NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3439-18
P.C.,
Plaintiff-Appellant,
v.
J.P.Q.,
Defendant-Respondent. ________________________
Argued January 11, 2021 – Decided February 17, 2021
Before Judges Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5258-11.
P.C., appellant, argued the cause pro se.
Respondent has not filed a brief.
PER CURIAM Plaintiff P.C.1 appeals from three orders of the Law Division: (1) a
November 15, 2018 order granting summary judgment in favor of defendant
J.P.Q. on P.C.'s allegations of malicious prosecution, abuse of process, and
infliction of emotional distress; (2) a December 4, 2018 order denying P.C.'s
motion to compel J.P.Q. to pay P.C.'s costs and attorney's fees for having lied in
an affidavit submitted to the court; and (3) a January 25, 2019 order denying
P.C.'s motion for reconsideration. We affirm.
I.
The following facts are derived from the record. P.C. and J.P.Q. began a
romantic relationship in 2006. In June 2007, P.C. was convicted of the murder
of his former girlfriend. He was incarcerated until September 2009, when his
conviction was reversed and he was released on bail pending a re-trial. After
his release, P.C. resumed his romantic relationship with J.P.Q. The relationship
ended in September 2010.
On October 12, 2010, J.P.Q. filed a domestic violence complaint alleging
harassment against P.C. pursuant to the Prevention of Domestic Violence Act,
N.J.S.A. 2C:25-17 to -35. During the ex parte hearing before a municipal court
1 We use initials to preserve the confidentiality of court records concerning domestic violence. R. 1:38-3(d)(9). A-3439-18 2 judge on her application for a temporary restraining order (TRO), J.P.Q. testified
that P.C. was following her and texting her "every single day" since the end of
their relationship, despite her instructions to him to leave her alone. She testified
that she was in fear for her life and the lives of her children. The complaint also
alleged that P.C. texted J.P.Q. a photograph of her topless and later called her
and threatened to bring a copy of the photograph to her place of employment.
In addition to issuing the TRO, the municipal court judge found probable
cause for the issuance of a criminal complaint charging P.C. with harassment,
N.J.S.A. 2C:33-4. The police officer who responded to J.P.Q.'s home after she
called to report P.C. appeared before the municipal court judge to swear the
complaint. When questioned by the court, the police officer told the judge that
he had "viewed [J.P.Q.'s] cell phone" and saw "[fifteen] text messages from the
1st of October up until today . . . trying to reconnect with her." According to
the officer, one of the text messages was "a picture text" of "an intimate photo"
showing J.P.Q. topless, which "[P.C.] basically threatened to print . . . and bring
. . . to [J.P.Q.'s] place of employment . . . ." The officer stated that J.P.Q. told
him "all these text messages started" after J.P.Q. told P.C. "she want[ed] no part
of him anymore" and refused to "testify on his behalf . . . as a character witness"
at his upcoming re-trial on the murder charge.
A-3439-18 3 On October 13, 2010, P.C. was served with the TRO, arrested on the
criminal complaint, and jailed. On the same date, the prosecutor on the murder
charge filed an application in the Law Division to revoke P.C.'s bail and remand
him to custody pending the conclusion of his re-trial, which was then underway.
The application was predicated on the TRO and the criminal harassment
complaint. The prosecuting attorney argued that P.C. was a danger to the
community based on his "history of domestic violence with respect to his former
wife and because of his actions now . . . ." Instead of revoking P.C.'s bail on the
murder charge, the Law Division judge increased the bail from $1 million to
$1.3 million, resulting in P.C. being remanded to custody. He remained in the
county jail until he was convicted of murder at his re-trial.
On November 19, 2010, the Family Part held a hearing on J.P.Q.'s
application for a final restraining order (FRO). P.C. disputed that he engaged in
harassing conduct, claiming he and J.P.Q. "were involved in a dialogue about
the relationship[.]" At the hearing, P.C.'s aunt testified that she had two phone
conversations with J.P.Q. in September 2010 during which J.P.Q. demanded
money she believed P.C. owed her for a credit card debt. According to P.C.'s
aunt, J.P.Q. threatened to "have [P.C.] arrested" if he did not pay the debt. J.P.Q.
denied having said that to P.C.'s aunt.
A-3439-18 4 On cross-examination, J.P.Q. denied calling P.C.'s aunt solely about the
credit card debt. She testified that she called his aunt because P.C. "was scaring
[her] because of the picture" and P.C. had threatened "that if [she] were to call
the attorney and his aunt . . . to tell them what was going on[,] that [she] was
going to regret it."
Ultimately, a Family Part judge denied J.P.Q.'s application for an FRO,
finding she did not prove a predicate act of domestic violence. As a result, the
court dismissed both the TRO and the domestic violence complaint. The
criminal complaint charging P.C. with harassment was later dismissed for
J.P.Q.'s failure to appear at trial. J.P.Q. moved to restore the criminal complaint
out-of-time. A judge denied J.P.Q.'s motion but modified the dismissal order to
indicate that the dismissal was "not based on [the] victim's failure to appear."
