MARK HYMAN VS. YELENA MELNICHENKO (L-1603-14, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3279-15T2 A-3431-15T2

MARK HYMAN,

Plaintiff-Appellant,

v.

YELENA MELNICHENKO, VITALY MELNICHENKO, NATALIA KOLYADA, and JAMES BRENNENSTUHL,

Defendants,

and

BOROUGH OF LONGPORT,

Defendant-Respondent.

MARK HYMAN,

Plaintiff-Respondent,

v.

YELENA MELNICHENKO, VITALY MELNICHENKO, NATALIA KOLYADA, and JAMES BRENNENSTUHL,

Defendants,

and BOROUGH OF LONGPORT,

Defendant-Appellant.

Submitted June 7, 2017 – Decided July 5, 2017

Before Judges Carroll and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1603-14.

My Rights Lawyers, LLC, attorneys for appellant in A-3279-15 and respondent in A-3431-15 (Michelle J. Douglass, on the briefs).

Barker, Gelfand & James, attorneys for respondent in A-3279-15 and appellant in A-3431-15 (A. Michael Barker, on the brief).

These two appeals, calendared back-to-back and consolidated

for purposes of this opinion, arise out of a complaint filed by

plaintiff Mark Hyman against defendant Borough of Longport

alleging, among other things, a violation of the New Jersey Civil

Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2. Plaintiff appeals from

the summary judgment dismissal of his NJCRA claim, while Longport

appeals from an order denying its application for fees and costs

pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1,

and the NJCRA. For the reasons that follow, we affirm both orders.

2 A-3279-15T2 I.

We need not recite in detail the factual background and

procedural history of this matter, which are well known to the

parties. Briefly summarizing, plaintiff is a resident of Longport

who was a frequent caller to a local political radio talk show,

on which he would often criticize Longport's government and voice

his belief that Longport Police Department (LPD) officers abused

their positions. On April 24, 2014, plaintiff filed a complaint

against Longport and others, alleging a violation of the NJCRA. 1

Specifically, plaintiff claimed that, from 2008 to 2013, Longport

police and municipal government officials harassed him in

retaliation for his constitutionally protected speech on the radio

program.

In his certified answers to interrogatories and sworn

deposition testimony, plaintiff alleged that the LPD conducted an

inadequate investigation and stonewalled his efforts to recover

property that was stolen from him when his home was burglarized

in February 2009. Other forms of alleged harassment by Longport

officials included: (1) telling plaintiff to stay off the radio

1 Plaintiff's complaint against Longport also included counts for tortious interference with contract; negligence; breach of contract; and violation of the New Jersey Racketeer Influenced and Corrupt Organizations (RICO) Act, N.J.S.A. 2C:41-1 to -6.2. On November 12, 2014, the trial court granted Longport's motion to dismiss those counts. Plaintiff does not appeal those dismissals.

3 A-3279-15T2 and taunting him; (2) issuing him unwarranted tickets; (3) reducing

business opportunities for plaintiff and his daughter; and (4)

insulting plaintiff about his wife's ethnicity and insinuating

their relationship was not genuine.

During discovery, plaintiff amended his interrogatory answers

to identify William Hewitt, a retired LPD lieutenant, as a witness

having knowledge of facts supporting his retaliation claims. On

July 1, 2015, plaintiff noticed Hewitt's deposition for September

10, 2015, but withdrew the deposition notice on September 9. The

next day, Jim Brennenstuhl, a private detective who plaintiff had

previously hired to investigate his home burglary,2 took a sworn

recorded statement from Hewitt. Hewitt stated that the Longport

police officer assigned to the burglary investigation "did

everything he could possibly do" and that the LPD "went far beyond

what they would do for anyone else, and they did stuff for

[plaintiff] just to avoid any problems with [plaintiff]." In the

end, the investigation spanned some eighteen months and was closed

because the LPD lacked sufficient evidence to support a criminal

prosecution. Hewitt further stated he was unaware of "anyone

telling anyone not to investigate" the burglary, and nothing in

2 Although not completely clear from the record, it appears that at some point Brennenstuhl was also hired as an outside agent by the LPD.

4 A-3279-15T2 his experience suggested that the LPD or any of its representatives

retaliated against defendant because of his radio appearances.

On October 20, 2015, Longport's counsel served plaintiff's

counsel with a frivolous litigation notice (FLN). The FLN stated

that, given Hewitt's sworn testimony, it was apparent that

plaintiff lacked sufficient competent evidence to support his

claims against Longport. The FLN demanded that plaintiff withdraw

his complaint within twenty-eight days, failing which Longport

would seek frivolous litigation sanctions or an award of counsel

fees and costs as a "prevailing party" pursuant to N.J.S.A.

