On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7384-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Graves and Messano.
Plaintiff Michael Mecca appeals following an adverse jury verdict in his malicious prosecution suit against defendant Anthony Suarez, an attorney and the mayor of Ridgefield. The underlying basis of plaintiff's complaint was Suarez's earlier unsuccessful defamation action against Mecca (the defamation action).*fn1
On appeal, Mecca asserts error regarding: 1) pretrial rulings barring evidence of another defamation action Suarez filed against a political opponent (the Trifari suit); 2) admission of hearsay statements at trial; 3) admission of testimony regarding the counsel fees Suarez was incurring in defense of the suit; 4) references by Suarez and defense counsel to the denial of a summary judgment motion in the defamation action; and 5) rulings by the trial judge barring evidence as to Suarez's and Ridgefield's relationship with a certain law firm.
On cross appeal, Suarez argues that the trial court erred by denying his motion for involuntary dismissal at the close of plaintiff's case.
We have considered the arguments in light of the record and applicable legal standards. We affirm. As a result, we dismiss defendant's cross-appeal as moot.
I. Mecca was a lifelong resident of Ridgefield and had known Suarez from the time they were both in grade school. Marc Ramundo, the Ridgefield municipal prosecutor appointed by Suarez, was also a lifelong Ridgefield resident. Mecca retained Ramundo as his personal attorney and to perform some legal work for his family business, Mecca & Sons Trucking.
In 2005, Ridgefield held a contested election for two seats on the municipal council. At the time, all six council members were Democrats, as were Suarez and Mecca. Issues of public concern in Ridgefield included illegal apartments, a 40% tax increase, redevelopment of a large commercial area, and construction of new homes and new retail uses. At a heated public meeting of the mayor and council, Mecca and other members of the audience were unable to speak during the public session. Frustrated, they began to shout questions at the public officials.
Mecca had also become familiar with a blog that reported news on a variety of issues and allowed interested persons to post comments for discussion. The site had various forums and sub-forums, one of which dealt specifically with Ridgefield. Mecca participated in some discussions about issues of public concern in the municipality.
In July 2005, Mecca received a call from Ramundo who was very upset. Ramundo told him that at 6:00 a.m., Suarez, a councilman and two police officers came to his home, which he occupied with his brother and pregnant sister-in-law, to inspect for an illegal apartment. Ramundo was a Republican and wondered aloud whether the raid had been politically motivated.
Adopting the first person point of view, Mecca posted the following statement about the incident on the blog:
I couldn't believe it! On Tuesday morning I received a loud continuous knock on my door at 6 am. I hurried to the door and I was confronted by police officers, Councilman Fucci and the Mayor. They told me that they were investigating an anonymous tip that I had an illegal apartment. After talking to them and showing credentials they told me they had made a mistake and were sorry. I understand that they should inevestigate [sic] all leads, but I am adamant that they should have gone about it another way. I also had a problem, that Fucci and the Mayor was [sic] there!! Kind of thinking that this was politically motivated! Has anyone else been confronted with this issue??
Mecca later discovered that the police report of the incident did not mention the mayor's presence at the scene, and Ramundo was not present at the time of the inspection. Instead, Ramundo only relayed his brother's version of the events to Mecca. Although the blog had a mechanism to delete inaccurate postings, Mecca never took any steps to delete the posting.
Between July 22 and August 3, 2005, utilizing other internet user names, Mecca posted other entries on the blog, essentially confirming the original posting and urging other internet users to confirm the incident with the police officers involved. In one posting made in July 2005, Mecca wrote a comment on the Ramundo incident: "Wow, it reminds me of the Gestapo."
The two Republican challengers won the November election. On November 9, 2005, Suarez filed suit against the website, the two internet user names, and Mecca, alleging the blog posts were defamatory. Mecca's attorney served a frivolous litigation notice pursuant to Rule 1:4-8, but neither Suarez nor his attorney responded. After ensuing discovery, the defamation action was dismissed on summary judgment on July 31, 2007. Suarez appealed and we affirmed. Suarez v. NJ.Com, et al., No. A-0229-07 (App. Div. June 27, 2009). In total, Mecca spent $103,331.89 in defending the defamation action.
On October 9, 2007, Mecca filed this complaint alleging the malicious use of process by Suarez. Among the specific factual allegations was the assertion that Suarez waged a "continuing campaign as a public figure to silence his political critics and to chill the free speech of concerned citizens who disagree[d] with [him]." Mecca cited the Trifari suit as an example of this "continuing campaign."
At trial, Mecca testified that the defamation action was motivated by malice because Suarez could have removed the website postings himself or could have contacted plaintiff to discuss the problem. Noting Suarez was "a certified trial attorney," Mecca claimed that Suarez pursued the defamation action "just to beat me, emotionally, financially whip me. And that's what he did. He knew the law."
Mecca believed intimidation was defendant's "M.O." "He (Suarez) intimidates people to form his core group to run the town, and if you have a different view and a different opinion, he tries to squash you like a bug." As a result of the defamation action, Mecca curtailed his civic activities:
I wouldn't attend mayor and council meetings. I wouldn't go to public events, whether it was -- in the park or fireworks in the park or DARE day and things that the community has for the children as well as adults, I was . . . beat -- I was humiliated by . . . this malicious intent to harm me.
Some residents involved in public issues attempted to have Mecca take a more active role, urging him to join the Republican Party or sit on a municipal board. Mecca declined, explaining that he "couldn't get involved" ...