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Cutler v. Dorn


March 5, 2010


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5088-99.

Per curiam.


Argued February 1, 2010

Before Judges Lisa, Alvarez and Coburn.

Plaintiff, Jason Cutler, a police officer in the Borough of Haddonfield alleged that the defendants violated the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, by subjecting him to a hostile work environment because of his religion and ancestry. The trial court dismissed the complaint as to the individual defendants; that ruling was originally contested, but at argument before us plaintiff withdrew those claims.

Respecting Haddonfield, a jury found in plaintiff's favor on the hostile workplace claim. Although the jury was properly charged on compensatory, punitive, and nominal damages, it determined that plaintiff was not entitled to compensatory damages and did not address the question of nominal damages. It also rejected plaintiff's claim that he was wrongly denied a promotion to corporal in the Borough's police department, a determination unchallenged on appeal.

In post-trial motions, Haddonfield asked for judgment notwithstanding the verdict ("n.o.v."), which was denied; and, in relevant part, plaintiff asked for equitable relief, an award of nominal damages and counsel fees, and a new trial because of the exclusion of a witness and the judge's refusal to permit him to suggest a specific amount of damages to the jury during his summation. The judge denied all motions, and both sides appealed.

We reversed, ruling that the judge should have granted Haddonfield's motion for judgment n.o.v. Cutler v. Dorn, 390 N.J. Super. 238, 255 (App. Div. 2007). In turn, the Supreme Court reversed the portion of our judgment setting aside the verdict, and ordered the case remanded to us for resolution of the outstanding issues. Cutler v. Dorn, 196 N.J. 595 (2008).

Given the two prior appellate opinions, we need not describe the facts in detail; rather, we will include the relevant facts as necessary during our discussion of the remaining points of error.

Taking plaintiff's points in the order presented in his brief, we first consider whether the judge erred in denying plaintiff's request for equitable relief. Although plaintiff's original complaint included a closing demand for such "other relief as is just and equitable," the body of the complaint contained no specific factual assertions related to such relief. Furthermore, as noted by the trial judge during the post-trial motions, plaintiff failed to submit any evidence directly bearing on that issue. The judge also observed that the brief submitted by plaintiff on the post-trial motions did not address the issue of equitable relief. Also, when plaintiff made an internal complaint before filing suit, Haddonfield's Internal Affairs Department investigated and took corrective action. Finally, plaintiff's appellate brief contains no detailed description of the equitable relief to which he thinks he is entitled.

The use of mandatory equitable relief "requires the exercise of great caution, deliberation and sound discretion." Sherman v. Sherman, 330 N.J. Super. 638, 644 (Ch. Div. 1999)(citation omitted). Given the circumstances described above, we can find no basis for saying the judge erred in denying equitable relief. Indeed, as the trial judge concluded, it appears that the only reason for the belated request for equitable relief was to make up for the absence of an award of compensatory damages in support of an application for counsel fees.

Next, plaintiff argues that the judge erred by failing to enter an award for nominal damages and then counsel fees. We disagree.

Plaintiff conceded that the judge properly charged the jury on the subject of nominal damages. In a supplemental brief submitted after argument, plaintiff seems to take a contrary position, but the record clearly includes a correct nominal damages charge. That charge informed the jury that if it found that Cutler's rights were violated but that he had "not sustained actual damages," the jury "may return a verdict . . . in a nominal sum (emphasis added)," which the judge said would be one dollar.

The verdict form, which plaintiff approved, read as follows:

1(C). If the answer to the above question [establishing liability] is yes, please state the amount of damages that will fairly and reasonably compensate the plaintiff?

[Emphasis added.]

Plaintiff asserts in his brief that "[a]lthough the trial court did provide the jury an instruction on nominal damages, that question was not reflected on the jury verdict sheet, such that the jury never decided it." Plaintiff concludes his argument on this point by stating that "[p]laintiff therefore requests that this Court reverse and remand for entry of an award of nominal damages and counsel fees and costs."

Clearly, plaintiff's only reason for asking us to make an award of nominal damages is to justify a remand for the assessment of counsel fees. But he has provided no authority, and we know of none, that would permit us to add a finding to the jury's verdict, and he is not seeking a new trial limited to his right to nominal damages.

We recognize that when nominal damages have been awarded there may be a counsel fee assessment. The Supreme Court stated the governing principle: "[i]n the case of a nominal damages award, however, we leave to the discretion of the trial court whether to award minimal attorney's fees or no fees at all. Tarr v. Ciasulli, 181 N.J. 70, 87 (2004)(emphasis added).

The trial judge discussed these issues at length, concluding that plaintiff should not receive counsel fees and stating that his view of the matter would be the same even if the jury had made a nominal award. That was a discretionary determination and we perceive no ground for overturning it. Consequently, even if we had the authority to order nominal damages, that course would be pointless.

Next, plaintiff argues that the judge erred in refusing to permit him to call his treating doctor. Plaintiff had not provided a report from the doctor. However, he had provided a copy of the doctor's office note, which read as follows:

O: He unfortunately having harassment at work at the police department in Haddonfield. He is not sleeping at night because he is anxious. He has off and on diarrhea because of anxiety. He does not wish any meds. No other associated illness, just this problem with insomnia due to work. His review, show he is just very anxious and that is the reason he cannot fall asleep as he is thinking about things all the time.

Lungs clear. Heart-RRR.

A: Chronic anxiety with irritable bowel syndrome.

P: Metamucil on a daily basis for his bowels. He refuses any meds so he will go to counseling. if the counseling does not feel it is psychiatric, we will have him come back.

The judge observed that the note did not specifically relate plaintiff's problems to the hostile work environment. We are not convinced that is an entirely fair reading of the report since it begins with a reference to harassment at work. However, as Haddonfield argues, not all harassment violates LAD, and since the doctor's note is not based on particular facts, it is difficult to imagine how he could relate his diagnoses to the actionable harassment at issue. Apparently, the doctor suggested medication, which plaintiff declined, and recommended emotional counseling, which plaintiff never sought. Those are hardly indications of substantial injury.

Even assuming that the doctor should have been permitted to testify, given the nature of the office note, we are satisfied that his testimony would not have substantially affected the verdict. We are obliged to disregard an error "unless it is of such a nature as to have been clearly capable of producing and unjust result . . . ." R. 2:10-2. Since the problems described in the note are relatively minor, matters as to which the plaintiff was able to testify without corroboration by a physician, and since there was no indication of permanent injury, we are satisfied that barring the doctor from testifying was not clearly capable of causing an unjust result.

Plaintiff's last point*fn1 is that he was entitled to argue to the jury that it should award a specified amount of damages. Neither the trial court nor the Appellate Division is free to disregard the Supreme Court's rejection of that proposition. Botta v. Brunner, 26 N.J. 82, 100 (1958). Therefore, this point must be rejected.


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