ERICA D. VITANZA v. SAM H. JAMES, JR.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4899-07T14899-07T1

ERICA D. VITANZA,

Plaintiff-Respondent,

v.

SAM H. JAMES, JR. a/k/a SAM JAMES

a/k/a SAMUEL JAMES,

Defendant-Appellant.

 
 

Submitted April 14, 2010 - Decided

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

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8712-06.

Sam H. James, Jr., appellant pro se.

Thaniel J. Beinert (Law Office of Thaniel J. Beinert & Associates), attorney for respondent.

PER CURIAM

This is a defamation case that has its genesis in several false and inappropriate written statements made by defendant during, or in connection with, a summary dispossess action in the Special Civil Part. The targets of defendant's prose were the trial judge in the Special Civil Part, and plaintiff, a member of the bar of New Jersey who was representing defendant's landlord in that action. After a jury in the defamation action awarded plaintiff $200,000 in general damages, defendant appealed. He raises multiple issues, some for the first time on appeal. Because we depart from the views of the Law Division as to whether defendant's statements were defamatory as a matter of law, we reverse.

I.

In August 2006, defendant was sued for non-payment of rent in a summary dispossess action by his landlord, 279 4th Avenue Realty, L.L.C. The landlord was represented by plaintiff. After the trial judge declined to adjourn the trial, the defendant filed a pro se motion addressed to the Assignment Judge seeking (1) to dismiss the matter on the ground that rent had in fact been paid and (2) to recuse the trial judge.

In his motion papers, defendant included a copy of an ethics letter-complaint he had recently filed with the New Jersey Supreme Court Advisory Committee on Judicial Conduct (the Committee) against the trial judge, in an attempt to delay the trial. In the ethics letter-complaint, defendant asserted that plaintiff was "possibly" engaged in a sexual escapade with the trial judge. The complaint made dozens of other unfounded and extreme allegations, including charging a sitting New Jersey federal district court judge "with Witchcraft or Warlock;" accusing "all of the Judges in Essex County[,] New Jersey" of being prejudiced against pro se litigants and blacks; and asserting that other governmental actors had discriminated against "black [m]en for a long time under color of State Law under the Number 13."

The motion papers themselves repeated the false allegation of sexual favors by plaintiff, this time stating that she "is

probably" engaged in such prurient conduct with the trial judge.

The motion was appropriately channeled to the trial judge rather than to the Assignment Judge, and the court addressed it at trial, stating:

I read the letters. The letters are insulting to me. They're insulting to the Judiciary. They're insulting to Miss Vitanza. And and I'm going to give you a minute to reflect on these letter[s] and to apologize and withdraw the comments. And if you'd like to do that, I'm going to give you a chance to do that. If you don't do that, I'm going to refer these matters to another Judge under Rule 1:10-2 so that you can be held in contempt because I find, I believe that what you said what you what you wrote, I should say, is [contemptuous] and it demonstrates willfulness on your part and it needs to be dealt with under the rules under Rule 1:10.

Defendant apologized to both the judge and plaintiff; he withdrew his comment, but refused to retract "my complaints." Later in the proceedings, defendant stated, "I got so upset I made smart remarks wrong remarks remarks remarks to the Court. I apologize. I['ve] been so frustrated." Defendant admitted that "I've apologized to all the parties because I have to pick my choice of words better. There's a lot of frustration from what I have to go through." Given the apology, the judge did not find it necessary to refer the matter for a Rule 1:10-2 proceeding, and rejected plaintiff's request that defendant be otherwise sanctioned. Ultimately, the judge denied the motion for recusal, proceeded to try the case, and determined that "there's rent due and owing from June, July, August and September in the amount of $30 per month. Obviously, that's a total of $120."

Less than three weeks after the conclusion of the summary dispossess action, plaintiff promptly filed her two-count defamation action with the Law Division, expressly seeking "Compensatory Damages in the amount of one hundred thousand dollars ($100,000.00)." Defendant filed a digressive four-page, single-spaced, pro se answer, including a counterclaim for "$2 Million Dollars for Slander and Libel continued conspiracy."

Two months after that but before the discovery period expired plaintiff responded with a motion for summary judgment and for dismissal of defendant's counterclaim. In response, defendant claimed that his written comments were privileged to the extent they were made in the context of an ethics complaint, as well as to the extent they were made in the course of litigation. Defendant moved for the disqualification of the motion judge in the Law Division.

