Opinion
DOCKET NO. A-0454-14T3
01-26-2016
JOHN P. SADDY, Plaintiff-Appellant/Cross-Respondent, v. JARED MORRIS, Defendant-Respondent/Cross-Appellant, and JARED MORRIS, Third-Party Plaintiff, v. BOROUGH OF SEASIDE HEIGHTS; THOMAS BOYD, CHIEF OF POLICE; SHAWN HECKLER; THE BAMBOO BAR, INC.; DOUGLAS JENSEN, Third-Party Defendants.
Diane Ault Cullen, attorney for appellant/cross-respondent (Randi S. Greenberg, on the briefs). Law Offices of Mallon & Tranger, attorneys for respondent/cross appellant (Thomas J. Mallon, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Haas, and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2110-10. Diane Ault Cullen, attorney for appellant/cross-respondent (Randi S. Greenberg, on the briefs). Law Offices of Mallon & Tranger, attorneys for respondent/cross appellant (Thomas J. Mallon, on the brief). PER CURIAM
Plaintiff John Saddy, who is the general manager of the bar where the events at issue transpired, appeals the entry of judgment against him on defendant Jared Morris's counterclaim; Morris cross-appeals the Law Division judge's remittitur of the jury's punitive damage award. After our review of the record and consideration of the issues raised on appeal, we affirm.
We summarize the relevant facts developed during the four-day trial. On April 3, 2010, a fight erupted at a bar in Seaside Heights. A number of patrons, including Morris, were arrested. Approximately two months after the incident, Morris's attorney wrote to Saddy's counsel requesting the surveillance footage from that night. Only one surveillance video, depicting Morris being held down by three bouncers, was provided. Saddy does not appear on the video. No witnesses, other than Saddy himself, testified that he was present at the scene that evening.
No copy of the video was included with the appeal exhibits. Thus we rely on the judge's comments about what he saw on the tape, which was played during the trial. --------
Some days after Saddy's attorney received counsel's letter requesting the video, on May 19, Saddy visited his shoulder specialist as he had a preexisting injury. He reported that two and one-half weeks earlier he had injured his shoulder in an altercation in the bar. He had made no mention of any reinjury when he saw his physician after the brawl but before receiving the letter.
On May 25, 2010, Saddy filed an assault charge in municipal court against Morris, alleging Morris punched him in the face. He had made no earlier complaint of any injury inflicted that night to police. A few days later, on June 3, 2010, Saddy sued Morris in state court for damages resulting from the alleged assault. Morris counterclaimed against Saddy and others and removed the matter to federal court based on civil rights claims against Seaside Heights and the officers who arrested him.
On February 17, 2012, Morris was acquitted of assault in municipal court. On July 8, 2013, Saddy's civil complaint and Morris's counterclaim were remanded to state court once the Seaside Heights defendants settled the matter by paying Morris $30,000. On August 6, 2013, Saddy filed a motion for a writ of attachment in his civil case seeking to set aside the $30,000 settlement as a potential source for payment of any future award a jury might make in the civil action. The application was denied.
During the trial, Saddy testified that he was the general manager of the bar. In the earlier municipal court proceedings, he had testified that he was the owner. At trial, he acknowledged owning the building, but said his sister held the liquor license.
Saddy also testified that the bar had between 100,000 to 150,000 customers annually, sometimes charged patrons a $10 cover charge, and grossed between "a little over $1,000,000" to "$1.6 or $1.7 million" annually. Although not entirely clear from the record, Saddy either owns or manages two other bars in Seaside Heights. He described the enterprises, including the premises at which the incident occurred, as "my bars."
During Saddy's cross-examination, the subject of prior settlements with bar patrons was raised. Saddy's attorney withdrew her initial objection, and on redirect, Saddy's attorney examined him on the subject. His attorney even referred to documents not previously in Morris's possession during her redirect examination.
After trial, the jury returned a verdict of $10,000 for Morris's legal fees in the municipal court matter and $70,000 in punitive damages. Saddy filed a motion for judgment notwithstanding the verdict or a new trial, as well as remittitur of the punitive damages award, which the court reduced to $50,000. Thus Morris's total recovery came to $61,084.52: $884.52 in interest, $200 in court costs, $10,000 in compensatory damages, and $50,000 in punitive damages.
