On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1026-07.
The opinion of the court was delivered by: Sapp-peterson, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Fisher and Sapp-Peterson.
In this appeal from the grant of summary judgment dismissing plaintiff's defamation action, we determine whether Internet postings that accuse one of engaging in sexual misconduct are the type of defamatory statements for which damages may be presumed and therefore do not require the aggrieved party to prove actual harm to reputation. The motion judge concluded that although the Internet posting was defamatory per se, the statements were akin to libel rather than slander, and as such, plaintiff was required to prove actual injury to reputation, which plaintiff admittedly had not done. We reverse.
Plaintiff is the uncle of defendant. In 1998, defendant filed a complaint against plaintiff seeking to recover damages arising out of his allegation that plaintiff sexually assaulted him when he was a minor. Plaintiff filed counterclaims alleging frivolous pleading, libel and slander, extortion, infliction of emotional distress and violation of his constitutional and statutory rights. Defendant's complaint was dismissed because the statute of limitations had expired. Plaintiff, however, continued with his counterclaim for defamation based on allegedly defamatory statements defendant made to the Ventnor City Police. The matter proceeded to trial and the jury returned a verdict favorable to plaintiff, awarding $50,000 in compensatory damages. The trial court separately awarded a judgment against defendant in the amount of $41,323.70 for frivolous litigation.
Defendant filed for bankruptcy and attempted to discharge the judgments against him, but the bankruptcy court found that the judgments were non-dischargeable. Defendant then filed a motion seeking relief from judgment pursuant to Rule 4:50-1.
While that motion was pending, defendant created a website where he discussed the litigation because he "was outraged by the justice [he] believed [he] did not get through that time and was desperate for any help [he] could get from anyone." The website allegedly contained statements by defendant that plaintiff molested him when he was a minor, specifically, "I was molested by my [u]ncle [W.J.A.], when I was a minor many, many times" and that W.J.A. "molest[ed] me and R.S. when we were minors."
After plaintiff became aware of defendant's website, he sent a letter in February 2007 to a New Jersey attorney, whom he believed was representing defendant, demanding that defendant shut down the website and warning that a complaint for defamation would be filed. By this time, however, defendant had moved to Florida. Defendant shut down the website after the New Jersey attorney forwarded plaintiff's letter to him in Florida.
On March 26, 2007, plaintiff filed a complaint in which he alleged that defendant's website contained defamatory statements. Defendant was purportedly served on July 18, 2007. Because defendant failed to respond to the complaint, plaintiff moved for the entry of default pursuant to Rule 4:43-1.
On April 3, 2008, plaintiff filed a motion to enter a default judgment for $500,000 against defendant. Defendant entered a special appearance on May 23, 2008, challenging the service of process, seeking to vacate the default, and requesting that the court dismiss plaintiff's complaint for lack of jurisdiction. The motion judge granted defendant's motion to vacate the entry of default but denied the motion to dismiss plaintiff's complaint for lack of jurisdiction.
Thereafter, there were a number of additional proceedings before the motion judge, including a motion requesting that the judge recuse himself, which the motion judge denied, and another motion to dismiss on jurisdictional grounds that was also denied. During the hearing on the latter motion, the judge expressed the view to counsel that the matter before him did not involve slander. Plaintiff's counsel agreed, while defense counsel sought clarification. The judge responded that he was not making any substantive rulings. I am telling you that I do not understand there to be[,] on the basis of what I've seen before me[,] any slanderous act opposed to a libelous act as opposed to a defamatory act, and I'm not making, expressing or implying any view on your motion on the attempt you wanted me to distinguish between slander and libel per se. I don't want you to walk out of here with any level of thinking that I have resolved that issue. I just don't think this is slander.
The judge then instructed defense counsel to rely on plaintiff's counsel's assertion that "the complaint doesn't assert a slander" in composing his answer. Defendant filed an answer on October 30, 2008, but also sought leave to appeal the court's ruling on whether plaintiff's complaint included a cause of action ...