Opinion
DOCKET NO. A-5764-14T4
02-07-2017
K.L., Plaintiff-Appellant, v. WILLIAM S. DONIO, ESQ., Defendant-Respondent.
Weisberg Law, attorneys for appellant (Matthew B. Weisberg, on the briefs). Cooper Levenson, P.A., attorneys for respondent (Gerard W. Quinn, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-56-13. Weisberg Law, attorneys for appellant (Matthew B. Weisberg, on the briefs). Cooper Levenson, P.A., attorneys for respondent (Gerard W. Quinn, on the brief). PER CURIAM
Plaintiff K.L. appeals from a July 24, 2015 order dismissing his defamation complaint against defendant William S. Donio, Esq. For the reasons that follow, we affirm.
The complaint initially also asserted a claim for invasion of privacy. Plaintiff voluntarily withdrew that claim and consequently it was dismissed on April 7, 2015.
Plaintiff is the father of two children who attended school in the Evesham School District. Defendant is the attorney for the Evesham Township Board of Education (the Board). Plaintiff's appeal focuses on a single statement attributed to defendant that was published in a newspaper, the Courier Post. Events preceding the alleged defamatory statement are detailed, at least in part, in our prior published opinion, and lend context to the statement. See K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012).
In our prior opinion, we reviewed the trial court's dismissal of an earlier action brought by plaintiff alleging the Board violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and his common law right of access to public records. That lawsuit stemmed from the Board's partial refusal to disclose school records pertaining to alleged incidents of bullying against plaintiff's children. Id. at 345. Pertinent to the present appeal, we noted:
A certification by the principal of the children's school, Lou Casanova, recited a history of disputes with plaintiff dating to March 2008. At that time, plaintiff's children made statements to school personnel that caused Casanova to make a referral to the Division of Youth and Family Services (DYFS). According to Casanova, the DYFS referral resulted in many adversarial communications and conferences with plaintiff over the next two years regarding his dissatisfaction with Casanova and other school personnel. Casanova was contacted by several political office holders and news organizations inquiring about alleged racial discrimination and other mistreatment of plaintiff's children. In addition, plaintiff demanded that his children be transferred to a different school and that the Board provide transportation, although the other school was a "walking" elementary school to which transportation was not available.Ultimately, we ruled that plaintiff's OPRA lawsuit was the catalyst for the disclosure of a single document to which he was entitled, and we remanded to the trial court to award reasonable attorney's fees under OPRA for prevailing as to that document. Id. at 364-65.
[Id. at 346-47.]
On June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.
Following the release of our published decision, defendant was contacted by a Courier Post reporter with respect to the legal fees incurred by the School District in the OPRA litigation, including the Board's petition for certification to the Supreme Court. In his response, Donio stated his "opinion" that the Board had complied with applicable New Jersey law. Defendant also referenced a series of accusations that plaintiff had made about school personnel, which were investigated and found to be without merit. Defendant disputed the legal fee quoted for the OPRA litigation, and informed the reporter, "[m]y impression is that you may have been given a fee amount which reflects all the work the school district has had to pay for based on the baseless allegations made by K.L." Defendant further stated that "the entire interaction between K.L. and the school district began when school district personnel reported K.L. to [D.Y.F.S.] regarding concerns raised by comments made by [K.L.'s] children[.]"
In his defamation complaint, plaintiff alleged that a statement attributed to defendant in an ensuing Courier Post article accused plaintiff of creating conflicts in the School District after a school principal filed a DYFS complaint against plaintiff. Plaintiff asserted that defendant failed to also mention that the DYFS investigation was resolved in his favor, and implied that he was a child abuser.
Following the close of discovery, defendant moved for summary judgment. Judge James P. Savio determined that defendant's statement that plaintiff was "causing conflict" could not, as a matter of law, support a finding of defamation, because the asserted description is an opinion, not a fact. The judge also noted that defendant was prohibited by law from disclosing the results of the DYFS investigation to the reporter. The judge entered a memorializing order dismissing plaintiff's defamation claim. This appeal followed.
Two prior motions for summary judgment filed by defendant were denied without prejudice pending the completion of discovery.
We review a grant of summary judgment de novo, observing the same standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). Summary judgment should be granted only if the record demonstrates there is "no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We 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 of the non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).
If no genuine issue of material fact exists, the inquiry then turns to "whether the trial court correctly interpreted the law." DepoLink Ct. Reporting & Litig. Support Servs. v. Rochman, 4 30 N.J. Super. 325, 333 (App. Div. 2013) (citations omitted). We have recognized that "[p]ublic policy considerations favor the use of summary judgment motions to eliminate baseless defamation claims." Feggans v. Billington, 291 N.J. Super. 382, 395 (App. Div. 1996); see also Costello v. Ocean Cnty. Observer, 136 N.J. 594, 605 (1994) (calling summary judgment an "important tool for disposing of non-meritorious [defamation] lawsuits"). Our Supreme Court has gone so far as to "encourage trial courts to give particularly careful consideration to identifying appropriate cases for summary judgment disposition in this area of the law." Kotlikoff v. Community News, 89 N.J. 62, 67-68 (1982).
