Opinion
DOCKET NO. A-2745-09T1
01-13-2012
JOSEPH HAKIM and HAKIM INTERNATIONAL TRADING & MARKETING, INC., Plaintiffs-Appellants, v. NU WORLD COSMETIC MANUFACTURING & DESIGNING CORPORATION and RICHARD KUOHN, Defendants-Respondents.
Richard S. Mazawey, attorney for appellants (Mr. Mazawey and Celestino A. Labombarda, on the brief). Robinson Burns, LLC, attorneys for respondent Nu-World Cosmetic Manufacturing & Designing Corporation (Patrick A. Robinson, of counsel; Mr. Robinson and Joseph R. Zakhary, on the brief). Greenbaum, Rowe, Smith & Davis, LLP, attorneys for respondent Richard Kuohn (Marc J. Gross, of counsel and on the brief; Christopher J. Ledoux, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino, Ashrafi, and
Fasciale.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-8423-07.
Richard S. Mazawey, attorney for appellants
(Mr. Mazawey and Celestino A. Labombarda, on
the brief).
Robinson Burns, LLC, attorneys for
respondent Nu-World Cosmetic Manufacturing &
Designing Corporation (Patrick A. Robinson,
of counsel; Mr. Robinson and Joseph R.
Zakhary, on the brief).
Greenbaum, Rowe, Smith & Davis, LLP,
attorneys for respondent Richard Kuohn (Marc
J. Gross, of counsel and on the brief;
Christopher J. Ledoux, on the brief).
PER CURIAM
Plaintiff Joseph Hakim ("Hakim") and his company, co-plaintiff Hakim International Trading & Marketing, Inc., appeal a final judgment entered against them in this defamation action after a seven-day jury trial in the Law Division. We affirm.
I.
The record presents the following relevant facts and circumstances. Hakim and his firm operate a liquidation salvage business in Hamilton Township. Defendant Nu World Cosmetic Manufacturing & Designing Corporation ("Nu World") is a company in Carteret that makes and distributes cosmetic products. The parties had a long-standing business relationship in which Hakim would obtain rejected and closed-out cosmetic merchandise from Nu World and then sell that merchandise himself. At some point that relationship ended.
Thereafter, in October 2005, a security manager at Nu World, co-defendant Richard Kuohn, began to investigate allegations of missing merchandise. Kuohn, a former police officer, believed that Hakim and his company had unlawfully obtained certain Victoria's Secret cosmetics manufactured by Nu World and that they were selling those products without Nu World's authorization.
The basis for the defamation action was Kuohn's report to the State Police that he suspected that plaintiffs were involved in the unauthorized sale of Nu World's products. The State Police then conducted an investigation and a consent search of plaintiffs' warehouse. However, the State Police could not corroborate Kuohn's contentions concerning the cosmetics. In fact, the day after the search, Kuohn called the State Police and acknowledged that he may have been mistaken in his belief that plaintiffs had stolen Nu World merchandise.
The State Police did discover, however, that plaintiffs possessed, apparently without authorization, certain property belonging to the United States Army and the United States Navy. The State Police also determined that plaintiffs were in possession of certain prescription drugs, also apparently without authorization.
Plaintiffs were never charged with any illegality.However, Hakim testified that they suffered economic losses as a result of the investigation because they lost business and employee productivity decreased.
Nothing in this opinion should be construed as a conclusion of wrongdoing by plaintiffs with respect to the military equipment or the prescription drugs.
Plaintiffs sued defendants in the Law Division for defamation. In response, defendants contended that their report of suspected wrongdoing to the State Police was protected by a qualified privilege.
At the conclusion of the ensuing trial in July 2009, the jury rendered a "no cause" verdict. In answering the questions posed on the verdict form, the jury specifically found that plaintiffs had failed to prove by a preponderance of the evidence "each element of [their] defamation claim against the defendant[s.]"
Following the verdict, plaintiffs moved for a new trial, citing various alleged evidentiary mistakes as well as improper comments made by defense counsel during his summation. Kuohn cross-moved for counsel fees, arguing that the complaint was frivolous. He also sought counsel fees because plaintiffs had rejected his $10,000 offer of judgment before trial. Nu World cross-moved for reimbursement of certain nominal deposition costs.
In a written statement of reasons, the trial judge rejected plaintiffs' motion for a new trial. The judge also denied Kuohn's request for counsel fees for frivolous litigation because he determined that the plaintiffs' lawsuit, while unsuccessful before the jury, was not filed in bad faith or with malicious purposes. The judge did award the modest sum of $361.25 to Nu World for the cost of a continued deposition of a certain witness, based on some alleged understanding between counsel at that time that there would be reimbursement for those costs.
II.
On appeal, plaintiffs generally contend that the judgment entered against them represents a miscarriage of justice. More specifically, they argue that: (1) the trial court erroneously allowed the defense to refer to the military equipment and prescription drugs found in plaintiffs' warehouse at trial; (2) the court improperly admitted into evidence a Christmas card that plaintiffs had sent to Kuohn and his family before the litigation commenced; (3) defense counsel made improper comments during summation, warranting a new trial; (4) the trial proofs clearly established defamation, and defendants are not entitled to the defense of a qualified privilege; and (5) the trial court erred in denying plaintiffs' request for counsel fees. We discuss each of these points in turn. For the reasons that follow, none of them warrant, either singularly or cumulatively, a new trial.
For sake of completeness, we have elected to consider the arguments set forth in plaintiffs' reply brief, even though it was filed out of time.
Kuohn has not cross-appealed the denial of his fee request.
A.
Plaintiffs first contend that the trial court abused its discretion by allowing defense counsel to question State Police Detective Sandor Lengyel, the lead investigative officer in this matter, about the discovery of military equipment and pharmaceuticals in plaintiffs' warehouse. Plaintiffs argue that the defense counsel's references to those items were irrelevant and unduly prejudicial and that plaintiffs are, consequently, entitled to a new trial. We discern no plain error, nor any abuse of discretion, in the trial court's allowance of this line of questioning.
It is important to emphasize that plaintiffs did not object to the questioning regarding these items at trial. In fact, plaintiffs' trial attorney did not interpose any objection even when the judge specifically asked whether there were any motions in limine or prior orders restricting such topics from the jury's consideration. Given the absence of a timely objection, we are guided by a plain error standard of review. R. 2:10-2. No such plain error is present. As the trial judge's written statement of reasons for denying a new trial aptly noted, defense counsel's questioning was relevant to rebut plaintiffs' claims for monetary damages incurred in responding to the State Police investigation and the search of their facilities. Evidence of the police's recovery of the military equipment and prescription drugs was probative because it helped show that the consequential damages that plaintiffs claimed to have suffered could not be entirely attributed to defendant's allegedly-defamatory accusations of theft.
Plaintiffs are represented by a different attorney on appeal.
--------
We recognize that plaintiffs' unauthorized possession of military equipment and the prescription drugs had the capacity to portray them in a negative light to the jurors. Even so, the questioning about these items was sufficiently relevant to be permitted despite that potential, particularly in light of the absence of any objection. See Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (noting that trial judges are to be accorded "broad discretion in determining . . . whether [the evidence's] probative value is substantially outweighed by its prejudicial nature").
B.
The second evidential point raised by plaintiffs on appeal is their claim that the court should not have permitted defense counsel, when cross-examining Hakim at trial, to introduce a personalized Christmas card that plaintiffs had previously sent to defendants. The card was presented for the relevant purpose of showing that Hakim and Kuohn maintained a cordial relationship even after Kuohn had allegedly defamed him. Plaintiffs did not object to the introduction of the card, which was on defendants' exhibit list. In particular, although plaintiffs now argue that the card was not produced by defendants in discovery, no objection on that basis to its admissibility was raised with the trial judge. Again, the failure to object raises a presumption that plaintiffs' trial counsel did not perceive the card to be unduly prejudicial. Cf. Risko v. Thompson Miller Auto Grp. Inc., 206 N.J. 506, 523 (2011). Plaintiffs have not overcome that presumption.
Moreover, plaintiffs' trial attorney substantially neutralized the impact of the Christmas card by eliciting testimony from Hakim on redirect examination that he had not signed the card and by obtaining a concession from Kuohn on cross-examination that Kuohn could not say whether Hakim's handwriting appeared on the card. The trial court did not abuse its discretion, nor did it commit plain error, by allowing the jury to consider these proofs concerning the card.
C.
