MICHAEL TAFFARO v. THOMAS C. TAFFARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5307-09T3

MICHAEL TAFFARO,

Plaintiff-Appellant,

v.

THOMAS C. TAFFARO,

Defendant-Respondent.

_____________________________________

December 5, 2011

Argued September 14, 2011 - Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

DC-0778-10.

Michael Taffaro, appellant pro se.1

Respondent Thomas Taffaro has not filed a brief.

PER CURIAM

Plaintiff Michael Taffaro appeals from the order of the Law Division, Special Civil Part, dismissing his suit against defendant Thomas Taffaro. We reverse and remand.

On December 29, 2009, plaintiff filed a pro se complaint against defendant alleging that on December 29, 2003, defendant, his uncle, filed "false criminal charges" against him with the intent or "goal" of causing him "emotional torment, humiliation, mental and financial harm." Plaintiff sought $15,000 in compensatory damages. Defendant filed a responsive pleading denying the allegations and raising the statute of limitations as an affirmative defense.

On the day of trial, after reviewing the complaint and answer, the judge asked plaintiff whether he was suing "for emotional distress." When plaintiff answered "[y]es, that's part of it," the judge then asked plaintiff whether he had "an expert witness, doctor, psychologist, psychiatrist who's going to come and testify to attest to that and as to what counseling, medications, or what effect any of the defendant's action has had on you personally[.]" Plaintiff responded that he had a counselor that he had been seeing every week, but was not present in court to testify at that time. Based on this, the court dismissed plaintiff's case because he could not meet his burden of proof "without an expert witness, without a doctor, psychologist, whoever it is that you're attending."

We begin our analysis by noting that New Jersey is a notice-pleading state, meaning that only a short statement of the claim need be pleaded. Velop, Inc. v. Kaplan, 301 N.J. Super. 32, 56 (App. Div. 1997), appeal dismissed, 153 N.J. 45 (1998). Additionally, "[a]ll pleadings shall be liberally construed in the interest of justice." R. 4:5-7. It is still necessary, however, for the pleadings to "fairly apprise the adverse party of the claims and issues to be raised at trial." Spring Motors Distribs., Inc. v. Ford Motor Co., 191 N.J. Super. 22, 29 (App. Div. 1983), rev'd on other grounds, 98 N.J. 555 (1985).

With these principles in mind, we discern, from the narrative description of the facts contained in plaintiff's complaint, that the cause of action pled sounded in the tort of malicious prosecution. In order to prove a case for malicious prosecution, plaintiff must prove "(1) that 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 proceeding, and (4) that it was terminated favorably to the plaintiff." Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003). "Each element must be proven, and the absence of any one of these elements is fatal to the successful prosecution of the claim." LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009). Absent a dispute as to the underlying facts, a determination of probable cause is a question of law. Jobes v. Evangelista, 369 N.J. Super. 384, 398 (App. Div.) certif. denied, 180 N.J. 457 (2004).

Here, plaintiff alleged that defendant filed a criminal complaint against him on December 29, 2003, accusing him of committing the crime of third degree terroristic threats, N.J.S.A. 2C:12-3a, by threatening him with serious bodily injury in a letter dated December 3, 2003, written by plaintiff to his "Aunt Irene." The complaint was administratively dismissed by the Bergen County Prosecutor on February 20, 2004.

From this record, it appears plaintiff can satisfy the first and fourth elements of the tort of malicious prosecution. The second and third elements, whether defendant acted with actual malice and absent probable cause, cannot be ascertained. Plaintiff did not include, as part of the appellate record, a copy of the letter that formed the basis of the criminal complaint against him. In this light, we are unable to determine whether, based on the content of this letter, defendant had a well grounded suspicion to file a criminal complaint against plaintiff charging him with terroristic threats.2 Nor can we determine whether plaintiff can establish that defendant acted in this regard with actual malice, i.e., with the intention of committing a wrongful act without just cause or excuse. Jobes, supra, 369 N.J. Super. at 398.

Because the trial court erroneously concluded that plaintiff needed expert testimony to prosecute this civil action, we are compelled to remand this matter for the court to determine whether plaintiff can satisfy his burden of proof as to all of the elements of the tort of malicious prosecution.

Reversed and remanded. We do not retain jurisdiction.

1 Despite his failure to file a formal appearance as attorney of record for appellant, we permitted Robert Pentangelo, Esq. to argue on behalf of plaintiff at oral argument. At that time, we directed Mr. Pentangelo to file a formal appearance with the Clerk of the Appellate Division. Because Mr. Pentangelo did not comply with our directive, we will not consider any of the arguments raised by Mr. Pentangelo at oral argument.

2 Probable cause is "'a well-grounded suspicion that a crime has been or is being committed.'" State v. O'Neal, 190 N.J. 601, 612 (2007) (quoting State v. Moore, 181 N.J. 40, 45 (2004)). The facts and circumstances must show a "'reasonable ground for belief of guilt.'" Ibid. (quoting Moore, supra, 181 N.J. at 46).