DREW BRADFORD v. DIANE SEVILLE GLEASON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5625-07T35625-07T3

DREW BRADFORD,

Plaintiff-Appellant,

v.

DIANE SEVILLE GLEASON,

Defendant-Respondent,

and

RENEE BARAN HEDGES,

Defendant.

_____________________________

 

Submitted March 17, 2009 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3884-06.

Carole K. Boyd, attorney for appellant.

Francis T. Gleason, Jr., attorney for respondent.

PER CURIAM

Plaintiff Drew Bradford filed a complaint against defendants Diane Seville Gleason and Renee Baran Hedges in November 2006, raising claims of malicious prosecution, intentional infliction of emotional distress, intentional deprivation of prospective economic benefit, and libel. The trial judge granted summary judgment to both defendants and dismissed the complaint. Thereafter, plaintiff moved for reconsideration, which the judge denied.

Plaintiff appeals from the May 23, 2008 order denying his motion for reconsideration; however, plaintiff addresses only the merits of the trial judge's granting of summary judgment in his brief, and fails to address the issue of reconsideration. Despite this inconsistency, we will address both orders. Moreover we note that plaintiff appeals only with respect to Gleason.

For the reasons that follow, we reverse and remand for further proceedings with respect to plaintiff's claim of malicious prosecution; in all other respects, we affirm.

The pertinent factual background, which we derive from the certifications and exhibits submitted to the trial court on the motion, may be summarized as follows. In the summer of 2005, plaintiff began to organize a fortieth high school reunion for the Summit High School Class of 1965 of which he is a member. Defendant asked classmates Gleason and Hedges to join him in the planning process, as they had experience in organizing previous class reunions. Plaintiff undertook the task of locating a venue and began to arrange a menu, while Gleason and Hedges began contacting former classmates about the upcoming reunion.

Plaintiff maintained that he was "the organizer and in charge of the event," notwithstanding the participation of Gleason and Hedges; plaintiff further asserted that he was "responsible for decisions and ownership of th[e] event."

On June 15, 2005, Gleason reserved space at the Inn at Somerset Hills under the group name "Summit High School Reunion," signed the contract in his name and personally made a $500 cash deposit for which he was subsequently reimbursed. At the end of June, Gleason opened joint account with plaintiff at a Bank of America in Summit, entitled "SHS Reunion Account," which was established to receive ticket sales deposits and to pay bills. Plaintiff and Gleason both had signing privileges on the account.

Sometime prior to August 2005, an initial invitation/informational flyer was mailed to the members of the reunion class indicating that the reunion would be held on October 15, 2005, and that tickets were $100 per person. Registrants were instructed to send their checks payable to "SHS Reunion" directly to Gleason, and that any questions should be directed to plaintiff, Gleason or Hedges.

As the planning continued, plaintiff made it clear that he intended to serve as master of ceremonies for the event; in September 2005, however, Hedges mailed out a flyer to classmates listing Peter Dieman as master of ceremonies. The flyer also described the "40th Year Class Reunion Committee," as being composed of plaintiff as "Facility and Food Coordinator, Co-Treasurer," Gleason as "Invitations, Co-Treasurer," and Hedges as "Communications, Mailing[.]"

Plaintiff's relationship with Gleason and Hedges began to sour at this point. Plaintiff informed Hedges that she had "harmed" him greatly and had "no right to replace" him as master of ceremonies, and that his "blood pressure [was] suffering un[d]er this vicious attack by [her] . . . ."

Another issue arose regarding the disposition of any profits realized after all reunion expenses had been paid. In discovery, Gleason stated that plaintiff had made several suggestions including buying lottery tickets; helping a classmate who had been diagnosed with cancer; renting a hotel room at the Inn at Somerset Hills where tired classmates could rest; and paying the profits to plaintiff as he was entitled to the "gain" for taking the "risk" in paying the deposit on the hotel. Gleason took the position that any excess money should be returned to the classmates, and told plaintiff that "the excess money was not his money, nor [hers] nor [Hedges'] money, and that [they] had to give the classmates the choice of what they wanted to do with their money."

Plaintiff asserted that he had made it known "from the very beginning, that if there [wa]s a profit, . . . it w[ould] go to help out needy classmates . . . ." Gleason protested, stating that the excess money was not plaintiff's property and that "[t]his [wa]s a class reunion, not a charity." Plaintiff never reached a final agreement with Gleason or Hedges as to the disposition of any profits from the reunion.

The relationship between plaintiff and Gleason continued to disintegrate over the issue of the excess funds; in a September 25, 2005 letter, Gleason asked plaintiff to stop calling her and to communicate only in writing as his phone calls had become "stressful." Tensions continued to mount and on October 9, 2005, plaintiff called Gleason and threatened to file an emergent motion against her, as she had left him "no choice" but to litigate the matter of the "overage."

On October 11, 2005, plaintiff withdrew $995.60 from the joint checking account dedicated to the reunion. Plaintiff asserted that he was allowed to remove the money because "he was in charge of the [reunion] and wanted to give $600 to a needy . . . cancer victim, while . . . Gleason wanted the money distributed for free alcoholic drinks." Plaintiff claimed he withdrew this amount only after receiving assurance from the bank manager that sufficient funds remained in the account to pay future bills.

Gleason went to the bank later on October 11, 2005, to "verify the [account] balance," and discovered plaintiff's withdrawal. Gleason then went to the Summit Police Department and filed an incident report with Officer Mathew Buntin, wherein she stated that plaintiff had withdrawn "the remaining balance of the account," and presented a receipt that showed the account balance to be zero as of 1:04 p.m. that day. Gleason also sent an overnight letter to plaintiff requesting a "full accounting" of the funds he had withdrawn that day and further demanding that the money be returned. The next day, Gleason met with Detective Andrew J. Bartolotti of the Summit Police Department and gave a full statement as to the background of the reunion planning and the activity on the joint bank account.

The reunion was held, as scheduled, on October 15, 2005. Two days later, Gleason sent a letter addressed to "Classmates, Class of '65," to "make [them] aware of an unfortunate situation which developed[] during the course of the planning of the reunion." Gleason wrote that the "SHS Reunion Account is now overdrawn, due to [plaintiff's] withdrawal of funds, prior to checks clearing." Gleason stated further that she had requested "a complete accounting" from plaintiff, and that her request had been ignored "and the money has not been returned to the SHS Reunion Account." Gleason added that plaintiff "did not disclose this fact of his withdrawal of funds[] to [them]," and that plaintiff "had purchased a crystal bowl and silk flower arrangement, which he said he would give to a classmate, at the reunion, after 'choosing a name from a hat.' He did not do this, either." Gleason advised classmates that the "entire matter [was] being handled by the Summit Police Department[,]" and that she was "pursuing the restoration of funds to the SHS Reunion [A]ccount, so that [she] c[ould] return the excess money to each reunion attendee, as [Hedges] and [she] had planned."

Thereafter, Gleason received numerous emails from classmates in response to her letter; the emails referred to the described incident as a "nightmare," a "controversy," a "mess," "madness," an "ordeal," a "deception," and "embezzlement."

On October 19, 2005, Detective Bartolotti telephoned plaintiff and informed him that he was investigating the withdrawal of funds from the joint SHS Reunion Account. Bartolotti asked plaintiff to come to police headquarters to discuss the matter, but plaintiff refused, according to Bartolotti's report, explaining that "he was in charge of the event and that the 'overage' was his . . . ."

Following his phone call with plaintiff, Bartolotti contacted an assistant prosecutor in the Office of the Union County Prosecutor to brief him on the investigation. The assistant prosecutor thereafter authorized charging plaintiff with one count of theft by deception. Bartolotti then contacted a municipal judge who authorized an arrest warrant with $2500 bail.

As plaintiff was a resident of Bedminster, Bartolotti contacted Detective Sergeant Craig Meyer of the Bedminster Township Police Department, who assisted in executing the warrant. Plaintiff was brought into the Bedminster police headquarters where he was taken into custody by Bartolotti. After receiving his Miranda rights, plaintiff was transported to the Summit Police Department in the back of a police vehicle; initially he was handcuffed, but those restraints were removed when plaintiff complained of discomfort due to a medical condition.

Plaintiff was detained at the Summit police station and was interviewed by Bartolotti and Detective Sean O'Leary. Plaintiff posted his $2500 bail with a personal check. At the conclusion of the interview, plaintiff was transported home by Bartolotti and another police officer.

On January 13, 2006, an assistant prosecutor in the Union County Prosecutor's Office informed Gleason that in light of all the evidence, "he could not prove [plaintiff] guilty" of the charge pending against him and that he was, therefore, dismissing the criminal case. The prosecutor also stated that plaintiff had "agreed to give up all claims to the $995.60 taken from him by the Summit Police Department[,]" and that the money would be returned directly to Gleason so that she could "return it to the reunion attendees, or do whatever else [she] fe[lt] was appropriate with it."

On November 3, 2006, plaintiff filed his complaint against Gleason and Hedges, setting forth the causes of action noted. On January 17, 2008, Gleason filed a motion for summary judgment. Following oral argument on March 14 2008, the trial judge granted that motion.

On the count of malicious prosecution, the trial judge found that plaintiff had failed to meet three of the four factors establishing that tort, as set forth in Myrick v. Resorts Int'l Casino & Hotel, 319 N.J. Super. 556, 563 (App. Div. 1999) (quoting Lind v. Schmid, 67 N.J. 255, 337 (1975)), namely: (1) "'the criminal action was instituted by the defendant against the plaintiff'"; (2) "'that it was actuated by malice'"; (3) that "'there was an absence of probable cause for the proceedings'"; and (4) that the proceeding "'was terminated favorably to the plaintiff.'"

The trial judge found that Gleason "had probable cause to . . . believe that the money was improperly taken. Indeed, the police thought the same and pursued the matter[,]" and "the mere fact that [defendant] went to the police with this inquiry under a factually confused . . . scenario," was not a sufficient basis to sustain a malicious prosecution claim. The only factor which the trial judge found that plaintiff had satisfied was that the proceeding was terminated in his favor.

Regarding the claim of intentional infliction of emotional distress, the trial judge set forth the four requisite elements of that tort, as stated in Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1998), that: (1) defendant acted "intentionally or recklessly"; (2) defendant's conduct was "extreme and outrageous . . . in a degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community"; (3) "defendant's actions [were] the proximate cause of . . . plaintiff's emotional distress"; and (4) the "emotional distress suffered by . . . plaintiff [was] so severe that no reasonable man could be expected to endure it." The judge ruled:

Assuming arguendo that . . . plaintiff has met the . . . burden of proving the first three prongs, . . . plaintiff has failed to meet prong four. He cannot prove his distress is so severe that no normal person would be expected to endure it.

The judge noted that plaintiff's psychiatrist, Dr. William T. Richardson, who had been treating plaintiff since 2001, described his "general anxiety disorder, [and] fear of heights and elevators[,] with the accompanying limitations on his social life." The trial judge concluded, therefore, that plaintiff's "diagnos[e]s predate[d] the reunion. [Dr.] Richardson has opined that these symptoms were exacerbated by the issues relating to the reunion. . . . Because these diagnos[e]s predate the reunion incident, they indicate [that] . . . plaintiff is more susceptible to distress than the ordinarily[] reasonable person." The judge noted that "defendants are not held liable when hypersensitive plaintiffs suffer severe emotional trauma from conduct that would not serious[ly] wound most people. . . . [I]t may be that he is extremely distressed as a result of this event, but that is not reasonable, . . . and I don't find his expert report supports it . . . ."

On plaintiff's claim of intentional deprivation of prospective economic benefit, the trial judge determined that he had failed to meet his burden of "show[ing] that he had a reasonable expectation of economic advantage and [that] this prospective advantage was lost as a result of [Gleason's] malicious interference with th[e] pursuit of that advantage." Citing Baldasarre v. Butler, 132 N.J. 278, 293 (1993), the judge further stated that "[t]he mere fact that [plaintiff] says he should have gotten the money[] doesn't prove that [Gleason] acted maliciously. A plaintiff['s] self[-]serving assertion . . . alone will not create a question of material fact sufficient to defeat a summary judgment motion."

Finally, the trial judge addressed plaintiff's claim of libel, which was premised primarily upon Gleason's October 17, 2005 letter. Plaintiff also tied his libel claim to the "voluminous emails" that his classmates allegedly sent "to everyone saying that [he] embezzled money and calling [him] a weirdo and crazy."

The trial judge found that although some of the statements contained in Gleason's letter could be viewed as defamatory, such as the statements that plaintiff "overdrew the bank account," that he "took money that [he] shouldn't have," and that the matter was under police investigation, nevertheless those statements were communicated only to the classmates who, the judge found, shared a common interest in the disposition of the reunion funds. Therefore, the judge concluded that Gleason was protected by a "qualified privilege." The judge noted that Gleason "had a concern as to what happen[ed] with this money as did [plaintiff]." The judge noted, however that "if she wrote this letter to the Star[]Ledger, I wouldn't rule in her favor. But because she limited it . . . just [to] the people who had an interest in the subject matter of the reunion, I find there's a . . . qualified privilege."

Plaintiff thereafter filed a motion for reconsideration, which the trial judge denied, stating: "[H]aving reviewed the papers[,] I am satisfied that my original decision was correct and indeed my findings need no amendment. I see nothing that I did not consider."

On appeal, plaintiff contends that the trial judge erred by (1) "failing to render findings of fact based upon the evidence presented and resolv[ing] material disputed facts which were jury questions"; and (2) "ignoring a thresh[]old material fact in dispute from which all questions of law stemmed." Having reviewed these contentions in light of the record and the controlling legal principles, we conclude that, with the exception of plaintiff's malicious prosecution claim, they are without merit. On all other counts we affirm substantially for the reasons stated by the trial judge in her opinion rendered from the bench on March 14, 2008.

We first address plaintiff's claim that "a thresh[]old material fact" was in dispute from which "all questions of law stemmed." The threshold material fact asserted is

whether the class reunion was plaintiff's event or whether there was the "committee" as alleged by . . . Gleason. A determination of that single fact affects all of the causes of action alleged by plaintiff. If it was plaintiff's event, then all of his causes of action are seen in a different light.

Plaintiff's claim that he "organized, masterminded, and risk[ed] his own money," and that he, therefore, was "entitled to any profits realized, just as he would have been liable for any deficits had the expenses exceeded the income," is not supported by the record. Plaintiff's only documented out-of-pocket expense was the $500 deposit he placed with the Inn at Somerset Hills, for which he was subsequently reimbursed in full. Moreover, the record demonstrates that plaintiff, Gleason and Hedges all performed tasks and spent personal funds in preparation for the event. Furthermore, plaintiff and Gleason opened a joint checking account to deposit proceeds from ticket sales and to pay bills. Both plaintiff and Gleason had signing privileges on this account.

The record is replete with evidence that plaintiff and Gleason worked jointly as the organizers of the reunion event. We reject, therefore, as completely self-serving plaintiff's assertion of this "thresh[]old material fact" which he claims should have defeated the granting of summary judgment.

We turn now to plaintiff's claim that the trial judge erroneously granted summary judgment to Gleason on his claim of malicious prosecution. We note at the outset that our standard of review for error in the grant of summary judgment mirrors that of the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A motion for summary judgment shall be granted

if 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. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.

[R. 4:46-2(c).]

See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Neither the trial nor appellate court may "decide issues of fact" but rather must "merely decide whether there are any such issues." Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).

Applying that standard to plaintiff's malicious prosecution claim, we conclude that the trial judge erred in precipitously concluding that Gleason did not act maliciously in making her complaint to the Summit Police Department. Plaintiff certified that on October 11, 2005, he withdrew $995.60 from the joint Summit Bank account expressly upon the assurance of the bank manager that such a withdrawal would "still leav[e] money in the account to cover the known expenses, taking into account that deposits had been made of $1500 which, in only hours, would show as available funds in the account." Plaintiff further certified that he withdrew that money "to give to . . . needy classmates."

Plaintiff also claimed that on the following day, Gleason withdrew the sum of $1425 from the account and deposited it in a new account. "By the withdrawal of the $1,425, this caused another check which Gleason had written to bounce. Thus, it was Gleason who caused the account to be overdrawn and a check to bounce, not [him]." Plaintiff asserted that although Gleason "rais[ed] a very vocal and loud fuss when she discovered that [he] had made that withdrawal[,]" she nonetheless, "knew the balance at that time, and thus deliberately caused the overdraft the next day by her withdrawal."

Furthermore, plaintiff noted that when Gleason went to the police station to file her complaint against him, she indicated to the police that "she was the person in charge," and never "mentioned a committee at that time." Based upon that representation, plaintiff contended, the police officer "advised [Gleason] that she had the right to file a civil complaint." Finally, plaintiff claimed, that "[w]hen [Gleason] couldn't get a criminal complaint filed against [him], she then deliberately caused the account to be overdrawn, and blamed it on [him] to the police."

In contrast, Gleason certified that when she went to the bank on October 11, 2005, she "discovered that [plaintiff] had withdrawn all available funds totaling $995.60 from the reunion account . . . ." Gleason emphasized that she and Hedges "continued to insist that classmates be given a choice as to what they wanted to do with the surplus money. [Plaintiff] did not agree to this . . . ."

On this record, we conclude that, "considering . . . all legitimate inferences . . . favoring [plaintiff]," R. 4:46-2(c), a material factual dispute exists as to whether Gleason acted maliciously on October 12, 2005, when she swore out a criminal complaint against plaintiff. The record is, at best, unclear as to the precise amount of funds in the joint bank account when plaintiff made what he claimed to be an authorized withdrawal of $995.60. If, as plaintiff asserted, the bank manager assured him that sufficient funds remained in that account after that withdrawal "to cover the known expenses," then a question arises as to the credibility of plaintiff's assertion that it was Gleason's subsequent withdrawal of $1425 on October 12, 2005 that caused the account to be overdrawn.

Additionally, Gleason's certification in support of her motion indicated her increasing frustration in dealing with plaintiff, stating that she found his "telephone calls . . . so upsetting" that she "finally requested that he contact [her] in writing, and [she] refused to accept any more of his harassing telephone calls." Thus, the relationship between plaintiff and Gleason had become quite antagonistic by October 2005.

The trial judge correctly identified the four elements of a malicious prosecution claim as set forth in Lind v.Schmid, supra, 67 N.J. at 262. The judge found, however, that plaintiff had established only the fourth prong, namely that the proceeding was terminated in his favor. The judge then proceeded to dismiss the claim, finding that "there[] [was] no testimony that this was a malicious act of . . . Gleason within the meaning of the word malicious."

The judge failed to address the first three Lind factors individually. It is clear that Gleason "instituted" a "criminal action" against plaintiff by filing a complaint with the Summit Police Department, ibid.; however whether that action was "actuated by malice," in the "absence of probable cause" is the crux of the inquiry here. Ibid.

We have defined "malice" as "the intentional doing of a wrongful act without just cause or excuse," holding further that "malice is inferable from the finding that the defendant had neither probable cause for the criminal complaint nor a reasonable belief in probable cause." Jobes v. Evangelista, 369 N.J. Super. 384, 398 (App. Div.), certif. denied, 180 N.J. 457 (2004). This record does not so clearly demonstrate that Gleason had such "just cause or excuse," ibid., to bring her complaint to the police as to warrant summary judgment on this count. We conclude that the trial judge failed to examine the record adequately in summarily finding that Gleason's conduct was not "within the meaning of the word malicious."

We have rejected plaintiff's contention that "the class reunion was [his] event[,]" thereby also rejecting his assertion that he was free to do whatever he wished with the proceeds generated by that event. We nonetheless conclude that the bank withdrawal incident that triggered Gleason's criminal complaint to the Summit Police Department was sufficiently ambiguous so as to prevent a clear answer on whether Gleason acted with malice in filing that complaint. Therefore, we reverse the grant of summary judgment as to plaintiff's malicious prosecution count and remand that cause of action for further proceedings.

With respect to the remaining counts of the complaint, we affirm the trial judge's grant of summary judgment for the reasons stated in her decision, which we find to be "based on findings of fact which are adequately supported by [the] evidence . . . ." R. 2:11-3(e)(1)(A). We add only the following comments.

Regarding plaintiff's claim of intentional infliction of emotional distress, we are satisfied that the trial judge properly concluded that plaintiff's diagnoses of "general anxiety disorder, [and] fear of heights and elevators" predated the reunion, and "indicat[ed] th[at] plaintiff is more susceptible to distress than the ordinarily[] reasonable person." The Supreme Court has held that a party

cannot recover for idiosyncratic emotional distress that would not be experienced by average persons. . . . This objective standard ensures that defendants are not held liable when hypersensitive plaintiffs suffer severe emotional trauma from conduct that would not seriously wound most people.

[Taylor v. Metzger, 152 N.J. 490, 516 (1998).]

We conclude that plaintiff failed to meet the requirements of this cause of action.

Regarding the claim of intentional deprivation of prospective economic benefit, plaintiff failed to make any showing that he had a reasonable expectation of economic advantage from organizing the reunion. Notwithstanding plaintiff's bald assertion that he was entitled to any "overage" because he was "in charge" of the event, the record reflects that plaintiff at various times expressed different intentions with respect to disposing of such "overage," including donating any profit to an ailing classmate or "help[ing] out needy classmates . . . ." As noted, the parties never reached an agreement with respect to the disposition of any "overage." Since plaintiff failed to demonstrate a "reasonable expectation of economic advantage[,]" and/or that such advantage was "lost as a result of [Gleason's] malicious interference with his pursuit of that advantage[,]" Baldasarre, supra, 132 N.J. at 293, we are satisfied that summary judgment was properly granted on this count.

Finally, we concur with the trial judge's grant of summary judgment on plaintiff's libel claim. As noted, that cause of action was based primarily upon Gleason's October 17, 2005 letter to "[c]lassmates." The "voluminous emails" that plaintiff alleged were sent "to everyone saying that [he] embezzled money . . .[,]" have no bearing on the issue of Gleason's liability on this claim.

We have held that "[a] qualified privilege . . . may be recognized for the protection of the publisher's 'own interest, the interest of the recipient or other third person, or an interest common to the publisher and the recipient.'" Gallo v. Princeton Univ., 281 N.J. Super. 134, 143 (App. Div.) (quoting Bainhauer v. Manoukian, 215 N.J. Super. 9, 36 (App. Div. 1987)), certif. denied, 142 N.J. 453 (1995). We are satisfied that the trial judge properly found Gleason's conduct to come within these parameters.

Finally, we conclude that the trial judge properly denied plaintiff's motion for reconsideration brought pursuant to Rule 1:7-4(b). As the judge noted, plaintiff's motion papers presented her with no new information or arguments which would lead her to change her original decision.

 
Affirmed in part; reversed and remanded in part.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The complaint against Hedges was subsequently dismissed by stipulation on July 22, 2008.

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A-5625-07T3

August 13, 2009