P.C. subsequently filed a four-count complaint in the Law Division
against J.P.Q. alleging malicious prosecution, malicious abuse of process,
intentional, reckless, or negligent infliction of emotional distress, and breach of
contract.2 P.C. alleged that after his release from prison he "made various
2 P.C.'s breach of contract claim alleged he was entitled to $7070 as compensation for repairs and improvements he made at properties owned by J.P.Q. That claim was dismissed without prejudice in an August 11, 2014 order which P.C. did not appeal. A-3439-18 5 improvements to and fixed various items in [J.P.Q.'s] residence and an
investment property she owned[,]" and that she "permitted [him] to use her credit
card to buy construction materials needed" for the work. However, as P.C.'s re-
trial approached, J.P.Q. demanded payment of $6000 in credit card charges and
threatened to take legal action against him if he did not pay. P.C. alleged that
when he refused J.P.Q.'s demands because he did not owe her any money, J.P.Q.
"without any probable cause and with malice swore out a criminal complaint"
against him alleging harassment and caused the TRO to be issued against him.
He alleged that as a result of J.P.Q.'s malicious prosecution and malicious abuse
of process he was arrested, imprisoned, and forced to defend against her false
charges, causing him severe emotional distress.
After a failed attempt at arbitration, J.P.Q. moved for summary judgment.
In an affidavit supporting her motion, she averred that she filed the hara ssment
complaint on the advice of the police officer who investigated her complaint.
P.C. opposed the motion and requested oral argument.
The trial court granted the motion, without oral argument, and dismissed
the three counts of the complaint alleging tort claims. The only reasoning
provided by the motion judge was a notation on the order stating "charges
A-3439-18 6 pursued in municipal court [and] substantiated. Court found sufficient probable
cause for claims. Thus no genuine issue of material facts in dispute."
On February 14, 2018, we vacated the trial court's order granting summary
judgment. P.C. v. J.P.Q., No. A-0185-14 (App. Div. Feb. 14, 2018). We
concluded that the trial court erred when it denied P.C.'s request for oral
argument without stating reasons for the denial, see Rule 1:6-2(d), and failed to
make written or oral findings of fact and conclusions of law, see Rule 1:7-4(a).
We remanded the matter and directed the trial court to consider the motion anew
after hearing oral argument and to issue findings of fact and conclusions of law
explaining the basis for its decision.
On remand, after hearing oral argument, the trial court issued a written
opinion granting summary judgment to J.P.Q. on all claims. The court
concluded that P.C. could not establish his malicious prosecution claims because
"[i]ndependent of any testimony provided by [J.P.Q.]" regarding the criminal
harassment complaint against P.C. "the municipal court considered the
testimony of the police officer who investigated the allegations." The court
explained that the officer's
testimony concerned his review of the texts and the offending photograph. The police officer's testimony on its own provided the basis for the finding of probable cause. Assuming arguendo[] that [J.P.Q.'s] testimony
A-3439-18 7 was fabricated[] or willfully false, the municipal court judge had enough from the police officer's testimony to make a probable cause finding for harassment and the TRO.
The court also found that P.C. could not prove his abuse of process claim.
The court held that
[a] successful claim of abuse of process requires proof that the defendant made an improper, illegal and perverted use of the legal procedure for an ulterior motive. In the view of this court, the finding of probable cause by the municipal court and the above- referenced independent basis for that finding subverts the claim of abuse of process. Once the municipal court judge found probable cause to exist for the complaint and the TRO, the issue of whether [J.P.Q.] made an improper use of the process was dispatched. The motive for this proper use of the process became immaterial once the finding of probable cause was made.
Finally, the court concluded that P.C. could not establish his claim of
intentional, negligent, or reckless infliction of emotional distress. The court
found that
[i]t cannot be said that [J.P.Q.] didn't act intentionally when she made her harassment complaint or when she sought the TRO. Such conduct must be proved to be extreme and outrageous so as to exceed the bounds of decency. Testifying falsely before a judicial officer and falsely reporting any claim to police would certainly be extreme and outrageous. Again, the judicial determination that the testimony was credible, coupled with the independent testimony of the police officer,
A-3439-18 8 negates any ability of [P.C.] to prove the necessary intent to inflict emotional distress.
A November 15, 2018 order memorializes the court's decision.
On December 4, 2018, the court entered an order denying P.C.'s motion
to compel J.P.Q. to pay his expenses and attorney's fees for having filed a false
affidavit with the court. The court reasoned that the motion was moot in light
of its decision granting summary judgment to J.P.Q.
P.C. subsequently moved for reconsideration of both the November 15,
2018 order and the December 4, 2018 order. The trial court denied the motion,
concluding that "[a]ll the arguments and information raised upon
reconsideration were previously raised and duly considered by the [c]ourt." A
January 25, 2019 order memorializes the court's decision.
This appeal followed. Plaintiff raises the following arguments for our
consideration.
POINT I
THE COURT BELOW COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO ORDER [J.P.Q.] TO PAY [P.C.'s] REASONABLE EXPENSES AND ATTORNEY FEES FOR KNOWINGLY AND INTENTIONALLY FILING AN AFFIDAVIT IN BAD
A-3439-18 9 FAITH AND ADJUDGE HER GUILTY OF CONTEMPT.3
POINT II
THE COURT BELOW COMMITTED REVERSIBLE ERROR BY ISSUING AN OPINION MUDDLED WITH FACT FINDING ERRORS AND BY THE ENTRY OF SUMMARY JUDGMENT AND DISMISSAL OF COUNTS ONE, TWO AND THREE OF THE PLAINTIFF'S COMPLAINT CONTRARY TO THE GENUINE ISSUES OF MATERIAL FACTS PRESENTED WHICH DEFEAT SUMMARY JUDGMENT AND SHOULD BE SUBMITTED TO THE JURY.
POINT III
THE COURT BELOW COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION BY PROVIDING THE PARTIES WITH AN OPINION DEVOID OF CITATION TO EVEN A SINGLE CASE IN SUPPORT OF ITS DECISION TO GRANT SUMMARY JUDGMENT RESULTING IN AN ARBITRARY AND CAPRICIOUS DISMISSAL OF COUNTS ONE, TWO AND THREE OF THE PLAINTIFF'S COMPLAINT.
3 P.C. does not list the December 4, 2018 order in his notice of appeal or case information statement. He does, however, address the order in his brief. Normally, we do not consider judgments or orders not identified in the notice of appeal. See R. 2:5-1(e)(3)(i) (stating that a notice of appeal "shall designate the judgment, decision, action or rule, or part thereof appealed from"); Fusco v. Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div. 2002) (stating that appellate review pertains only to judgments or orders specified in the notice of appeal). In light of the fact that our decision with respect to the trial court's Novem ber 15, 2018 and January 25, 2019 orders obviates P.C.'s demand for costs and attorney's fees, we affirm the December 4, 2018 order. A-3439-18 10 II.
We review the trial court's decision granting summary judgment de novo,
using "the same standard that governs trial courts in reviewing summary
judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.
162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant
summary judgment when "the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." "Thus, the movant must
show that there does not exist a 'genuine issue' as to a material fact and not
simply one 'of an insubstantial nature'; a non-movant will be unsuccessful
'merely by pointing to any fact in dispute.'" Prudential, 307 N.J. Super. at 167
(quotations omitted).
Self-serving assertions that are unsupported by evidence are insufficient
to create a genuine issue of material fact. Miller v. Bank of Am. Home Loan
Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015). "Competent
opposition requires 'competent evidential material' beyond mere 'speculation'
and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.
415, 426 (App. Div. 2009) (citations omitted). We review the record "based on
A-3439-18 11 our consideration of the evidence in the light most favorable to the parties
opposing summary judgment." Brill v. Guardian Life Ins. Co., 142 N.J. 520,
523-24 (1995).
Having carefully reviewed the record in light of these precedents, we find
no grounds to reverse the trial court's November 15, 2018 order. We agree with
the central premise of the trial court's decision: that the municipal court's finding
of probable cause for the criminal harassment complaint and TRO based on the
testimony of a police officer nullifies each of P.C.'s tort claims.
The municipal court's finding of probable cause negated a necessary
element of P.C.'s malicious prosecution claim. Lind v. Schmid, 67 N.J. 255,
262 (1975). "The essence of the cause of action is lack of probable cause.
Particularly, the plaintiff must establish a negative, namely, that probable cause
did not exist." Brunson v. Affinity Federal Credit Union, 199 N.J. 381, 394
(2009) (internal quotation and citations omitted). The fact that a judge later
determined that J.P.Q. had not established the necessary elements for an FRO
and the criminal harassment complaint was dismissed does not equate with a
finding that there was an absence of probable cause to initiate those proceedings.
The municipal court's probable cause finding also precluded P.C.'s
malicious abuse of process claim. The substantive distinction between
A-3439-18 12 malicious use, which is the civil equivalent of malicious prosecution, and
malicious abuse of process is simply "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." Tedards v. Auty, 232 N.J. Super. 541, 549 (App.
Div. 1989) (quoting Ash v. Cohn, 119 N.J.L. 54, 58 (E. & A. 1937)). "[B]asic
to the tort of malicious abuse of process is the requirement that the defendant
perform 'further acts' after issuance of process 'which represent the p erversion
or abuse of the legitimate purposes of that process.'" Baglini v. Lauletta, 338
N.J. Super. 282, 294 (App. Div. 2001) (quoting Penwag Prop. Co., Inc. v.
Landau, 148 N.J. Super. 493, 499 (App. Div. 1977)). "In the absence of some
coercive or illegitimate use of the judicial process there can be no claim for its
abuse." Ibid. "The tort of malicious abuse of process lies not for commencing
an improper action, but for misusing or misapplying process after it is issued."
Hoffman, 404 N.J. Super. at 431. In a malicious abuse of process claim the
court must focus not on what prompted the suit but what action was engaged in
after its commencement. Ibid.
Once the municipal court judge found probable cause to issue the criminal
harassment complaint and TRO, J.P.Q. took no actions that a reasonable
A-3439-18 13 factfinder could find to be an abuse of process. The record contains no evidence
that J.P.Q. acted in an untoward manner at any point after the municipal court
issued the criminal harassment complaint and TRO. A hearing was held on the
domestic violence complaint, at which J.P.Q. testified. The criminal complaint
ultimately was dismissed, although the reason for the dismissal is not entirely
clear from the record. J.P.Q.'s failure to prove her allegations does not amount
to an abuse of the judicial process. P.C.'s opinion that J.P.Q. lied and had an
improper motive when initiating the two proceedings is insufficient to prevent
entry of summary judgment against him.
We need not tarry long on P.C.'s claim of intentional, reckless, or
negligent infliction of emotional distress. To sustain such a claim P.C. must
establish "intentional and outrageous conduct by the defendant, proximate
cause, and distress that is severe." Griffin v. Tops Appliance City, Inc., 337 N.J.
Super. 15, 22 (App. Div. 2001) (quoting Buckley v. Trenton Sav. Fund Soc'y,
111 N.J. 355, 366 (1988)). For the intentional act to result in liability, the
defendant must intend to do the act and produce emotional distress. Ibid.
"Liability will also attach when the defendant acts recklessly in deliberate
disregard of a high degree of probability that emotional distress will follow."
Ibid. "The conduct must be '[S]o outrageous in character, and so extreme in
A-3439-18 14 degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.'" Ibid. Additionally,
the defendant's actions must be the proximate cause of the plaintiff's emotion al
distress. Id. at 22-23. Finally, the emotional distress must be so severe that no
reasonable man could be expected to endure it. Id. at 23. "[S]evere emotional
distress is a severe and disabling emotional or mental condition which may be
generally recognized and diagnosed by trained professionals." Juzwiak v. Doe,
415 N.J. Super. 442, 452 (App. Div. 2010) (quoting Turner v. Wong, 363 N.J.
Super. 186, 200 (App. Div. 2003)).
The fact that the municipal court judge found probable cause to issue the
criminal harassment complaint and TRO based on the testimony of a police
officer obviates any finding of outrageous conduct by J.P.Q. P.C. does not deny
that he sent several text messages to J.P.Q. after their romantic relationship
ended. A police officer reviewed those texts and described them to the
municipal court judge. Any reasonable person in J.P.Q.'s position would be
justified in reporting to police what she viewed as harassing communication s
from a man who was awaiting trial for the murder of his former girlfriend. We
note, too, that J.P.Q. had no control over the prosecutor's decision to move to
revoke P.C.'s bail on the murder charge, the court's decision to increase P.C.'s
A-3439-18 15 bail, or P.C.'s inability to raise the funds necessary to secure his pretrial release
on the murder charges.
With respect to the January 25, 2019 order, Rule 4:49-2 provides:
Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall . . . state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court’s corresponding written opinion, if any.
"A motion for reconsideration . . . is a matter left to the trial court's sound
discretion." Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Guido v. Duane
Morris, LLP, 202 N.J. 79, 87 (2010)); see also Cummings v. Bahr, 295 N.J.
Super. 374, 389 (App. Div. 1996). A party may move for reconsideration of a
court's decision pursuant to Rule 4:49-2, on the grounds that (1) the court based
its decision on "a palpably incorrect or irrational basis," (2) the court either
failed to consider or "appreciate the significance of probative, competent
evidence," or (3) the moving party is presenting "new or additional information
. . . which it could not have provided on the first application." Bahr, 295 N.J.
Super. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div.
1990)). The moving party must "initially demonstrate that the [c]ourt acted in
A-3439-18 16 an arbitrary, capricious, or unreasonable manner, before the [c]ourt should
engage in the actual reconsideration process." D'Atria, 242 N.J. Super. at 401.
Our review of the record reveals that P.C.'s motion for reconsideration
was largely a recapitulation of the arguments he raised in opposition to J.P.Q.'s
motion for summary judgment or were of insufficient significance to warrant
reconsideration.
To the extent we have not specifically addressed any of P.C.'s remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3439-18 17