On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-419-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
WILLIAM J. BRENNAN, Plaintiff-Respondent, and GEORGE E. SILOS, Plaintiff, v. STEVEN LONEGAN, individually and in his official capacity as Mayor of Bogota, Defendant-Appellant, and GEORGE T. SHALHOUB, individually and in his official capacity as Council President of Bogota, JOSEPH P. MONAGHAN, individually and in his official capacity as Counsel for the Borough of Bogota, ANDREW T. FEDE, individually and in his official capacity as Counsel for the Borough of Bogota and BOROUGH OF BOGOTA, a municipal corporation, Defendants.
Before Judges Reisner, Sabatino and Alvarez.
In these consolidated appeals, plaintiff William Brennan appeals from a July 30, 2009 trial court order dismissing his complaint against defendant Steven Lonegan. In turn, Lonegan appeals from the trial court's order of September 25, 2009 denying his motion for counsel fees premised on his claim that Brennan's complaint was frivolous. We affirm both orders on appeal.
Brennan's lawsuit alleged that Lonegan committed malicious use of process and malicious abuse of process in connection with an earlier lawsuit in which Lonegan sued Brennan for defamation.
The current appeal can only be understood if we first consider that earlier suit.
The defamation suit was premised on a variety of insulting and inflammatory statements that Brennan and a co-defendant, George Silos, made about Lonegan.*fn1 In moving to dismiss Lonegan's lawsuit, counsel for Brennan and Silos argued to Judge Mecca that the lawsuit was an extension of a political feud between Lonegan and Brennan; that the litigation amounted to a SLAPP*fn2 suit, which Lonegan had filed in an attempt to silence their public criticism of him; that the suit was frivolous; and that the court should not only dismiss the suit but should order Lonegan to pay their counsel fees. In connection with these contentions, they argued that no further discovery was needed.
In his decision on the motion, and on Lonegan's reconsideration motion, Judge Mecca specifically adopted Brennan's and Silos' argument that further discovery was not needed.
Judge Mecca dismissed Lonegan's lawsuit, based on First Amendment principles applicable to public figures. He found that Lonegan was a public figure, that the defendants had at least some basis for most of the allegedly defamatory statements even if the underlying assertions were false, and that there was no evidence that either defendant acted with actual malice.
After Judge Mecca dismissed the lawsuit, Brennan moved for counsel fees on the grounds that the lawsuit was frivolous and was filed in bad faith. Brennan's counsel once again argued that the action was a SLAPP suit brought "to silence [Brennan's] constitutional rights," but he asserted that his client had refused "to be sued into silence." Brennan's fee claim was premised on N.J.S.A. 2A:15-59.1b, which permits recovery if the judge finds either:
1) The complaint, counterclaim, cross-claim or defense was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or
(2) The non-prevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument ...