On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6190-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2012
Before Judges Messano and Lihotz.
On July 30, 2009, plaintiffs Sarmasti PLLC, a law firm, and its principal, Vafa Sarmasti (collectively, Sarmasti), filed a complaint against defendant, Joshua Emanuel, alleging causes of action sounding in defamation, slander, libel and false light invasion of privacy (counts one, four, five, six, seven, eight and ten), tortious interference with prospective economic advantage (count two), and tortious interference with existing business relations (count three).*fn1 Prior to answering, defendant moved to dismiss, claiming that the complaint failed to state a cause of action. R. 4:6-2(e).
The judge entered an order dated November 20, 2009, dismissing with prejudice "[a]ny and all allegations of defamation prior to July 30, 2008 (Counts 1, 4, 5, 6, 7, 8, and
10) . . . because plaintiff's complaint contains allegations of defamation outside the Statute of Limitations for defamation of one . . . year." See N.J.S.A. 2A:14-3. The order also permitted Sarmasti to file an amended complaint within ten days which alleged "[t]he remaining claims of defamation . . . with more specificity."
Sarmasti filed an amended complaint on December 8, 2009 alleging the same causes of action. In an attempt to comply with the prior order requiring "more specificity," Sarmasti alleged that during a meeting held on July 31, 2008, defendant met with one of Sarmasti's clients, identified only as "K.V.," and stated that Sarmasti had "engaged in fraudulent billing, and willfully and falsely billed for services . . . not provided." Defendant filed an answer denying the allegations and asserting various affirmative defenses. Discovery ensued.
Defendant moved for summary judgment on August 8, 2011 before a different Law Division judge. In an order dated October 21, 2011 (the 2011 order), the judge granted summary judgment and dismissed Sarmasti's amended complaint with prejudice. In an oral opinion, she first addressed the defamation claims and concluded that any allegedly defamatory statements made by defendant prior to July 30, 2008 were "moot" because they were beyond the one-year statute of limitations.
Focusing on the alleged conversation of July 31, 2008, the judge concluded that even if it occurred, it was "merely business partners disputing an attorney's bill and no negligence will be imputed from this exchange." The judge further determined that any defamatory statements "were entitled to protection . . . [because] the statements were made in regard to a common interest."
Regarding the claims of tortious interference, the judge noted that Sarmasti failed to prove "malice on . . . defendant's part." She noted that defendant was "a party to the business relationship" and "entitled to dispute any attorney's bills." This appeal followed.
Before us, Sarmasti contends that the judge erred in entering the 2011 order because the "common interest privilege" was not raised by defendant in his answer, the record did not support application of the privilege and defendant was not entitled to the privilege because defendant acted with malice,
i.e., with reckless disregard for the truth or falsity of his
statements. Sarmasti also argues that to the extent the judge relied
upon the "litigation privilege," that was error because the statement
was made one year before the amended complaint was filed.*fn2
Sarmasti further contends that the record did not support
summary judgment on the tortious interference counts and the "summary
judgment process was seriously flawed." Additionally, for the first
time on appeal, Sarmasti argues that the complaint alleged a cause of
action for "trade libel," which is subject to a six-year statute of
limitations and should have survived dismissal.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
"In an appeal of an order granting summary judgment, appellate courts 'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (alteration in original) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor ...