Larry Nikola v. Altice USA, Inc.

• Court: New Jersey Superior Court Appellate Division
• Decided: July 24, 2025
• Docket: A-1164-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1164-22

LARRY NIKOLA and MEMORIAL PROPERTIES, LLC,

Plaintiffs-Appellants/ Cross-Respondents,

v.

ALTICE USA, INC., ALTICE USA NEWS, INC., a division of ALTICE USA, INC., d/b/a NJ NEWS 12, NJ NEWS 12, WALTER KANE, individually and as an employee of ALTICE USA, INC., HOLMDEL CEMETERY COMPANY, and JEFFREY ACKERSON,

Defendants-Respondents,

and

FAY GIANARIS,

Defendant,

and ROBERT BOYCE,

Defendant/Third-Party Plaintiff-Respondent/ Cross-Appellant,

MICHAEL BERARDI,

Third-Party Defendant,

HOLMDEL CEMETERY COMPANY and JEFFREY ACKERSON,

Third-Party Defendants- Cross-Respondents. _____________________________

Argued April 9, 2024 – Decided July 24, 2025

Before Judges Gooden Brown and Bergman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3119-19.

Fruqan Mouzon argued the cause for appellants/cross- respondents (Fox Rothschild, LLP, attorneys; Fruqan Mouzon and Daniel Cohen, of counsel and on the briefs).

Louis E. Granata argued the cause for respondent/cross- appellant Robert Boyce.

A-1164-22 2 Joseph Ross argued the cause for respondents/cross- respondents Holmdel Cemetery and Jeffrey Ackerson (Goldberg Segalla LLP, attorneys; John W. Meyer and Seth L. Laver, of counsel and on the brief).

Katherine M. Bolger (Davis Wright Tremaine LLP) of the New York bar, admitted pro hac vice, argued the cause for respondents Altice USA Inc., Altice USA News, Inc., d/b/a NJ News 12, NJ News 12, and Walter Kane (Robinson Miller LLC, attorneys; Katherine M. Bolger and Keith J. Miller, on the brief).

The opinion of the court was delivered by

GOODEN BROWN, P.J.A.D.

This appeal and cross-appeal follow lengthy motion practice in the Law

Division that ultimately resulted in the dismissal of all claims. Plaintiffs

Memorial Properties, LLC (Memorial Properties or Memorial), a cemetery

management company, and Larry Nikola, its manager, alleged that numerous

defendants attempted to defame them. Defendants include Holmdel Cemetery

Company (Holmdel, Holmdel Cemetery, or the Cemetery); Jeffrey Ackerson, its

president; Robert Boyce, a former maintenance supervisor and cross-appellant

in this action; NJ News 12; and Walter Kane, a reporter. An episode of Kane's

program entitled "Kane in Your Corner" featured a segment alleging that

plaintiffs and Holmdel engaged in "double-selling" interment spaces,

A-1164-22 3 unbeknownst to the purchasers. Boyce appeared in the segment and claimed

that numerous families had complained of this practice over the years.

As a result, plaintiffs filed a three-count complaint against defendants

Altice USA News, Inc., a division of Altice USA, Inc., doing business as NJ

News 12; Kane; and Boyce. In response, Boyce filed a third-party complaint

against Holmdel and Ackerson for indemnification and contribution. Plaintiffs

then amended their complaint to add Holmdel and Ackerson as direct

defendants. Plaintiffs alleged defamation per se and tortious interference with

economic interest against all parties, in addition to civil conspiracy, trespass,

and conversion of property against Boyce, as well as breach of contract and civil

conspiracy to commit fraud against Holmdel and Ackerson.

Ultimately, all of plaintiffs' and Boyce's claims were dismissed by way of

motions to dismiss or summary judgment. Plaintiffs filed two motions for

reconsideration that were both denied. On appeal, plaintiffs now challenge the

denial of their reconsideration motions, as well as the underlying summary

judgment dismissal of their claims. Boyce cross-appeals the denial of his motion

for frivolous litigation sanctions against plaintiffs and the dismissal of his

indemnification claim against Holmdel and Ackerson. For the reasons that

follow, we affirm.

A-1164-22 4 I.

We glean these facts from the motion record. Plaintiff Memorial

Properties is a cemetery management company that contracts with New Jersey

cemeteries, like Holmdel, to sell interment spaces, including graves, crypts, and

mausoleums. Plaintiff Larry Nikola is a manager at Memorial Properties.

Memorial Properties had a contract with defendant Holmdel Cemetery, whereby

plaintiffs acted as agents to sell Holmdel's interment spaces, while Holmdel

maintained the cemetery records and maps necessary to determine the

availability of interment spaces prior to sale. Defendant and cross-appellant

Robert Boyce worked for Holmdel as a maintenance supervisor from September

2005 until August 2018.

Defendant Altice USA News, Inc. (Altice News), is a division of

defendant Altice USA, Inc., a cable operator that offers cable television,

internet, and telephone services, and is doing business in this State as NJ News

12. Defendant Walter Kane is a reporter on NJ News 12's television channel

and has hosted "Kane in Your Corner," an investigative reporting series, for the

past seventeen years. Altice News and Kane will be collectively referred to as

the media defendants.

A-1164-22 5 In March 2019, as part of the "Kane in Your Corner" series, NJ News 12

aired an investigative report on consumer complaints that included interviews

of multiple individuals and an accompanying written article. The complaints

alleged that Holmdel and Memorial had "double-sold" gravesite locations to

multiple individuals without their knowledge, and that some purchasers only

found out years later after their loved one had died. As part of the segment,

Kane interviewed a patron, Fay Gianaris. 1

According to Gianaris, she "purchased a final resting place for her parents

in 2012, and ha[d] the contract to prove it" but, upon her father's death in 2018,

"was infuriated to find someone else buried" at his grave. Gianaris told the

media defendants that the cemetery had dug a new grave in another location on

a steep hill that she feared her elderly mother could not climb. According to the

report, when Gianaris complained, "the cemetery's sales agent produced a

version of the contract that was altered" and included "a handwritten note[] that

read 'authorized by daughter, Fay.'" However, during her interview, Gianaris

reportedly insisted that plaintiffs "never spoke to" or "contacted" her, and

"[t]hey never sent [her] a new contract." The "Kane in Your Corner" report also

1 Gianaris was a named defendant in the lawsuit but was dismissed from the case by motion.

A-1164-22 6 claimed that the media defendants "found at least six cases of families

complaining that they did not get [the] locations they paid for."

At the time of the "Kane in Your Corner" report, Boyce no longer worked

for Holmdel. However, during his interview for the segment, he reportedly

commented about the alleged double selling, stating, "There's probably about

[fifteen] or [twenty instances] over there that I know of." In fact, Boyce had

previously voiced his concerns about the Cemetery's activities. In 2015, he had

filed a complaint with the New Jersey Cemetery Board (Board), but the Board

did not take action. Instead, in response to Boyce's complaint, the Board had

cited "old maps" as the cause of the problem and found that all related issues

had been rectified and would not reoccur. Nonetheless, according to the media

defendants' report, several families, including Gianaris's, reported issues after

Boyce's 2015 Board complaint.

The media defendants' report also stated that Holmdel's administrator,

Fran Chludzinski, had submitted a resignation letter in which she wrote that she

and Boyce "'were uncovering years of hidden problems,' which she blamed on

Memorial Properties." However, Chludzinski never resigned from her position

and reportedly told Kane in an interview that "she no longer believe[d] what she

wrote."

A-1164-22 7 Nikola also provided a written statement to the media defendants that was

referenced in the report. According to Nikola, "Memorial Properties did not and

does not maintain the Cemetery's maps or grave sale records nor does it locate

graves for interments. Those duties are borne by the Cemetery Administration."

The media defendants' report concluded by stating that "the New Jersey

[A]ttorney [G]eneral is now giving Holmdel Cemetery and Memorial Properties

a second look. 'The cemetery board has received additional complaints against

Holmdel Cemetery, [and] the matter is under review,' [said] spokesperson Lisa

Coryell." The report ended by calling the statement "out of character since the

Attorney General's Office rarely confirms or denies investigations."

On September 3, 2019, plaintiffs filed a three-count complaint against the

media defendants and Boyce. The complaint alleged defamation per se and

tortious interference with economic interests against all defendants, and civil

conspiracy, trespass, and conversion of property against Boyce. The complaint

alleged that in addition to speaking to the press and filing a claim with the Board,

Boyce had threatened Michael Berardi, 2 a Memorial employee, in his office;

made false accusations of wrongdoing to "persuade local funeral directors, vault

2 Berardi was a third-party defendant in Boyce's third-party complaint but is not a party in this appeal. A-1164-22 8 dealers, clergy and contractors to steer prospective purchasers and service

providers away from Holmdel"; and had "trespassed" into Memorial's office,

"where he retrieved and made [photocopies] of genuine [c]emetery records" to

"alter[] the copies" and "fabricate documents" to support his false accusations.

According to the complaint, Boyce's disparagement campaign was motivated by

"his envy over the success of Memorial Properties and its employees in

conducting [the] Cemetery's sales," and his desire to "do that job as well as

maintaining the grounds." The complaint asserted that the campaign resulted in

a steady decline in cemetery space sales "starting in 2010."

On October 15, 2019, Boyce filed an answer denying plaintiffs' claims and

asserting an affirmative defense of frivolous litigation. He also filed a third-

party complaint against Holmdel and Ackerson seeking indemnification and

contribution.

On October 28, 2019, the media defendants filed a motion to dismiss for

failure to state a claim on the ground that plaintiffs failed to plead actual malice.

On January 10, 2020, Judge Mara Zazzali-Hogan entered an order dismissing

plaintiffs' claims against the media defendants without prejudice. In an oral

decision, the judge agreed that plaintiffs failed to plead that "defendants acted

with actual malice in publishing the statements at issue in the report." The judge

A-1164-22 9 also found that plaintiffs' tortious interference claim "based on the same speech

underlying the defamation claim" also failed "for the independent reason" that

plaintiffs failed to allege that "defendant[s'] publication of the report maliciously

interfered with plaintiff[s'] economic interests" or that plaintiffs suffered

damages since the sales decline started in 2010, but the report did not air until

2019.

On September 11, 2020, the judge granted plaintiffs' motion to amend the

complaint. The amended complaint included the original three counts and added

Holmdel and Ackerson as defendants in two new counts. The new counts

alleged breach of contract, civil conspiracy to commit fraud, defamation, and

tortious interference with economic interest, as well as a claim for punitive

damages against all defendants.

On May 14, 2021, Judge Zazzali-Hogan entered an order granting

Holmdel's and Ackerson's motions to dismiss plaintiffs' claims for breach of

contract and punitive damages, but denied without prejudice the motion to

dismiss plaintiffs' claims for tortious interference, defamation, and civil

conspiracy. In a supporting written opinion, the judge determined plaintiffs

failed to allege a breach of the sales management agreement between Holmdel

and Memorial's predecessor company to support a breach of contract claim, and

A-1164-22 10 failed to "sufficiently plead facts to claim punitive damages." On October 22,

2021, plaintiffs' motion for reconsideration was denied.

On October 29, 2021, Judge Owen C. McCarthy entered an order and oral

opinion granting Holmdel's and Ackerson's motions for summary judgment on

plaintiffs' remaining claims of tortious interference, defamation, and civil

conspiracy, as well as Boyce's claim for contribution. The judge denied

summary judgment on Boyce's indemnification claim, stating it was "premature

until the scope and basis for [the] liability of Boyce is proper[ly] addressed by

a fact finder." On December 7, 2021, the judge denied plaintiffs' motion to file

a second amended complaint.

On January 31, 2022, in an oral decision, Judge McCarthy reaffirmed the

summary judgment dismissal of the tortious interference, defamation, and civil

conspiracy claims against Holmdel and Ackerson, but found that "the breach of

the implied covenant of good faith and fair dealing" identified in the dismissed

breach of contract claim 3 in the amended complaint "remain[ed] an active

claim." The judge explained that the "cause of action for the breach of the

implied covenant of good faith is a separate and distinct legal theory from the

3 The judge noted that although Judge Zazzali-Hogan had dismissed the breach of contract claim "without prejudice," plaintiffs had since "abandoned" the claim. A-1164-22 11 breach of contract, which was not addressed on the merits during either of the

prior dispositive motions by Holmdel Cemetery and Ackerson."

In the same January 31, 2022 oral decision, Judge McCarthy addressed

Boyce's previously filed motion for summary judgment. The judge granted the

motion as to all counts except defamation. In support, the judge found no legal

authority or evidentiary basis to sustain plaintiffs' claims for trespass,

conversion, or tortious interference against Boyce. Further, because summary

judgment was previously granted to Ackerson and Holmdel Cemetery, the judge

found no basis for a civil conspiracy claim in the absence of a "co-conspirator."

Although the oral decision was placed on the record on January 31, 2022, a

memorializing order was entered on January 21, 2022.

Subsequently, Holmdel and Ackerson moved for summary judgment on

plaintiffs' last claim remaining against them, the breach of the implied covenant

of good faith and fair dealing. In an April 8, 2022 order, Judge McCarthy

granted the motion. In an accompanying oral decision, the judge explained:

The [c]ourt finds that . . . plaintiff[s have] been unable to demonstrate a prima facie case of a breach of the implied covenant of good faith and fair dealing. As noted throughout the record today, and during prior hearings, . . . plaintiff[s] remain[] in contract with . . . [Holmdel].

A-1164-22 12 That sales agreement has never been violated. While there[ have] been multiple attempts to talk about defamation and other claims that may exist against . . . Boyce, I do not think the purpose of the implied covenant of good faith is a catch-all, almost kitchen sink approach to encompass all claims . . . .

The judge also pointed out that plaintiffs "admitted today, and [during] other

prior arguments, that there are no economic loss[es]" and plaintiffs "cannot

quantify with any specificity or the required certainty[] what sales have been

lost . . . as a result of the breach of the implied covenant of good faith and fair

dealing."

Plaintiffs moved for partial reconsideration of the January 10, 2020 order,

dismissing the media defendants, and reconsideration of the April 8, 2022 order,

dismissing plaintiffs' breach of the implied covenant of good faith and fair

dealing claim against Holmdel and Ackerson. Boyce cross-moved for partial

reconsideration of the January 21, 2022 order, denying dismissal of the last

remaining claim against him, the defamation claim. Judge Zazzali-Hogan

handled the motion for reconsideration of the January 10, 2020 order and Judge

McCarthy handled the remaining motions. In separate oral opinions placed on

the record on October 7, 2022, each judge denied plaintiffs' respective motions

for reconsideration. Judge McCarthy further denied plaintiffs' motion to amend

the complaint to include a claim for false light, finding that the false light claim

A-1164-22 13 essentially mirrored the defamation claim, which two judges had already

dismissed by way of motions.

As to Boyce, Judge McCarthy granted his motion for partial

reconsideration and dismissed with prejudice the remaining defamation claim.

Because the judge dismissed the last claim against Boyce and Boyce's claim for

indemnification against Holmdel and Ackerson was a third-party claim, the

judge dismissed as "moot" Holmdel's and Ackerson's "motion on short notice"

with respect to Boyce's indemnification claim.

Boyce moved for sanctions against plaintiffs pursuant to Rule 1:4-8 and

N.J.S.A. 2A:15-59, which Judge McCarthy denied in an order and oral decision

on November 3, 2022. Viewing the case "in light of the very restrictive lens

through which courts must view requests for [sanctions] under the frivolous

litigation rule and statute," the judge found that there could have been "a

reasonable good-faith belief in the merit of the cause of action." During the

same hearing, Judge McCarthy clarified that Holmdel's and Ackerson's motion

with respect to Boyce's indemnification claim, which had briefly been discussed

during the October 7, 2022 hearing, was "mark[ed] . . . as moot" based upon "the

prior . . . dismissal of all claims."

A-1164-22 14 Plaintiffs appealed, and Boyce cross-appealed. On appeal, plaintiffs raise

the following points for our consideration:

POINT I. [THE] TRIAL COURT COMMITTED REVERSIBLE ERROR BY APPLYING [THE] "ACTUAL MALICE" STANDARD

A. Media Defendants Made False and Defamatory Statements

B. Media Defendants Published the False Statements

C. The Trial Court Erroneously Required [Plaintiffs] to Prove "Actual Malice"

POINT II. SUMMARY DISMISSAL OF THE MEDIA DEFENDANTS REMAIN[S] INAPPROPRIATE EVEN IF APPLYING THE "ACTUAL MALICE" STANDARD

A. Certain Defamatory Statements Were Made with Knowledge of Falsity

B. Defamatory Statements Were Made with a Reckless Disregard of the Truth

C. Media Defendants' Purposeful Avoidance of the Truth

POINT III. [THE] TRIAL COURT ERRONEOUSLY DISMISSED [PLAINTIFFS'] CLAIM FOR BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING

A. [Plaintiffs] Sufficiently Allege[d] Damages

POINT IV. BOYCE SHOULD NOT HAVE BEEN DISMISSED FROM THE CASE ON SUMMARY JUDGMENT

Boyce raises the following points for our consideration on cross-appeal:

A-1164-22 15 POINT [I]. [PLAINTIFFS] FILED FRIVOLOUS CLAIMS AGAINST [BOYCE] AND SHOULD HAVE BEEN SANCTIONED FOR FAILING TO PROVIDE ANY SUFFICIENT EVIDENTIARY SUPPORT FOR ANY CLAIMS AFTER HAVING THE OPPORTUNITY FOR FURTHER INVESTIGATION, PURSUANT TO [RULE] 1:4-8(a)(3)

POINT [II]. [BOYCE'S] THIRD[-]PARTY COMPLAINT AGAINST THIRD[-]PARTY DEFENDANT[S], HOLMDEL CEMETERY AND JEFFREY ACKERSON[,] SHOULD BE REINSTATED AND RETURNED TO THE TRIAL COURT FOR DISPOSITION

II.

Our analysis begins with some established principles regarding our

standard of review. We review a Rule 4:6-2(e) motion to dismiss for "failure to

state a claim upon which relief can be granted" de novo, and we "owe[] no

deference to the trial court's legal conclusions." Dimitrakopoulos v. Borrus,

Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019). "The

standard traditionally utilized by courts to determine whether to dismiss a

pleading . . . is a generous one." Green v. Morgan Props., 215 N.J. 431, 451

(2013). Accordingly, "[a] plaintiff is entitled to a liberal interpretation and given

the benefit of all favorable inferences that reasonably may be drawn." State,

Dep't of Treasury ex rel. McCormac v. Qwest Commc'ns Int'l, Inc., 387 N.J.

Super. 469, 478 (App. Div. 2006). As a result, motions to dismiss "should be

granted in only the rarest of instances." Printing Mart-Morristown v. Sharp

A-1164-22 16 Elecs. Corp., 116 N.J. 739, 772 (1989); see also Smith v. SBC Commc'ns Inc.,

178 N.J. 265, 282 (2004) ("The motion to dismiss should be granted only in rare

instances and ordinarily without prejudice. As such, '[i]f a generous reading of

the allegations merely suggests a cause of action, the complaint will withstand

the motion.'" (alteration in original) (quoting F.G. v. MacDonell, 150 N.J. 550,

556 (1997))).

In evaluating a Rule 4:6-2(e) motion, "our inquiry is limited to examining

the legal sufficiency of the facts alleged on the face of the complaint." Green,

215 N.J. at 451 (quoting Printing Mart, 116 N.J. at 746). "At this preliminary

stage of the litigation the [c]ourt is not concerned with the ability of plaintiffs

to prove the allegation contained in the complaint." Printing Mart, 116 N.J. at

746. Rather, "the test for determining the adequacy of a pleading[ is] whether a

cause of action is 'suggested' by the facts." Ibid. (quoting Velantzas v. Colgate-

Palmolive Co., 109 N.J. 189, 192 (1988)). To that end, courts must "search[]

the complaint in depth and with liberality to ascertain whether the fundament of

a cause of action may be gleaned even from an obscure statement of claim" and

grant the "opportunity . . . to amend if necessary." Ibid. (quoting Di Cristofaro

v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).

Notwithstanding this liberality, "the essential facts supporting [the] cause of

A-1164-22 17 action must be presented in order for the claim to survive," and "conclusory

allegations are insufficient in that regard." Scheidt v. DRS Techs., Inc., 424 N.J.

Super. 188, 193 (App. Div. 2012) (citing Printing Mart, 116 N.J. at 768).

On the other hand, we review a trial court's decision on a motion for

reconsideration under an abuse of discretion standard. Pitney Bowes Bank, Inc.

v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). "An

abuse of discretion 'arises when a decision is "made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis."'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J.

561, 571 (2002)).

A reconsideration motion under Rule 4:49-2 "requires a showing that the

challenged order was the result of a 'palpably incorrect or irrational' analysis or

of the judge's failure to 'consider' or 'appreciate' competent and probative

evidence." Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021)

(quoting Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)).

"Where the order sought to be reconsidered is interlocutory, . . . Rule 4:42-2

governs the motion." JPC Merger Sub LLC v. Tricon Enters., Inc., 474 N.J.

Super. 145, 160 (App. Div. 2022). "Reconsideration under this rule offers a 'far

A-1164-22 18 more liberal approach' than Rule 4:49-2, governing reconsideration of a final

order." Ibid. (quoting Lawson, 468 N.J. Super. at 134).

Indeed, "Rule 4:42-2 declares that interlocutory orders 'shall be subject to

revision at any time before the entry of final judgment in the sound discretion

of the court in the interest of justice.'" Lawson, 468 N.J. Super. at 134 (quoting

R. 4:42-2(b)); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on

R. 4:42-2 (2025) ("[A]n order adjudicating less than all the claims is subject to

revision in the interests of justice at any time before entry of final judgment.").

For summary judgment motions, "we review the trial court's grant of

summary judgment de novo under the same standard as the trial court." Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,

199 (2016). That standard is well-settled.

[I]f the evidence of record—the pleadings, depositions, answers to interrogatories, and affidavits—"together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact," then the trial court must deny the motion. R. 4:46-2(c); see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On the other hand, when no genuine issue of material fact is at issue and the moving party is entitled to a judgment as a matter of law, summary judgment must be granted. R. 4:46-2(c); see Brill, 142 N.J. at 540.

[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 (2016) (citation reformatted).]

A-1164-22 19 Where there is no material fact in dispute, "we must then 'decide whether

the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007),

overruled on other grounds by Wilson ex rel. Manzano v. City of Jersey City,

209 N.J. 558 (2012)). "We review issues of law de novo and accord no deference

to the trial judge's [legal] conclusions . . . ." MTK Food Servs., Inc. v. Sirius

Am. Ins. Co., 455 N.J. Super. 307, 312 (App. Div. 2018).

III.

Turning to the substantive principles pertinent to this appeal, the crux of

plaintiffs' arguments in Point I challenges the standard applied to the defamation

claim against the media defendants. Plaintiffs contend that the judge erred in

applying the actual malice standard and requiring plaintiffs to prove actual

malice. Alternatively, plaintiffs posit that even if the actual malice standard

applies, the judge still erred in dismissing the defamation claim against the

media defendants. The media defendants respond that the judge correctly

applied the actual malice standard because the "Kane in Your Corner" report

involved matters of legitimate public interest. Critically, during the October 7,

2022 reconsideration hearing before Judge Zazzali-Hogan, plaintiffs conceded

A-1164-22 20 that the actual malice standard applied, stating that the report involved "a matter

of public concern."

"Defamation imposes liability for publication of false statements that

injure the reputation of another." Printing Mart, 116 N.J. at 765. "The elements

of a defamation claim in New Jersey are (1) 'the assertion of a false and

defamatory statement concerning another; (2) the unprivileged publication of

that statement to a third party; and (3) fault amounting at least to negligence by

the publisher.'" Hyman v. Rosenbaum Yeshiva of N. Jersey, 258 N.J. 208, 236

(2024) (Patterson, J., concurring) (quoting Leang v. Jersey City Bd. of Educ.,

198 N.J. 557, 585 (2009)).

In defamation cases, an "actual-malice standard for liability purposes"

applies "when the alleged defamatory statement concerns a public figure or a

public official or involves a matter of public concern." W.J.A. v. D.A., 210 N.J.

229, 244 (2012) (quoting Senna v. Florimont, 196 N.J. 469, 496 (2008)). "The

actual-malice standard tolerates more falsehood and harm to reputation than the

negligence standard in order to shield highly valued speech from ruinous

lawsuits." Senna, 196 N.J. at 474. "When published by a media or media-related

defendant, a news story concerning public health and safety, a highly regulated

industry, or allegations of criminal or consumer fraud or a substantial regulatory

A-1164-22 21 violation will, by definition, involve a matter of public interest or concern."

W.J.A., 210 N.J. at 244 (quoting Senna, 196 N.J. at 496-97).

We are satisfied that the judge correctly applied the actual malice standard

in this case. Plaintiffs' defamation claims involved consumer fraud and are

therefore a matter of public interest and concern. "[C]onsumer fraud involves a

pattern of repetitive conduct . . . ." Turf Lawnmower Repair v. Bergen Record

Corp., 139 N.J. 392, 416 (1995). "[T]he business practice in question must be

'misleading' and stand outside the norm of reasonable business practice in that

it will victimize the average consumer, and thus most clearly and directly

involve a matter of legitimate public concern." Ibid.

The "Kane in Your Corner" report featured such egregious business

practices. The report alleged that plaintiffs were "double-selling" grave plots to

multiple individuals without their knowledge, with families belatedly

discovering that someone else was buried in the plot they had purchased. These

allegations undoubtedly constitute repetitive conduct standing outside the norms

of reasonable business practices. See ibid. As such, the defamation claims are

a matter of public concern, and the actual malice standard applies. W.J.A., 210

N.J. at 244.

A-1164-22 22 To survive a motion to dismiss, plaintiffs must allege sufficient facts in

the pleadings, which, if proven, would constitute a valid cause of action. Leon

v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001). While a motion

to dismiss must be evaluated "in the light most favorable to plaintiff[s],"

Nostrame v. Santiago, 213 N.J. 109, 113 (2013), mere conclusions and an

intention to rely on discovery are inadequate, Glass v. Suburban Restoration Co.,

317 N.J. Super. 574, 582 (App. Div. 1998).

"To satisfy the actual-malice standard, a plaintiff must show by clear and

convincing evidence that the publisher either knew that the statement was false

or published with reckless disregard for the truth." Neuwirth v. State, 476 N.J.

Super. 377, 391 (App. Div. 2023) (quoting Lynch v. N.J. Educ. Ass'n, 161 N.J.

152, 165 (1999)). "In order to demonstrate the reckless disregard element, [a]

plaintiff must show that the statements were published with a 'high degree of

awareness of their probable falsity,' or with 'serious doubts as to the truth of

[the] publication.'" DeAngelis v. Hill, 180 N.J. 1, 13 (2004) (second alteration

in original) (citation omitted) (first quoting Garrison v. Louisiana, 379 U.S. 64,

74 (1964); and then quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)).

"Provided that a reporter or editor does not publish a false and defamatory

statement with actual malice[,] . . . the erroneous statement contained in an

A-1164-22 23 article touching on a matter of public interest is not actionable." Durando v.

Nutley Sun, 209 N.J. 235, 239 (2012).

Here, plaintiffs cannot satisfy the actual malice standard. Plaintiffs failed

to plead any facts indicating that the media defendants published the report "with

knowledge of its falsity or with reckless disregard for the truth," Verna v. Links

at Valleybrook Neighborhood Ass'n, Inc., 371 N.J. Super. 77, 95 (App. Div.

2004), or that the media defendants had any subjective awareness or belief that

the report was false, see Neuwirth, 476 N.J. Super. at 392 (collecting cases).

Instead, plaintiffs' complaint is comprised solely of conclusory allegations that

cannot withstand a motion to dismiss.

Plaintiffs also argue that the media defendants "purposeful[ly] avoided"

reviewing Holmdel's records to verify the authenticity of grave sale contracts

and dispel any allegation of double-selling. According to plaintiffs' complaint,

the media defendants' failure to have plaintiffs verify documents resulted in

them presenting "false claims and misleading documents to the public." We are

unpersuaded. "Mere failure to investigate all sources does not prove actual

malice." Lynch, 161 N.J. at 172. Thus, we conclude that the judge properly

dismissed the claims against the media defendants.

A-1164-22 24 We are also convinced that the judge did not abuse her discretion in

denying plaintiffs' motion for reconsideration. In denying the motion, the judge

reiterated that a "bare conclusory assertion that the [media] defendants knew

and/or reasonably should have known that a statement was false or that any

essential facts that the [c]ourt may find lacking can be dredged in discovery is

insufficient to survive a motion to dismiss." Critically, plaintiffs' "counsel

conceded that there is nothing in the pleadings that specifically states or pleads

any facts that go to the issue of actual malice." The judge also commented on

several facts that undermined plaintiffs' argument that the media defendants

recklessly disregarded the truth, including Boyce's complaint to the Board and

Gianaris's sales contract.

Additionally, we reject plaintiffs' contention that the media defendants

"intentionally took steps to avoid or outright . . . refuse to conduct an

investigation that could[ have] uncovered contradictory information." As the

judge found, the media defendants conducted several interviews; reviewed

Boyce's Board complaint, the Board's response, and Gianaris's sales contract;

and contacted plaintiffs for comment about the allegations. We are satisfied

A-1164-22 25 there is adequate factual support in the record and good cause to support the

judge's ruling denying reconsideration.4

In Point III, plaintiffs argue that the judge erroneously dismissed their

claim for breach of the implied covenant of good faith and fair dealing against

Holmdel and Ackerson. They assert that Holmdel's actions "correlated with a

substantial decline in sales beginning in 2010" and "a myriad of losses that

include both lost sales and damage to business reputation." (Emphasis omitted).

Holmdel and Ackerson counter that plaintiffs failed to provide any proof of

damages.

"The covenant of good faith and fair dealing calls for parties to a contract

to refrain from doing 'anything which will have the effect of destroying or

injuring the right of the other party to receive' the benefits of the contract."

Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J.

210, 224-25 (2005) (quoting Palisades Props., Inc. v. Brunetti, 44 N.J. 117, 130

(1965)). "[I]t is critical to note that, '[i]n the first instance, the implied covenant

of good faith and fair dealing is precisely what its name allows: it is an implied

4 Although the judge cited Rule 4:49-2, governing motions to reconsider final orders, instead of Rule 4:42-2, governing reconsideration of interlocutory orders, the judge nonetheless correctly denied plaintiffs' motion for reconsideration. A-1164-22 26 covenant.'" Wood v. N.J. Mfrs. Ins. Co., 206 N.J. 562, 577 (2011) (alteration in

original) (quoting Kalogeras v. 239 Broad Ave., L.L.C., 202 N.J. 349, 366

(2010)). As such, "a party can violate the implied covenant of good faith and

fair dealing without violating an express term of a contract." Sons of Thunder,

Inc. v. Borden, Inc., 148 N.J. 396, 422-23 (1997).

Here, plaintiffs failed to identify any actions Holmdel allegedly took to

support its breach of the implied covenant claim. They assert that Holmdel

engaged in "undermining" tactics in an attempt to terminate the sales contract

so that Holmdel could "either take over sales on its own and collect the

commissions or recruit a replacement sales agent on much better terms."

However, despite extensive discovery and motion practice, plaintiffs fail to

provide any evidence of Holmdel's bad motives. "Without bad motive or

intention, discretionary decisions that happen to result in economic disadvantage

to the other party are of no legal significance." Wilson v. Amerada Hess Corp.,

168 N.J. 236, 251 (2001). "Bad motive or intention is

essential, . . . as . . . '[c]ontract law does not require parties to behave

altruistically toward each other; it does not proceed on the philosophy that I am

my brother's keeper.'" Id. at 251-52 (alteration in original) (quoting Original

A-1164-22 27 Great Am. Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970 F.2d

273, 280 (7th Cir. 1992)).

As such, plaintiffs were required to prove that Holmdel and Ackerson

acted with bad faith and deprived plaintiffs of rights or benefits under the

contract. Stated differently, plaintiffs were required to prove that Holmdel and

Ackerson "destroyed [plaintiffs'] reasonable expectations and right to receive

the fruits of the contract." Sons of Thunder, 148 N.J. at 425. Plaintiffs have

failed to meet this burden. In fact, as the judge found, plaintiffs remain under

contract with Holmdel and have admitted there are no economic losses. The

parties' sales agreement has never been violated, nor have plaintiffs shown that

they suffered a deprivation of any contractual benefit. Because plaintiffs failed

to put forth any facts supporting a breach of the implied covenant of good faith

and fair dealing, the judge properly dismissed the claim.

Turning to the denial of plaintiffs' motion for reconsideration, the judge

found plaintiffs failed to demonstrate a mistake by the court, a change in

circumstances, or the court's misappreciation of what was previously argued.

As a result, the judge found no reason to vacate the April 8, 2022 order because

plaintiffs failed to articulate damages for any of their alleged causes of action

and proffered no evidence to support financial harm to plaintiffs. We agree that

A-1164-22 28 the judge correctly denied plaintiffs' motion to reconsider the dismissal of the

claims against Holmdel and Ackerson and see no basis to intervene.

Finally, in Point IV, plaintiffs argue that the judge erroneously granted

Boyce's motion for reconsideration and erroneously granted Boyce summary

judgment dismissal of the defamation claim. They assert that Boyce made

numerous false statements, which plaintiffs characterize as "by definition,

defamatory." They identify the statements as follows:

Stated, on local television, that there were [fifteen to twenty] [inter]ment spaces at Holmdel Cemetery that were intentionally double-sold;

Opined that Memorial was motivated by greed to commit fraud on vulnerable families at the wors[t] time of their lives;

Posted on his wife's Facebook page that he "witnessed first-hand the deceptive sales practices of Memorial Properties"; and

Regularly disparaged Memorial to Cemetery lot owners, visitors, and funeral directors in an attempt to discourage further patronage.

Citing Carey v. Piphus, 435 U.S. 247, 262 n.18 (1978), and Biondi v.

Nassimos, 300 N.J. Super. 148, 154 (App. Div. 1997), plaintiffs posit that

"Boyce's purposeful statements concerning [plaintiffs'] business likely rise [] to

the level of defamation per se" because they relate to plaintiffs' business practice

A-1164-22 29 and are false. (Italicization omitted). Although plaintiffs maintain that they

"intended to prove such falsity at trial," they do not specify what damages

flowed from the statements. Boyce counters that plaintiffs presented no

evidentiary support for their defamation claim, despite "two years of

opportunities for further investigation [and] discovery."

In Carey, the Supreme Court described the "essence of slander per se" as

"the publication by spoken words of false statements imputing to a person

a . . . matter affecting adversely a person's fitness for trade, business, or

profession." 435 U.S. at 262 n.18 (italicization omitted). In Biondi, we further

explained that "[i]f a defamatory statement constitutes slander per se, a plaintiff

may establish a cause of action not only without proving 'special damages,' that

is, damages of a pecuniary nature, but without proving any form of actual

damage to reputation." 300 N.J. Super. at 154 (italicization omitted) (citing

Ward v. Zelikovsky, 136 N.J. 516, 540-41 (1994)). "This is sometimes referred

to as the 'presumed damages' doctrine." Ibid. (citing Sisler v. Gannet Co., 104

N.J. 256, 281 (1986)).

In Biondi, we also cautioned, however, that although slander per se

remains part of New Jersey defamation law, "the [Supreme] Court's

characterization of the doctrine as 'a relic from tort law's previous age' and its

A-1164-22 30 conclusion that 'the trend should be toward elimination . . . of the per se

categories[]' suggests that [trial] courts should invoke the slander per se doctrine

only in cases where it clearly applies." Id. at 155-56 (omission in original)

(italicization omitted) (citation omitted) (quoting Ward, 136 N.J. at 541).

Applying these principles, we agree with the judge that, in this case,

plaintiffs cannot rely solely on the doctrine of presumed damages without

meeting the actual malice standard. In W.J.A., our Supreme Court summarized

the United States Supreme Court jurisprudence regarding when presumed

damages may apply in a defamation case as follows:

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the United States Supreme Court declared that the First Amendment to the United States Constitution prohibits a public official from recovering damages for defamation related to his [or her] official position, in the absence of actual malice on the part of the publisher of the defamatory statement. Subsequently, in Gertz v. Robert Welch, Inc., the Supreme Court addressed the doctrine of presumed damages, denominating it an "oddity of tort law." 418 U.S. 323, 349 (1974). In Gertz, the Court declared presumed damages to be inconsistent with First Amendment values, unless the actual malice standard of New York Times Co. is satisfied. Ibid. A few years later, in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760-61 (1985), the Court modulated its ruling in Gertz and concluded that the First Amendment principles that informed Gertz do not restrict the right of the states to award presumed damages in cases involving private plaintiffs commenting on private matters.

A-1164-22 31 [W.J.A., 210 N.J. at 241-42 (citations reformatted).]

The Court also reiterated that "presumed damages continue to play a role

in our defamation jurisprudence in private plaintiff cases that do not involve

matters of public concern" and explained that "[w]here a plaintiff does not

proffer evidence of actual damage to reputation, the doctrine of presumed

damages permits him [or her] to survive a motion for summary judgment and to

obtain nominal damages, thus vindicating his [or her] good name." Id. at 233.

But where, as here, the case involves a matter of public concern, actual damages

must be articulated. Indeed, in public concern cases, "a plaintiff asserting a

defamation claim cannot rely on the doctrine of presumed damages absent a

finding that the defendant published the statement 'with knowledge that it was

false or with reckless disregard of whether it was false or not.'" Rocci v. Ecole

Secondaire Macdonald-Cartier, 165 N.J. 149, 156 (2000) (quoting N.Y. Times

Co., 376 U.S. at 279-80). Because plaintiffs have failed to articulate damages,

they cannot survive a motion for summary judgment, and the judge correctly

granted Boyce's motion.

We add that even if plaintiffs articulated damages, summary judgment was

still proper because plaintiffs failed to show that a genuine issue of material fact

existed. "[O]nce the moving party presents sufficient evidence in support of the

A-1164-22 32 [summary judgment] motion, the opposing party must 'demonstrate by

competent evidential material that a genuine issue of fact exists[.]'" Globe

Motor Co. v. Igdalev, 225 N.J. 469, 479-80 (2016) (last alteration in original)

(quoting Robbins v. Jersey City, 23 N.J. 229, 241 (1957)). "'Competent

opposition requires "competent evidential material" beyond mere "speculation"

and "fanciful arguments."'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App.

Div. 2014) (quoting Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426

(App. Div. 2009)). "[C]onclusory and self-serving assertions by one of the

parties are insufficient to overcome the motion." Puder v. Buechel, 183 N.J.

428, 440-41 (2005); accord Hoffman, 404 N.J. Super. at 425-26.

Here, after extensive discovery and motion practice, plaintiffs have failed

to show a genuine issue of material fact as to the defamation claim against

Boyce. Despite a voluminous record, plaintiffs' argument relies entirely on

conclusory allegations, offering no concrete evidence ascertained from any of

the numerous certifications and depositions that were conducted over the

lengthy course of this case. "[B]are conclusions in the pleadings[,] without

factual support in tendered affidavits, will not defeat a meritorious application

for summary judgment." Brae Asset Fund, L.P. v. Newman, 327 N.J. Super.

129, 134 (App. Div. 1999) (quoting U.S. Pipe & Foundry Co. v. Am. Arb. Ass'n,

A-1164-22 33 67 N.J. Super. 384, 399-400 (App. Div. 1961)). We therefore affirm the judge's

ruling granting reconsideration and granting summary judgment to Boyce on the

defamation claim.

IV.

We now turn to Boyce's cross-appeal. First, Boyce argues that plaintiffs'

claims against him amounted to frivolous litigation and, as such, plaintiffs

should have been sanctioned, as they produced no evidentiary support for any

of their claims against him.

We review a trial judge's decision on a motion for frivolous litigation

sanctions pursuant to Rule 1:4-8 under an abuse of discretion standard.

McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div. 2011). Under

that standard, reversal is warranted "only if [the decision] 'was not premised

upon consideration of all relevant factors, was based upon consideration of

irrelevant or inappropriate factors, or amounts to a clear error in judgment.'"

Ibid. (quoting Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)).

Rule 1:4-8 "is designed to ensure that attorneys do not initiate or pursue

litigation that is frivolous." LoBiondo v. Schwartz, 199 N.J. 62, 98 (2009); see

also McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 560 (1993)

(holding that pursuant to N.J.S.A. 2A:15-59.1, a prevailing party may also move

A-1164-22 34 for sanctions against a party who has filed a frivolous pleading, defined similarly

to Rule 1:4-8(a)(1) to (2)). The imposition of sanctions, which can include

reasonable attorney's fees, is one mechanism under the rule intended to deter

frivolous litigation. LoBiondo, 199 N.J. at 98-99.

"The sanctions for frivolous litigation apply when an attorney . . . has

violated Rule 1:4-8 by presenting papers for an 'improper purpose' or asserting

claims or defenses that lack the legal or evidential support" that the rule requires.

State v. Franklin Sav. Acct. No. 2067, 389 N.J. Super. 272, 281 (App. Div. 2006)

(citing R. 1:4-8(a), (b)(1)(i) to (ii)). "For purposes of imposing sanctions under

Rule 1:4-8, an assertion is deemed 'frivolous' when 'no rational argument can be

advanced in its support, or it is not supported by any credible evidence, or it is

completely untenable.'" United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379,

389 (App. Div. 2009) (internal quotation marks omitted) (first quoting R. 1:4-8;

and then quoting First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432

(App. Div. 2007)).

In a November 3, 2022 oral decision, Judge McCarthy denied Boyce's

motion for sanctions. Citing United Hearts, 407 N.J. Super. at 390, the judge

astutely explained that "New Jersey courts restrictively interpret what is

A-1164-22 35 frivolous in order to avoid limiting access to our court system." The judge

continued:

Attorney's fees and sanctions . . . should not be awarded if a plaintiff had a reasonable and good-faith belief to believe in the merits of a cause of action. That was also noted by the Appellate Division . . . in S & R Associates v. Lynn Realty Corp., 338 N.J. Super. 350, 364 (App. Div. 2001), as well as Arrow Manufacturing Co. v. West New York, 321 N.J. Super. 596, 600 (App. Div. 1999)[, and] In re Estate of Ehrlich, 427 N.J. Super. 64, 77 (App. Div. 2012).

Here, and in light of the very restrictive lens through which courts must view requests for counsel fees under the frivolous litigation rule and statute, the [c]ourt finds that the movant has not satisfied that burden. The [c]ourt does find that there can be, when viewing this under the prism, as suggested by the Supreme Court and the Appellate Division, that there was a reasonable good-faith belief in the merit of the cause of action. The fact that summary judgment ultimately was granted following the conclusion of discovery does not limit that fact.

[(Citations reformatted.)]

We discern no abuse of discretion in the judge's denial of Boyce's motion

for sanctions. The record supports the judge's finding that plaintiffs had a

colorable basis for their causes of action against Boyce based on his statements

to the media defendants and the other documentary evidence. We therefore

A-1164-22 36 agree that Boyce has failed to satisfy the high burden required to impose

sanctions.

Finally, Boyce argues that the judge erred in dismissing his third-party

indemnification claim against Holmdel and Ackerson because plaintiffs' claims

against Boyce arose from his employment with Holmdel.

The judge dismissed Boyce's indemnification claim as moot because all

claims against Boyce had been dismissed. We review a decision to dismiss a

matter on mootness grounds de novo. Stop & Shop Supermarket Co. v. Cnty.

of Bergen, 450 N.J. Super. 286, 290 (App. Div. 2017). "Mootness is a threshold

justiciability determination rooted in the notion that judicial power is to be

exercised only when a party is immediately threatened with harm." Id. at 291

(quoting Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div.

2010)). "[F]or reasons of judicial economy and restraint, courts will not decide

cases in which the issue is hypothetical, [or] a judgment cannot grant effective

relief[.]" Ibid. (alterations in original) (quoting Cinque v. N.J. Dep't of Corr.,

261 N.J. Super. 242, 243 (App. Div. 1993)).

In an October 29, 2021 hearing, the judge denied Holmdel's and

Ackerson's motions for summary judgment on Boyce's indemnification claim,

explaining:

A-1164-22 37 The amended complaint asserts a broad array of negligent, tortious and unlawful conduct by . . . Boyce, including conduct that predated the conclusion of his employment relationship with Holmdel Cemetery on August 1, 2018.

To the extent that tortious, negligent and/or unlawful conduct occurred while Boyce was employed by Holmdel, this may provide a basis for indemnification. The timing and scope of the negligent, tortious and unlawful conduct of Boyce may trigger indemnification by his former employer Holmdel Cemetery, and this can be addressed through detailed jury interrogatories on the verdict sheet as to the timing of the negligent and/or unlawful conduct.

However, the request for summary judgment on the issue of indemnification is premature until the scope and basis for [the] liability of Boyce is proper[ly] addressed by a fact finder.

On January 21, 2022, Judge McCarthy stated on the record that the issues

of vicarious liability and indemnification remained active in the case. On

October 7, 2022, Judge McCarthy dismissed plaintiffs' defamation claim against

Boyce, which was the last remaining claim against him. Because Boyce was

granted summary judgment on his last claim, and because his claim for

indemnification against Holmdel and Ackerson was a third-party claim, the

A-1164-22 38 judge further dismissed as moot a motion filed by Holmdel and Ackerson

seeking dismissal of Boyce's indemnification claim. 5

Common-law indemnification is not limited to the costs of judgments or

damages. "A common-law indemnitee, forced to defend claims for which its

liability is only vicarious, is entitled not only to the cost of any judgment or

reasonable settlement, but also to costs of defense occasioned by the

5 Part of Boyce's argument on appeal is that the judge did not address his indemnification claim but dismissed the claim as "[s]ettled by conference with judge" with a disposition date of October 11, 2022. The motion filed on short notice by Holmdel and Ackerson to dismiss the indemnification claim does not appear in the record or in any of the parties' appendices. In Judge McCarthy's oral decision, he stated, "I know there was a motion on short notice filed by [Holmdel and Ackerson's attorneys]. But in light of the fact summary judgment has been granted to . . . Boyce, his case was only a third[-]party claim against you. With the case against . . . Boyce[] being dismissed, that motion is moot as well." In their appendix, Holmdel and Ackerson included a letter written to Judge McCarthy addressing Boyce's motion for sanctions and noted that they disagreed with Boyce's assertion that the granting of Boyce's reconsideration motion "concluded the litigation as to all issues, except Boyce's [t]hird[ -p]arty complaint for indemnification for the expenses he incurred defending [plaintiffs'] claims against him while employed by Holmdel Cemetery." Holmdel and Ackerson cited Judge McCarthy's oral decision, referenced above. They also stated that "Boyce's attorney reached out to the [c]ourt to confirm the status of this matter with th[e] [c]ourt" and that, "[i]n an email to counsel, counsel for Boyce stated 'I received a telephone call from Judge McCarthy's chambers[.] [T]he [j]udge reviewed my letter and said the case was "Dismissed."'" A copy of this email was not included with Holmdel and Ackerson's submission. Based on the foregoing, the judge appears to have dismissed as moot Boyce's claim for indemnification, and we disagree with Boyce that the case needs to be remanded for disposition. A-1164-22 39 indemnitor's fault." Cent. Motor Parts Corp. v. E.I. duPont deNemours & Co.,

251 N.J. Super. 5, 9 (App. Div. 1991). Because Boyce had to defend himself

from plaintiffs' claims prior to their dismissal, we disagree with the judge that

Boyce's indemnification claim was moot. However, we are convinced that

dismissal was appropriate on other grounds.

The right to common-law indemnification in a tort context "rests upon a

difference between the primary and secondary liability of two [parties,] each of

whom is made responsible by the law to an injured party." Adler's Quality

Bakery, Inc. v. Gaseteria, Inc., 32 N.J. 55, 80 (1960) (quoting Builders Supply

Co. v. McCabe, 77 A.2d 368, 370 (Pa. 1951)). Common-law indemnification is

"a right which [insures] to a [party] who, without active fault on his [or her] own

part, has been compelled, by reason of some legal obligation, to pay damages

occasioned by the initial negligence of another, and for which [the party] is only

secondarily liable." Ibid. (quoting Builders Supply Co., 77 A.2d at 370).

"Although a third-party tortfeasor cannot seek contribution from an

employer, it may obtain indemnification where that course is specifically

permitted by way of an express contract." Port Auth. of N.Y. & N.J. v.

Honeywell Protective Servs., Honeywell, Inc., 222 N.J. Super. 11, 19 (App. Div.

1987). Here, Boyce does not proffer any evidence of an express indemnification

A-1164-22 40 agreement between himself and Holmdel. He relies instead on the fact that

Holmdel was his employer. Holmdel and Ackerson counter that no contractual

or special relationship existed requiring them to indemnify Boyce, and that when

Boyce appeared on "Kane in Your Corner," he was no longer employed by

Holmdel.

In the absence of express contractual indemnification, we analyze Boyce's

claim under a theory of implied indemnification. "The contours of the doctrine

[of implied indemnification] are somewhat narrow . . . ." Id. at 20. "As a general

rule, a third party may recover on a theory of implied indemnity from an

employer only when a special legal relationship exists between the employer

and the third party, and the liability of the third party is vicarious." Ibid.

(quoting Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 103 N.J. 177, 188-

89 (1986)).

Perhaps the most common example of a special legal relationship that gives rise to an implied right of indemnification is the relationship of principal to agent. When an agent commits a tort in good faith reliance on the directions of his [or her] principal, the agent is entitled to indemnification from the principal for his [or her] liability to an injured third party.

[Stephenson v. R.A. Jones & Co., 103 N.J. 194, 209 (1986) (Stein, J., dissenting).]

A-1164-22 41 Even assuming that a special relationship existed between Boyce and

Holmdel at the time of Boyce's alleged conduct, nothing in the record shows that

Boyce acted under Holmdel's direction. In fact, plaintiffs' complaint

characterizes Boyce's conduct as harmful not only to plaintiffs, but to Holmdel

as well. According to the complaint, "[t]he short-term goal of Boyce's campaign

of deceit and economic sabotage was to inflict economic damage upon Memorial

Properties and the Cemetery, driving away prospective purchasers by telling

them the Cemetery and its sales company were untrustworthy and would cheat

them in one manner or another," and "[t]he long-term objective of his campaign

was to persuade the Cemetery to terminate Memorial Property's contract so that

Boyce could take control of the cemetery." This alleged conduct can only be

imputed to Boyce, not Holmdel. Thus, reliance on an implied indemnification

theory fails.

"Costs incurred by a [party] in defense of its own active negligence . . .

are not recoverable, but those costs incurred on defending claims on which the

[party] is found only derivatively or vicariously liable are recoverable." Cent.

Motor Parts Corp., 251 N.J. Super. at 11. Without an express indemnification

agreement, Boyce cannot recover from Holmdel for his own negligence. See

Mantilla v. NC Mall Assocs., 167 N.J. 262, 275 (2001) (holding that "absent

A-1164-22 42 explicit contractual language to the contrary, an indemnitee who has defended

against allegations of its own independent fault may not recover the costs of its

defense from an indemnitor").

As such, we are satisfied that dismissal of Boyce's indemnification claim

was appropriate, albeit for different reasons than those expressed by the judge.

Hayes v. Delamotte, 231 N.J. 373, 387 (2018) ("A trial court judgment that

reaches the proper conclusion must be affirmed even if it is based on the wrong

reasoning.").6

Affirmed.

6 We acknowledge that the motion judges exhibited tremendous competence in wading through poorly drafted pleadings and submissions by counsel throughout the course of this case, including "pleadings [that were] difficult to untangle," making it "difficult to find clear distinctions in the arguments regarding each cause of action in the moving papers and opposition," which "made it extremely challenging for[] . . . the opposing counsel to understand and articulate, . . . as well as th[e c]ourt." A-1164-22 43