WILLIAM J. BRENNAN v. STEVEN LONEGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-0274-09T1

A-1218-09T1

WILLIAM J. BRENNAN,

Plaintiff-Appellant,

and

GEORGE E. SILOS,

Plaintiff,

v.

STEVEN LONEGAN, individually and

in his official capacity as Mayor

of Bogota,

Defendant-Respondent,

and

GEORGE T. SHALHOUB, individually

and in his official capacity as

Council President of Bogota,

JOSEPH P. MONAGHAN, individually

and in his official capacity as

Counsel for the Borough of Bogota,

ANDREW T. FEDE, individually and

in his official capacity as

Counsel for the Borough of Bogota

and BOROUGH OF BOGOTA, a municipal

corporation,

Defendants.

WILLIAM J. BRENNAN,

Plaintiff-Respondent,

and

GEORGE E. SILOS,

Plaintiff,

v.

STEVEN LONEGAN, individually and

in his official capacity as Mayor

of Bogota,

Defendant-Appellant,

and

GEORGE T. SHALHOUB, individually

and in his official capacity as

Council President of Bogota,

JOSEPH P. MONAGHAN, individually

and in his official capacity as

Counsel for the Borough of Bogota,

ANDREW T. FEDE, individually and

in his official capacity as

Counsel for the Borough of Bogota

and BOROUGH OF BOGOTA, a municipal

corporation,

Defendants.

___________________________________

December 20, 2010

 

Argued November 29, 2010 - Decided

 

Before Judges Reisner, Sabatino and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-419-08.

 

William J. Brennan, appellant(A-0274-09T1/ respondent(A-1218-09T1), argued the cause pro se.

 

Steven S. Polinsky argued the cause for respondent(A-0274-09T4/appellant(A-1218-09T1).

 

PER CURIAM

In these consolidated appeals, plaintiff William Brennan appeals from a July 30, 2009 trial court order dismissing his complaint against defendant Steven Lonegan. In turn, Lonegan appeals from the trial court's order of September 25, 2009 denying his motion for counsel fees premised on his claim that Brennan's complaint was frivolous. We affirm both orders on appeal.

I

 

Brennan's lawsuit alleged that Lonegan committed malicious use of process and malicious abuse of process in connection with an earlier lawsuit in which Lonegan sued Brennan for defamation. The current appeal can only be understood if we first consider that earlier suit.

A. Lonegan v. Brennan

 

The defamation suit was premised on a variety of insulting and inflammatory statements that Brennan and a co-defendant, George Silos, made about Lonegan.1 In moving to dismiss Lonegan's lawsuit, counsel for Brennan and Silos argued to Judge Mecca that the lawsuit was an extension of a political feud between Lonegan and Brennan; that the litigation amounted to a SLAPP2 suit, which Lonegan had filed in an attempt to silence their public criticism of him; that the suit was frivolous; and that the court should not only dismiss the suit but should order Lonegan to pay their counsel fees. In connection with these contentions, they argued that no further discovery was needed. In his decision on the motion, and on Lonegan's reconsideration motion, Judge Mecca specifically adopted Brennan's and Silos' argument that further discovery was not needed.

Judge Mecca dismissed Lonegan's lawsuit, based on First Amendment principles applicable to public figures. He found that Lonegan was a public figure, that the defendants had at least some basis for most of the allegedly defamatory statements even if the underlying assertions were false, and that there was no evidence that either defendant acted with actual malice.

After Judge Mecca dismissed the lawsuit, Brennan moved for counsel fees on the grounds that the lawsuit was frivolous and was filed in bad faith. Brennan's counsel once again argued that the action was a SLAPP suit brought "to silence [Brennan's] constitutional rights," but he asserted that his client had refused "to be sued into silence." Brennan s fee claim was premised on N.J.S.A. 2A:15-59.1b, which permits recovery if the judge finds either:

1) The complaint, counterclaim, cross-claim or defense 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, counterclaim, cross-claim or defense 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.

 

[Ibid.]

 

Judge Mecca denied Brennan s fee application, finding that Lonegan's complaint "was not frivolous" due to the scurrilous nature of the allegations made, and the complexity of the legal issues involved. He found there was "insufficient evidence for the Court to find that [at] the initiation of this suit [and] up until [the] summary judgment hearing[,] that the plaintiff or his counsel knew or should have known that the complaint would fail." He also found there was evidence that Lonegan had some evidentiary basis to believe "that the defendants made the statements knowing that they were false or [made] with reckless disregard to the truth." In other words, Lonegan had probable cause to file the lawsuit, although he ultimately lost. Based on those findings, Judge Mecca denied Brennan's application for counsel fees.

B. Brennan v. Lonegan

 

Not content with the outcome of the first lawsuit, Brennan initiated the current lawsuit against Lonegan. In this lawsuit, Brennan essentially recycled his contention that Lonegan's now-dismissed defamation action had been a SLAPP suit aimed at silencing Lonegan's political critics. Brennan sought damages for malicious prosecution and malicious abuse of process.

In a written opinion dated July 30, 2009, Judge Donohue concluded that Brennan's attempt once again to recover counsel fees from Lonegan was barred by collateral estoppel, even though Lonegan had changed his legal theory for seeking those damages. He also reasoned that Brennan was collaterally estopped from pursuing a malicious use of process claim, because Judge Mecca previously found that Lonegan had probable cause to bring the defamation claim. Judge Donohue further concluded that the malicious use of process claim failed because Brennan did not present evidence of a special grievance in the form of any interference with his "liberty or property." Finally, the judge dismissed Brennan's malicious abuse of process claim, because he failed to prove a further act after service of process which would constitute an actionable abuse of that process.

II

 

We review the trial court's decision de novo, employing the same standard that trial courts use to decide summary judgment motions. See Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

We begin by considering the law as it applies to Brennan's causes of action. In a recent opinion, we explained the tort of malicious abuse of process, as opposed to malicious use of process:

Our focus must not be on what prompted the suit but what action plaintiff engaged in after commencement of the action.

 

The tort of malicious abuse of process lies not for commencing an improper action, but for misusing or misapplying process after it is issued. To be found liable for malicious abuse of process, a party must have performed additional acts "after issuance of process 'which represent the perversion or abuse of the legitimate purposes of that process.'" We have further clarified that "process is not abused unless after its issuance the defendant reveals an ulterior purpose he had in securing it by committing 'further acts' whereby he demonstrably uses the process as a means to coerce or oppress the plaintiff." In order for there to be "abuse" of process, therefore, a party must "use" process in some fashion, and that use must be "coercive" or "illegitimate."

[Hoffman v. Asseenontv.Com, Inc., 404 N.J.

Super. 415, 431 (App. Div. 2009) (citations

omitted).]

 

To prevail in a malicious abuse of process claim, plaintiff must show that the defendant committed a further wrongful act beyond merely filing an unmeritorious complaint:

Further acts which lend themselves to an abuse of process include "attachment, execution, garnishment, sequestration proceedings, arrest of the person and criminal prosecution and even such infrequent cases as the use of a subpoena for the collection of a debt." Prosser & Keeton on Torts, supra, 121 at 899 (footnotes omitted). In Tedards v. Auty, 232 N.J. Super. 541, 551 (App. Div. 1989), for example, we reversed a summary judgment in defendant's favor where plaintiff charged abuse of process by defendant, an attorney, who obtained a writ ne exeat in a matrimonial enforcement action resulting in plaintiff's incarceration. The "further acts" of defendant after the writ was issued were his knowing and material misrepresentations to a judge of the record of the family action to justify the setting of a substantial bail before plaintiff's release after the ne exeat was served. Ibid.

 

[Baglini v. Lauletta, 338 N.J. Super. 282, 294 (App. Div.), certif. denied, 169 N.J. 607 (2001).]

We agree with Judge Donohue that Brennan did not prove that Lonegan committed an abuse of process after filing his defamation lawsuit. Brennan contends that Lonegan abused process by filing an inaccurate certification in opposing summary judgment and in making an exaggerated damage claim. Those acts do not rise to the level of an abuse of process, as described in Baglini, supra. No further discussion is warranted on this point. R. 2:11-3(e)(1)(E).

We turn next to the claim of malicious use of process. This cause of action is disfavored because of its potential to chill free access to the courts for redress of grievances:

A plaintiff in a malicious use of process case must prove four elements: that the original action complained of (1) was brought without probable cause; (2) was actuated by malice; (3) was terminated favorably to plaintiff; and (4) that plaintiff suffered a special grievance. The tort of malicious use of process is disfavored out of fear that its use could chill free access to the courts. . . . The elements of the tort place severe restrictions on a plaintiff's ability to recover, thus recognizing the counter-policy of free access to judicial bodies.

 

[Baglini, supra, 338 N.J. Super. at 299 (citations omitted).]

In reaffirming the elements of this cause of action, our Supreme Court recently observed that "what appears to one party to be a SLAPP suit may, to the other party, be a good faith effort to protect one's own reputation or business either through a suit for defamation or for tortious interference with a contract or a prospective business opportunity." LoBiondo v. Schwartz, supra, 199 N.J. at 88.

The Court held that probable cause was ordinarily an issue for the court, and defined the term as follows:

We begin with probable cause, an element that has a well-established meaning arising in criminal law and therefore an equally plain meaning when used in the context of an action for malicious prosecution. . . . Probable cause is a matter of law to be determined by the court, and it is only submitted to the jury if the facts giving rise to probable cause are themselves in dispute. Whether decided by the court or a jury, the inquiry into whether there was probable cause is determined by means of an objective analysis. The question to be decided is whether, in the prior suit, the facts supported the actor's "honest belief" in the allegations.

 

In this context, honest belief means, using the reasonable prudent person standard, a reasonable belief that there was a good or sound chance of establishing the claim to the satisfaction of the court or the jury. . . . It has been held, for example, that "[r]easonable or probable cause for the institution of a civil suit is the presence of reasonable ground for belief that the cause of action exists supported by circumstances sufficient to warrant an ordinarily prudent man in the belief that it exists."

 

[Id. at 93 (citations omitted).]

 

The doctrine of collateral estoppel precludes re-litigation of issues that were actually litigated and decided in an earlier action.

This Court has recognized that "the term 'res judicata' refers broadly to the common-law doctrine barring relitigation of claims or issues that have already been adjudicated." Collateral estoppel, in particular, represents the "branch of the broader law of res judicata which bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action."

 

[Tarus v. Borough of Pine Hill, 189 N.J. 497, 520 (2007)(citations omitted).]

 

A party asserting the doctrine must satisfy a five-part test:

For the doctrine of collateral estoppel to apply to foreclose the relitigation of an issue, the party asserting the bar must show that: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

 

[In re Estate of Dawson, 136 N.J. 1, 20 (1994)(citations omitted).]

 

In considering whether the issues are identical, the court should consider "whether there is substantial overlap of evidence or argument in the second proceeding; whether the evidence involves application of the same rule of law; whether discovery in the first proceeding could have encompassed discovery in the second; and whether the claims asserted in the two actions are closely related." First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 353 (2007).

We agree with Judge Donohue that collateral estoppel applied here to bar the claim of malicious use of process. Brennan s malicious use of process claim mirrored his bad-faith-litigation claim for counsel fees in the first lawsuit. In fact, as Brennan's attorney argued before Judge Mecca, his counsel fee claim was explicitly premised on the argument that the first lawsuit was a SLAPP suit. Judge Mecca rejected that claim. Engaging in the type of analysis required by LoBiondo, Judge Mecca found that Lonegan had probable cause to file the defamation suit and did not file the action in bad faith.3 Judge Donohue correctly concluded that the finding as to probable cause had collateral estoppel effect in the second lawsuit and was fatal to Brennan's malicious use of process claim.

We agree with Brennan that filing a frivolous lawsuit, as defined in N.J.S.A. 2A:15-59.1b(2), and malicious use of process are different causes of action. However, that does not defeat Lonegan's claim of collateral estoppel in this case. The two claims have a common element - a showing that the accused party lacked a good faith basis (i.e., probable cause) to file the original lawsuit. However, it is more difficult to sustain a cause of action for malicious use of process, because the plaintiff must also prove a special grievance, and must always prove malice. See Venuto v. Carella, Byrne, Bain, Gilfillan, Cecchi & Stewart, P.C., 11 F.3d 385, 391-92 (3d Cir. 1993).4 Therefore, a litigant may be able to establish a frivolous lawsuit claim without being able to prove malicious use of process, but the reverse is not necessarily true. Therein lies the logical flaw in Brennan's argument.

In this case, Brennan actually litigated the issue of his entitlement to counsel fees premised on his contention to Judge Mecca that Lonegan filed the defamation suit with malice and without probable cause. In fact, in arguing the frivolous lawsuit motion, his counsel characterized Lonegan's action as a SLAPP suit. Judge Mecca found that Lonegan had probable cause to file the lawsuit even if he did not prevail, and he entered a final order denying Brennan's counsel fee claim. Brennan did not appeal from that final determination.

Brennan's current attempt to differentiate his unsuccessful frivolous lawsuit claim from his current SLAPP suit elevates form over substance. It is essentially the same claim. And even if it were not, Judge Mecca's final adverse adjudication of the probable cause issue precluded Brennan from re-litigating that issue in the second lawsuit, thus rendering him unable to establish an essential element of his malicious use of process claim. See Tarus, supra, 189 N.J. at 521 (federal court s finding of probable cause for plaintiff s arrest estopped him from later pursuing a malicious prosecution claim in state court). In light of that conclusion, we do not address Brennan's further argument that he demonstrated the additional element of a special grievance.

F

inally, addressing Lonegan's appeal, we find no abuse of discretion in Judge Donohue's decision denying his counsel fee application. See Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).

Affirmed.

1 We need not repeat here Brennan s allegedly defamatory statements or Lonegan s factual defenses to those statements. Silos was a defendant in Lonegan s defamation suit and a plaintiff in this case, but he dismissed his claims against Lonegan and is not involved in this appeal.

2 SLAPP is an acronym for Strategic Lawsuit Against Public Participation. See LoBiondo v. Schwartz, 199 N.J. 62, 72-73 (2009)(discussing the SLAPP and SLAPP-back causes of action).

3 With respect to the issue of probable cause, Brennan successfully argued before Judge Mecca that no further discovery was required on the defamation and counsel fee issues, thereby defeating Lonegan's request for additional discovery. He is therefore judicially estopped from arguing that Judge Donohue could not decide the probable cause issue in the second lawsuit without allowing further discovery. See Kimball Int'l, Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 606-07 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001).

4 We do not necessarily agree with Evans v. Prudential Prop. & Cas. Ins. Co., 233 N.J. Super. 652, 661-62 (Law Div. 1989), which characterized the frivolous lawsuit statute, N.J.S.A. 2A-15-59.1, as aimed at suits brought without legal basis, as opposed to suits brought without factual basis. Unless a claim involves a purely legal issue, if there is no factual basis to file the claim there is also no legal basis to file it.