Thereafter, by oral decision, the motion judge granted plaintiff's motions. The court entered summary judgment in plaintiff's favor on defendant's liability for defamation, and denied defendant's cross-motions. Defendant filed a notice of appeal, but that appeal was dismissed by this court as interlocutory.

A damages trial was held several months later before a different judge, as well as a jury. Plaintiff testified on her own behalf, contending that defendant's false statements had caused her considerable embarrassment, although it had not objectively affected her earnings, but that her Special Civil Part practice was somewhat curtailed. The only other witness called by plaintiff was the property manager for the landlord she had represented in the summary dispossess action, who also happened to be the brother of the managing attorney of plaintiff's law firm (her employer), as well as serving as the trial attorney conducting the jury trial. This witness testified that he had read defendant's written accusations about both the plaintiff and the judge in papers that had been forwarded to him. Although he stated on direct examination that the accusations of sexual impropriety had affected his regard of plaintiff, he conceded on cross-examination that he did not believe those statements.

Defendant, who was by then represented at trial by an attorney, testified briefly. He admitted that the statements in question were untrue, but that he had not intended them to be regarded as true. He noted that he knew of no one who believed the statements to be true. Finally, he insisted that he had believed that the statements he made in the ethics letter-complaint and in the associated recusal motion in the Special Civil Part were privileged.

A unanimous jury found no actual damages proven, but awarded general damages to plaintiff in the amount of $200,000. Final judgment in plaintiff's favor was entered, and this appeal ensued.

II.

Considering the record as a whole under the totality of the circumstances, we are constrained to reverse the judgment in favor of plaintiff, affirm the dismissal of defendant's counterclaim, and end this litigation. We do so for several reasons, none of which requires a lengthy discussion. We, however, note the arguments contained in defendant's initial pro se brief:

POINT OF LAW I

THE PLAINTIFFS\RESPONDENT FAILED TO ESTABLISH A PRIMA FACIE SHOWING OF DEFAMATION IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH IN LYNCH V. NEW JERSEY EDUCATION. ASS'N., MCLAUGHLIN V. ROSARIO, BAILET & TALMO, INC., AND DEANGELIS V. HILL;

POINT OF LAW II

THERE IS A ISSUE OF GENUINE MATERIAL FACT AND AS A MATTER OF LAW THE JUDGE BELOW PURPOSELY ERRED IN GRANTING SUMMARY JUDGMENT TO THE PLAINTIFF;

POINT OF LAW III

THE PLAINTIFF FAILED TO ESTABLISH A PRIMA FACIE SHOWING OF DEFAMATION IN ACCORDANCE WITH THE REQUIREMENTS AS SET FORTH IN FREIDLAND V. PODHORETZ, CONTENTS OF ETHICS COMPLAINT ARE ABSOLUTE PRIVILEGED COMMUNICATION FAILURE TO WARN AND JUDGES BELOW FAILURE TO ABIDE BY COURT RULE 1:20-9 (H) 1:20-12 (A) & (B) AND PLACE PROTECTIVE ORDER. HOUSELY VS WAIVE DISMISSAL OF CASE L-8712-06;

POINT IIII

THERE IS A ISSUE OF ERROR ON THE JUDGE BELOW TO SIT IN A CASE OF MALICIOUS PROSECUTION AND DAMAGES ARISING OUT OF MY COUNTERCLAIM FOR 2 MILLION DOLLARS AFTER DISMISSAL OF CASE L-8712-06 FREIDLAND V PODHORETZ AND REMANDED TO SUPREME COURT OF UNITED STATES. SIMON V. RANDO IN: RE V. PATTERSON AND HOUSELY V. WAVE ENERGY THE MATTER WAS "DEVELOPED AND PRESENTED" DISMISSAL OF ACTION L-8712-06.

In his pro se reply brief defendant states:

POINT I

TRIAL COURT COMMITTED REVERSIBLE ERROR IN DETERMINING THAT THE PRIMIA FACIE SHOWING OF DEFAMATION.

POINT II

THE QUESTION REGARDING THE PLAINTIFF'S STATUS AS A PUBLIC FIGURE IS ONE FOR JURY, PRECLUDING SUMMARY JUDGMENT.

POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DETERMINING THAT THE DEFENDANTS STATEMENTS AT ISSUE CONSTITUTED DEFAMATION PER-SE.

POINT IV

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DETERMINING THAT NO GENUINE ISSUE OF MATERIAL FACT REMAINED.

POINT V

PLAINTIFF AND TRIAL JUDGE ERRED IN RENDERING SUMMARY JUDGMENT 13TH AMENDMENT OF U.S. CONSTITUTION.

Except for the following brief comments, we find that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

A.

First, the writings in question the ethics letter-complaint and the subsequent recusal motion could not objectively be regarded by a reasonable reader as constituting defamatory statements of actual fact. The context of defendant's allegations cannot be ignored. That is, the false accusations against plaintiff were integral parts of an overall diatribe that could not be objectively regarded as an expression of truth.

To prove defamation, plaintiff must establish that defendant made a defamatory statement of fact about her, which was false, and which was communicated in an unprivileged setting to a third party. She also must prove fault and damages. DeAngelis v. Hill, 180 N.J. 1, 12-13 (2004); Feggans v. Billington, 291 N.J. Super. 382, 390-91 (App. Div. 1996).

"A statement is defamatory when it is false and injurious to the reputation of another or exposes another person to hatred, contempt or ridicule or subjects another person to a loss of the good will and confidence in which he or she is held by others." Feggans, supra, 291 N.J. Super. at 390 (quoting Romaine v. Kallinger, 109 N.J. 282, 289 (1988) (internal citations and quotations omitted)).

In deciding whether a statement is defamatory, the court considers its content, verifiability, and context. Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 167 (1999); McLaughlin v. Rosanio, Bailets & Talamo, Inc., 331 N.J. Super. 303, 312 (App. Div.), certif. denied, 166 N.J. 606 (2000). The content of the statement must also be considered in the context of the publication as a whole. Romaine, supra, 109 N.J. at 290; Hill v. Evening News Co., 314 N.J. Super. 545, 552 (App. Div. 1998). "The focus is on the effect of the alleged defamatory statement on third persons, that is, whether they viewed the plaintiff in a lesser light as a result of hearing or reading the offending statement." Russo v. Nagel, 358 N.J. Super. 254, 263-64 (App. Div. 2003).

Contextually, however, no reasonable reader would have believed defendant's statement in the ethics letter-complaint because it was included in a document that contained a number of other highly implausible accusations. For example, the ethics letter-complaint alleged a conspiracy between federal and state judges to dismiss a federal case he had commenced. He followed that with an allegation of "Genocide by the State of New Jersey," as well as by other states, in which he claimed:

President Bill Clinton, brought this to light, in the Plutonium Experiments case and laughed talking about those guys meaning the Physicians. I have read the Masonic Rituals and this is what whites have been doing to black Men for along [sic] time under color of State Law under the Number 13. The Supreme Court needs to review the Number 13 and free all black men from this unequal justice and murder, United Nation General Kofia [sic] Annan, please give a copy of this letter to all nations for their review.

Defendant's assertion that plaintiff was "possibly" engaged in a sexual liaison with the trial judge is made on page three of this same document. However, any reasonable person who had read the letter in its entirety would have necessarily discounted all of defendant's allegations.

A similar analysis pertains to the recusal motion. Given the incredible assertions appearing in the same writings, and the patent antipathy of this pro se litigant towards the court and his adversary in the underlying landlord-tenant matter, the words at issue cannot reasonably be construed, when viewed in their totality, as assertions of actual fact, regardless of their offensiveness. See Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585 (2009); G.D. v. Kenny, 411 N.J. Super. 176, 187 (App. Div. 2009).

Indeed, the Special Civil Part judge, who himself was one of the targets of the accusations, aptly classified the claims as ridiculous and far-fetched. The sole third-party witness called by plaintiff at the damages trial in the Law Division admitted that he himself did not believe the accusations. Objectively rather than literally considered, these assertions do not support a cause of action for defamation. Our conclusion is reinforced by the classic admonition that "[t]here is no surer way to misread any document than to read it literally." Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (Hand, J., concurring), aff'd sub nom., Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S. Ct. 605, 89 L. Ed. 921 (1945).

B.

