CHRISTOPHER MAIER, Individually et al. v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION/ DIVISION OF LAND USE REGULATION, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6574-03T3

CHRISTOPHER MAIER,

Individually and t/a

THE LAND OF MAKE BELIEVE,

Plaintiff-Appellant/

Cross-Respondent,

v.

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION/

DIVISION OF LAND USE REGULATION,

and

SCOTT ANGUS, Individually,

Defendants-Respondents/

Cross-Appellants.

_______________________________________________________________

 

Argued January 19, 2006 - Decided February 24, 2006

Before Judges Conley, Weissbard and Lihotz.

On appeal from Superior Court of New Jersey

Law Division, Warren County, L-245-02.

Vincent W. Rickey argued the cause for

appellant/cross respondent.

Barbara L. Conklin, Deputy Attorney General, argued

the cause for respondent/cross appellant (Nancy Kaplen,

Acting Attorney General of New Jersey, attorney;

Patrick DeAlmeida, Assistant Attorney General,

of counsel; Jason T. Stypinski, Deputy Attorney

General, on the brief).

PER CURIAM

Plaintiff Christopher Maier appeals from an order of summary judgment dismissing all but one of his claims against defendant Scott Angus, and an order denying reconsideration of that denial. The sole count not dismissed, alleging trespass, proceeded to trial and resulted in a $500 jury verdict in favor of plaintiff. Defendant cross-appeals that verdict, arguing that summary judgment should have been granted on the trespass claim and that various errors warrant reversal of the jury's determination.

This appeal is the most recent litigation arising out of the June 2, 2001 sighting by defendant of a wood turtle, a State endangered species, N.J.A.C. 7:25-4.17, on the property of the Land of Make Believe (LOMB), a family amusement park in Hope, owned and operated by plaintiff. As a result of that sighting, the DEP Commissioner reclassified a portion of plaintiff's property from intermediate to exceptional resource value under the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30. Plaintiff previously appealed the DEP's reclassification determination, as well as the dismissal of a civil suit against the DEP and Laurence Torok, a DEP environmental scientist who was involved in the reclassification. In a decision filed April 18, 2005, we rejected plaintiff's arguments and affirmed both matters under review.

The facts underlying the present appeal and cross-appeal are, for the most part, set forth in our prior opinion and we see no need to repeat them here. Plaintiff presents the following arguments on his appeal from the order of summary judgment:

POINT I

THE RESPONDENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT RESPECTFULLY SHOULD HAVE BEEN DENIED UNDER R. 4:6-2(e), UNDER R. 4:46-2 AND UNDER BRILL; THERE ARE NUMEROUS ISSUES OF FACT; MOREOVER, DISCOVERY WAS INCOMPLETE AND THE ISSUES TO BE DETERMINED CONCERNED IN PART MALICE AND MOTIVE.

POINT II

THE VERIFIED COMPLAINT BELOW STATES A CAUSE OF ACTION FOR SLANDER OF TITLE; AT MINIMUM GENUINE ISSUES OF MATERIAL FACT EXIST RESPECTING THE CLAIM FOR SLANDER OF TITLE (DISPARAGEMENT).

POINT III

THE VERIFIED COMPLAINT STATES A CLAIM FOR DEFAMATION; AT MINIMUM, GENUINE ISSUES OF MATERIAL FACT EXIST AS TO, AMONG OTHER THINGS, THE PURPORTED "WOOD TURTLE SIGHTING," THE RESPONDENT'S MALICE, AND WHETHER THE RESPONDENT LOST BY HIS CONDUCT A QUALIFIED PRIVILEGE, IF ANY, WITH RESPECT TO HIS ALLEGED PUBLICATION OF A "REPORT" OF THE "SIGHTING."

POINT IV

THE VERIFIED COMPLAINT STATES A CLAIM FOR COMMON-LAW FRAUD LEGAL AND EQUITABLE FRAUD; AT MINIMUM, GENUINE ISSUES OF MATERIAL FACT EXIST AS TO THAT CLAIM; THE COURT BELOW FURTHER IMPROPERLY FOUND NO DUTY EXISTED BY RESPONDENT TO MAIER.

POINT V

THE VERIFIED COMPLAINT STATES A CLAIM FOR COMMON-LAW NEGLIGENCE (MISFEASANCE/MALFEASANCE) AND FURTHER FOR NEGLIGENT MISREPRESENTATION; THE RESPONDENT OWES THE PLAINTIFF A DUTY UNDER THE CIRCUMSTANCES HERE; AT MINIMUM FACTUAL ISSUES EXIST WITH RESPECT TO SUCH CLAIMS; THE COURT IMPROPERLY EXCLUDED THE APPELLANT'S EXPERT DAMAGES REPORT AS TO ALL DAMAGES CLAIMS.

POINT VI

THE VERIFIED COMPLAINT STATES A CLAIM FOR MALICIOUS INTERFERENCE; AT MINIMUM GENUINE ISSUES OF MATERIAL FACT EXIST RESPECTING THAT CLAIM.

POINT VII

THE APPELLANT'S VERIFIED COMPLAINT STATES CLAIMS FOR MALICIOUS USE OF PROCESS AND MALICIOUS PROSECUTION; AT MINIMUM MATERIAL ISSUES OF FACT EXIST WITH RESPECT TO SUCH CLAIMS.

POINT VIII

THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL DO NOT BAR APPELLANT'S CLAIMS HERE.

POINT IX

THE PROPOSED FIRST AMENDED VERIFIED COMPLAINT STATES A CLAIM UNDER 42 U.S.C. 1983 AND/OR 1985 AGAINST ANGUS ACTING IN HIS INDIVIDUAL CAPACITY; SUCH A CLAIM IS NOT GOVERNED BY THE NOTICE PROVISIONS OF THE TORT CLAIMS ACT AND IN ANY EVENT APPELLANT ALREADY HAD FILED A NOTICE OF TORT CLAIM.

POINT X

THE PROPOSED FIRST AMENDED VERIFIED COMPLAINT STATES A CAUSE OF ACTION FOR COMMON LAW CONSPIRACY AND FOR CONSPIRACY TO VIOLATE APPELLANT'S CIVIL RIGHTS; AT MINIMUM GENUINE ISSUES OF MATERIAL FACT EXIST IN THAT REGARD.

POINT XI

THE VERIFIED COMPLAINT AND PROPOSED FIRST AMENDED VERIFIED COMPLAINT ALLEGES A CLAIM FOR STATUTORY AND COMMON-LAW (FRAUDULENT CONCEALMENT) SPOILATION OF EVIDENCE.

POINT XII

THE COURT IMPROPERLY DENIED THE MOTION TO AMEND AND CONSOLIDATE.

POINT XIII

THE TRIAL COURT IMPROPERLY DENIED THE MOTION FOR RECONSIDERATION; ANGUS FURTHER FAILED TO ALLEGE THE TORT CLAIMS ACT PROVISIONS AS ANY AFFIRMATIVE DEFENSE.

On his cross-appeal, defendant argues:

POINT X

THE TRIAL COURT ERRED IN PERMITTING APPELLANT TO SUBMIT EVIDENCE OF MALICE AT TRIAL.

POINT XI

THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT THE BURDEN OF PROOF WAS ON DEFENDANT TO SHOW THAT THE REASONABLE SCOPE OF HIS INVITATION INCLUDED THE PUBLIC PARKING LOT.

POINT XII

THE TRIAL COURT ERRED IN PERMITTING APPELLANT TO PRESENT LAY OPINION EVIDENCE AT TRIAL.

POINT XIII

SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED AS TO THE TRESPASS CLAIM.

We have carefully considered the arguments on the appeal and cross-appeal in light of the record and the applicable law. We conclude that the arguments have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons given by Judge John J. Coyle, Jr. in his oral opinion of March 19, 2004. We add only the following brief comments.

To the extent that plaintiff's causes of action rested upon his claim that defendant's wood turtle sighting was concocted, either in its entirety or with respect to its location, that issue was fully addressed in the Office of Administrative Law (OAL) proceeding before Administrative Law Judge (ALJ) Hayden in June 2004. As we noted in our April 18, 2005 opinion, defendant testified in the OAL hearing and was "[]relentlessly challenged" on the question of his purported wood turtle sighting. Plaintiff's counsel, we said, "Left no stone unturned." Plaintiff also testified and produced expert testimony challenging the likelihood of defendant's sighting. Other witnesses testified on both sides of the issue. In her comprehensive written Initial Decision of February 5, 2004, quoted in our earlier opinion, ALJ Hayden "found credible [defendant's] testimony that he saw a wood turtle at the edge of the LOMB parking lot, south of Goose Island Road and found unpersuasive [plaintiff's] attempts to impeach [defendant's] veracity." Based on that essential factual finding, the ALJ determined that plaintiff's property had been properly classified as having exceptional resource value. On appeal, the Commissioner agreed with the ALJ and rendered a Final Decision.

Thus, the issue of fact concerning the wood turtle sighting was "actually litigated and determined by a valid and final judgment." Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 659 (1996) (quoting Restatement (Second) of Judgments 27 at 250 (1982)). As such, that "determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Ibid. The fact that the issue was determined by an administrative agency is of no moment; the determination is "entitled to preclusive effect 'if rendered in proceedings which merit such deference.'" Id. at 660 (quoting Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 369 (App. Div. 1994), certif. denied, 142 N.J. 446 (1995)). Nor do any of the "five exceptions to the general rule of preclusion" apply in this case. Ensslin, supra, 275 N.J. Super. at 370. Finally, the fact that defendant, although a witness, was not a party to the administrative proceeding is also of no moment. "[C]ollateral estoppel permits a defendant who was not a party to an action involving a common plaintiff to use a finding of fact from the prior action to preclude litigation of the issue in a pending case." Konieczny v. Micciche, 305 N.J. Super. 375, 385 (App. Div. 1997) (citations omitted). This is known as "defensive collateral estoppel." Ibid. Here, defendant had his day in court on the critical issue - the turtle sighting - and it is not required that he have had his day in court on that issue against plaintiff. Ibid. No reason appears why issue preclusion should not apply in these circumstances. Restatement (Second) of Judgments, supra, 29; see id. at 386.

Although not addressed by the motion judge, we conclude that collateral estoppel, or issue preclusion, barred plaintiff from basing any aspect of his civil suit against defendant on a contention that the wood turtle sighting did not take place as reported by defendant. Plaintiff had a full and fair opportunity to litigate that fact in the OAL proceeding, and it was resolved against him. Such a conclusion provides an alternate basis for granting summary judgment.

Affirmed on appeal and cross-appeal.

 

This suit was originally filed in the Chancery Division, naming the Department of Environmental Protection (DEP), as well as Angus as defendants. The Chancery judge dismissed the sole count against DEP and transferred the remaining counts against Angus to the Law Division.

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A-6574-03T3

February 24, 2006