June 6, 2012
ANTONIO JENKINS, PLAINTIFF-APPELLANT,
DARYLE YOUNG, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9062-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 21, 2012
Before Judges Fuentes, Koblitz and Haas.
Plaintiff Antonio Jenkins appeals from a January 21, 2011 order denying him a new trial after a jury verdict of "no cause" on his complaint alleging defamation against defendant Daryle Young, the former principal of a New York City school where Jenkins once taught. Jenkins appeals the unanimous jury verdict, alleging that he did not receive a fair trial for evidentiary and other procedural reasons. After reviewing the record in light of the contentions advanced on appeal, we affirm.
This case arises from a classroom incident in a New York City public school and the consequent administrative proceedings. On February 6, 2007, Jenkins, then a teacher at Public School 194, allegedly refused to allow five second-grade students to use the restroom, resulting in all five students wetting themselves. Jenkins contended that he did not prevent the students from using the restroom, but, in any event, Young had implemented a rule prohibiting teachers from permitting students to use the restroom during seventh period.
The following day, Young called a meeting with Jenkins, his union representative, and the assistant principal. Young asserted that Jenkins refused to accept responsibility for his actions and was confrontational, disrespectful and defensive.
Young brought disciplinary charges against Jenkins in New York alleging conduct unbecoming a teacher, insubordination and neglect of duty. On December 29, 2008, the hearing officer, in an "Arbitrator's Opinion," determined that Jenkins' conduct rendered him "culpable" and imposed a $5000 fine. Jenkins' was not terminated from his position as a teacher in the New York City public school system, though he was removed from his position at the school where the incident occurred.
Jenkins maintains that Young brought those disciplinary charges against him in retaliation for pending grievances he filed in 2004 and 2006 with the New York State Public Employment Relations Board.
While the disciplinary charges were pending, Jenkins commenced an action in the Supreme Court of the State of New York on June 3, 2008, naming Young as the sole defendant and alleging libel, slander, fraud, constructive fraud, negligence and negligent infliction of emotional distress. He sought more than $10 million in compensatory damages and $2 million in punitive damages. He subsequently filed a second suit in state court, which was consolidated with the first. The New York court dismissed the consolidated action in July 2010.*fn1 The New York State Appellate Division reversed and converted the plenary action to an arbitration proceeding.
In July 2008, while the disciplinary proceedings against Jenkins and his New York state court action against Young were both pending, Young received two packages at her home in Englewood, New Jersey. The first package contained legal documents pertaining to the action commenced in New York, but Young asserted she did not recognize the name or return address on the outside. The second package had a different, unknown return address and bore handwriting she recognized as that of Jenkins. Young did not sign for this second package. Her New York counsel advised her to file a criminal complaint against Jenkins alleging harassment. N.J.S.A. 2C:33-4a.
The September 2, 2008 Englewood Police report attached to Young's complaint stated the following information. Young had recently retired as a school principal and was engaged in an ongoing dispute with Jenkins, "who was terminated as a teacher at the same school in the state of New York where the two were employed." She "has been harassed in New York and now here[.]" She received mail from Jenkins which had a "bogus return address" on the envelope. The contents of the envelope appeared to be "unofficial documents that resemble legal documents that a defendant would receive when a defendant is charged civilly." Young had, up to that time, received no notice from the New York court.
On that same day, Young supplemented the police report with a handwritten statement. She stated that Jenkins was "removed from the school" as a result of his conduct both in the classroom and during the subsequent meeting. She also alleged that on two occasions, Jenkins had "people stop [her] in the school parking lot to issue what appeared to be legal documents." She further expressed her fear that Jenkins might appear at her home.
On October 1, 2008, Jenkins filed a counter-complaint accusing Young of filing a false police report.*fn2 N.J.S.A. 2C:28-4b(1).
While the criminal complaints were pending in Englewood Municipal Court, Jenkins filed a complaint against Young in the Superior Court of New Jersey in December 2008 alleging defamation and the negligent filing of a false police report. He alleged the police report was false in that Young stated that he was "terminated" and that "he harassed her in New York and now in her place of residence." Neither of these statements is found in Young's handwritten statement. In January 2009, Jenkins amended his complaint, although the amended complaint does not appear to have been filed with the court. The trial addressed only the defamation claim alleged in Jenkins' original complaint.*fn3 Jenkins testified and presented no other witnesses.
The jury determined that Jenkins failed to prove by a preponderance of the evidence that the statements given by Young to the Englewood Police Department constituted defamation.
Jenkins raises the following issues on appeal:*fn4
POINT I: THE TRIAL COURT ERRORED BY ALLOWING A NEW YORK STATE ARBITRATOR'S OPINION TO BE USED AS EVIDENCE IN A NEW JERSEY TRIAL BECAUSE THE NEW YORK STATE ARBITRATOR'S OPINION IS NOT WITHIN PERSONAL AND OR SUBJECT OR TERRITORIAL JURISDICTION OF THE NEW JERSEY STATE AND IS THEREFORE AN IRREGULAR INFLUENCE ON A JURY.
A. THE TRIAL COURT ERRORED BY ALLOWING A NEW JERSEY JURY TO WEIGHT ISSUES OUT OF THEIR JURISDICTION.
B. THE TRIAL JUDGES REASONING FOR ALLOWING THE NY ARBITRATOR IS IN ERROR BECAUSE IT IS BASED ON THE APPELLANT OPENING THE DOOR.
C. TRIAL JUDGE ERR BY ALLOWING THE NY ARBITRATOR AS EVIDENCE.
D. APPELLANT NEVER OPENED DOOR TO A N.Y. ARBITRATOR OPINION.
E. THE NEW YORK ARBITRATOR'S OPINION IS AN IRREGULAR INFLUENCE OF A JURY.
F. IT WAS A MISCARRAGE OF JUSTICE FOR THE TRIAL COURT TO ALLOW JURY TO BELIEVE THAT THE NEW YORK ARBITRATOR'S OPINION WAS EVIDENCE BECAUSE A NEW YORK ARBITRATOR OPINION HAS NO RES JUDICATA.
G. THE NY ARBITRATOR'S OPINION WAS INCONSISTENT LEGAL PROOF.
H. IT WAS A MISCARRAGE OF JUSTICE FOR THE TRIAL COURT TO ALLOW JURY TO BELIEVE THAT THE ARBITRATOR'S OPINION WAS EVIDENCE BECAUSE IT HAD NO SUPPORTING DOCUMENTS.
I. MISLEADING THE JURY INTO THINKING THE APPELLANT HAS A BURDEN TO DISPROVE THE NEW YORK ARBITRATOR'S OPINION.
J. IT WAS A MISCARRAGE OF JUSTICE FOR THE TRIAL COURT TO ALLOW THE RESPONDENT TO USE THE NEW YORK ARBITRATOR'S OPINION AS EVIDENCE AND NOT NEW JERSEY JUDGE DOW'S RULING THAT THE ACTIONS OF RESPONDENT YOUNG WERE DEFAMATION.
POINT II: THE WEIGHT OF THE EVIDENCE MAKES THIS CASE A MISCARRAGE OF JUSTICE BASED ON A PREPONDERENCE OF THE EVIDENCE BECAUSE THE RESPONDENT PRESENTED NO EVIDENCE TO SUPPORT HER POLICE ALLEGATIONS. THE RESPONDENT HAS NO CASE FOR A JURY TO REASONBLE BELIEVE IF THE DOCUMENTS SHE TOOK TO THE POLICE DON'T WEIGHT AROUND 9 OZ ONE CANNOT BE CRIMINALLY HARARASSED BY A DOCUMENT ONE NEVER RECEIVED.
THE TRIAL COURT ERROR BECAUSE THERE WERE NO GENIUNE ISSUES OF DISPUTE FOR A JURY TO RESOLVE AND SHOULD HAVE GRANTED A VERDICT IN FAVOR OF APPELLANT UNDER NJ Rule 4:67-5. IT WAS A MISCARRAGE OF JUSTICE TO TELL A JURY THAT THE ARBITRATOR'S OPINION WAS EVIDENCE.
POINT III: IT WAS A MISCARRAGE OF JUSTICE FOR THE TRIAL COURT TO NOT ALLOW THE ARGUMENT AND LAW OF DEFAMATION PERSE TO THE JURY. THE ACTIONS OF THE RESPONDENT WERE DEFAMATION PER-SE BECAUSE THE RESPONDENT ACCUSED FALSELY ACCUSED THE APPELLANT OF COMMITTING A CRIME. THE APPELLANT MADE OUT A PRIMA FACIE CASE OF DEFAMATION.
A. THE WEIGHT OF THE EVIDENCE MAKES IT A MISCARRAGE OF JUSTICE TO NOT FIND DEFAMATION PER SE. THIS CASE SHOULD BE REVERSED BECAUSE IT IS DEFAMATION PER SE. YOU CAN NOT BE HARASSED BY A 9 OZ DOCUMENT YOU NEVER RECEIVE.
B. APPELLANT MAKES OUT A PRIMA FACIE CASE OF DEFAMATION PERSE.
C. THE TRIAL COURT ERRS BY NOT ALLOWING THE APPELLANT TO ARGUE DEFAMATION PER-SE. THE ACTIONS OF THE RESPONDENT ARE DEFAMATION PER-SE BECAUSE THE RESPONDENT ACCUSED THE RESPONDENT FALSELY ACCUSED THE APPELLANT OF COMMITTING A CRIME. POINT IV: THE TRIAL COURT ERROR BY NOT ALLOWING THE APPELLATE TO ARGUE HIS 1 ST AMENDMENT RIGHT VIOLATION. POINT V: THE TRIAL COURT ERRS BY NOT ALLOWING THE APPELLANT TO ARGUE NEGLIGENCE.
POINT VI: GIVEN THE FACT THAT THE RESPONDENT WAS ACTUALLY SERVED AN AMENDED COMPLAINT WITH THE ISSUES OF GROSS NEGLIGENCE, VIOLATION OF 1ST AMENDMENT RIGHTS, ABUSE OF PROCESS and FRAUD. THE TRIAL COURT ERR BY NOT ALLOWING THE APPELLANT TO ARGUE THESE ISSUES AT TRIAL.
A. THE EVIDENCE SHOWS THAT DEFENSE COUNSEL WAS ATTEMPTING TO AVOID THE AMENDED COMPLAINT WITH LESSER CHARGES. HOWEVER, HE ERROR BY FILING THE AMENDED COMPLAINT.
POINT VII: THE TRIAL COURT ATTACKED THE APPELLANT FOR THE FREE EXERCISE OF HIS 1ST AND 14TH AMENDMENT RIGHTS. APPELLANT SHOULD NOT BE FORCED TO PAY $5500 FOR TRANSCRIPTS.
A. THE U.S. SUPREME COURT GIVES TEACHERS THE RIGHT TO FILE.
POINT VIII: APPELLANT MAKES OUT PRIMA FACIE CASES OF GROSS NEGLIGENCE CHARGE 5: 12, FRAUD, ABUSE OF PROCESS, DEFAMATION, VIOLATION OF 1ST AMENDMENT RIGHTS.
A. CLAIM WAS AN ACT OF GROSS NEGLIGENCE PRIMA FACIA.
POINT IX: APPELLANT MAKES A PRIMA FACIA OF ABUSE OF PROCESS.
A. THE RESPONDENT INTENTIONAL ABUSED PROCESS BY SWITCHING THE DOCUMENTS TO AVOID QUESTIONS ABOUT THE DEFAULT JUDGMENT.
B. THE RESPONDENT HAD AN "ULTERIOR MOTIVE" IN SWITCHING COMPLAINT TO GET THE NYS CASE DISMISSED BASED ON IMPROPER SERVICE and TO GET THE APPELLANT TERMINATED.
C. THE RESPONDENT ALSO WANTED THE APPELLANT TERMINATED.
D. "ULTERIOR MOTIVE" RESPONDENT KNEW ABOUT THE LAWSUIT BEFORE GOING TO THE NJ POLICE AND SO SHE KNEW THAT THERE WAS NO HARASSMENT.
E. THE RESPONDENT HAS NO EVIDENCE TO REBUT THE WEIGHT DIFFERENCE BETWEEN 2.9 OUNCES v. 9 OUNCES
POINT X: APPELLANT MAKES A PRIMA FACIA CASE OF NEGLIGENCE.
POINT XI: APPELLANT MAKES A PRIMA FACIE CASE OF COMMON LAW FRAUD.
POINT XII: APPELLANT HAS A FIRST AMENDMENT "RIGHT TO SEEK REDRESS IN THE COURTS" WITHOUT FEAR OR REPRISAL.
A. THE APPELLANT FILED A NYS COMPLAINT BECAUSE RESPONDENT RETALIATED AGAINST APPELLANT DURING THE PERB CASE.
B. THERE WAS "ON GOING ANTAGONISM." I
Rule 4:49-1(a) provides that a trial judge shall grant a new trial if, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Jury verdicts are "entitled to considerable deference and 'should not be overthrown except on the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Group, Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)); Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006) ("Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice.").
In reviewing a trial judge's decision on a motion for a new trial, an appellate court is required to "afford 'due deference' to the trial judge's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility." Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)). Rule 2:10-1 permits an appellate court to reverse a trial judge's denial of a motion for new trial, but only where "it clearly appears that there was a miscarriage of justice under the law."
Jenkins' defamation claim is premised entirely on the factual allegations found in the criminal harassment complaint and supporting police report. Notably, the filing of a criminal complaint enjoys an absolute privilege. See Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 336-37 (App. Div. 2001) (citing Piper v. Scher, 221 N.J. Super. 54, 60 (App. Div. 1987) (observing that defendant was entitled to dismissal of a defamation claim because the plaintiff based it "solely upon the criminal complaints filed against her which were absolutely privileged") (additional citations omitted)). Such complaints are privileged "to protect the public interest in freedom of access to the courts." Id. at 337 (citations omitted). This absolute privilege provides an independent basis on which to dismiss Jenkins' claim.*fn5 See Piper, supra, 221 N.J. at 60. We nonetheless address Jenkins' claims of error in the trial proceedings.
Jenkins argues first that the trial judge erroneously admitted the New York arbitrator's opinion into evidence. Jenkins contends that the judge impermissibly allowed the jury to consider the arbitrator's findings of fact, which likely misled and influenced its determination.*fn6
The trial judge warned Jenkins numerous times not to discuss the New York dispute or the arbitrator's opinion or the judge would permit Young to address the arbitrator's opinion on cross-examination. In the presence of the jury, however, Jenkins repeatedly stressed that the factual allegations concerning his behavior during the New York school incident were untrue. These same factual allegations provided the basis for the 2008 disciplinary proceeding in New York.
The trial judge found that, by repeatedly discussing these allegations in the jury's presence, Jenkins "opened the door" to defense counsel's use of the arbitrator's opinion on cross-examination. "The 'opening the door doctrine' is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection." Alves v. Rosenberg, 400 N.J. Super. 553, 564-65 (App. Div. 2008) (quoting State v. James, 144 N.J. 538, 554 (1996)). This doctrine provides an adverse party the opportunity to place evidence into its proper context. Ibid.
By denying the factual allegations underlying the New York disciplinary charges, Jenkins did open the door to some extent. Moreover, contrary to Jenkins' assertion, the hearing officer's written opinion was not admitted as a document into evidence and the jury's exposure to its contents was limited exclusively to Young's cross-examination of Jenkins. Thus, the trial judge properly permitted its use only as a means to allow Young to provide additional context to Jenkins' contentions.
Furthermore, the New York hearing officer's decision is admissible to evidence Jenkins' actions during the school incident under the doctrine of collateral estoppel. See Ensslin v. Twp. of No. Bergen, 275 N.J. Super. 352, 369 (App. Div. 1994) (noting the potential applicability of collateral estoppel to civil claims of discrimination by a police officer who had unsuccessfully litigated the underlying factual issues in related administrative proceedings), certif. denied, 142 N.J. 446 (1995). Jenkins was represented by counsel in the administrative proceedings. He testified, as did Young, the assistant principal and a student.
We therefore determine that the judge's evidentiary ruling was not an abuse of discretion. See Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008).
Jenkins next challenges the strength of the evidence underlying Young's harassment complaint. He devotes considerable attention to attacking respondent's failure to marshal evidentiary support for her claim. Jenkins contends that in the absence of such evidence, he is entitled to a directed verdict under Rule 4:67-5.
A statement is defamatory when it "is false and 'injurious to the reputation of another' or exposes another person to 'hatred, contempt or ridicule' or subjects another person to 'a loss of the good will and confidence' in which he or she is held by others." Feggans v. Billington, 291 N.J. Super. 382, 390-91 (App. Div. 1996) (quoting Romaine v. Kallinger, 109 N.J. 282, 289 (1988)). To prove defamation, a plaintiff "must establish, in addition to damages, that the defendant (1) made a defamatory statement of fact (2) concerning the plaintiff (3) which was false, and (4) which was communicated to a person or persons other than the plaintiff." Ibid. (citing Bainhauer v. Manoukian, 215 N.J. Super. 9, 31-34, 42 n.13 (App. Div. 1987)); see also W.J.A. v. D.A., ______ N.J. _____ , ______ (2012) (slip op. at 11-12). A plaintiff must also prove fault. Billington, supra, 291 N.J. Super. at 391.
Where, as here, a plaintiff "is a private figure and the speech is about an exclusively private concern, a traditional negligence standard of fault is applicable, which is defined as communicating the false statement while acting negligently in failing to ascertain the truth or falsity of the statement before communicating it." Ibid. (citations omitted). Fault may be established "by showing that defendant knows the statement is false and that it defames plaintiff or defendant acts with reckless disregard of its truth or falsity." Ibid. (citing Bainhauer, supra, 215 N.J. Super. at 32-33).
Jenkins bore the burden to prove by a preponderance of the evidence "that [Young] communicated to a third person a false statement about [Jenkins] that tended to harm [his] reputation in the eyes of the community or to cause others to avoid [him]." McLaughlin v. Rosanio, Bailets, & Talamo, 331 N.J. Super. 303, 312 (App. Div. 2000). Jenkins' misunderstood the burden of proof in this matter both at the trial level and now on appeal. He further misconstrued the municipal judge's comments when dismissing the criminal complaint Jenkins filed against Young. The municipal court judge said:
Mr. Jenkins, you may very well have a claim for defamation against her. I'm not here to make a determination about that.
The jury determined that Jenkins failed to prove his case. Based on the record, we agree with the trial judge that the judgment does not constitute a manifest denial of justice. See Risko, supra, 206 N.J. at 521 (quoting Baxter, supra, 74 N.J. at 597-98).
Jenkins' remaining arguments relate to claims raised by him in his amended complaint. The trial judge refused to allow the amended complaint to serve as the basis for trial and restricted the trial's scope to the defamation claim raised in Jenkins' original complaint. While there is no dispute that Young was served with Jenkins' amended complaint, Jenkins failed to show that he filed a copy of the amended complaint with the trial court. Thus, the judge did not err in limiting the case to the original, filed complaint.
To the extent that we have not specifically addressed any of defendant's arguments, we find them to be without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E).