February 2, 2012
MICHAEL A. FAZIO, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
TEMPORARY EXCELLENCE, INC., TEMPORARY EXCELLENCE OF NY, INC., JAMES E. CUNNINGHAM, AND LUPITA ROSA-CUNNINGHAM, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9353-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 29, 2011
Before Judges Payne, Reisner and Simonelli.
Plaintiff Michael Fazio appeals and defendants Temporary Excellence, Inc., Temporary Excellence of NY, Inc. (collectively TEI), and James and Lupita Cunningham (James, Lupita, or the Cunninghams), cross-appeal from those parts of two final judgments, dated April 17, 2009, that are unfavorable to them. Plaintiff also appeals from the June 12, 2009 order, which denied his motion for a new trial and judgment notwithstanding the verdict. We affirm.
This case has a long and tortured procedural history marked by extensive and contentious pre-trial discovery and motion practice. We shall only refer to facts in the record and procedural matters that are pertinent to this appeal.
The Cunninghams are TEI's sole shareholders. In June 1997, plaintiff began his employment with TEI as an account manager. He became Director of Marketing in 1999, Executive Vice President in 2002, and President in March 2004. On March 12, 2004, plaintiff and TEI executed an employment agreement (the Employment Agreement), which set forth the terms of plaintiff's "at-will" employment, including compensation for the years 2004 through 2008, and payment of a percentage of TEI's sales price in the event the company was sold during the term of the agreement. The agreement also contained a twelve-month non-compete clause and non-disclosure of confidential information and non-solicitation clauses.
The parties' relationship soured after the Cunninghams' daughter and son-in-law, Kim and Brian Meyers (the Meyers), entered into a real estate contract in February 2006 to purchase plaintiff's home. The Meyers terminated the contract and requested the return of their deposit after an inspection revealed termite-related structural damage and problems with the air-handler and air conditioning system. Plaintiff rejected the Meyers' attempt to terminate the contract, and refused to return their deposit. Instead, and pursuant to the terms of the contract, plaintiff elected to either make repairs or give the Meyers a credit at closing for the cost thereof. Plaintiff also warned the Meyers that he would suffer damages if the closing did not occur by March 15, 2006, announced that date as "time of the essence" for the closing, and threatened litigation. This did not sit well with the Cunninghams, who had contributed $50,000 toward the deposit. What happened next resulted in this litigation.
On more than one occasion, plaintiff had shown James photographs of plaintiff with naked or partially naked women, which were taken during bachelor parties in Las Vegas.
Plaintiff had also told James that he kept the photographs in an envelope in his locked desk drawer at TEI. James retrieved the photographs, sent plaintiff e-mail and telephone messages alluding to them, and threatened to show them to plaintiff's wife if he did not release the Meyers from the contract and return the deposit. In one message, James warned plaintiff that "divorce lawyers are very expensive and then [your wife] gets half your shit," but that James could make "those pictures . . . disappear . . . if you get the Meyers off your contract and stop bullshitting around." James added that "[e]verybody and their mother's gonna change . . . a real estate . . . contract; so, you know you're the only one with a fucking problem about it."
Lupita also jumped into the fray. She told plaintiff's mother that she and James had "disgusting" and "pornographic" photographs of plaintiff. Lupita also described the photographs to plaintiff's wife in graphic detail, offered to show them to her, warned her that it appeared from the photographs that plaintiff had been seeing the women shown in them for some time, and advised her that "[i]f I were you, I would get myself checked because you never know what kind of diseases [plaintiff] can bring home." On March 13, 2006, plaintiff complained to the Borough of Park Ridge police. The police issued an incident report on March 15, 2006.
In addition to the threats, James revoked plaintiff's company car, criticized his job performance to his co-workers, and withheld his commission and expense-reimbursement checks. Plaintiff attempted to negotiate a purchase of TEI; however, James refused to release any of TEI's financial information relevant to its valuation unless plaintiff "squash[ed] the police report" and returned the deposit. Ultimately, the parties could not agree on a price for TEI.
On August 3, 2006, plaintiff filed a complaint in the Chancery
Division, General Equity Part,*fn1 alleging breach of
contract, breach of the covenant of good faith and fair dealing,
tortious interference with contractual relations,
intentional infliction of emotional distress, harassment/hostile work
environment, and invasion of privacy. He also sought dissolution of
the restrictive covenants in the Employment Agreement.*fn3
One day later, on August 4, 2006, plaintiff's employment with
TEI was terminated. On September 15, 2006,
defendants filed a counterclaim, seeking replevin and asserting three
counts of breach of contract.
In August 2006, plaintiff contacted the Bergen County Prosecutor's Office. Following an investigation, James was arrested and charged with second-degree theft by extortion, N.J.S.A. 2C:20-5, on September 18, 2006.
Mediation in the civil matter occurred on February 6, 2007, and concluded that day without a written settlement agreement. Thereafter, the parties disagreed on the settlement terms to which they had allegedly agreed that day. Although the mediator certified that the parties had reached a settlement, he did not state its terms. Plaintiff admitted, however, that "the parties had reached a settlement" and agreed to the following terms:
(1) the [d]efendants will pay $900,000 to [plaintiff], less a $150,000 credit to
[d]efendants; (2) the [d]efendants will agree to release [plaintiff] from the restrictive covenants in the [Employment]
Agreement on May 15, 2007 instead of August 3, 2007, 79 days early; and (3) the criminal charges, which had been filed following [plaintiff's] termination, against James Cunningham would be dismissed by the Bergen County Prosecutor.
On April 11, 2007, plaintiff filed a motion to enforce the settlement and requested a hearing. In a written decision and order dated June 20, 2007, the court declined to hold a hearing, finding that Rule 1:40-4(c) precluded the mediator's testimony.
The court also found there was no settlement to enforce because the settlement agreement was not in writing and the parties had no "meeting of the minds" on the settlement terms.*fn4
On August 20, 2007, a grand jury indicted James for second-degree criminal attempt/theft by extortion, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-5.
Plaintiff filed an amended complaint on September 14, 2007, adding a claim pursuant to Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980), for wrongful termination in violation of public policy based on his objecting to James's and Lupita's conduct (the Pierce claim). Also in September 2007, plaintiff formed Prime Staffing, LLC, a company that competed with TEI. On March 3, 2008, defendants filed an amended counterclaim, adding a fourth count for breach of contract, and claims of breach of fiduciary duty, conversion, tortious interference with economic advantage, and tortious interference with contractual relations.*fn5
Plaintiff had used TEI's e-mail system and computer equipment to exchange e-mails with the attorney who represented him during his attempt to purchase TEI. On July 2, 2008, plaintiff filed a motion, seeking an order compelling defendants to turn over the e-mails, and barring defendants from using them. The court denied the motion, holding that plaintiff had no expectation of privacy in the e-mails because they were exchanged from a TEI-owned computer and server and recovered after the termination of plaintiff's employment. The court memorialized its decision in an order dated July 18, 2008.
On July 14, 2008, James pled guilty to an amended charge of fourth-degree criminal coercion/theft by extortion, N.J.S.A. 2C:13-5a(3) and N.J.S.A. 2C:20-5. He was sentenced to a one-year probationary term.
On September 10, 2008, plaintiff filed a motion to extend discovery and compel production of certain TEI financial information, which allegedly related to the calculation of his damages. The court denied the motion because it had already extended discovery eight times, the extended discovery period ended on September 30, 2008, and the trial would begin on October 28, 2008.
The court held a bench trial on the Employment Agreement-related claims and counterclaims, and a jury trial on plaintiff's intentional infliction of emotional distress, harassment/hostile work environment, invasion of privacy, and Pierce claims. Prior to the start of the bench trial, plaintiff filed a motion in limine to bar the e-mails exchanged with the attorney who represented him during his attempt to purchase TEI, and defendants filed a motion in limine to bar plaintiff's economic expert, Michael Banker, from testifying.*fn6
In a November 20, 2008 oral decision, the court denied plaintiff's motion, holding that "[p]laintiff had no expectation of privacy in information stored on his workplace computer and, thus, had waived any attorney-client privilege." The court also denied defendants' motion without prejudice pending a Rule 104 hearing. Following that hearing, the court granted the motion and barred Banker's testimony after finding the following procedural defects: (1) plaintiff never indicated that he intended to obtain a damages expert and never named Banker as an expert; (2) plaintiff represented to the court on September 12, 2008 that he was ready for trial; (3) plaintiff never amended his interrogatory answers to name Banker as an expert; and (4) plaintiff's late service of Banker's expert report on September 26, 2008 and failure to submit a certification of due diligence violated Rule 4:17-7.
Substantively, the court found that Banker's report constituted an inadmissible net opinion because an employee of Banker, who was not a certified public accountant, had prepared it and conducted the research and calculations on which Banker relied, and Banker did not (1) review any financial data or records from TEI or Prime Staffing, LLC; (2) cite any established or generally accepted basis for his conclusions; (3) base his opinions on facts in evidence and instead relied on irrelevant evidence, assumptions and possibilities; and (4) know about plaintiff's status as an "at-will" employee, among other things. The court also found that Banker's opinion that plaintiff was entitled to recover lost income damages through September 2012 lacked a basis and was "entirely speculative and contrary to the express terms of the parties' [E]mployment [A]greement."
Following an eighteen-day bench trial, the court rendered
an oral decision on January 22, 2009, and entered final judgment on April 17, 2009. The judge dismissed plaintiff's breach of contract and tortious interference with contractual relations claims with prejudice, found in plaintiff's favor on the breach of the implied covenant of good faith and fair dealing claim, entered judgment in plaintiff's favor against defendants, "jointly and severally," for $141,384, and dismissed the counterclaims with prejudice.
Prior to the jury trial, defendants filed a motion in limine for entry of judgment on plaintiff's intentional infliction of emotional distress, harassment/hostile work environment, invasion of privacy, and Pierce claims. Plaintiff filed a cross-motion for entry of judgment on his Pierce claim based on the court's findings from the bench trial. In a February 4, 2009 order, the court granted defendants' motion as to all claims except the Pierce claim, limited plaintiff's damages, precluded plaintiff from testifying about his emotional distress, and barred plaintiff's treating psychologist, Dr. Sheryl Thailer, from testifying as a fact witness.
During an eleven-day jury trial, the court made various evidentiary rulings barring some of plaintiff's proposed evidence. The court also rejected plaintiff's request to correct an alleged error in one of the jury instructions after the court had already instructed the jury. The jury returned a no-cause verdict against plaintiff. The court entered a second final judgment on April 17, 2009, which reflected the jury's verdict.
Plaintiff filed a post-trial motion for a new trial and judgment notwithstanding the verdict, which the court denied by order dated June 12, 2009. This appeal and cross-appeal followed.
We first address plaintiff's challenge to the denial of his motion to enforce the settlement. We begin by rejecting defendants' contention that plaintiff waived this issue by failing to raise it at trial. Contrary to defendants' argument, the denial of the motion was not akin to the denial of summary judgment, which would have left the issue open for resolution at trial. The appropriate time to resolve whether the parties settled is prior to the very trial that the alleged settlement was meant to obviate. The court in this case definitively disposed of the issue prior to trial, and thus, plaintiff had no obligation thereafter to raise it in order preserve the issue for appeal. The question then is whether there was a settlement that the court should have enforced.
Public policy in New Jersey favors the settlement of disputes, Judson v. Peoples Bank & Trust Co., 25 N.J. 17, 35 (1957), so much so that courts should give effect to settlement terms "wherever possible," Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 206 N.J. Super. 523, 528 (App. Div. 1985). A settlement agreement need not be in writing to be enforceable. Pascarella v. Bruck, 190 N.J. Super. 118, 124 (App. Div.), certif. denied, 94 N.J. 600 (1983). That may be so, for example, where the parties reach an agreement with the intent to memorialize it later, but one party reneges. Lahue v. Pio Costa, 263 N.J. Super. 575, 596 (App. Div.), certif. denied, 134 N.J. 477 (1993).
Nonetheless, a party moving for enforcement of a settlement agreement bears the burden of demonstrating that one exists in the first place. Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475 (App. Div. 1997). The trial court must hold a hearing to resolve any dispute of material fact in that respect unless the available evidence is "so one-sided" as to render a hearing unnecessary. Id. at 474-75 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). The court's disposition of the issue as a matter of law without a hearing is entitled to no deference on appeal. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Here, the court declined to hold a hearing, and concluded that there was no settlement to enforce because the settlement agreement was not in writing and the parties had no "meeting of the minds" on the settlement terms. We affirm, but for different reasons. Grow Co. v. Chokshi, 403 N.J. Super. 443, 467 n.8 (App. Div. 2008).
Assuming there was a settlement in this case, plaintiff has admitted that it required the dismissal of the criminal charges filed against James by the Bergen County Prosecutor; however, this did not occur. Thus, no hearing was required because the evidence was "so one-sided" that the settlement could not be enforced. Amatuzzo, supra, 305 N.J. Super. at 474-75.
In addition, the issue is moot because James was convicted of the criminal charge. Courts will ordinarily decline to resolve an issue, where, as here, that resolution no longer has any practical consequence for the existing controversy, unless the issue is "'one of substantial importance'" and "'likely to reoccur but capable of evading review.'" Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010) (quoting Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996)). That limited exception does not apply here.
Plaintiff contends that the court erred in denying his motion to extend discovery and compel production of TEI's financial documents. We disagree.
A party may obtain "discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]" R. 4:10-2(a). A party may file a motion to compel discovery in the event of another party's non- compliance as long as the motion is made returnable prior to the completion of discovery. R. 4:23-1, R. 4:24-2. We will not disturb the trial court's ruling on discovery matters absent an abuse of discretion or a mistaken application of the law. Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005).
Plaintiff claims prejudice from the court's decision only insofar as the documents he sought would have been relevant in demonstrating the extent of his damages. He argues that if Banker had been able to rely on those documents, the court might not have excluded his testimony as speculative. However, even if plaintiff had obtained the documents just prior to the discovery deadline, which the court had already extended eight times, Banker could not have prepared a report and appeared for deposition prior to trial without yet a ninth discovery extension. As it is, plaintiff failed to timely submit any expert report in compliance with the rules, and the court excluded Banker's testimony primarily for that reason. In addition, at least with respect to plaintiff's Pierce claim, the precise quantum of damages he suffered was irrelevant because the jury rendered a no-cause verdict on that claim. Thus, the court properly exercised its discretion in denying plaintiff's motion.
Plaintiff contends that the court should have granted judgment as a matter of law on his Pierce claim based on the court's findings following the bench trial, or at least should have held that defendants were estopped from contesting those findings at the jury trial. We reject this contention.
Collateral estoppel is an equitable doctrine subject to the exercise of a trial court's sound discretion. Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006). A court may apply it to foreclose relitigation of an issue only where the party asserting it demonstrates that
(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding. [In re Estate of Dawson, 136 N.J. 1, 20 (1994) (citations omitted).]
The third and fifth factors clearly apply here.
Plaintiff specifically asserts that defendants should have been estopped from contesting the court's findings that: (1) defendants engaged in a conspiracy to extort plaintiff; (2) James candidly admitted during a meeting to negotiate plaintiff's purchase of TEI that he "should have blackmailed [plaintiff] better;" (3) plaintiff attempted to release himself from the restrictive covenants of his [Employment Agreement] by filing this lawsuit because James had attempted to extort money from him and "undermine[d] his job performance"; (4) defendants breached the covenant of good faith and fair dealing; (5) defendants terminated plaintiff's employment following the filing of the complaint; and (6) James's criminal conduct terminated plaintiff's obligations under the Employment Agreement. Plaintiff argues that those findings compel the conclusion that his lawsuit was a determinative factor in defendants' decision to terminate him in violation of a clear mandate of public policy.
However essential any of those findings may be to the judgment on plaintiff's claim for breach of the covenant of good faith and fair dealing, the key issue in the jury trial was whether plaintiff was terminated specifically, albeit not necessarily exclusively, for his efforts to discourage criminal behavior in the workplace by filing his civil complaint. Some of the court's findings, including the fact of plaintiff's termination, James's criminal behavior, and plaintiff's filing of a complaint, were directly relevant to that issue but not disputed such that a formal application of estoppel would have any consequence. The rest, all dealing with defendants' breach of the Employment Agreement, do not foreclose any resolution of the issue in the jury trial so as to be identical to it for purposes of estoppel. The court, thus, appropriately recognized no need to either direct the jurors' verdict or restrict their responsibility as finders of fact on estoppel grounds.
Plaintiff challenges the dismissal of his harassment/hostile work environment, invasion of privacy, and intentional infliction of emotional distress claims. He argues, incorrectly, that defendants' motion in limine for judgment on these claims was an untimely summary judgment motion. However, plaintiff demonstrates no prejudice from the timing of the motion, and waived this argument by filing a cross-motion in limine for the same relief. See Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996) (discussing the invited error doctrine).
In any event, summary judgment is not the only mechanism the rules prescribe for obtaining judgment as a matter of law. Indeed, a party may move for that relief even during trial pursuant to a standard similar to that for summary judgment --"'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Frugis v. Bracigliano, 177 N.J. 250, 269-70 (2003) (quoting Brill, supra, 142 N.J. at 536; R. 4:40-1). The court dismissed plaintiff's harassment/hostile work environment, invasion of privacy, and intentional infliction of emotional distress claims on precisely that basis. We consider each claim in turn.
A. Hostile Work Environment
The court dismissed plaintiff's hostile work environment claim, holding that: (1) it was not brought under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -42 or the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; (2) plaintiff is not a member of a protected class, and he made no claim that defendants acted against him because of his membership in a protected class; and (3) there is no independent common-law hostile work environment cause of action. The court is correct.
A hostile work environment claim is only cognizable within the framework of the NJLAD and CEPA. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 602-03 (1993); Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 387 (Law Div. 2002), aff'd, 362 N.J. Super. 245 (App. Div.), certif. denied, 178 N.J. 32 (2003). Plaintiff did not invoke those statutes in this case.
In addition, the NJLAD does not apply because plaintiff is not a member of a protected class, and he abandoned a CEPA wrongful discharge claim in favor of its common-law counterpart recognized in Pierce, supra, 84 N.J. at 72. Further, our Supreme Court has not recognized a common-law counterpart to the hostile work environment claim otherwise available through CEPA, and we decline to do so here.
B. Invasion of Privacy
An individual commits an invasion of privacy if he engages in an intentional intrusion, "physical or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, [and] is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 94-95 (1992) (quoting Restatement (Second) of Torts, § 652B (1977)). The intrusion need not be physical and may include an overhearing of or investigation into an individual's private affairs. Id. at 95. The tort is premised on the principle that "a person's private, personal affairs should not be pried into." Bisbee v. John C. Conover Agency, Inc., 186 N.J. Super. 335, 340 (App. Div. 1982). Conversely, though, "there is no wrong where defendant did not actually delve into plaintiff's concerns, or where plaintiff's activities are already public or known." Ibid.
The court dismissed plaintiff's invasion of privacy claim, holding that plaintiff could not prove there was an intrusion on his solitude or seclusion or private affairs that was highly offensive to a reasonable person. The court found that plaintiff knowingly, willingly, and voluntarily had his photograph taken with various women at public parties in an openly public forum in the presence of his friends, co-workers, and fellow partygoers; plaintiff generated the publicity surrounding the photographs and placed them into the public stream by sharing them with James and co-workers; plaintiff kept the photographs in a desk drawer he did not own; and the Cunninghams did not pry into plaintiff's personal affairs because plaintiff shared the photographs with James and told him where they were kept.
Alternatively, the court found that even if the photographs were private, "it is not an invasion of the right to privacy to communicate a fact concerning the plaintiff's private life to a single person or even to a small groups of persons." The court also found that plaintiff could not prove economic or non-economic damages.
The court's ruling is sound, and we discern no reason to disturb it. We affirm the dismissal of plaintiff's invasion of privacy claim substantially for the reasons the court expressed in its oral decision rendered on February 3, 2009.
C. Intentional Infliction of Emotional Distress
The court barred Dr. Thailer from testifying as an expert because plaintiff did not identify her as an expert in his interrogatory answers or provide an expert report. In dismissing plaintiff's intentional infliction of emotional distress claim, the court held that without expert testimony, plaintiff could not establish that he suffered from emotional distress severe enough to sustain a cause of action and that defendants were the proximate cause thereof.
We discern no abuse of discretion in the court's decision to bar Dr. Thailer from testifying as an expert. Hall v. Zuckerman, 202 N.J. Super. 455, 459 (App. Div. 1985). Because plaintiff never identified Dr. Thailer as an expert in his interrogatory answers or provided an expert report, the court's ruling was proper. R. 4:23-5(b). The court also correctly held that without expert testimony, plaintiff could not prove his intentional infliction of emotional distress claim.
To prove intentional infliction of emotional distress, the plaintiff must establish that the defendant's intentional and outrageous conduct caused him or her severe emotional distress. Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 587 (2009). The offending conduct must be "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988) (quoting Restatement (Second) of Torts, § 46 comment d (1965)). Further, the resulting distress must be "'so severe that no reasonable [person] could be expected to endure it.'" Id. at 366-67 (quoting Restatement (Second) of Torts, supra, § 46 comment j). Such distress may be "'any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.'" Taylor v. Metzger, 152 N.J. 490, 515 (1998) (quoting Poole v. Copland, Inc., 481 S.E.2d 88, 93 (N.C. Ct. App. 1997)).
Courts have required expert testimony for intentional infliction of emotional distress claims in cases in which it is alleged as a separate cause of action. Except in NJLAD cases,. Juzwiak v. Doe, 415 N.J. Super. 442, 453-54 (App. Div. 2010); Harris v. Middlesex Cnty. Coll., 353 N.J. Super. 31, 47 (App. Div. 2002). Because plaintiff had no such expert testimony, the court properly dismissed his intentional infliction of emotional distress claim.
Plaintiff contends that the court erred in barring Dr. Thailer from testifying as his treating physician about the cause of his emotional distress. We disagree.
In barring Dr. Thailer's testimony as an expert witness, the court also found that she had never rendered a report, and her treatment notes were no substitute for a report because they were "nothing more than [her] parroting plaintiff's complaints and/or concerns of the day[,]" "[t]here are no opinions, diagnoses, or prognosis anywhere in those notes[,]" and "her recitation of what plaintiff told her during their visits does not shed any light on whether plaintiff was suffering from emotional distress [that was] sufficiently severe enough . . . to sustain his claim [of intentional infliction of emotional distress] and whether the defendants were the proximate cause of same."
We discern no abuse of discretion in this ruling as well. See Hall, supra, 202 N.J. Super. at 459. The court properly barred Dr. Thailer from testifying as plaintiff's treating physician because she furnished no report. R. 4:23-5(b). Further, her notes do not reflect any treatment rendered to plaintiff or the cause of his alleged emotional distress, and they provide no diagnosis or prognosis.
Plaintiff also challenges the jury charge on his Pierce claim. He contends that the charge was misleading because it instructed the jury that he must prove by a preponderance of the evidence that "his criminal complaint," which was filed against James after plaintiff was terminated, was a determinative factor in the termination of his employment.*fn7
A jury charge is meant to be a "a road map that explains the applicable legal principles, outlines the jury's function, and spells out 'how the jury should apply the legal principles charged to the facts of the case at hand.'" Toto v. Ensuar, 196 N.J. 134, 144 (2008) (quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002)). Where, as here, the challenging party made no timely objection to the jury instructions, reversal is not warranted unless the error is "'of such a nature as to have been clearly capable of producing an unjust result'" when evaluated in the context of the charge as a whole. Mogull v. CB Commercial Real Estate Grp., 162 N.J. 449, 464 (2000) (quoting R. 2:10-2). We must "'evaluate the charge in its entirety to determine if, as a whole, it adequately presents the law and does not tend to confuse or mislead the jury. Fattohi v. Cardner, 318 N.J. Super. 331, 336 (App. Div. 1999) (quoting Ewing v. Burke, 316 N.J. Super. 287, 293 (App. Div. 1998)).
Here, the court gave the following Pierce charge:
In this case plaintiff is suing for a wrongful discharge in violation of a clear mandate of public policy. The plaintiff has alleged that he was wrongfully discharged from his position as the president of [TEI] in violation of a clear mandate of public policy in the [S]tate of New Jersey. I charge you that it is a clear mandate of the public policy of this [S]tate that an employee has a right to work in an environment free from criminal conduct and that if such conduct exists in the workplace the employee has a right to complain about that conduct and seek redress and if the employee does so and is discharged for doing so that employee's discharge is in violation of a clear mandate of public policy.
You, the jury, must decide whether the plaintiff was discharged in violation of that policy or for exercising rights protected by that policy or whether as the defendants contend plaintiff was discharged for legitimate business reasons and pursuant to his employment contract all of which are unrelated to that public policy.
More specifically, plaintiff alleges that the defendant TEI wrongfully discharged him on August 4, 2006 because he filed a lawsuit against all of the defendants complaining that they had subjected him to criminal conduct in the workplace, seeking redress for that criminal conduct that occurred months earlier which lawsuit included being relieved of the restrictive covenants contained in the parties' employment agreement so plaintiff could compete with the defendant TEI. The defendants deny this and allege that plaintiff was not discharged because he sought redress for criminal conduct but that he was terminated for legitimate business reasons.
More specifically, the defendants contend that plaintiff was fired because he filed this civil lawsuit against the defendants making it impractical and untenable for the defendants to continue to employ the plaintiff as the president of the company since plaintiff ha[d] clearly expressed his desire to leave the company's employ and compete with TEI, yet plaintiff would have had access to its clients and proprietary information and as president would still be responsible for the day-today operations of the company.
In order to establish that plaintiff was discharged in violation of public policy you must find by a preponderance of the evidence that plaintiff's discharge violated the public policy of this [S]tate that an employee has a right to work in an environment free from criminal conduct and that if such conduct exists in the workplace the employee has a right to complain about that conduct and seek redress and if the employee does so and is discharged for doing so that employee's discharge is in violation of a clear mandate of public policy. If the plaintiff does not prove this you need not consider whether plaintiff's discharge was wrongful. If plaintiff does prove that his discharge violated the public policy just stated, then you must consider whether a determinative factor for his discharge was a violation of the public policy, not some other reason such as legitimate business reasons which the defendants have asserted.
In order to establish that plaintiff was discharged for exercising his rights under the public policy that this Court set forth you must find by a preponderance of the evidence that a determinative factor for plaintiff's discharge was his exercising his rights under a clear mandate of public policy. In other words, you must find by a preponderance of the evidence that the defendant TEI terminated plaintiff's employment because plaintiff sought to prevent the criminal conduct in the workplace when he filed this lawsuit. It is not enough to find that plaintiff was discharged simply because he filed this lawsuit. That fact is not disputed by the parties, rather, you must determine whether defendants discharged plaintiff in order to frustrate his right to advance a public policy to have a New Jersey workplace free from criminal conduct or as defendants contend for legitimate business reasons.
If you find that plaintiff was discharged solely because he sought redress for the criminal conduct in the workplace or that this was the determinative factor in termination of plaintiff's employment as president of TEI you must find in favor of the plaintiff. If you find that the plaintiff's efforts to seek redress for criminal conduct in the workplace was neither the sole reason nor a determinative factor in a decision to terminate his employment with [TEI] but that plaintiff was discharged for a legitimate business reason or for a reason that did not violate any public policy you must return a verdict for the defendants.
It is the plaintiff's obligation to prove by a preponderance of the evidence that his criminal complaint against the defendant James Cunningham was a determinative factor in plaintiff's termination of employment. Plaintiff need not prove that the criminal complaint was the employer's sole or exclusive consideration but that plaintiff's criminal complaint made a difference in deciding whether to terminate plaintiff. In this regard I remind you that plaintiff was a so-called at will employee, that although he had a contract of employment, the employment agreement specifically provided that plaintiff's employment was at will. What that means under New Jersey law is that in New Jersey such an employee can be discharged at the wish of the employer for any reason or for no reason. He could be discharged for a false cause or for no cause at all provided only that the reason that the employer discharged the employee did not violate any clear mandate of public policy.
A person fired unfairly but not fired in violation of a specific public policy does not have a cause of action for wrongful discharge in violation of public policy.
Reviewing this charge as a whole, we find no error, let alone plain error. The charge properly instructed the jury that it must determine whether defendants wrongfully terminated plaintiff for exercising his right to complain about criminal conduct in the workplace by filing a civil lawsuit. The charge explained several times that plaintiff had the burden to prove that defendants terminated him because he "sought to prevent . .
. criminal conduct in the workplace when he filed this lawsuit." Only in one paragraph did the court use the challenged phrase "his criminal complaint" instead of referring specifically to "this lawsuit." Although the jury could have misunderstood that phrase in isolation, its context in the charge as a whole was sufficient to dispel any confusion. Because the charge was accurate, there is no ground for reversal.
Plaintiff contends that the court erred in denying his motions to bar the e-mails exchanged with the attorney who represented him during his attempt to purchase TEI, and in admitting them into evidence. Plaintiff argues that attorney-client privilege protected the e-mails. We reject this contention.
The attorney-client privilege protects only those attorney-client communications in which the client has both a subjective and reasonably objective expectation of privacy. Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 316-17 (2010). Whether the client had any such expectation is an inherently fact-specific inquiry. See id. at 320-21. Specifically where, as here, the communications are e-mails exchanged using an employer's computer equipment, circumstances relevant to that inquiry include whether the e-mail was exchanged through the employer's account or a personal one, or whether the employer had any policy regarding such exchanges. Id. at 320-21.
The Court concluded in Stengart that the employee had a subjective expectation of privacy in communications with her attorney because she had taken reasonable steps to shield them from her employer. Id. at 321. Although she exchanged the e-mails using an employer-issued laptop computer, she did so through her own password-protected e-mail account rather than her employer's e-mail system, and never saved the password on the computer. Id. at 321, 324. Her expectation of privacy was objectively reasonable, as well, because the messages themselves were private attorney-client communications, and her employer's electronic communication policy neither addressed the use of its computer equipment to access personal e-mail accounts, nor warned that messages sent through such accounts could be recovered by the employer. Id. at 322. The Court concluded that the plaintiff "could reasonably expect that e-mails she exchanged with her attorney on her personal, password-protected, web-based e-mail account, accessed on a company laptop, would remain private" and, consequently, that the privilege protected those e-mail messages. Id. at 322-23.
It is true that TEI lacked an e-mail policy. However, unlike the employee in Stengart, plaintiff took no steps whatsoever to shield the e-mails from his employer. Instead, he repeatedly sought legal advice about the negotiation for the purchase of TEI using his employer's own e-mail system on its own computer equipment, and did not password-protect those communications. Under these circumstances, he had no reasonable subjective expectation of privacy. Accordingly, the court ruled correctly with respect to the e-mails.
Defendants cross-appeal from that part of the judgment following the bench trial that held the Cunninghams jointly and severally liable for damages for breach of the implied covenant of good faith and fair dealing in the Employment Agreement to which they personally were not parties. We decline to consider the cross-appeal because defendants failed to provide the bench trial transcript, which is necessary for our review. R. 2:5-3. We reject defendants' argument to the contrary.