In rendering his decision on Saddy's motions, the judge summarized the evidence presented to the jury during the trial as follows:
The theory advanced by [Morris] throughout this case on his claim of abuse of process was that [Saddy] was never assaulted that evening by [Morris] but rather concocted the assault and pursued a criminal case against Morris to gain an advantage in the upcoming civil case. To that end there was significant evidence that [Saddy] was not assaulted or, if he was, it was not by [Morris]. [Saddy] could not produce any independent witness who places him in the [bar] at the time of events which led to this litigation despite being obviously well known to all employees . . . who were present that evening. He does not appear on the surveillance video. He did not make any contemporaneous complaints of an assault by Morris to any of the numerous police officers who were present, and who had in fact arrested [Morris] and had him in custody immediately outside the bar. [Saddy] did not file any charges against Morris until after he received a letter from Morris' attorney which suggested that a civil suit may be in the offing. When he went to his doctor's office for a follow up on his recent unrelated shoulder surgery, there is no evidence in the doctor's note that [Saddy] complained of any re-injury to
his shoulder as a result of Morris' assault upon him.
On the other hand, there is no evidence that [Morris] assaulted anyone that evening. The person who [Saddy] and others claimed to be [Morris] on the video aggressively engaging employees of the [bar] was clearly not [Morris], who at [the] time is shown on the ground surrounded and restrained by [bar] employees.
Put simply, [Morris'] testimony as to the events of that evening was clear and consistent while [Saddy's] testimony was not and the evidence produced at trial tended to support [Morris'] claim against [Saddy].
With regard to Saddy's contention that a new trial was warranted because of the prejudicial effect of Saddy's testimony regarding prior settlements, the judge noted that
the court was initially not going to allow [Morris's attorney] to refer to and submit evidence of prior assaults upon other patrons of the [bar] to prove [Morris's] claim of assault in this litigation. However, to [Morris's attorney's] assertion at sidebar that this evidence was not offered for the purpose of proving an assault but to establish [Saddy's] motive in accordance with New Jersey Evidence Rule 404(b) relating to Morris' claim of abuse of process and malicious prosecution, [Saddy's attorney] waived her objection and welcomed this testimony and during her re-direct of [Saddy] and continued to elicit testimony about prior claims.
Lastly, with regard to punitive damages and Saddy's argument that the jury did not have sufficient financial information to have rendered a judgment, the judge observed that counsel had cross-examined Saddy regarding gross receipts, number of customers, the amount of cover charges, and the like:
as to [Saddy's] claim that he does not own the liquor license of [the bar] . . . and that therefor [sic] he has no stake in the [bar] operation, the court notes that he owns the real estate upon which the business is located and is very much involved in the day-to-day operation and management of the business as a general manager. Thus, his suggestion that he does not reap any benefit from the income generated by the business appears disingenuous.
The judge concluded that, based on the facts elicited from Saddy on cross-examination, the jury had "a reasonable basis to determine a punitive damage award as they had some idea of Saddy's ability to pay."
Saddy now raises as points of error the following:
POINT I - THERE WAS NO EVIDENCE UPON WHICH THE JURY COULD HAVE BASED ITS AWARD OF PUNITIVE DAMAGES, AND THIS AWARD SHOULD BE VACATED.
POINT II - EVIDENCE OF OTHER LAWSUITS BROUGHT AGAINST THE [BAR] WAS IRRELEVANT AND PREJUDICIAL.
POINT III - THE REQUIRED ELEMENTS OF AN ABUSE OF PROCESS CLAIM COULD NOT BE ESTABLISHED, AND THIS COUNTERCLAIM SHOULD HAVE BEEN DISMISSED ON PLAINTIFF'S PRE-TRIAL MOTION FOR SUMMARY JUDGMENT.
POINT IV - MR. SADDY'S PRETRIAL MOTION FOR SUMMARY JUDGMENT DISMISSING MR. MORRIS' COUNTERCLAIM FOR MALICIOUS PROSECUTION SHOULD HAVE BEEN GRANTED. PROBABLE CAUSE FOR THE INITIATION OF THE MUNICIPAL COURT
ACTION EXISTED, AND MORRIS COULD NOT ESTABLISH LEGALLY COMPENSABLE DAMAGES FOR IT.
POINT V - THE VERDICT OF NO CAUSE OF ACTION ON MR. SADDY'S ASSAULT CLAIM WAS MANIFESTLY UNJUST AND AGAINST THE WEIGHT OF THE EVIDENCE.
On his cross-appeal, Morris asserts that the trial court erred in granting remittitur.
I.
We affirm the trial judge's ruling denying the motion for judgment notwithstanding the verdict or a new trial. No miscarriage of justice occurred. See Dolson v. Anastasia, 55 N.J. 2, 7 (1969).
In deciding whether a miscarriage of justice under the law has occurred, we do not substitute our own judgment for that of the jury. Rule 2:10-1; Long Branch v. Jui Yung Liu, 203 N.J. 464, 492 (2010) (quoting Dolson, supra, 55 N.J. at 6). Indeed, in making that determination, we defer to the trial court's "feel of the case." Ibid. (quoting Dolson, supra, 55 N.J. at 7).
We agree with the trial judge that no proofs were presented, other than Saddy's own testimony, which established Saddy's presence in the bar on the night of the fight. No witnesses were produced to corroborate his testimony, and the video did not show him there. He did not initially complain to his doctor about any injury while working in the bar and certainly did not specify the type of injury he later claimed. The night of the barroom brawl, he did not file a complaint against Morris with police or report that he had been punched.
The video was not provided for our review. We therefore defer to the court's discussion of it in which he says: "[t]he person who [Saddy] and others claimed to be [Morris] in the video aggressively engaging employees of the [bar] was clearly not [Morris], who at [the] time is shown on the ground surrounded and restrained by [bar] employees."
The evidence thus established that Morris did not strike Saddy. The jury verdict was not a miscarriage of justice under the law.
II.
We next address Saddy's contention that the jury lacked sufficient evidence to award punitive damages, and Morris's claim that the remittitur was improper because the jury award was not disproportionate and did not shock the conscience.
Saddy first asserts that pursuant to statute, the jury was required to conclude that his conduct was "actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions." N.J.S.A. 2A:15-5.12. From that point, Saddy argues that his lack of any history with Morris prior to the filing of the municipal court complaint or the civil action establishes lack of malice, only an interest in enforcing his own rights.
The trial judge, however, concluded that the jury had a reasonable basis for finding malice, the basis for the award, from the proofs developed at trial regardless of the fact the parties were strangers. The assault charge was not filed until approximately two months after the event, only after Saddy was notified that Morris's attorney had requested surveillance footage. Such a request would only be made in preparation for a lawsuit by a patron. Therefore there were ample proofs from which the jury could have determined that Saddy filed the municipal court complaint solely to gain some strategic leverage or advantage should a civil lawsuit follow.
The jury may well have decided from the proofs that Saddy had not established his presence at the bar. If they made that factual finding, it is further proof that his conduct was actuated either "by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed . . . ." Ibid. The only surveillance footage Saddy produced did not place him in the bar.
Additionally, as the judge noted, not only was there a complete absence of evidence that Saddy was in the vicinity of the fight, there was a complete lack of evidence that Morris attacked anyone that evening. The judge described the surveillance video as "clearly" depicting the person Saddy and others initially claimed was Morris to be someone else. Furthermore, the video showed that during the fight, Morris was on the ground, restrained by three bar employees.
Saddy did not file a complaint against Morris the night of the brawl. Saddy said nothing to his physician regarding any reinjury to his shoulder resulting from incidents at the bar until after he had notice of the pending lawsuit. Thus there were strong proofs establishing "actual malice or . . . a wanton and willful disregard of persons who foreseeably might be harmed by [his] acts or omissions." See ibid.
Saddy also contends that there was a complete lack of any proof of his economic circumstances establishing the necessary baseline for an award of punitive damages. The financial condition of the offender must be taken into account in order to provide for fair economic deterrence and punishment for misconduct. In this case, however, sufficient evidence was elicited.
It is well-established that the interest in deterring and punishing wrongdoers must be balanced against the possibility that he or she may be economically devastated by a punitive damage award. See Baker v. Nat'l State Bank, 353 N.J. Super. 145, 165 (App. Div. 2002). That is the rationale behind the principle that the punishment must be proportionate to the "means of the guilty person." Herman v. Sunshine Chem. Specialties, 133 N.J. 329, 339 (1993). The award is to be made "dependent on the conduct involved and even more importantly, the wealth of the defendant[,]" and must be fact-specific. Baker, supra, 353 N.J. Super. at 165.
In this case, Saddy testified that the bar had between 100,000 and 150,000 patrons per year and grossed between "a little over $1,000,000" to "$1.6 or $1.7 million." He owned the property on which the bar was located, and while claiming to only be the general manager, in municipal court testified that he owned the bar. During his trial testimony, he referred to it, along with two other bars in the town, as "my bars." He also testified that the bar sometimes collects a $10 cover charge. Furthermore, when asked regarding other settlements reached by the bar on claims by patrons of physical harm caused by bouncers and/or police, Saddy displayed extraordinarily detailed knowledge for a mere general manager.
Saddy owned the real estate, either owned or managed two other bar enterprises, and was at least employed by the business. It was not unreasonable for the jury to have concluded that he had the ability to pay the judgment.
We do not consider it material that Morris did not obtain Saddy's personal financial information or inquire as to Saddy's familiarity with the debts of the business. The jury heard enough regarding Saddy's financial circumstances to warrant the award they made.
We do not address Saddy's point that a bifurcated trial should have been required under the Punitive Damages Act, N.J.S.A. 2A:15-5.13. Saddy waived his right to bifurcated proceedings on the record before the trial began. Having waived that option, Saddy cannot now claim the judge erred by accepting his waiver. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (A party cannot consent to action engaged in by the trial court only to later take a different position on appeal, as considerations of fairness and the preservation of the integrity of the litigation under the invited error doctrine require otherwise).
Saddy also contends that the punitive damages award violated his substantive due process rights. On this point, we do not defer to the trial court's findings of fact and conclusions of law. Baker, supra, 353 N.J. Super. at 153.
In BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996), where the ratio was 500 to 1 between punitive damages and compensatory damages, the United States Supreme Court found that excessive punitive damages could violate substantive due process. Id. at 583-86, 116 S. Ct. at 1603-04, 134 L. Ed. 2d at 831-33. It is disingenuous of Saddy to urge us to find, because this case involved, if any, only one reprehensible act, that the award was excessive under that theory. The jury concluded that Saddy abused legal process by filing a false criminal complaint, and a civil complaint that had no basis whatsoever. Even assuming that only one instance of wrongdoing was committed, it does not lessen the wrongfulness of the conduct. In any event, that argument ignores the multiple steps that had to be taken to further the respective lawsuits.
In Saddy's brief, counsel outlines arguments intended to minimize the wrongfulness of Morris's conduct, including that Morris was not vulnerable financially because he recovered damages from the Seaside Heights Police Department. The argument lacks merit and requires no further comment. The punitive damages award did not violate Saddy's substantive due process rights.
Lastly, we address Morris's claim that by reducing the jury's award from $70,000 to $50,000, the judge erred because it was not disproportionate to the wrong committed or Saddy's financial circumstances, and did not shock the conscience. The standard of review on this issue is abuse of discretion. Safos v. Avaya, Inc., 419 N.J. Super. 244, 264 (App. Div. 2011). In light of the fact that the compensatory damages were only $10,000, a punitive damage award reduced to only five times the amount of compensatory damages does not seem to us to be an abuse of discretion.
III.
Saddy also argues that the trial court erred in denying summary judgment on Morris's counterclaim alleging abuse of process. Pursuant to Rule 4:46-2, summary judgment should be granted if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to judgment or order as a matter of law." A trial court does not weigh the evidence to determine its veracity, rather, it must determine only if there is a genuine issue as to a material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We employ the same standard, considering the evidence in the "light most favorable to the non-moving party" and determining whether the facts are sufficient to "permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid.
The elements of malicious abuse of process are "(1) an ulterior motive and (2) some further act after an issuance of process representing the perversion of the legitimate use of the process." Fleming v. United Parcel Serv., 255 N.J. Super. 108, 157 (Law Div. 1992) (quoting SBK Catalogue P'ship v. Orion Pictures, 723 F.Supp. 1053, 1067 (D.N.J. 1989)), aff'd, 273 N.J. Super. 526 (App. Div. 1994). Abuse of process requires a misapplication of process for a purpose other than which it was designed. Baglini v. Lauletta, 338 N.J. Super. 282, 293 (App. Div.), certif. denied, 169 N.J. 607 (2001). The tort of abuse of process is distinguishable from malicious use of process:
An action for malicious abuse of process is distinguished from an action for malicious use of process in that the action for abuse of process lies for the improper, unwarranted and perverted use of process after it has been issued while that for the malicious use of it lies for causing process to issue maliciously and without reasonable or probable cause. Thus it is said, in substance, that the distinction between malicious use and malicious abuse of process is that the malicious use is the employment of process for its ostensible purpose, although without reasonable or probable cause, whereas the malicious abuse is the employment of a process in a manner not contemplated by law.To sustain an action for malicious abuse of process, a litigant must show "some unlawful act by defendants after process issued." Fleming, supra, 255 N.J. Super. at 159.
[Id. at 294 (quoting Ash v. Cohn, 119 N.J.L. 54, 58 (E.& A. 1937)) (emphasis added).]
Saddy cites Wozniak v. Pennella, 373 N.J. Super. 445 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005), in support of his argument that the filing of a criminal complaint cannot constitute abuse of process. However, the case stands for the opposite theory than the one he advances. In Wozniak, tenants sought relief from the Clifton Rent Leveling Board alleging illegal increases in their rent. Id. at 452. In retaliation, the defendant landlord filed a criminal complaint against the tenants for false swearing. Id. at 453. We found that the defendant's attempt to leverage the criminal complaint to compel the plaintiffs to withdraw their civil complaint was abuse of process. Id. at 461-62. It occurred when the defendant filed the criminal complaint, triggering the inevitable "chain of events" that results from such a filing. Ibid.
In this case, the complaint was for a disorderly persons offense, however, many of the same consequences cited in Wozniak flowed to Morris. See id. at 642. He was no doubt processed, fingerprinted, had bail set, and now has an arrest record.
Given that Saddy filed the complaint only after being informed that Morris was considering a civil lawsuit, it is logical to conclude Saddy's complaint was filed to gain strategic advantage in some fashion. A guilty verdict in municipal court, whether the product of a plea or a trial, would have effectively nullified any possible civil case. Or perhaps the assault charge was filed to intimidate or strike back. Particularly when drawing all inferences in Morris's favor, the chronology raised a genuine issue of material fact that make the trial judge's denial of summary judgment as to malicious abuse of process entirely correct.
Nor do we consider the judge's denial of summary judgment on the counterclaim for malicious prosecution to have been error. For a malicious prosecution claim arising out of a criminal complaint a plaintiff must prove that: (1) the criminal action was instituted by the defendant against the plaintiff; (2) it was motivated by actual malice; (3) it was not supported by probable cause; and (4) the criminal action was resolved in favor of the plaintiff. Lind v. Schmid, 67 N.J. 255, 262 (1975).
Drawing all inferences in Morris's favor, Saddy could not demonstrate probable cause. The disorderly persons complaint, as we have said, was filed only after receiving notice that Morris's attorney was requesting the bar surveillance tape. Up until that point in time, Saddy had given no indication that he was even present at the scene of the bar brawl. The court properly denied the motion for summary judgment.
IV.
The final point we will address is Saddy's claim that the court erred in allowing testimony regarding past settlements. The judge initially was inclined to sustain Saddy's counsel's objection. But then the attorney made a strategic decision to withdraw the objection. Not only did Saddy's attorney withdraw the objection, she actually returned to the subject on re-direct, and introduced exhibits with regard to them not previously in Morris's possession. The past settlements fit into Saddy's theory of the case, as the amounts the bar paid were minor as compared with sums paid by the police department. The theory proved unsuccessful, however, that it failed to succeed is not a basis to avoid the doctrine of invited error.
The invited error doctrine is intended to prevent manipulation of the judicial system. The Court in M.C. III made abundantly clear that a litigant cannot, if disappointed with the outcome of litigation, claim that action he encouraged the court to take was error. Supra, 201 N.J. at 340. Because she withdrew the objection to the testimony, and told the court that she would welcome exploration of the topic with Saddy, counsel invited the decision the judge made about which she now complains.
In other words, because the attorney withdrew her objection to the material, knowing the judge was about to sustain the objection, and then developed over the course of her own re-direct much more information regarding settlements, counsel invited the alleged "error." The doctrine is applicable "in a wide variety of situations," and this is one such instance. Ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION