SARAH M. STONE et al. v. PETER L. STONE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4855-04T24855-04T2

SARAH M. STONE and

PATRICIA McBRIDE,

Plaintiffs-Respondents,

v.

PETER L. STONE,

Defendant-Appellant.

__________________________________________________________

 

Argued May 15, 2006 - Decided June 28, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. C-219-04.

Thomas B. Duffy, argued on behalf of appellant (Peter L. Stone, on the pro se brief).

Respondents have not filed a brief.

PER CURIAM

This appeal arises out of a complicated family dispute. Defendant, Peter L. Stone (Peter), the youngest son of Sarah Stone (Sarah), appeals the Chancery Division's March 15, 2005 final judgment dismissing his counterclaim and third-party complaint against Sarah and his sister, Patricia McBride (Patricia) for the torts of outrage, defamation, abuse of civil process, and malicious criminal prosecution. Sarah and Patricia defaulted on the counterclaim and third-party complaints against them. At the proof hearing, Judge Seltzer determined that the elements necessary to sustain a cause of action on those torts had not been made out and Peter's counterclaim and third-party complaint were dismissed.

The judgment also dismissed, for lack of prosecution, Sarah's complaint by her attorney-in-fact, Patricia, which sought to set aside Sarah's conveyance of a deed to real estate located in Mays Landing from Sarah Stone to Peter L. Stone as joint tenants with right of survivorship. The complaint alleged that the real estate was conveyed as a result of undue influence exerted on Sarah by Peter and in violation of a fiduciary duty owed by Peter to Sarah as a result of a previous power-of-attorney given by Sarah to Peter.

The final judgment additionally determined that the ownership status of the Mays Landing property was that Peter and his brother Roger Stone, III (Roger), were co-owners as tenants in common, by virtue of the February 28, 2002 deed from Sarah to Sarah and Peter as joint tenants with right of survivorship and an October 13, 2004 quitclaim deed from Sarah to Roger.

The final judgment also divided the occupancy of the Mays Landing real estate so that (1) Peter may only live on the top floors, and (2) Roger may only live on the first floor. That determination was based on the consent of Peter and Roger, which was placed on the record at the proof hearing. We affirm.

Defendant presents the following arguments for our consideration:

POINT I

THE COURT FAILED TO APPLY COURT RULES.

POINT II

THE COURT'S SCHEDULING WAS DISTINCTIVELY UNFAIR TO PETER L. STONE, WHO IS NOW PRO SE.

POINT III

THE COURT FAILED TO REVIEW EVIDENCE.

POINT IV

THIS IS A DEFAULTED CASE AND THE COURT AWARDED NO DAMAGES DESPITE THE CONDITION OF PLAINTIFF AS IT RELATES TO DAMAGES.

POINT V

THE COURT EXHIBITED PREJUDICIAL CONDUCT TOWARD PETER L. STONE.

POINT VI

THE OCTOBER 13, 2004 QUITCLAIM DEED FROM SARAH M. STONE TO ROGER STONE, III, WAS A FRAUDULENT TRANSFER.

On December 27, 2001, Sarah purchased a residential home located at 717 Penny Lane, in Mays Landing. On February 28, 2002, Sarah executed a deed for this property from Sarah to Sarah and Peter, as joint tenants with a right of survivorship. On October 13, 2004, Sarah then conveyed, by quitclaim deed, her remaining one-half interest in the property to Roger, thereby creating a tenancy in common between Peter and Roger. At the time of the pre-trial conference in November 2004 and of the proof hearing in March 2005, only Roger occupied the residence.

The Stone family members involved in this appeal have, over the past several years, exhibited a great deal of animosity towards one another. Sarah, at the time of this litigation, was living with Patricia and her family in Upper Darby, Pennsylvania. Over a period of years she executed a power-of-attorney first in favor of Peter and later in favor of Patricia. These powers-of-attorney have fueled battles over the conveyances of real estate formerly owned by Sarah in Ocean City and Cinnaminson, as well as the Mays Landing property.

Patricia has filed for multiple temporary restraining orders (TROs) against Peter in both Pennsylvania and New Jersey. Peter had been found guilty (by default) of making terroristic threats in Pennsylvania. Criminal charges were filed against Peter pursuant to these restraining orders and he has been arrested several times. Roger also filed criminal charges against Peter on June 6, 2002, in Atlantic City, where Peter was found guilty of harassment. On September 16, 2003, Patricia filed charges against Peter for theft of their mother's money. Patricia has also filed claims that Peter abducted their mother, kidnapped her, and held her against her will.

On November 19, 2004, Sarah's complaint and Peter's counterclaim and third-party complaint were the subject of a pre-trial management conference. Neither Sarah nor Patricia attended. The purpose of the conference was to determine what issues remained in the case and who exactly the participating parties were. At the conference, Peter and Roger entered into a settlement agreement, whereby Roger and Peter acknowledged that each owned fifty percent of the Mays Landing property, subject only to Sarah's concurrence. At the conference the judge suggested that the accounting claim of Peter against Patricia be dismissed and that the tort claims be transferred to the Law Division.

The pre-trial management order entered November 19, 2004, set a new discovery schedule and recited that among the claims to be litigated was Sarah's complaint seeking to set aside the deed from Sarah to Peter as procured by undue influence. Also included were Peter's remaining claims that (1) he was a 50% owner of the Mays Landing property and (2) that Sarah, Patricia and Richard Flynn, Esquire, their attorney, had committed the torts of outrage, defamation, abuse of (civil) process and malicious (criminal) prosecution. The management order entered default against Sarah and Patricia on the tort claims for failure to answer the third-party complaint. Additionally, Flynn was relieved as counsel for Sarah and Patricia.

On March 15, 2005, a one day proof hearing took place before Judge Seltzer. Peter and Roger appeared pro se. Sarah and Patricia were not present. The judge determined that the following issues were to be addressed at the proof hearing:

This is a family dispute which began by a claim - began with a claim by Sarah Stone that a deed she executed on February 28, 2002, from her to herself and Peter Stone was invalid for a multitude of reasons. It was met by a third-party complaint and counterclaim in which Peter Stone sought a declaration that that will, I'm sorry, that deed was appropriate, and that as a result of subsequent transactions, he, Peter Stone and Roger Stone, held title to that Mays Landing property as tenants in common, each owning an undivided 50 percent interest. Peter Stone also continues with seeking damages against Richard Flynn, Sarah Stone and Patricia McBride on several theories, and that's the extent of the litigation that I have before me. That litigation was laid out in my Order of November 19, 2004.

The judge continued:

So that's what's before me. It's a claim by Sarah Stone to set aside a deed that eventually resulted in ownership of certain property by Roger and Peter as tenants in common. There is a counterclaim by Peter. Damages against Richard Flynn had been dismissed. There's a claim against Sarah Stone and Patricia McBride, although I'm not sure where that's going by the time we're finished with this, but if I'm going to hear testimony, I'll hear testimony, and that's all that I have before me. This is now a very simple case. I am assuming - well, let me start first. I now have an application by Roger Stone, apparently, on behalf of his sister.

The application to which the judge was referring was to adjourn the proof hearing until a later date. The judge declined to do so.

The initial claim by Sarah was to set aside the deed, which in conjunction with the quitclaim deed from Sarah to Roger, ultimately vested title in the Mays Landing property as tenants in common in Peter and Roger. As set forth in the pre-trial order, Roger had filed pleadings seeking a declaration that the deed executed between Sarah and Peter as joint tenants was valid, and that as a result of the quitclaim deed, he and Peter were tenants in common, each holding a 50% interest in the Mays Landing property. The judge stated: "You and Peter Stone own this property as joint tenants. . . . In the absence of any proof that that deed is - was procured improperly, I dismiss the complaint, I dismiss the pleadings of the intervenor [Roger] because you've now gotten the result that you want and I deal only with the cross-claim against Sarah Stone and Patricia McBride . . . ."

After hearing the testimony of both Peter and Doris Doughty, a witness called by Peter, the judge found that Peter had failed to prove the required elements of the torts alleged against Sarah and Patricia. The judge, therefore, entered judgment dismissing the third-party complaint against Sarah and Patricia.

I

Peter contends that the judge violated Rule 4:25-2 by presiding over a management conference on November 19, 2004, and entering a pretrial order as a result, but failing to hold a pretrial conference as required by the Rules. He also contends that clerical defects in the actual order violate Rule 1:13-1. In addition, he asserts that the discovery deadline for completion of depositions is missing from the order.

Peter's arguments are without merit. Rule 4:25-1(a) states in pertinent part, "Pretrial conferences in contested actions may be held in the discretion of the court either on its own motion or upon a party's written request." (emphasis added). The case management conference held on November 19, 2004, was a pretrial conference as defined by Rule 4:25-1(a), and a pretrial order was properly entered on the record at the conclusion of the conference. Rule 4:25-1(b) sets forth the various elements to be contained in any pretrial order.

The clerical error alleged by Peter clearly does not constitute reversible error. Rule 1:13-1 states,

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission may at any time be corrected by the court on its own initiative or on the motion of any party, and on such notice and terms as the court directs, notwithstanding the pendency of an appeal.

The plain error rule is utilized when the trial errors alleged were not brought to the trial judge's attention but are rather raised for the first time on appeal. Rule 2:10-2 states in pertinent part, "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." We find no error in the pretrial order entered by the judge, let alone plain error.

II

Peter next contends that he was unfairly prejudiced by appearing as a pro se litigant on March 15, 2005, after his attorney, Thomas B. Duffy, Esquire, withdrew from the case. Peter asserts that he did not have adequate time to prepare and undertake depositions before the proof hearing because of the proximity of the hearing to the case management conference. He claims that the court erred in holding the proof hearing because he wrote a letter to the court in February requesting a time extension for the trial date for discovery purposes, and his letter was never responded to.

There is clearly no automatic entitlement to an adjournment until a later date as a result of a party being a pro se litigant. In addition, Peter admits that he never made a formal application for an adjournment prior to the day of the proof hearing on March 15, 2005. On that date, the judge indicated that he would not grant an adjournment, a decision we are convinced was within his broad discretion to make, since the judge had received no request for adjournment until moments before the proof hearing was scheduled to begin.

III

Peter contends that the trial court violated Rule 4:43-2(b) by failing to enter a default judgment and instead proceeding to take proofs on March 15, 2005. Peter admits that at the proof hearing, the judge heard testimony, but argues that he "didn't review any evidence as required under a hearing for a final default judgment . . . ."

Because the third-party claims were not for a sum certain, before judgment could be entered, Peter was first required to prove the elements of the torts he alleged. If liability were established, he also needed to prove damages pursuant to Rule 4:43-2(b). Rule 4:43-2(b) states in pertinent part:

If the party against whom judgment by default is sought has appeared in the action, that party . . . shall be served with notice of the motion for judgment filed and served in accordance with R. 1:6. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any allegation by evidence or to make an investigation of any other matter, the court may conduct such hearings with or without a jury or take such proceedings as it deems appropriate . . . . (emphasis added).

Rule 4:43-2(b) thus required the judge, in the exercise of his discretion, to determine the proceeding he deemed necessary in order to enable Peter to provide the proofs necessary for the court to enter a judgment in his favor. The judge heard relevant testimony from Peter and Doris Doughty, and based his decision of no cause for action on the facts presented and the applicable principles of law.

In order to be successful in a claim of intentional infliction of emotional distress, also known as the tort of outrage, a plaintiff must prove the following elements: (a) conduct which is intentional or reckless; (b) conduct which is extreme and outrageous beyond all bounds of decency; (c) severe emotional distress suffered by the plaintiff; and (d) the conduct complained of was the proximate cause of the emotional distress suffered. Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988). Our courts have found this "elevated threshold" to be satisfied only in extreme cases. Id. at 367.

Peter claims that because of his mother's restraining orders filed against him, she should be liable to him for the tort of outrage. When the judge asked what effect they had on Peter, he replied:

Peter: Threw me out on the street. My family was affected by it, I was affected by it emotionally.

Court: Tell me how it affected you.

Peter: I lost income to the tune of $40,000 minimum.

Court: Tell me about that. Let's do one thing at a time. Folks, you got to focus here. Tell me about the $40,000 that you lost.

. . . .

Peter: I lost work because I had to go to court numerous times. I lost good jobs that I would have normally done.

. . . .

Court: Okay. You were forced out of a house.

Peter: Yes.

Court: You had no place to live.

Peter: Yes.

Court: You were working at the time.

Peter: I was working at the time. Half my clothing I have not even recovered to this date.

. . . .

We are satisfied that the proofs presented did not satisfy elements (b) and (c), which are necessary to sustain a cause of action for the tort of outrage.

In order for a claimant to recover for the tort of defamation, he must prove five elements in addition to damages. The elements are: (1) a defamatory statement of fact; (2) concerning the plaintiff; (3) which was false; (4) which was communicated to a person or persons other than the plaintiff; and (5) with actual knowledge by the defendant that the statement was false. See Bainhauer v. Manoukian, 215 N.J. Super. 9, 31-34 (App. Div. 1987); Restatement (Second) of Torts, 580B (1977).

In this case, Peter described his claim for defamation as follows:

Peter: [M]y sister claimed I raped her. She's claimed that.

Court: Who did she claim that to?

Peter: Before the Superior Court on temporary restraining orders. This was in papers before Judge Baker's court to get a temporary restraining order. She falsified the papers claiming all kinds of things and including she was a present household member which, under New Jersey law, she had to be in order to file the papers in New Jersey. Later, Judge Maven overturned the case for lack of jurisdiction, specifically, and her not being a household member.

. . . .

Peter: I've been accused of rape, terroristic threats.

Court: Tell me about the terroristic threats. Was that also in the court proceeding

Peter: That was in the court proceeding. She actually, in part, she admitted to Judge Baker that she hadn't been threatened even though the paperwork claimed she had been threatened.

Court: Tell me about statements outside court that you say defamed you.

Peter: I can't state that I can because I haven't been able to be in her presence because of these orders. I've made and I've made it a point not to be in her presence.

Peter's testimony clearly indicates that his claim for defamation cannot be sustained, as the only statements allegedly made by Patricia were made in a court proceeding and are thus privileged. The judge correctly concluded:

The testimony I got was that the only defamatory statements made by Patricia McBride were either in court pleadings which are privileged by virtue of the privileging for statements made in the course of litigation or they were made to people which Peter Stone could not testify because he did not hear them. I dismiss the claim against defamation.

Our Supreme Court in Campione v. Adamar of New Jersey, Inc., 155 N.J. 245, 268 (1998), set forth the four elements necessary for a plaintiff to prove a claim for malicious prosecution. The Court stated:

Generally, to prove they were the victims of malicious prosecution, plaintiffs must prove four elements: the defendant instituted a criminal action against the plaintiff; the defendant was motivated by malice; probable cause did not support the filing of the complaint; and the complaint terminated favorably to the plaintiff.

[Ibid.]

Claims for malicious prosecution may also be brought in a civil rather than criminal context. See Mayflower Industries v. Thor Corp., 15 N.J. Super. 139, 152 (Ch. Div. 1951), aff'd o.b., 9 N.J. 605 (1952). An action at law for abuse of civil process "is governed by the same rules as those governing such an action arising out of a criminal prosecution." Ibid. For a successful cause of action, "it must appear (1) that the suit was brought without reasonable or probable cause; (2) that it was actuated by malice; and (3) that it has terminated favorably to the plaintiff in the malicious prosecution action. These elements must be established in addition to the special grievance already mentioned." Ibid.

To sustain an action for the tort of malicious abuse of process, one must prove "that the defendant perform 'further acts' after issuance of process 'which represent the perversion or abuse of the legitimate purposes of that process.'" Baglini v. Lauletta, 338 N.J. Super. 282, 294 (App. Div.), certif. denied, 169 N.J. 607 (2001) (quoting Penwag Prod. Co., Inc. v. Landau, 148 N.J. Super. 493, 499 (App. Div. 1977), aff'd, 76 N.J. 595 (1978)). "In the absence of some coercive or illegitimate use of the judicial process there can be no claim for its abuse." Ibid. Examples of "further acts" include "attachment, execution, garnishment, . . . arrest of the person and criminal prosecution . . . ." Id. at 294 (internal quotation omitted).

Peter's claims for malicious prosecution in both the criminal and civil context and for abuse of process cannot be sustained. Extensive testimony was heard from both Peter and Doughty, regarding the various TROs filed in both Pennsylvania and New Jersey against Peter, and the various accompanying criminal charges filed against Peter. They testified as to the impact these proceedings had had on the entire family. We are convinced that the judge correctly determined that despite the sheer volume of complaints and charges filed against Peter by various family members, they did not rise to a level to sustain a cause of action for either abuse of civil process or malicious prosecution.

Peter contends that the judge erred in his decision not to award any damages after hearing the testimony presented. We disagree. Our thorough examination of the record confirms that there was no evidentiary basis to sustain a cause of action for relief on any of the four torts alleged. The essential elements of the torts alleged simply were not proved. Accordingly, we affirm the March 15, 2005 judgment dismissing Peter's complaint substantially for the reasons set forth by Judge Seltzer in his findings of fact and conclusions of law spread upon the record after hearing Peter's proofs on March 15, 2005.

Affirmed.

 

Peter's third-party complaint against attorney Richard L. Flynn, Esquire, was dismissed prior to the proof hearing. That dismissal is not part of this appeal.

Defendant's counsel at oral argument conceded that Peter never alleged in his counterclaim or third-party complaint that the October 13, 2004 quitclaim deed constituted a fraudulent transfer. Therefore, the issue was never addressed by the trial judge and consequently the issue is not properly part of this appeal.

A substitution of attorney dated February 2, 2005, of Peter L. Stone as pro se attorney for Thomas B. Duffy, Esquire was entered by consent. On May 10, 2006, an appearance of attorney was filed by Duffy with the Clerk of the Appellate Division. Duffy appeared on Peter's behalf at oral argument.

(continued)

(continued)

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A-4855-04T2

June 28, 2006