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Cutler v. Dorn

March 5, 2010

JASON CUTLER, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
THEODORE DORN AND ROBERT SHREVE, DEFENDANTS-RESPONDENTS, AND BOROUGH OF HADDONFIELD, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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