On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3755-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Espinosa.
Plaintiff, the manager of an animal shelter, appeals from orders that resulted in the dismissal of her claims against defendant Joseph Frank, an animal control officer, and the City of Jersey City (the City). We affirm in part and reverse in part.
Defendant Joseph Frank became the Supervising Animal Control Officer for the Jersey City Animal Shelter in 1989. In 2002, plaintiff Nicole Dawson was hired as Manager for the Jersey City Animal Shelter, which was eventually taken over by the Liberty Humane Society (LHS).*fn1
During the evening of Sunday, October 2, 2005, Frank brought a flea-infested, stray dog with severely matted fur ("Katrina") to the LHS shelter. Plaintiff arrived at work Monday morning and assigned a staff worker to groom the dog.
The dog resisted the grooming and repeatedly attempted to bite the staff worker. Plaintiff then assigned another staff worker to schedule an appointment with a groomer who could sedate the dog. According to plaintiff, the first available appointment was on Thursday morning in Hoboken.
On Wednesday afternoon, Frank was told by another animal control officer that the dog was still untreated. He contacted an animal clinic in Jersey City that he claims was willing to treat the dog immediately. Frank then obtained permission from the executive director of LHS, Jyoshtna Buyala, to have the dog groomed at the clinic and returned to the shelter that evening. Although Frank retrieved the dog, it was not returned that evening.
On October 7, 2005, after failed attempts to contact Frank, Buyala reported the dog as stolen. The dog was located a few days later at a boarding facility in Bayonne.
Plaintiff contends that Frank was outraged by her actions in alerting the owner of a dog that he had seized pursuant to the Dangerous Dog Law, N.J.S.A. 4:19-9, without complying with the statute's requirement to notify the owner of her right to a hearing. The dog was ultimately released and Frank began to threaten to file animal cruelty charges against plaintiff.
On October 26, 2005, the day after counsel for LHS sent him a cease and desist letter, Frank issued a summons to plaintiff for violating N.J.S.A. 4:22-26(c), based upon her alleged failure to arrange for the prompt grooming of Katrina. Plaintiff did not appear at her scheduled court date, and the court issued a bench warrant for her arrest. The warrant was recalled six days later and the municipal prosecutor voluntarily dismissed the case on January 10, 2006. Frank then sent a series of letters to the Jersey City Council and members of the public, expressing his disgust with LHS's alleged mistreatment of the dog and what he believed to be the unjustified dismissal of the municipal complaint against plaintiff.
Plaintiff filed a notice of claim with Jersey City on December 23, 2005; the notice and attached "draft complaint" listed only Frank as a defendant.
On August 1, 2006, plaintiff filed a complaint in Hudson County, naming both Frank and the City as defendants.*fn2 The complaint alleged claims of (1) defamation, (2) malicious prosecution, (3) abuse of process, and (4) tortious interference with prospective business relations. After the City moved to dismiss the complaint on the basis that the complaint failed to specify plaintiff's address as required by Rule 1:4-1(a)(1), plaintiff was permitted to file an amended complaint. The amended complaint filed on October 12, 2006 contained five counts: (1) defamation against Frank in his individual and official capacity; (2) malicious prosecution against Frank in his individual and official capacity; (3) abuse of process against Frank in his individual and official capacity; (4) tortious interference with prospective business relations against Frank in his individual and official capacity; and (5) negligent training, retention, and supervision against the City. The defendants answered on November 13, 2006 and raised the affirmative defense of failure to file a timely and valid notice of claim.
On December 27, 2007 - approximately one month before the discovery end date of January 31, 2008 - plaintiff moved to amend the complaint and extend the discovery period. Specifically, plaintiff sought to add a defendant, Joseph Castagna, and assert ten additional causes of action, including per quod claims on behalf of her husband.
In denying the motion, the trial court remarked that plaintiff's motion was supported by "minimal supporting documentation". The court explained that plaintiff's counsel did not specify exactly "what was learned in discovery that led to this amended complaint. So presumably, everything was in possession of plaintiff's counsel since the matter was instituted." The judge concluded that there was "nothing that was disclosed during the pendency of this litigation during the pre-trial discovery process that leads to this amended pleading. . . . [T]he application to amend the pleading in such a tremendous manner . . . as to assert new claims and new parties after the discovery end date is denied." He noted that per quod claims arising out of either the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, or a civil rights claim are barred as a matter of law. The judge also found that the one year statute of limitations barred the assertion of a defamation claim by plaintiff's husband. As for adding Castagna as a defendant, the judge reasoned that would "unduly protract the litigation . . . but more importantly, plaintiff knew of Castagna's participation right from the inception of the case. . . . Plaintiff has given no basis that something was learned during 450 days of discovery as to why all these amendments should take place." The judge entered an order on February 1, 2008 denying plaintiff's motion in its entirety. On March 28, 2008, the court denied plaintiff's motion for reconsideration and set a trial date for September 22, 2008.
At the close of discovery, all parties moved for summary judgment.
The City argued that summary judgment was warranted because plaintiff failed to comply with the notice provision of the Tort Claims Act (TCA), N.J.S.A. 59:8-4(e), plaintiff did not establish any viable causes of action against the City, and plaintiff did not prove she suffered permanent injuries or met the $3600 threshold for medical expenses as required by the TCA. The trial court granted the City's motion, finding that the notice of claim named only Frank as a defendant and the claims it addressed were personal to Frank only.
Frank moved for summary judgment to dismiss the defamation claim because it was not pleaded in the complaint but only was raised in plaintiff's deposition, the claim was barred by the statute of limitations, the allegedly defamatory statement was true, and there was no damage to plaintiff's reputation. The trial court granted summary judgment as to the defamation claim on statute of limitations grounds and as to the interference with prospective business relations claim, reasoning there was no evidence that Frank knew the plaintiff was being considered for a promotion and intentionally interfered with the promotion opportunity.
Plaintiff moved for partial summary judgment on her abuse of process claim, arguing that she proved four out of five elements as a matter of law. The trial court denied plaintiff's motion, finding that genuine issues of fact existed as to two of the elements required to sustain plaintiff's claim.
On the day before trial was to begin, defendant Frank filed a motion to dismiss the remaining two counts of plaintiff's complaint - malicious prosecution and abuse of process - based upon a newly asserted defense of advice of counsel. The trial court heard oral argument on the motion the next day and, during the course of argument, took testimony from Corporation Counsel, William Matsikoudis, who represents the City in this matter. Although he expressed some difficulty in recalling the conversation, Matsikoudis testified that Frank "talked to me about his consideration of filing an animal cruelty, criminal complaint to [sic] the Municipal Court against someone from the Liberty Humane Society because of treatment to the dog." Matsikoudis said that Frank showed him photographs of Katrina and "[h]e wanted to know whether he should go forward." Matsikoudis testified that he told Frank "to do his job. . . . [I]f he believed that the person had mistreated the dog . . . [t]hat he should not be intimidated by any threats or retribution but he should do his job as he saw it was fit."
The trial court found that defendant had given adequate notice of the advice of counsel defense to plaintiff and Matsikoudis's testimony provided an adequate basis for the defense. The court then granted defendant's motion to dismiss both of the remaining counts of plaintiff's complaint.
In this appeal, plaintiff presents the ...