Opinion
DOCKET NO. A-4329-10T1
06-18-2012
JERRY COHEN and DORIS COHEN, his wife, EDWIN CHATBURN, and MARY CHATBURN, his wife, Plaintiffs-Appellants, v. WILLIAM PAGE, GARY MCCORMICK, LUCAS FORD MOTOR CO. AND LUCAS ENTERPRISES, Defendants-Respondents.
Chatburn & Tighe, P.A., attorneys for appellants (Stephen P. Chatburn, on the brief). Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondents (Lawrence Berg and Walter F. Kawalec, III, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Espinosa and Guadagno.PER CURIAM
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1362-09.
Chatburn & Tighe, P.A., attorneys for appellants (Stephen P. Chatburn, on the brief).
Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondents (Lawrence Berg and Walter F. Kawalec, III, on the brief).
Plaintiffs Jerry Cohen and Edwin Chatburn appeal from the grant of summary judgment dismissing their complaint against defendants William Page, Gary McCormick, and Lucas Ford Motor Co. and Lucas Enterprises (collectively Lucas Ford). We have considered plaintiffs' arguments in light of the record and applicable legal standards. We affirm.
Cohen's wife, Doris Cohen, and Chatburn's wife, Mary Chatburn, asserted per quod claims that were wholly-derivative of their respective husbands' claims. Throughout the opinion, our use of the term "plaintiffs" refers to Jerry Cohen and Edwin Chatburn, and, when necessary, we shall refer to them individually by their surnames.
To the extent factual disputes exist, we accord plaintiffs the benefit of all favorable evidence and inferences in the motion record. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329 (2010) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)); see also R. 4:46-2(c). We conduct our review de novo applying the same standards employed by the trial court. Henry, supra, 204 N.J. at 330.
Cohen and Chatburn were employed by Lucas Ford, an automobile dealership in Burlington. Cohen held the position of salesman, and Chatburn was the sales manager. At all relevant times, Page was the general manager at Lucas Ford. McCormick was Page's cousin and often ran errands for Lucas Ford, although he was not formally employed by the dealership.
On June 16, 2008, Chatburn drove Cohen into work in his "demo car" because the demo car assigned to Cohen lacked dealer "tags," and driving the car without tags violated both company policy and State law. The two planned for Chatburn to also give Cohen a ride home after work. During the workday, Page told Chatburn that he was being terminated because business was slow, and McCormick would give him a ride home. Chatburn claimed that Page granted his request to allow Cohen to drive him home in Chatburn's demo car because he had personal belongings inside Chatburn's vehicle.
According to Chatburn, demo cars are owned by the dealership, but employees are permitted to drive the vehicles during their period of employment.
Chatburn asked Cohen to drive him home. McCormick saw them and asked Chatburn whether Page had approved of Cohen driving Chatburn home in the demo car. Chatburn called Page and was again granted permission. Shortly after leaving the dealership, as Cohen drove Chatburn home, the car was stopped by numerous police vehicles because, when McCormick told Page that plaintiffs had taken the demo, Page called the police and reported the car stolen. Plaintiffs were taken into custody and Cohen was later told that he, too, was fired by Lucas Ford.
The charges were eventually downgraded, and the matter was heard in municipal court on December 29, 2008. In their depositions, plaintiffs and Page all testified that the parties reached an agreement using the municipal prosecutor as an intermediary. Specifically, Cohen and Chatburn, who were both represented by counsel, would each pay $75 in restitution and the charges would be dismissed.
Cohen could not recall exactly who brokered the agreement, but did understand that the charges were dismissed in exchange for the payment of restitution.
The transcript of the municipal court proceedings confirms their testimony. The municipal prosecutor stated:
I spoke to the representative from Lucas Ford today, which I released. The car was returned without any damage to it. Probably a misunderstanding. I'll dismiss the charge. They'll be a stipulation of probable cause conditioned on a $150 towing fee to be paid to the Court within three weeks. It's going to be split between the two co-defendants.Counsel for each plaintiff affirmed the agreement, and the judge accepted it on the record, stating, "I'll indicate both matters are dismissed. There's $75 restitution by each through the Court within the next three weeks."
Plaintiffs filed their complaint alleging malicious prosecution, malicious abuse of process, and defamation. Defendants answered and discovery ensued.
Defendants moved for summary judgment on the malicious prosecution and malicious abuse of process counts. On October 15, 2010, the judge heard oral argument and dismissed the malicious prosecution claim but denied defendants' motion for summary judgment on the abuse of process claim pending further discovery.
The order is not in the appellate record. See R. 2:6-1(a)(1)(C) (requiring the appellant's appendix to include "the judgment, order or determination appealed from or sought to be reviewed").
Plaintiffs' unopposed motion to extend discovery was granted on October 29, 2010, the judge reflecting in the order that discovery was extended until November 28, and "[t]here [would] be no further extensions of discovery." Plaintiffs moved for reconsideration of the grant of partial summary judgment, to extend discovery, and to compel the deposition of Hap Lucas, the owner of Lucas Ford. The motions were heard on January 7, 2011.
The judge denied the motion for reconsideration. In a separate order, he denied any discovery extension but ordered that Lucas be deposed "before trial." The order further provided that if Lucas was not deposed, his testimony "may be barred."
This order is also not in the appellate record. Ibid.
On February 4, 2011, the judge heard argument on defendants' renewed motion for summary judgment as to the abuse of process and defamation claims, and granted the motion after concluding that plaintiffs failed to proffer any evidence of "further acts." The judge denied the motion for summary judgment on the defamation claim.
There is no order in the record.
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On February 28, the day trial was scheduled to begin, plaintiffs voluntarily dismissed their remaining defamation claim. On March 23, the judge entered an order reflecting that the complaint was dismissed with prejudice. This appeal followed.
Plaintiffs contend the judge erred in granting summary judgment as to the malicious prosecution counts of the complaint because he concluded as a matter of law that they failed to demonstrate the municipal court action resulted in a "favorable termination." They contend that factual disputes existed as to that issue, that the ultimate issue was whether defendants had probable cause to issue the criminal complaint, and that the judge erred in denying reconsideration. We disagree.
The Supreme Court recently said:
Malicious prosecution requires the plaintiff to prove four elements: (1) a criminal action was instituted by this defendant against this plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to the plaintiff. Although each factor is distinct, evidence of one may be relevant with respect to another. Nevertheless, each element must be proven, and the absence ofSee also Mondrow v. Selwyn, 172 N.J. Super. 379, 384 (App. Div.), certif. denied, 84 N.J. 449 (1980) (noting that "a favorable termination of the criminal proceeding is elemental to the maintenance of the cause of action"). "The inquiry into whether a termination was favorable focuses on whether it was dispositive as to the accused's innocence of the crime for which they were charged." Freeman v. State, 347 N.J. Super. 11, 27 (App. Div.), certif. denied, 172 N.J. 178 (2002).
any one of these elements is fatal to the successful prosecution of the claim.
[LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009) (citations and quotation marks omitted).]
We have held that the grand jury's refusal to indict can be considered a favorable termination of criminal charges. Geyer v. Faiella, 279 N.J. Super. 386, 395 (App. Div.), certif. denied, 141 N.J. 95 (1995). When there is an administrative dismissal, i.e., the prosecutor elects not to seek an indictment from the grand jury and reports that decision to the assignment judge, we have held there is a presumption that the element is satisfied, but it remains a factual issue as to whether the termination was favorable or not. Rubin v. Nowak, 248 N.J. Super. 80, 84 (App. Div. 1991). However,
[i]f the charge is withdrawn or the prosecution abandoned pursuant to an agreement of compromise with the accused,
the termination is viewed as indecisive and insufficient to support the cause of action. Having compromised for his peace in the criminal proceeding, the accused may not later contend that the proceedings terminated in his favor.
[Mondrow, supra, 172 N.J. Super. at 384-85 (emphasis added) (citation omitted).]
We conclude Mondrow is applicable to the facts of this case. Both plaintiffs testified in their deposition that each was required to pay $75 in restitution in exchange for the charges being dismissed. Although plaintiffs now argue there was no explicit agreement and they believed they were found "not guilty" in municipal court, their idiosyncratic understanding is insufficient to raise a colorable factual dispute. A court is "not require[d] . . . to turn a blind eye to the weight of the evidence[,]" and a party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Triffin v. Am. Int'l. Grp. Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004) (citation and internal quotation marks omitted). In this case, there was no genuine factual dispute regarding the termination of the municipal court proceedings, and plaintiffs failed to adduce any evidence tending to prove the criminal proceedings were favorably terminated. Summary judgment on the malicious prosecution claim was properly granted, and we see no basis for concluding that the judge mistakenly exercised his discretion when he denied reconsideration. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002) (noting reconsideration is addressed to the sound discretion of the trial court).
Plaintiffs next argue that the judge erred in granting defendants summary judgment on the abuse of process claim. Specifically, they argue that defendants attempted to deny Cohen unemployment benefits and advised bank personnel in the automobile industry that Chatburn should not be trusted. Plaintiffs contend these actions were "further acts" supporting a prima facie case such that summary judgment was inappropriate. We again disagree.
"[B]asic to the tort of malicious abuse of process is the requirement that the defendant perform further acts after issuance of process which represent the perversion or abuse of the legitimate purposes of that process." Baglini v. Lauletta, 338 N.J. Super. 282, 294 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 169 N.J. 607, appeal dismissed, 169 N.J. 608 (2001). Examples of "[f]urther acts" could be "attachment, execution, garnishment, sequestration proceedings, arrest of the person and criminal prosecution and even such infrequent cases as the use of a subpoena for the collection of a debt." Ibid. (citation and internal quotation marks omitted).
"Coercive action or bad motives or intent prior or leading to the institution of the lawsuit do not suffice to expose a [party] to a cause of action for malicious abuse of process." Penwag Prop. Co. v. Landau, 148 N.J. Super. 493, 499 (App. Div. 1977), aff'd, 76 N.J. 595 (1978). "In order for there to be abuse of process . . . a party must use process in some fashion, and that use must be coercive or illegitimate." Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 431 (App. Div. 2009) (emphasis added) (citation and internal quotation marks omitted).
Here, the conduct that plaintiffs contend support their claim is inadequate as a matter of law because the alleged acts did not directly utilize the judicial process. As a result, summary judgment on the malicious abuse of process claim was properly granted.
Lastly, plaintiffs contend that the judge erred in refusing to extend discovery and limiting further discovery to the deposition of Hap Lucas. In this regard, we note that our review of the trial judge's discovery rulings is limited to whether he abused the broad discretion accorded to him. Bender v. Adelson, 187 N.J. 411, 428 (2006).
In this case, the judge extended discovery in October 2010 for an additional thirty days. It is unclear from the record whether the original discovery end date had expired or an arbitration or trial date was set when that order was entered. Plaintiffs contend in their brief that the judge "sua sponte" terminated discovery, but absent facts regarding the posture of the case, we cannot conclude that the judge erred in determining there would be no further extension. Moreover, we note that when the order extending discovery was granted, defendants' original summary judgment motion had already been heard, and plaintiffs' malicious prosecution claim had already been dismissed.
Plaintiffs again sought an extension of discovery in January 2011. Defendants assert that a trial date had already been set, but, there is no independent confirmation of this fact in the record, and, when he decided the motion, the judge did not reference any pending trial date. However, in denying plaintiffs' request and limiting further discovery to Lucas's deposition, the judge specifically indicated that discovery previously had been extended three times, and that the parties had engaged in "contretemps," "petty infighting," and "use[d] the rules of discovery . . . as a sword rather than as a tool of discovery."
Moreover, plaintiffs have not specifically identified, nor is it evident, how the denial of another discovery extension resulted in any specific prejudice. Page, McCormick and police officer Matthew Mercuri, who Page had asked to come to the dealership in case there was trouble when he fired Chatburn, had already been deposed. Plaintiffs contend that further discovery might have been necessary after Lucas's deposition. However, we are unsure that Lucas was ever deposed since it is not referenced in plaintiffs' brief and the record does not include any transcript.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELLATE DIVISION