Plaintiffs next assert that defendants' trial attorney made inflammatory remarks during his summation, which deprived them of a fair trial. In particular, they point to the following passage from that summation:
What do we hear, and read, and see almost every day? Report suspicious activity. You don't want to stop that, especially after September 11th. You don't want to stop that. When somebody sees something suspicious, you go to the police. That's what you're supposed to do, especially if it's your job.Plaintiffs contend that this allusion to the terrorist attacks of September 11, 2001 poisoned the jury's assessment of the proofs, especially in light of the fact that Hakim is an Arabic surname.
A litigant is not entitled to a new trial arising from an improper closing argument unless "the comments are so prejudicial that 'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting R. 4:49-1(a)). The failure of opposing counsel to object to an improper comment made in summations raises a presumption that the comment was not sufficiently prejudicial to warrant judicial intervention. Risko, supra, 206 N.J. at 523 (2011).
We recognize that the closing arguments of trial attorneys are to be confined to the facts shown by, or reasonably inferred from, the proofs admitted into evidence during the course of the trial. Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000). Even so, we are also mindful that, in the heat of the moment, a zealous trial advocate may sometimes stray from this boundary. In light of that practical reality, the propriety of a lawyer's summation must be evaluated as a whole, and individual comments should not be considered in isolation. Almog v. Israel Travel Advisory Serv., 298 N.J. Super. 145, 161 (1997), appeal dismissed, 152 N.J. 361, cert. denied, 528 U.S. 817, 119 S. Ct. 55, 142 L. Ed. 2d 42 (1998).
Although defense counsel's remark alluding to September 11 was imprudent, we do not consider it so inflammatory as to compel a new trial. We particularly underscore the absence of any contemporaneous objection by opposing counsel that might have afforded the trial judge the opportunity to issue a curative instruction to disregard the reference. Defense counsel's more general point — that a person may be justified in reporting apparent thefts or other suspicious activities — is a legitimate one. The gratuitous reference to the events of September 11 was isolated and not embellished. The summation as a whole was not otherwise offensive. Applying our limited standard of review in the absence of a timely objection, we deny plaintiffs' demand for a new trial based on this singular remark.
D.
Plaintiffs further argue the proofs at trial overwhelmingly established the elements of defamation implying that the jury's verdict was manifestly against the weight of the evidence. In a related vein, they argue that defendants had no privilege to make untruthful statements about them, in light of Kuohn's status as a private security director. These contentions lack sufficient merit to warrant detailed comment. See Rule 2:11-3(e)(1)(E).
Although Kuohn's report of suspected theft had the capacity to injure plaintiffs' reputation, the remaining elements of plaintiffs' claims for defamation were subject to reasonable disagreement and fact-finding. See DeAngelis v. Hill, 180 N.J. 1, 13 (2004) (reciting the common law elements of defamation). In particular, the trial proofs were weak at best in showing that Kuohn knew or should have known that his report of the suspected theft to the authorities was false, and it was likewise unclear whether his statements proximately caused plaintiffs to suffer damages independent of the costs of responding to the State Police investigation of the discovered equipment and drugs.
Plaintiffs had the burden of proof, and we must accord deference to the jury in the role as fact-finders. Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). The proofs reasonably support defendants' theme at trial that Kuohn, at worst, was unfortunately mistaken about the suspected theft and that his report to the police was made in good faith. Moreover, we reject plaintiffs' contention that a qualified privilege does not apply to a private party in speaking about a matter of public concern, here a potential violation of criminal law. See Dairy Stores v. Sentinel Pub. Co., 104 N.J. 125, 151 (1986); see also Cashen v. Spann, 125 N.J. Super. 386, 404-07 (App. Div. 1973) (applying a qualified privilege and upholding summary judgment in favor of a telephone company that had reported suspected misuse of telephone lines to the police). The trial court had a reasonable legal basis to conclude that the privilege applied here, and the jury had a reasonable evidential basis to conclude that the privilege had not been abused.
E.
Lastly, plaintiffs contend that they should have been awarded counsel fees in responding to defendant's unsuccessful motion under Rule 4:58-1. The trial court did not misapply its discretion in making this determination. We reject plaintiffs' contention that Kuohn's motion for fees and costs was frivolous because it was untimely, as that motion was reasonably filed before plaintiffs' own motion for a new trial was decided and the finality of the judgment was resolved. See R. 1:4-8(b)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION