff was seen moving the garbage over the property line to what appeared to be the adjacent premises.
The court additionally noted that prospective tenants might have been dissuaded from renting the apartment because plaintiff was "running a 24/7 video[.]" The court stated that while Coaxum may have cancelled the lease for plaintiff's apartment, it was not persuaded that Coaxum did so due to Nelson's actions. The court also stated that there was no basis for holding Obu liable for the actions of his tenant. The court entered an order dismissing plaintiff's complaint and Nelson's counterclaim with prejudice. This appeal followed.
Plaintiff argues that the trial court erred by dismissing his complaint. Plaintiff contends that the trial court did not give him sufficient time to present his case. He argues that Obu should have been found liable because he failed to correct Nelson's harassing behavior, which resulted in lost rental income from September of 2008 through mid-April 2009. Plaintiff additionally contends that the court erred by failing to award him damages on his claims against Nelson for emotional distress, harassment, slander and defamation of character.
The scope of our review of the trial court's findings of fact is strictly limited. The trial court's findings are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (citing N.J. Tpke. Auth. v. Sisselman, 106 N.J. Super. 358, 370 (App. Div.), certif. denied, 54 N.J. 565 (1969)). We will not disturb the trial court's findings "'unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Ibid. (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).
We have carefully considered the record and we are convinced that the trial court's findings are supported by sufficient credible evidence. Deference to the trial court's findings is particularly appropriate here, where the court's findings were based on its assessment of the credibility of the witnesses. We accordingly affirm the trial court's judgment of May 20, 2009, substantially for the reasons stated by the court in its decision from the bench. We add the following brief comments.
Plaintiff argues that he was not afforded sufficient time to present his case. Plaintiff says that the trial court improperly limited him from presenting evidence, including additional excerpts from his surveillance tapes. We note, however, that this case was initially scheduled for trial on February 18, 2009, and adjourned to May 20, 2009, thereby affording plaintiff ample time to prepare for trial.
In addition, we are satisfied that the trial court did not abuse its discretion by precluding plaintiff from showing additional excerpts of his videotapes. A trial court has the discretion to control the presentation of evidence in order to avoid the "needless consumption of time[.]" N.J.R.E. 611(a).
Here, the trial court allowed plaintiff to play portions of his tapes but required that plaintiff limit his presentation to excerpts that had a bearing upon the three or four incidents that formed the basis for his lawsuit. We find no error in the court's handling of this evidence.
Plaintiff also argues that the trial court erred by dismissing his claims against Nelson. We disagree. Plaintiff argues that Nelson engaged in disorderly conduct that violated his right and the right of his tenants to peace and quiet. We note that the evidence presented at trial indicates that Nelson's alleged disorderly conduct consisted primarily of his placement of his garbage on plaintiff's property. However, as the trial court aptly observed, plaintiff did not present competent testimony as to the location of the property line.
Plaintiff further alleges that Nelson's disruptive conduct had resulted in the loss of rental income but the court properly found that plaintiff had not presented sufficient evidence to support that claim. Although Davis stated that she did not rent plaintiff's apartment because of Nelson's conduct, she conceded that she was plaintiff's friend and employee, thereby undermining the credibility of her testimony.
Moreover, the trial court found that it was not convinced that Coaxum cancelled her lease for the apartment as a result of Nelson's actions. Indeed, Coaxum had testified that she changed her mind about renting the apartment, not simply because of something Nelson had done but rather because she saw that both plaintiff and Nelson were continuing to argue about the placement of the garbage and other matters.
In its decision on the record, the court noted that it found it incredible that Coaxum would sign a lease for plaintiff's apartment, when she knew after living in the neighborhood for four years that plaintiff and Nelson had ongoing disputes. The court also pointed out that prospective tenants might be less inclined to rent an apartment from a landlord who was videotaping a neighbor twenty-four hours a day, seven days a week.
Plaintiff additionally argues that the court erred by dismissing his defamation claim against Nelson. Again, we disagree. The record supports the court's determination that plaintiff did not present sufficient evidence to support his defamation claim. Although plaintiff asserted that Nelson called him "thief man[,]" plaintiff failed to show that Nelson's comments were defamatory rather than simply insulting. "[M]ere insults and rhetorical hyperbole, while they may be offensive, are not defamatory." McLaughlin v. Rosanio, Bailets & Talamo, Inc., 331 N.J. Super. 303, 312 (App. Div.), certif. denied, 166 N.J. 606 (2000) (citing Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 167-68 (1999)). Moreover, plaintiff failed to show that he was harmed by the alleged defamation. Plaintiff did not present any "'concrete proof'" that "third parties lowered their estimation of the plaintiff" and that he "suffered emotional or pecuniary harm as a result" of the alleged defamatory statements. Id. at 313 (citing Sisler v. Gannett Co., Inc., 104 N.J. 256, 281 (1986)).
We have considered plaintiff's other arguments and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
© 1992-2010 VersusLaw Inc.