RICHARD and BETTY BROWNER v. KOHL'S DEPARTMENT STORES INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3232-08T13232-08T1

RICHARD and BETTY BROWNER,

Plaintiffs-Appellants/

Cross-Respondents,

v.

KOHL'S DEPARTMENT STORES,

INC., and STEPHANIE FASH,

Defendants-Respondents/

Cross-Appellants.

___________________________________

 

Argued April 28, 2010 - Decided

Before Judges Stern, Sabatino and J. N. Harris.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2258-06.

Brian F. Curley argued the cause for appellants/cross-respondents.

J. Brooks DiDonato argued the cause for respondents/cross-appellants (Parker McCay P.A., attorneys; Mr. DiDonato, of counsel; Stacy L. Moore, Jr., on the brief).

PER CURIAM

Plaintiffs appeal from an amended order granting summary judgment dismissing their complaint based on malicious prosecution and defamation. The defendants cross-appeal asserting other grounds for summary judgment on the malicious prosecution count and seeking reversal of the denial of an award of counsel fees.

Plaintiff was arrested for shoplifting as a result of an incident at a Kohl's Department Store in Morris Plains on August 2, 2005. He pled guilty to a lesser ordinance violation for disturbing the peace. He also stipulated to probable cause at the time. However, he now contends that he would not have entered the plea (which he asserts was made non-evidential) or made the stipulation if he knew defendants destroyed, or in any event, did not produce, videotapes which would have shown he had stopped in the vestibule area, and had not left the store, before being confronted by the defendant, security officer Stephanie Fash, with whom he left the allegedly stolen merchandise.

Plaintiffs further argue that defendants never moved for summary judgment on the defamation count so that count was improperly dismissed. Defendants seek counsel fees under R. 1:4-8, but not the frivolous lawsuit statute, N.J.S.A. 2A:15-59.1, although claiming the litigation was frivolous.

Plaintiff asserts that he entered the Kohl's Department Store on August 2, 2005 after parking his work vehicle in Kohl's parking lot when it overheated. He allegedly planned to have his wife pick him up and for her to call him from her cell phone when she arrived. According to plaintiff's certification in opposition to summary judgment, after entering the store, he took a plastic bag from a register, which he "rolled up and put in [his] pocket, with the intent to put the items [he] wanted to purchase in the bag when [he] was ready to check out." While he was shopping, his cell phone rang but "could not get a good cell phone signal in the store," so he walked to the vestibule, passed the registers only in order to receive the cell phone call from his wife who had come to pick him up. He dropped the bag and merchandise when confronted by Fash, and left the store so he would not be late for a family function, but was identified by virtue of his employer's truck. New Jersey Transit (NJT) suspended plaintiff based on the shoplifting complaint Fash filed and the warrant which followed his failure to appear in municipal court.

On September 26, 2005, Browner agreed to enter a negotiated plea of guilty to the lesser charge of violating a municipal ordinance for misbehavior, in exchange for a fine of $500 and a prohibition from entering any Kohl's Department Stores. Through counsel, he also stipulated that Kohl's and Fash had probable cause to file the complaint for shoplifting. The following statements were made by the parties on the record during the plea allocution:

MR. BROWN [the Prosecutor]: Judge, with the consent of Ms. Fash, who has contacted her superiors, we're going to ask the Court to amend to our local ordinance for improper behavior, 308, to which there will be guilty plea, with the understanding, Judge, that we're recommending a $500 fine, but he's no longer welcome in Kohl's. And we would certainly - - we certainly believe that all the parties would agree that M[s]. Fash was acting in the performance of her duties when she issued the original charge.

MR. WILLIS [Browner's attorney]: Your Honor, the Prosecutor's representations are correct and we'll stipulate to probable cause.

THE COURT: And, Mr. Browner, you're aware of what's going on here today?

MR. BROWNER: Yes, sir.

THE COURT: You've authorized counsel to enter this plea on your behalf on the ordinance charge for misbehaving?

MR. BROWNER: Yes, sir.

THE COURT: Do you want to say anything on your behalf?

MR. BROWNER: No.

THE COURT: Ma'am, do you want to add anything?

MS. FASH: No.

THE COURT: All right. Given the representations placed on the record, the State will grant -- the Court will grant the amendment, excuse me, of a 308X on the one-count complaint, accept the guilty plea and impose a $500 fine and $33 court costs. And note for the record that he's prohibited from entry into any of Kohl's properties. All right?

