On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2258-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Sabatino and J. N. Harris.
Plaintiffs appeal from an amended order granting summary judgment dismissing their complaint based on malicious prosecution and defamation.*fn1 The defendants cross-appeal asserting other grounds for summary judgment on the malicious prosecution count and seeking reversal of the denial of an award of counsel fees.
Plaintiff*fn2 was arrested for shoplifting as a result of an incident at a Kohl's Department Store in Morris Plains on August 2, 2005. He pled guilty to a lesser ordinance violation for disturbing the peace. He also stipulated to probable cause at the time. However, he now contends that he would not have entered the plea (which he asserts was made non-evidential) or made the stipulation if he knew defendants destroyed, or in any event, did not produce, videotapes which would have shown he had stopped in the vestibule area, and had not left the store, before being confronted by the defendant, security officer Stephanie Fash, with whom he left the allegedly stolen merchandise.
Plaintiffs further argue that defendants never moved for summary judgment on the defamation count so that count was improperly dismissed. Defendants seek counsel fees under R. 1:4-8, but not the frivolous lawsuit statute, N.J.S.A. 2A:15-59.1, although claiming the litigation was frivolous.
Plaintiff asserts that he entered the Kohl's Department Store on August 2, 2005 after parking his work vehicle in Kohl's parking lot when it overheated. He allegedly planned to have his wife pick him up and for her to call him from her cell phone when she arrived. According to plaintiff's certification in opposition to summary judgment, after entering the store, he took a plastic bag from a register, which he "rolled up and put in [his] pocket, with the intent to put the items [he] wanted to purchase in the bag when [he] was ready to check out." While he was shopping, his cell phone rang but "could not get a good cell phone signal in the store," so he walked to the vestibule, passed the registers only in order to receive the cell phone call from his wife who had come to pick him up. He dropped the bag and merchandise when confronted by Fash, and left the store so he would not be late for a family function, but was identified by virtue of his employer's truck. New Jersey Transit (NJT) suspended plaintiff based on the shoplifting complaint Fash filed and the warrant which followed his failure to appear in municipal court.*fn3
On September 26, 2005, Browner agreed to enter a negotiated plea of guilty to the lesser charge of violating a municipal ordinance for misbehavior, in exchange for a fine of $500 and a prohibition from entering any Kohl's Department Stores. Through counsel, he also stipulated that Kohl's and Fash had probable cause to file the complaint for shoplifting. The following statements were made by the parties on the record during the plea allocution:
MR. BROWN [the Prosecutor]: Judge, with the consent of Ms. Fash, who has contacted her superiors, we're going to ask the Court to amend to our local ordinance for improper behavior, 308, to which there will be guilty plea, with the understanding, Judge, that we're recommending a $500 fine, but he's no longer welcome in Kohl's. And we would certainly - - we certainly believe that all the parties would agree that M[s]. Fash was acting in the performance of her duties when she issued the original charge.
MR. WILLIS [Browner's attorney]: Your Honor, the Prosecutor's representations are correct and we'll stipulate to probable cause.
THE COURT: And, Mr. Browner, you're aware of what's going on here today?
THE COURT: You've authorized counsel to enter this plea on your behalf on the ordinance charge for misbehaving?
THE COURT: Do you want to say anything on ...