September 21, 2010
NICOLE DAWSON, PLAINTIFF-APPELLANT,
CITY OF JERSEY CITY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF HEALTH, ANIMAL CONTROL BUREAU AND JOSEPH FRANK, DEFENDANTS-RESPONDENTS, AND JOSEPH CASTAGNA, DEFENDANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 19, 2010
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 following issues:
THE COURT ERRED IN DENYING PLAINTIFF'S MOTION TO AMEND THE COMPLAINT.
A. THE COURT'S PROCEDURAL GROUNDS FOR DENYING PLAINTIFF'S MOTION TO AMEND THE COMPLAINT ARE UNSOUND.
B. THE COURT'S SUBSTANTIVE RULINGS CONTRADICT THE STANDARD ARTICULATED IN RULE 4:9-1.
THE COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION.
*INCORRECT ASSUMPTION #1, PLAINTIFF'S PRIOR COUNSEL HAD AMENDED HER COMPLAINT TWICE ALREADY.
*INCORRECT ASSUMPTION #2, PLAINTIFF FILED HER MOTION TO AMEND THE COMPLAINT AFTER DISCOVERY HAD ENDED.
*INCORRECT ASSUMPTION #3, PLAINTIFF'S COUNSEL FAILED TO IDENTIFY WHAT WAS LEARNED IN THE FOUR MONTHS AFTER HE SUBSTITUTED IN TO JUSTIFY AMENDING THE COMPLAINT.
*INCORRECT ASSUMPTION #4, PLAINTIFF'S COUNSEL DID NOT DO ANY ADDITIONAL INVESTIGATION TO JUSTIFY AMENDING PLAINTIFF'S COMPLAINT.
*INCORRECT ASSUMPTION #5.
*INCORRECT ASSUMPTION #6 & 7, PLAINTIFF WAS IN POSSESSION OF ALL INFORMATION CONCERNING JOSEPH CASTAGNA FROM THE INCEPTION OF THE CASE, AND SHOULD HAVE NAMED HIM IN THE FIRST COMPLAINT.
THE COURT ERRED IN ITS RULINGS ON THE SUBSTANTIVE NATURE OF THE CLAIMS CONTAINED IN PLAINTIFF'S PROPOSED AMENDED COMPLAINT.
A. THE COURT INCORRECTLY APPLIED THE REQUIREMENTS OF THE TORT CLAIMS ACT.
B. THE TRIAL COURT ERRED IN FINDING THE STATUTE OF LIMITATIONS BARRED THE ADDITION OF PLAINTIFF'S PER QUOD CLAIMS TO THE DEFAMATION CLAIMS.
C. THE TRIAL COURT ERRED IN FINDING THE PLAINTIFF COULD NOT AMEND THE COMPLAINT TO INCLUDE ANY PER QUOD CLAIMS.
D. THE TRIAL COURT ERRED IN FINDING THE PLAINTIFF COULD NOT AMEND THE COMPLAINT TO INCLUDE A NEW DEFENDANT.
IN DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT THE TRIAL COURT ERRED IN DECLINING TO TAKE JUDICIAL NOTICE THAT TWO ELEMENTS OF MALICIOUS USE OF PROCESS WERE SATISFIED.
DEFENDANT FRANK LACKED PROBABLE CAUSE TO CHARGE PLAINTIFF AND SO THE TRIAL COURT SHOULD HAVE GRANTED PLAINTIFF PARTIAL SUMMARY JUDGMENT.
A. THE FACTS DID NOT CONSTITUTE A VIOLATION OF ANIMAL CRUELTY LAWS AND SO AS A MATTER OF LAW DEFENDANT FRANK DID NOT HAVE PROBABLE CAUSE TO ISSUE THE SUMMONS.
B. DEFENDANT FRANK DID NOT HAVE PROBABLE CAUSE TO ISSUE A SUMMONS UNDER N.J.S.A. 4:22-26(C) AS THIS WAS AN ADMINISTRATIVE MATTER AND HE SHOULD HAVE SOUGHT ADMINISTRATIVE REMEDIES.
C. DEFENDANT FRANK DID NOT HAVE PROBABLE CAUSE TO CHARGE PLAINTIFF AS AN INDIVIDUAL DEFENDANT.
THERE WAS NO GENUINE DISPUTE AS TO THE MATERIAL FACT TH[A]T PLAINTIFF SUFFERED A SPECIAL GRIEVANCE THUS THE COURT SHOULD HAVE GRANTED HER PARTIAL SUMMARY JUDGMENT.
THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT CITY OF JERSEY CITY'S MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT THE TORT CLAIMS NOTICE FILED BY PLAINTIFF WAS DEFECTIVE.
THE COURT'S RULING THAT PLAINTIFF'S CAUSE OF ACTION FOR DEFAMATION WAS TIME BARRED, MUST BE REVERSED.
THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S CLAIMS FOR TORTIOUS INTERFERENCE WITH A BUSINESS RELATIONSHIP.
THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING DEFENDANT FRANK TO RAISE THE "ADVICE OF COUNSEL" AFFIRMATIVE DEFENSE FOR THE FIRST TIME ON THE DAY OF TRIAL.
THE TRIAL COURT ABUSED ITS DISC[R]ETION IN RULING ON THE CREDIBILITY OF A WITNESS WHICH IS A FINDING OF FACT, THE SOLE PROVINCE OF THE JURY.
DEFENDANT FAILED TO ESTABLISH THAT ADVICE OF COUNSEL WAS RENDERED AFTER A FULL AND FAIR DISCLOSURE.
After careful review of the record, the briefs and argument of counsel, we are satisfied that the arguments raised in Points I, II, III, VII, VIII and IX lack sufficient merit to warrant discussion in a written opinion beyond the comments which follow. R. 2:11-3(e)(1)(E). In Points IV, V and VI, plaintiff argues that the trial court should have granted her motion for partial summary judgment on a malicious use of process claim. However, since plaintiff neither pled this cause of action nor sought partial summary judgment as to this claim, these arguments lack any merit. However, as to Points X through XII, we reverse the order of January 2009 that dismissed plaintiff's claims of malicious prosecution and abuse of process against Frank for the reasons set forth below.
The disposition of a motion to amend a pleading rests in the trial court's sound discretion and will not be reversed on appeal absent a clear showing of a mistaken exercise of discretion. Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002); see also Bass v. De Vink, 336 N.J. Super. 450, 456 (App. Div.), certif. denied, 168 N.J. 292 (2001). A trial court abuses its discretion "when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Ibid. (citation omitted).
The motion to amend was filed shortly before the expiration of the discovery period. The court observed that plaintiff had knowledge regarding the involvement of the defendant she wished to add from the inception of the case and that plaintiff had failed to identify what information had been obtained during the 450 day discovery period to warrant the addition of a new defendant and multiple new claims at the end of discovery. The court also noted that plaintiff's defamation claims were barred by the statute of limitations and that the proposed per quod claims arising out of either the LAD or a civil rights claim were barred as a matter of law. The court's decision was, therefore, supported by a rational basis and did not constitute an abuse of discretion. We are also satisfied that the trial court did not abuse its discretion in denying plaintiff's motion for reconsideration. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997); see also Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002).
When reviewing a grant of summary judgment, we employ the same standards used by the trial court, which grants summary judgment if the record shows that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
Turning first to the order granting summary judgment to the City, the notice of claim and draft complaint filed with the City only named Frank as a defendant and identified causes of action personal to him. Plaintiff did not provide the basis for the City's liability, i.e., negligent training, retention, and supervision, until she filed her amended complaint in October 2006. Plaintiff's failure to provide the information required by N.J.S.A. 59:8-4(e) ("the name or names of the public entity, employee or employees causing the injury, damage or loss") rendered her notice invalid as to the City. Thereafter, she did not seek permission to file a late notice of claim under N.J.S.A. 59:8-9. The City raised this defect as a defense in the answer it filed to the amended complaint in November 2006. We are therefore satisfied that summary judgment was properly granted to the City. See Newberry v. Twp. of Pemberton, 319 N.J. Super. 671, 680 (App. Div. 1999).
To prevail on a defamation claim, the plaintiff must prove "that the defendant (1) made a defamatory statement of fact (2) concerning the plaintiff (3) which was false, and (4) which was communicated to a person or persons other than the plaintiff." Singer v. Beach Trading Co., 379 N.J. Super. 63, 80 (App. Div. 2005) (citation omitted). See Ward v. Zelikovsky, 136 N.J. 516, 540 (1994).*fn3
In her complaint, plaintiff identified Frank's allegedly defamatory statements as stating that a bench warrant was issued for her arrest when no bench warrant was issued. However, a bench warrant was in fact issued for plaintiff's arrest. Although the bench warrant was later recalled, the fact that one was issued was true and therefore cannot form the basis for a defamation claim. Ward, supra, 136 N.J. at 532; McLaughlin, supra, 331 N.J. Super. at 312. After the charges were dismissed, Frank did express his dissatisfaction with the result and communicated his version of the events concerning Katrina to others. Although plaintiff argued that Frank continued to make defamatory charges against her by accusing her of animal cruelty after the charges were dismissed, she identified no statement in which Frank failed to note that the charges were dismissed. His complaints thereafter are appropriately considered expressions of opinion, rather than fact, that are properly rejected as a basis for a defamation claim. See Ward, supra, 136 N.J. at 531. ("Opinion statements . . . are generally not capable of proof of truth or falsity because they reflect a person's state of mind. Hence, opinion statements generally have received substantial protection under the law.") Therefore, the trial court properly granted summary judgment, dismissing the defamation claim.
The tort of interference with a prospective or existing business relationship "protects the right 'to pursue one's business, calling or occupation free from undue influence or molestation.'" Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 750 (1989) (citation omitted); see also Lamorte Burns & Co. v. Walters, 167 N.J. 285, 305 (2001). The tort contains four elements: (1) the plaintiff had a reasonable expectation of economic advantage; (2) the defendant intentionally and maliciously interfered with the plaintiff's anticipated economic benefits; (3) the interference caused the loss of prospective gain; and (4) but-for the defendant's interference, there was a reasonable probability that the plaintiff would have received the anticipated economic benefits. Printing Mart, supra, 116 N.J. at 751-52. Malice means that "the harm was inflicted intentionally and without justification or excuse." Id. at 751 (citing Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 563 (1955)).
To successfully oppose summary judgment, plaintiff was required to present competent evidence that showed the existence of a genuine issue of fact as to each of these elements. R. 4:46-2(b). The trial court concluded that plaintiff could not satisfy the second element because it found no evidence in the record that Frank knew plaintiff was up for a promotion and intentionally interfered with that opportunity. On appeal, plaintiff has failed to identify competent evidence that creates a genuine issue of fact as to this element. Plaintiff relies instead upon evidence of Frank's apparent ill will toward her, asking that a jury be permitted to speculate as to the requisite knowledge. However, "[c]ompetent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009). The court properly granted summary judgment.
The motion filed by defendant Frank on the day before the scheduled trial date sought the dismissal of the remaining claims against him on the grounds that, giving full credence to his newly asserted advice of counsel defense, that defense was dispositive of plaintiff's claims. This was, in effect, a motion for summary judgment properly governed by Rule 4:46. However, neither the procedures nor the standards applicable to that Rule were followed here.
Rule 4:46-1 provides that, unless the court orders otherwise "for good cause shown," a motion for summary judgment must be served and filed no later than thirty days before the scheduled trial date. A motion for summary judgment shall be served and filed no later than twenty-eight days before the return date and the party opposing the motion has ten days to respond. This four-week time frame for motions of this category "is based on the recognition that the movant effectively has all the time needed to prepare the motion papers" and that it "was therefore patently unfair" to require a respondent only the eight days permitted in other motions to file and serve the response. Pressler, Current N.J. Court Rules, comment on R. 4:46-1 (2010). In this case, not only was the motion filed one day before trial, plaintiff had only one day in which to respond, even less than the customary eight-day period deemed to be "patently unfair."
The unfairness of this procedure was exacerbated by the fact that, prior to the motion being filed, Frank had not pleaded or presented evidence in discovery to support the defense. Although Frank contends that the defense was adequately pleaded by way of a general denial,*fn4 the fact remains that the evidence necessary to support this defense was not provided in discovery. Rule 4:46-2 requires the movant to identify the evidence in the record that establishes the existence of facts. See Lenches-Marrero v. Law Firm of Averna & Gardner, 326 N.J. Super. 382, 387-388 (App. Div. 1999) (motion for summary judgment should be adjourned to permit the party resisting the motion an opportunity for discovery as to matters first disclosed in a recent deposition). Frank may not skirt this requirement by arguing that the supportive evidence was available and discoverable to plaintiff if his deposition and that of Matsikoudis had been taken. Since Matsikoudis did not testify until the very day of oral argument, the information he provided at that time was plainly not competent, credible evidence in the record to support the motion when filed.
Finally, even if this had been properly presented as a motion for summary judgment, it was error to grant summary judgment based upon this defense. Proof of the defense requires the defendant show "that he or she relied on counsel's advice and that the advice was given after a full and fair presentation to counsel of all of the relevant facts." LoBiondo v. Schwartz, 199 N.J. 62, 95 (2009) (emphasis added). Frank's reliance upon advice was, therefore, a key element to the defense. However, although the court took testimony from Matsikoudis, Frank did not testify. In granting the motion, the trial court stated that it found Matsikoudis's testimony credible and sufficient to show that Frank had provided him with information necessary to a full and fair presentation of the facts. The court concluded that the complaint was filed with the advice of counsel but did not make a specific finding of the requisite reliance or cite any evidence to support such a finding. The court erred in dismissing the remaining claims on this record. It was inappropriate for the court to rely upon a determination of Matsikoudis's credibility that should have been reserved for the jury. More important, the fact of consultation alone does not establish reliance and therefore, the record was insufficient to support a finding that the advice of counsel defense warranted the dismissal of the remaining claims as a matter of law.
Therefore, we reverse the court's order dismissing plaintiff's malicious prosecution and abuse of process claims and remand for further proceedings. All other orders are affirmed.