MR. BROWNER: Thank you very much.

THE COURT: You're welcome.

More than a month later, on October 28, 2005, Willis wrote a letter to the municipal judge in which he noted that at the time of Browner's plea he had not requested that the plea be "inadmissible in civil matters," but that he was then making that request. A copy of that letter was sent to plaintiff only, but not to Kohl's, Fash, or even the prosecutor. On November 2, 2005, the judge wrote "no civil admission" on the disposition section of the complaint summons. See R. 7:6-2.

In his certification in opposition to summary judgment, plaintiff states

At court that day Kohl's agreed to withdraw the shoplifting charge, but the prosecutor told me only if I agreed to plead guilty to "disturbing the peace," (technically it was called "breach of the peace and good order") which was a very, very minor violation. I was prepared to challenge the Kohl's allegations since I knew they could not prove I was guilty of shoplifting, but the prosecutor and my attorney for that hearing told me it would take the rest of the day to challenge the matter and I might have to come back on another day to have a trial, which might not be scheduled for another month or more. The prosecutor assured me that agreeing to plead guilty to the disturbing the peace ordinance would be "a step above a parking ticket" and that if I agreed it would end everything. My attorney told me the guilty plea would could [sic] not be used against me in any other way or any other proceeding. I was at the time suspended from NJT. I was anxious to put this behind me as soon as possible and get back to work, I agreed to plead guilty to the "disturbing the peace" charge on the honest belief that would be the end of it. I did not think NJT could take away my job, as a result of the huge misunderstanding. Never were the implication[s] of "probable cause" explained to me, nor did I approve my attorney to agree to such a thing.

In his deposition in this case, Robert Armbruster, a Kohl's Loss Prevention Supervisor, testified that he agreed to have Browner's charge reduced from shoplifting, N.J.S.A. 2C:20-11(b)(2), to an ordinance violation because he "didn't want to see a person lose his livelihood."

In their depositions, Fash and Armbruster acknowledged that there was an exterior camera system in the parking lot of the Kohl's store that would have captured Fash's confrontation with plaintiff, but that the existence of the relevant videotape was neither disclosed to Browner or to the prosecutor at the time Browner agreed to plead to the ordinance violation. Fash testified that there was an exterior camera "facing the entranceway, so the angle looking down, having a view of the parking lot and the doors, just so you can see people walking in." Both Fash and Armbruster testified that the camera "panned" back and forth in order to obtain a broad view of the entranceway and the parking lot.

The exterior cameras were connected to a "multiplex" videotape machine; the multiplex machine continuously recorded the video transmissions from all the store's cameras on a multiplex master tape. The multiplex master tapes would be preserved for a month before they were recorded over. Furthermore, when a camera was manipulated by the multiplex operator to follow a specific person, such as when Fash recorded Browner's movements in the store, the transmission was recorded on one of two separate "call-up" tapes, which were preserved separately.

Fash testified in her deposition that following her confrontation with Browner she checked to see if the confrontation had been captured by an exterior camera, and she recalled seeing such a video. She said she "believe[d]" that she used the multiplex tape to observe Browner exit the store, and concluded "[s]o, yes, I did watch them . . . in the office." However, later on in her testimony she said she was unsure if she reviewed the multiplex tape containing the view from the exterior camera.

Fash acknowledged that it would have been important to preserve the multiplex tape which recorded the exterior view of the incident, as well as the recordation of confrontation with Browner on one of the two "call-up" tapes that were separate from the multiplex master tape, but perhaps on that occasion she had not done so. Fash admitted it would have been an "error on [her] part" if she did not save the relevant part of the master tape, but she did not remember if she had failed to do so or not.

In his written opinion granting defendants' motion for summary judgment, the motion judge wrote:

There are unresolved questions of fact regarding whether or not plaintiff was shoplifting and what the motivation was on the part of defendant's employee. The situation is exacerbated by the allegation that defendants knowingly destroyed certain surveillance tapes which may amount to spoliation and the inferences to be drawn from destruction.

There was an agreement not to use the plea to a lesser charge, a municipal ordinance[,] in a civil case, the issue of whether plaintiff's admission of probable cause in the Municipal Court is usable in light of the reservation is unresolved and not satisfactorily addressed by these parties.

However, whatever the disposition of these issues, it is clear that plaintiff did not demonstrate that the charges were terminated in a manner favorable to him. The fact is he pleaded guilty to a violation of an ordinance and paid a fine. I find that information is available to this Court to rule on the issue of malicious prosecution. If it is not, the plaintiff fails to show a favorable disposition.

In reviewing that determination, we employ the same legal standard that governed the trial court in reviewing the trial court's summary judgment order, see Estate of Hanges v. Metropolitan Prop. & Cas., ___ N.J. ___, ___-___ (2010) (slip op. at 15-16); Carlson v. City of Hackensack, 410 N.J. Super. 491, 495 (App. Div. 2009), and determine as a matter of law if summary judgment was properly granted.

"Malicious prosecution provides a remedy for harm caused by the institution or continuation of a criminal action that is baseless." LoBiondo v. Schwartz, 199 N.J. 62, 89 (2009). The tort of malicious prosecution is not favored by New Jersey courts because there is a public policy favoring people "seeking redress in the courts." Penwag Property Co. Inc. v. Landau, 76 N.J. 595, 597-98 (1978). See also Brunson v. Affinity Fed. Credit, 199 N.J. 381, 394 (2009). "[C]itizens should not be inhibited in instituting prosecution of those reasonably suspected of crime." Brunson v. Affinity Federal Credit Union, supra, 199 N.J. at 394 (quoting Lind v. Schmid, 67 N.J. 255, 262 (1975)). However, the cause of action of malicious prosecution still has vitality because "'one who recklessly institutes criminal proceedings without any reasonable basis should be responsible for such irresponsible action.'" Ibid. (emphasis in the original) (quoting Lind, supra, 67 N.J. at 262). Therefore, courts evaluating malicious prosecution claims must remember that the cause of action reflects a "precarious balance between encouraging the orderly resolution of disputes and preventing the abuses that may result therefrom." Id. at 395.

In order to recover damages for malicious prosecution of a criminal complaint, a plaintiff must establish: "(1) that the criminal action was instituted by the defendant against the plaintiff;" (2) the action was "actuated by malice"; (3) "there was an absence of probable cause" to prosecute; and (4) the action was "terminated favorably to the plaintiff." Id. at 393-94. "The plaintiff must establish each element and that, upon failure to prove any one, the cause must fail." Brunson, supra, 199 N.J. at 394 (brackets and alterations in the original omitted) (quoting Lind, supra, 67 N.J. at 262). See also Genito v. Rabinowitz, 93 N.J. Super. 225, 228-29 (App. Div. 1966).

It is not disputed by the parties that defendants instituted a "criminal action" against Browner notwithstanding that the municipal complaint alleged that "[t]he total of the stolen merchandise was $101.98," and charged a disorderly persons complaint. See N.J.S.A. 2C:20-11(b)(2)-11(e).

The Law Division granted summary judgment in favor of the defendants in this case on the basis that Browner's conviction and fine showed that the criminal action against him had not ended favorably for him. Plaintiffs argue, however, that the motion judge "erred by using Mr. Browner's plea agreement as the basis to grant summary judgment." The "Municipal Court Criminal Report" states that on September 28, 2005 plaintiff pled "guilty to 308X," a "local ordinance," and received a $500 fine, $33 in costs, and was prohibited "from Kohl's." The "disposition" also states "[p]robable cause was found." However, the report also states "no civil admission marked by Judge Liquori on November 2, 2005," over a month after the plea but almost ten months before this complaint was filed.

"The inquiry into whether a termination was favorable focuses on whether it was dispositive as to the accused's innocence of the crime for which they were charged." Freeman v. State, 347 N.J. Super. 11, 27 (App. Div.), cert. denied, 172 N.J. 178 (2002) (citing Rubin v. Nowak, 248 N.J. Super. 80, 83 (App. Div. 1991)). If, in fact, guilty, the plaintiff has no cause of action irrespective of malice or the lack of probable cause. Ibid. Moreover, under normal circumstances, a termination of a criminal proceeding based upon an "agreement of compromise with the accused" is not a favorable termination. Rubin, supra, 248 N.J. Super. at 83.

The plea agreement in this case was clearly an agreement of compromise. The plea transcript quoted above reveals that fact. The prosecutor spelled it out:

Judge, with the consent of Ms. Fash, who has contacted her superiors, we're going to ask the Court to amend to our local ordinance for improper behavior, 308, to which there will be a guilty plea, with the understanding, Judge, that we're recommending a $500 fine, but he's no longer welcome in Kohl's. And we would certainly -- we certainly believe that all parties would agree that M[s]. Fash was acting in the performance of her duties when she issued the original charge.

Defense counsel responded:

MR. WILLIS: Your Honor, the Prosecutor's representations are correct and we'll stipulate to probable cause.

And the judge confirmed from defendant that the plea was authorized and knowingly entered.

There was no reference whatsoever at the disposition on September 28, 2005, to Rule 7:6-2 or to the non-evidentiary use of the plea. The Rule expressly provides that "[o]n request of the defendant, the court may, at the time of acceptance of a guilty plea, order that the plea shall not be evidential in any civil proceeding." R. 7:6-2(a)(1) (emphasis added). We question the validity of the belated order here, particularly when the negotiated plea involved the person who caused the arrest and the prosecutor did not consider or recommend it as part of the plea. See R. 7:6-2. Moreover, independent of the plea itself, the stipulation of probable cause remains of record. Hence, there was no "absence of probable cause" to prosecute, and as "probable cause" is a standard requiring less proof than guilt, see e.g. State v. Chippero, 201 N.J. 14, 26-28 (2009), we can fairly say the record supports the stipulation despite defendant's present interpretation of the events. Furthermore, plaintiff remains convicted of record, and neither the sentence nor judgment of conviction have been vacated in the municipal court or on appeal. In fact, there is no evidence that plaintiff endeavored to withdraw his plea or petition for post conviction relief.

The current rule in New Jersey is that in a malicious prosecution action a conviction that "was obtained by fraud, perjury, or other corrupt means" should be disregarded. Lind, supra, 67 N.J. at 265-66. Plaintiffs allege that defendants intentionally destroyed or did not reveal the full surveillance tapes relevant to this case before Browner pled to the ordinance violation and that therefore the municipal court conviction must be vacated as the product of fraud or corruption.

We reject the contention. First, the plea agreement was entered between plaintiff and the municipal prosecutor, and there is no suggestion that there was any discovery violation or that defendant did not obtain any discovery in the possession or control of the prosecutor to which he was entitled. In any event, plaintiff has not endeavored to vacate the judgment of conviction and had a reasonable opportunity to do so before commencing this action. We affirm the order dismissing the malicious prosecution count.

The motion judge dismissed the defamation count even though the summary judgment motion did not seek such relief. Before us, plaintiffs claim that the defamation count is not based on the filing of the criminal complaint, but on a call from Kohl's Armbruster to plaintiff's employer after the truck was identified, because plaintiff was observed walking to it, which resulted in an adverse employment action. Because the count was not subject to consideration by the motion judge, we remand for its consideration. The defendants may assert that the municipal court complaint and proceedings impact on the defamation claim, and may assert a defense based on privilege. We take no position on the subject.

Of course, our remand precludes consideration of the cross-appeal. It is dismissed without prejudice.

 
The order dismissing the malicious prosecution count is affirmed. The order dismissing the defamation count is reversed and remanded. The cross-appeal is dismissed.

The complaint alleged defamation, malicious prosecution and loss of consortium in three counts. The orders of January 23, 2009 dismissed all "claims."

When we refer to plaintiff in the singular, we are referring to Richard Browner.

The warrant wrongly issued because the summons was never mailed to him, and was withdrawn.

A disorderly persons offense is a "criminal action" for purposes of a malicious prosecution action. See, e.g., Lind v. Schmid, supra, 67 N.J. at 260, 264-67.

"[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985). Here, there is no showing that the prosecutor violated the Brady rule or that defendants ever possessed evidence which would have affected the result. In fact, the defendants assert they "conceded the stop took place in the vestibule," not outside the store, for summary judgment purposes only. As there is no suggestion that any missing tape would have sound-recorded the conversation between plaintiff and Fash, the appearance of the missing tapes would not have changed the result of the summary judgment motion.

This is not the occasion to consider plaintiff's ability to proceed in a separate action against his defense attorney for not pursuing discovery or stipulating probable cause without consent.

Fash observed him return that night and drive his truck away after exiting another vehicle. She left a camera focused on his vehicle, which was observed in the lot for a long time.

(continued)

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A-3232-08T1

August 19, 2010