PHILIP HAHN v. FRANK FRASCELLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0070-10T3

PHILIP HAHN,

Plaintiff-Appellant,

v.

FRANK FRASCELLA, HONORABLE SKILLMAN,

HONORABLE GILROY, MICHAEL RICCIARDULLI,

KARIN WARD, RUPRECHT, HART & WEEKS, LLP,

HONORABLE VICHNESS,

Defendants-Respondents.

__________________________________________

June 3, 2011

Argued: May 25, 2011 - Decided:

Before Judges Axelrad and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. DC-7635-10.

Philip Hahn, appellant pro se.

David P. Weeks argued the cause for respondents Michael Ricciardulli, Karin Ward and Ruprecht, Hart & Weeks, LLP (Ruprecht, Hart & Weeks, LLP, attorneys; Louis A. Ruprecht, of counsel and on the brief; Karin J. Ward, on the brief).

Deborah L. Gnatt, Deputy Attorney General, argued the cause for respondents Frank Frascella, Honorable Skillman, Honorable Gilroy and Honorable Vichness (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Gnatt, on the brief).

PER CURIAM

Plaintiff appeals from a June 25, 2010 order of the Law Division dismissing his complaint with prejudice against defendants lawyers and law firm ("the firm defendants") for failure to state a claim based on the litigation privilege, R. 4:6-2(e), and an August 12, 2010 order denying reconsideration.1 We affirm.

This appeal arises out of a medical malpractice claim plaintiff sought to pursue against a hospital and doctor, who were represented by the firm defendants. The "judicial defendants" each made rulings of some kind in the underlying litigation, with the exception of Frank Frascella, an employee of the Appellate Division Clerk's Office, who plaintiff misnames as an "Assignment Judge" but is included within the category of "judicial defendants."

Plaintiff first sued the hospital and doctor ("the underlying defendants") in April 2007, claiming injury arising from eye surgery in June 2005. (ESX-L-3267-07). By order of August l7, 2007, the trial court granted the underlying defendants' motion to dismiss plaintiff's complaint with prejudice for failure to file a notice of tort claim as required by the Tort Claims Act, N.J.S.A. 59:8-9. The complaint against the doctor, a hospital employee, was similarly dismissed by court order of February 29, 2008. We affirmed the latter order. Hahn v. The Univ. of Med. and Dentistry of N.J., No. A-3815-07 (App. Div. Jan. 26, 2009). The Supreme Court denied plaintiff's petition for certification. 199 N.J. 128 (2009).

In April 2008, plaintiff served a notice of tort claim, without leave of court, N.J.S.A. 59:8-9, and filed a second complaint against the underlying defendants based on the same cause of action as the prior complaint, though asserting a different legal theory. Judge Vichness granted the underlying defendants' motion to dismiss with prejudice based on plaintiff's failure to file a notice of tort claim, memorialized in an order of February 20, 2009. By order of April l7, 2009, he denied plaintiff's motion for reconsideration. In a per curiam unpublished opinion, Judges Skillman and Gilroy affirmed both orders. Hahn v. The Univ. of Med. and Dentistry of N.J., No. A-4216-08 (App. Div. March 22, 2010).

Plaintiff filed the present complaint on April 5, 2010, alleging: (1) defendant lawyers "did knowingly perjure [themselves] in an effort to have the [above referenced] case dismissed in spite of being meritorious" and defendant law firm was liable under the theory of respondeat superior; (2) Judge Vichness "did knowingly dismiss the [above referenced] case with the full knowledge that the case was meritorious"; (3) Frascella "did knowingly assign an incompetent judge to preside over" the above referenced case "in order to sabotage the court proceedings ultimately ending in the incorrect decision being made"; and (4) Judges Skillman and Gilroy "did knowingly dismiss the [above referenced] case with the full knowledge that the case was meritorious and the appeal should have been granted." By order of May 28, 2010, the trial court granted judicial defendants' motion to dismiss with prejudice for failure to state a claim based on the doctrine of absolute judicial immunity. Following argument on the record on June 25, 2010 by plaintiff and counsel for the firm defendants, the same judge granted defendants' motion to dismiss the complaint with prejudice for failure to state a claim based on the litigation privilege that affords the firm defendants complete immunity from plaintiff's claim. The judge denied reconsideration by order of August 12, 2010. This appeal ensued.

The gist of plaintiff's argument on appeal, articulated in particular at oral argument, is that he requested and paid for a jury trial, a constitutional right, which trumped the firm defendants' right to make a motion to dismiss his complaint and the judicial defendants' right to dismiss his case prior to an adjudication on the merits by a jury.

Plaintiff's position is not founded in law. As our Supreme Court has recognized, "in civil matters the constitutional right to a jury trial is not absolute. . . . Even when requested, the failure to present evidence warranting submission of a factual issue to the jury is the functional equivalent of a waiver of the right to have a jury decide the case." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 537 (1995).

Specifically, in the context of a motion to dismiss for failure to state a claim, the law is clear that "a court must dismiss the plaintiff's complaint if it has failed to articulate a legal basis entitling plaintiff to relief." Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005). See also County of Warren v. State, 409 N.J. Super. 495, 503 (App. Div. 2009) (recognizing that where a complaint states no basis for relief and discovery would not provide one, dismissal of the complaint under Rule 4:6-2 is appropriate), certif. denied, 201 N.J. 153 (2010).

Plaintiff's anticipated argument that he asserted a valid claim against the underlying defendants relative to his eye surgery has no correlation to the legal issue before us. By opinion of March 2010, we affirmed the trial court's dismissal with prejudice of plaintiff's second complaint against the underlying defendants based on res judicata, the entire controversy rule, failure to file a timely notice of tort claim, and failure to file the complaint within the two-year statute of limitations period provided by N.J.S.A. 2A:14-2. As plaintiff apparently did not seek certification from the Supreme Court, those legal determinations are final. See U.S. Pipe & Foundry Co. v. United Steelworkers of Am., 37 N.J. 343, 351-52 (1962) (holding a party may not collaterally challenge a legal conclusion of the Appellate Division where no review was sought and it has become the law of the case). See also Lanzet v. Greenberg, 126 N.J. 168, 192 (1991) ("Under the law-of-the-case doctrine, decisions of law made in a case should be respected by all other lower or equal courts during the pendency of that case.").

Accordingly, the only issue before us is whether plaintiff's present complaint against the firm defendants and the judicial defendants articulates a legal basis entitling him to relief. It does not. The firm defendants filed the motion to dismiss in the context of representing their clients in the medical malpractice action and consistent with the Court Rules. Thus, such actions cannot subject them to liability to plaintiff. Our Supreme Court has consistently recognized the longstanding principle that the litigation privilege accords attorneys absolute immunity from civil liability regarding any communications made in a judicial proceeding connected to the action and to achieve the objects of the litigation. Loigman v. Twp. Comm. of Middletown, l 85 N.J. 566, 582-85 (2006); Hawkins v. Harris, 141 N.J. 207, 214-22 (l995). Moreover, the judicial defendants are entitled to absolute immunity in the performance of their judicial duties, which is "not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial." Malik v. Ruttenberg, 398 N.J. Super. 489, 495-96 (App. Div. 2008). See also Hawkins, supra, 141 N.J. at 214-15.

Affirmed.

1 It is difficult to discern from plaintiff's submissions whether he is also appealing from the May 28, 2010 order dismissing his complaint with prejudice against the judicial defendants on the same procedural grounds based on the judicial immunity doctrine. To the extent he is, we incorporate that order in our opinion.