Although defendant has not specifically invoked the litigation privilege in his pro se briefs, he and his former trial attorney repeatedly referred to the concept of "privilege" for their arguments made in the trial court, the interlocutory appeal, and the present appeal, albeit tied to the immunity that covers statements made by grievants in ethics matters pursuant to Rule 2:15-22(b) and Rule 1:20-7(f). Moreover, whether or not asserted clearly in defendant's rambling pro se submissions, the court has inherent authority and discretion to consider the litigation privilege in this case, insofar as that privilege affects the functioning of our justice system. See Loigman v. Twp. Comm. of Middletown, 185 N.J. 566, 582-83 (2006).

The absolute litigation privilege applies to "'any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.'" Hawkins v. Harris, 141 N.J. 207, 216 (1995) (quoting Silberg v. Anderson, 786 P.2d 365, 369 (Cal. 1990)); see also Loigman, supra, 185 N.J. at 583-84 (holding that "the litigation privilege protects attorneys not only from defamation actions, but also from a host of other tort-related claims" including actions for tortious interference).

The tawdry statements made by defendant throughout the ethics letter-complaint and recusal motion are closely and sufficiently linked with the then-pending landlord-tenant action to warrant our application of the litigation privilege. The litigation privilege is not limited to statements made at trial, but extends to all statements or communications made in connection with judicial-like proceedings. See Zagami, LLC v. Cottrell, 403 N.J. Super. 98, 105 (App. Div. 2008); Baglini v. Lauletta, 338 N.J. Super. 282, 297 (App. Div.), certif. denied, 169 N.J. 608 (2001).

Importantly, but understandably, the Special Civil Part judge did not refer defendant's conduct for sanctions pursuant to Rule 1:10-2 or Rule 1:4-8. Moreover, there was no use of Rule 4:6-4 (declaring that on the court's or a party's motion, the court may dismiss or strike a part of a pleading "that is, overall, scandalous, impertinent, or, considering the nature of the cause of action, abusive of the court or another person."). Thus, the offending writings remained closely aligned with the summary dispossess litigation and are protected by the litigation privilege.

Immunity from suit provided by the litigation privilege is predicated upon the policy concern that recognizes unfettered expression by litigants is critical to advancing the underlying government interest at stake in such settings. Erickson v. Marsh & McLennan Co., 117 N.J. 539, 563 (1990); Rabinowitz v. Wahrenberger, 406 N.J. Super. 126 (App. Div.) appeal dismissed, 200 N.J. 500 (2009) (recognizing the litigation privilege as "indispensable" and noting that "[t]he public policy rationale for the litigation privilege has not changed in half a millennium."). "This absolute privilege applies 'even if the words are spoken maliciously, without any justification or excuse, and from personal ill will or anger[.]'" Williams v. Kenney, 379 N.J. Super. 118, 134 (App. Div.) (quoting DeVivo v. Ascher, 228 N.J. Super. 453, 457 (App. Div. 1988)), certif. denied, 185 N.J. 296 (2005).

As emotional as plaintiff must have justifiably felt upon reading defendant's invective against her, we cannot conceive of an exception to the immunizing effects of the litigation privilege in this case. The privilege protects saint and sinner alike, sweeping defendant's bilge under its mantle. One may not always be fond of the privilege's application, but we are obliged under the law to indulge and adhere to it. To the extent defendant's writings were gratuitously crude and offensive hindering the judicial process defendant was subject to sanctions pursuant to the trial court's comprehensive control over the proceedings before it.

C.

Lastly, we part company with the Law Division's determination that damages are warranted, even in the absence of proof of actual damages. There is a general shift toward requiring plaintiffs in all defamation actions to prove actual damages through the production of concrete evidence of pecuniary losses or injury to their reputations. Ward v. Zelikovsky, 136 N.J. 516, 539-41 (1994); Sisler v. Gannett Co., Inc., 104 N.J. 256, 281 (1986); Ricciardi v. Weber, 350 N.J. Super. 453, 476 (App. Div. 2002), certif. denied, 175 N.J. 433 (2003); McLaughlin, supra, 331 N.J. Super. at 314, 317-20; Biondi v. Nassimos, 300 N.J. Super. 148, 154-56 (App. Div. 1997).

Nevertheless, some defamation actions still allow for presumed damages, specifically: (1) libel actions where the alleged defamation did not relate to a matter of public concern; and (2) slander actions where (a) the defamation did not relate to a matter of public concern, and (b) the slander consisted of slander per se, meaning that the defamatory statement imputed criminal activity; a loathsome disease; a matter incompatible with the plaintiff's business, trade, profession, or office; or serious sexual misconduct. Rocci v. Ecole Secondaire Macdonald-Cartier, 165 N.J. 149, 156-57 (2000)(plaintiff obligated to prove actual damages for libel about matter of public concern); Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 338 (App. Div. 2001) ("even if defendant's pronouncement . . . could be viewed as slander per se, plaintiff was still required to prove actual damages" because the speech involved a matter of public concern); Stickle v. Trimmer, 50 N.J. Super. 518, 522 (App. Div.) ("Damages is presumed in the case of all defamatory libels, as distinguished from slanders."), certif. denied, 28 N.J. 57 (1958); Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 446 (App. Div. 1958) (same).

Here, defendant's statements were a libel (a writing) about an issue of public concern (alleged judicial favoritism). Therefore, plaintiff was obligated to prove actual damages: that recipients of the defamatory statement believed it and lowered their estimation of plaintiff as a result, or that she suffered emotional or pecuniary harm as a result. See Too Much Media, LLC v. Hale, ___ N.J. Super. ___, ___ (App. Div. 2010) (slip op. at 42); McLaughlin, supra, 331 N.J. Super. at 313. The jury rejected that approach.

The primary difference between libel and slander is that libel is the publication of defamatory matter by written or printed words while slander is the publication of defamatory matter by spoken words. Thus, defendant's offensive comments were not slander, and therefore the doctrine of slander per se has no applicability to this case. See Too Much Media, LLC, supra, ___ N.J. Super. at ___ - ___ (slip op. at 42-44); Ostrowe v. Lee, 175 N.E. 505, 506 (N.Y. 1931) (recognizing vitally important differences between libel and slander, including that "[m]any things that are defamatory may be said with impunity through the medium of speech. Not so, however, when speech is caught upon the wing and transmuted into print."). Because the jury rejected plaintiff's attempted proofs of actual damages, its verdict cannot stand.

We emphasize that plaintiff's decision to bring this litigation was understandable and legally reasonable. Defendant's contention that plaintiff's complaint was frivolous is belied by the record. While we cannot sustain the verdict, we likewise should not be understood as condoning or encouraging inappropriate behavior. Although we would not second-guess the exercise of discretion in the Special Civil Part, it was there that the problem of defendant's conduct was best addressed, not in a separate defamation action after the fact. Nothing in this opinion should be understood as in any way impeding the desirability and ability of trial court judges to control their courtrooms and ensure that substantive arguments are reasonably expressed so that substantial justice is accomplished.

By no means do we intend this opinion to serve as license to erode civility in the courts or to encourage the undeserved expression of vitriol by litigants. However, our society is accustomed to tolerate at least as part of tort law jurisprudence examples of speech that are offensive to many. Cf. United States v. Stevens, 559 U.S. _____, _____ S. Ct. _____, _____ L.Ed.2d _____ (2010)(striking down a federal criminal statute prohibiting the making, sale, or possession of videos depicting animal cruelty).

 
We reverse and vacate the judgment that was entered in favor of plaintiff. We affirm the dismissal of defendant's counterclaim.

The appeal was calendared for oral argument on April 14, 2010, but none of the parties appeared. Nevertheless, we decide the appeal on its merits from the extensive briefs from both sides.

The Committee completed its review of defendant's complaint and found that there were insufficient facts to warrant an investigation. In like vein, the Supreme Court of New Jersey District Ethics Committee for Hudson County, District VI, determined that insufficient information was supplied to it to make a determination whether plaintiff had committed an ethical violation. There never was a formal grievance filed against plaintiff as a result of defendant's remarks.

This utterly false statement was incorporated in a long paragraph addressed to the refusal of the trial judge to grant an adjournment of the landlord-tenant matter.

Defendant's motion also accused plaintiff of: (1) conspiracy to defraud the United States Department of Housing and Urban Development by falsifying documents for use in the landlord-tenant matter and (2) bribery.

The record hints at, but does not support a firm conviction regarding whether defendant actually communicated the contents of the ethics letter-complaint to third parties such as elected officials.

(continued)

(continued)

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A-4899-07T1

May 6, 2010