Plaintiff contends that the judge erred in concluding that defendant's comment was incapable of having a defamatory meaning. That is a question of law for the courts, DeAngelis v. Hill, 180 N.J. 1, 14 (2004), which we must review de novo. Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002). Judge Savio, in our view, correctly resolved this question.
Liability for defamation is imposed based upon publication of a false statement that injures the reputation of another. Salzano v. N. Jersey Media Grp., Inc., 201 N.J. 500, 512 (2010), cert. denied, 562 U.S. 1200, 131 S. Ct. 1045, 178 L. Ed. 2d 864 (2011). The tort recognizes that people should be free to enjoy their reputations without suffering false and defamatory attacks. Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 139 N.J. 392, 409 (1995), cert. denied, 516 U.S. 1066, 116 S. Ct. 752, 133 Ed. 2d 700 (1996).
"In any defamation action, the plaintiff bears the burden of establishing, 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.'" Petersen v. Meggitt, 407 N.J. Super. 63, 74 (App. Div. 2009) (quoting Feggans, supra, 291 N.J. Super. at 390-91). "Fault, either negligence or malice, must also be proven." Ibid.
To determine whether a statement is defamatory, we examine "the publication as a whole and consider particularly the context in which the statement appears." Romaine v. Kallinger, 109 N.J. 282, 290 (1988). Further, we consider "content, verifiability, and context of the challenged statements." Ward v. Zelikovsky, 136 N.J. 516, 529 (1994). In this regard, first the statement's content is judged by its objective meaning to a reasonable person of ordinary intelligence. Second, only verifiable statements can be defamatory. Finally, a statement's meaning can be affected by its context. "The focus is on the effect of the alleged defamatory statement on third persons, that is, whether they viewed the plaintiff in a lesser light as a result of hearing or reading the offending statement." Russo v. Nagel, 358 N.J. Super. 254, 263-64 (App. Div. 2003) (citations omitted).
"[T]he law of defamation exists to achieve the proper balance between protecting reputation and protecting free speech." DeAngelis, supra, 180 N.J. at 12 (quoting Zelikovsky, supra, 136 N.J. at 528). Therefore, a claim cannot lie for one's expression of "pure opinion," particularly on a matter of public concern. Kotlikoff, supra, 89 N.J. at 68-69.
An opinion is "pure" "when the maker of the comment states the facts on which he bases his opinion . . . and then states a view as to the plaintiff's conduct, qualifications or character." Ibid. Alternatively, a "mixed" opinion, that is, one "apparently based on facts about the plaintiff or his conduct that have neither been stated by defendant nor assumed to exist by the parties to the communication[,]" may be defamatory if it implies underlying objective facts which are false. Id. at 69. "Where an opinion is accompanied by its underlying nondefamatory factual basis, a defamation action premised upon the opinion will fail, no matter how unjustified, unreasonable or derogatory the opinion might be." Id. at 72-73 (internal citations omitted). This results "because readers can interpret the factual statements and decide for themselves whether the writer's opinion was justified." Id. at 73. Finally, a statement construed as either fact or opinion cannot result in liability, because "[a]n interpretation favoring a finding of fact would tend to impose a chilling effect on speech." Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 168 (1999) (citations omitted).
Guided by these legal principles, our examination of the newspaper article identified by plaintiff cannot support his claim of defamation. We agree that defendant's purported statement that plaintiff was causing conflict represented an expression of his opinion and not a defamatory statement of fact. Moreover, plaintiff's history of disputes with the School District, and the fact that they followed the school principal's DYFS complaint, was already the subject of our published decision in K.L. Finally, we find no merit in plaintiff's argument that defendant's failure to advise the reporter of the outcome of the DYFS investigation constitutes "defamation by omission." Plaintiff has supplied no legal authority that such cause of action exists in New Jersey. Even if it does, records of child abuse reports are generally confidential, N.J.S.A. 9:6-8.10a, and defendant was subject to potential criminal liability pursuant to N.J.S.A 9:6-8.10b had he disclosed the outcome of the DYFS investigation, as Judge Savio aptly recognized.
We have recently discussed the applicability of these statutes in the context of a defendant charged with disseminating confidential DYFS child abuse reports for political purposes. See State v. Young, ___ N.J. Super. ___, ___ (App. Div. 2017) (slip op. at 12-16). --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION