On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2659-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Fisher.
In this appeal, we examine whether the trial judge properly dismissed defendant's defamation counterclaim during the course of plaintiff's case-in-chief in this non-jury trial. We also are asked to review the judge's findings of fact, which were rendered at the trial's conclusion. We conclude that the trial judge erred in dismissing the counterclaim without permitting defendant an opportunity to call witnesses and elicit testimony relevant to overcoming plaintiff's assertion of a qualified privilege for his allegedly defamatory statements; we therefore reverse and remand for a trial on the counterclaim. We otherwise affirm because the findings made by the judge at the conclusion of the trial are entitled to our deference.
Plaintiff Patrick J. Caputo, and defendant Frank Scaccia, were members of Riverside Plastic Surgery and Sinus Center, L.L.C. (Riverside), as were defendants Karl E. Kado and Phillip J. Passalanqua.*fn1 Caputo was terminated, purportedly for cause, less than three years after becoming a member.
Caputo brought suit, alleging, among other things, that compensation due him at the time he separated from Riverside was wrongfully withheld. The parties proceeded to mediation but were unable to resolve their disputes. The day after their mediation session, Caputo sent an email to Kado and Passalanqua*fn2 commenting on the mediation and accusing Scaccia of engaging in "an ongoing trend . . . of fraud, harassment and deception," as well as other misconduct.*fn3 Scaccia moved for and was eventually granted leave to file a counterclaim alleging defamation.
During the non-jury trial, before Caputo had concluded his case-in-chief, the judge dismissed Scaccia's defamation counterclaim. A few days after the trial's conclusion, the judge issued a written opinion, in which he ruled in Caputo's favor on his claim for compensation.
Scaccia's appeal requires that we consider whether the judge erred in dismissing his counterclaim and in awarding damages to Caputo.
The transcript of the trial's first morning reveals that the parties had filed a number of in limine motions that the judge then considered before the trial commenced. The colloquy among the judge and counsel suggests that the relief Scaccia sought in his pretrial motions*fn4 related to how or whether evidence relating to defamation would be put before the jury; Caputo, on the other hand, appeared to argue, for the most part, that the defamation claim was not actionable. The court adjourned for lunch without having resolved any of the issues raised in these motions.
When the matter resumed in the afternoon, the parties expressed their agreement to waive their right to a jury trial. When asked what would then become of the in limine motions, the judge stated that he had researched the questions regarding "defamation, qualified privilege, and things of that nature," and, due to the waiver of a jury trial, would "deal with those issues as they c[a]me along" and would "advise counsel how [he was] going to rule on it."
Caputo was the first witness called to testify. In the midst of direct examination, Caputo's attorney asked him about his off-the-record conversation with a representative of the Bloom Organization, which had been hired by Riverside to advise how Riverside might increase its business. At that point, Scaccia's attorney sought a proffer on the content of the answer to that question; counsel also asserted that "if we're going to get into the alleged salacious conduct, I'm going to raise the objection now" but also suggested, in light of the fact that the matter was being tried without a jury, that "Your Honor can hear it, I just want to put the objection on for the record." Caputo had not provided the testimony that his attorney was attempting to elicit about a discussion with a Bloom representative when, in the course of the colloquy, the judge announced he was prepared to rule with regard to "defamation, qualified privilege."
The judge referred to the concept of qualified privilege discussed in Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 544 (1990), where the Court considered "whether an employer, in responding to inquiries from prospective employers concerning a former employee, has a qualified privilege protecting it from a libel action." The Erickson Court concluded that a qualified privilege extended to [the former employer] for the statements she made to [the former employee's] prospective employers. Her publication was made in response to inquiries of those employers and was not simply volunteered. Additionally, those prospective employers had a legitimate and obvious interest in the professional qualifications, skills, and experience of [the former employee], including the reasons for his termination. Moreover, the information [the former employer] offered ...