10:6-2(f).

Plaintiff did not withdraw the lawsuit and Longport moved for

summary judgment following the close of discovery. Presented with

the above evidence and the LPD investigation reports pertaining

to the burglary, Judge Noah Bronkesh granted summary judgment in

favor of Longport on January 19, 2016. In his written opinion,

the judge reasoned:

This [c]ourt finds that there are no genuine issues of material fact when the facts are viewed in the light most favorable to the non—moving party. The record establishes that the investigation into [p]laintiff's alleged burglary was proper, thorough and adequate. . . . All leads were pursued and while suspects were found, there was not enough evidence to warrant the filing of criminal charges. The record shows the thorough effort made by the investigating

5 A-3279-15T2 officer in pursuing leads in the alleged burglary. Additionally, even if [p]laintiff could show that the investigation was inadequate, [] [p]laintiff has not shown that the inadequate investigation[] was due to the criticisms voiced on the radio talk show.

["]In order to establish a First Amendment claim, a [p]laintiff must prove (1) that he was engaged in a constitutionally protected activity; (2) that the government responded with retaliation[;] and (3) that the protected activity caused the retaliation." Muhammad v. Abington Twp. Police Dep't, 37 F. Supp.3d 746, 760 (E.D. Pa. 2014), citing George v. Rehiel, 738 F.3d 562, 585 (3d Cir. 2013). Plaintiff cannot show that he was retaliated against by an inadequate investigation because the investigation was proper and in compliance with [LPD] policies and procedures. Contrary to [] [p]laintiff's argument, the competent evidence on the records shows that the police properly investigat[ed] the alleged burglary. Among other listed procedures, the investigation included having police check the property to make sure the perpetrator was not still on the premises, securing the scene to protect evidence, interviewing the victim and any witnesses, dusting the scene for fingerprints, check[ing] with neighbors and surrounding residents for additional potential witnesses, documenting the actions, and taking whatever other actions officers deem necessary for the successful arrest and prosecution of the perpetrator. . . . The steps taken by the police are set forth in further detail in the police records and demonstrate that an adequate investigation was made. Moreover, "there is no statutory or common law right, much less a constitutional right, to an investigation." Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007). As such, [p]laintiff has not produced sufficient evidence of retaliatory conduct in the

6 A-3279-15T2 burglary investigation. Furthermore, [p]laintiff has not produce[d] adequate evidence to support his assertions of other instances of retaliation, and he has not set forth sufficient evidence that any inadequacy in the burglary investigation was due to statements [p]laintiff made on the radio show. Finally, [p]laintiff's NJCRA claim fails because [p]laintiff cannot establish that he suffered any underlying constitutional violation by any Longport employee or agent, or that Longport maintained a custom or policy of retaliating against citizens for exercising their right to free speech.

On February 4, 2016, Longport filed an application for fees

and costs pursuant to N.J.S.A. 2A:15-59.1 and N.J.S.A. 10:6-2(f).

On March 4, 2016, Judge Bronkesh denied the motion, finding there

was insufficient evidence that plaintiff asserted the claim in bad

faith or solely for the purpose of harassment, or that the action

was unreasonable or without foundation. These appeals followed.

II.

In his appeal, plaintiff challenges the grant of summary

judgment relief. He argues that the trial court erred in finding

the proofs were insufficient to establish: retaliatory harassment

by the LPD; a causal connection between the alleged harassment and

plaintiff's constitutionally protected activity; and a custom or

policy of retaliation against citizens for exercising their free

speech rights. We disagree.

7 A-3279-15T2 "[W]e 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., 224 N.J. 189, 199

(2016) (citation omitted). Thus, we consider, as the trial court

did, "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 there is no genuine issue of material fact, we must then "decide

whether the trial court correctly interpreted the law." DepoLink

Court 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), certif. denied, 195

N.J. 419 (2008)). We review issues of law de novo and accord no

deference to the trial judge's conclusions on issues of law.

Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

"Although we are mindful that, when reviewing summary

judgment motions, we must view the 'evidential materials . . . in

the light most favorable to the non-moving party,' conclusory and

self-serving assertions by one of the parties are insufficient to

overcome the motion[.]" Puder v. Buechel, 183 N.J. 428, 440-41

8 A-3279-15T2 (2005) (citations omitted). A party's "[b]are conclusory

assertions, without factual support in the record, will not defeat

a meritorious application for summary judgment." Horizon Blue

Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App.

Div.) (citing Brae Asset Fund, L.P. v. Newman, 327 N.J. Super.

129, 134 (App. Div. 1999)), certif. denied, 211 N.J. 608 (2012).

Thus, "the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no

genuine issue of material fact." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211

(1986). What is required of the party opposing summary judgment

is affirmative evidence that is competent, credible, and shows

that there is a genuine issue for trial. "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, 425-26 (App. Div. 2009)), certif. denied, 220

N.J. 269 (2015).

Guided by these principles, we conclude that summary judgment

was properly granted. Certainly, we recognize that

"constitutionally protected interests 'emanate from every person's

right to be insulated from governmental retaliation for expressive

9 A-3279-15T2 exercises or beliefs protected by the First Amendment.'" Lapolla

v. Cty. of Union, ___ N.J. Super. ___, ___ (App. Div. 2017) (slip

op. at 13) (citing Commc'ns Workers of Am. v. Whitman, 335 N.J.

Super. 283, 289 (App. Div. 2000)). Nonetheless, in the present

case, the LPD's reports clearly demonstrate the extensive and

prolonged investigation into the burglary of plaintiff's home.

That no one was ultimately arrested or prosecuted for the crime

does not establish a NJCRA violation. Moreover, plaintiff's own

witness, Hewitt, expressly contradicted his claim that he was

retaliated against for exercising his free speech rights. Aside

from plaintiff's mere speculation, the record simply lacks

sufficient factual support for his contention that he was

retaliated against in violation of the NJCRA, or that Longport had

a custom or policy of engaging in such retaliation.

III.

We now turn to Longport's appeal from the order denying its

request for counsel fees and costs.

A trial court's determinations on the availability and amount of fees and costs for frivolous litigation are reviewable for "abuse of discretion." [Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).] Reversal is warranted when "the discretionary act 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.

10 A-3279-15T2 [Ferolito v. Park Hill Ass'n, Inc., 408 N.J. Super. 401, 407 (App. Div.), certif. denied, 200 N.J. 502 (2009).]

Pursuant to the Frivolous Litigation Statute, N.J.S.A.

2A:15-59.1(b), in order for a complaint from the non-prevailing

party to be deemed frivolous, the judge must find evidence that

the complaint

(1) . . . was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or

(2) The nonprevailing party knew, or should have known, that the complaint . . . was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

The dismissal of a claim in favor of a defendant is not per

se evidence that a plaintiff pursued his or her claim in bad faith.

Id. at 408. The party seeking fees resulting from frivolous

litigation bears the burden of showing the non-prevailing party

acted in bad faith. Ibid.

Moreover, the frivolous litigation statute must be

interpreted strictly. DeBrango v. Summit Bancorp, 328 N.J. Super.

219, 226 (App. Div. 2000). Sanctions should be awarded only in

exceptional cases, not for every litigation infraction. Iannone

v. McHale, 245 N.J. Super. 17, 28 (App. Div. 1990). "When the

[non-prevailing party's] conduct bespeaks an honest attempt to

11 A-3279-15T2 press a perceived, though ill-founded and perhaps misguided,

claim, he or she should not be found to have acted in bad faith."

Belfer v. Merling, 322 N.J. Super. 124, 144-45 (App. Div.), certif.

denied, 162 N.J. 196 (1999) (citation omitted).

Alternatively, Longport asserts its claim for attorney's fees

pursuant to the NJCRA, which provides that "the court may award

the prevailing party reasonable attorney's fees and costs."

N.J.S.A. 10:6-2(f). As Longport candidly points out, the NJCRA

was modeled after 42 U.S.C. § 1983, which creates a distinction

between the standard for awarding fees to a prevailing defendant

as opposed to a prevailing plaintiff. See Rezem Family Assocs.,

LP v. Borough of Millstone, 423 N.J. Super. 103, 115 (App. Div.),

certif. denied, 208 N.J. 366 (2011) (stating that the NJCRA was

modeled after 42 U.S.C. § 1983). Under the first scenario, a

prevailing defendant cannot receive attorney's fees "unless a

court finds that [the plaintiff's] claim was frivolous,

unreasonable, or groundless, or that the plaintiff continued to

litigate after it clearly became so." Christiansburg Garment Co.

v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 422, 98 S.

Ct. 694, 701, 54 L. Ed. 2d 648, 657 (1978).

Having reviewed the arguments raised by Longport in light of

the record on appeal and applicable law, we conclude that the

judge did not abuse his discretion in denying Longport's

12 A-3279-15T2 application for attorney's fees and costs. We find no basis to

disturb the judge's findings that plaintiff, although angry, felt

justified in persisting with his claim against Longport, and he

"clearly articulated reasons for his claims, albeit without

sufficient evidence to ultimately prevail." That the trial court

ultimately dismissed plaintiff's complaint, without more, did not

establish that he acted in bad faith so as to necessitate an award

of attorney's fees for frivolous litigation. See Ferolito, supra,

408 N.J. Super. at 408.

Affirmed.

13 A-3279-15T2