MARTIN E. O'BOYLE v. PETER ISEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARTIN E. O'BOYLE,

Plaintiff-Appellant,

v.

PETER ISEN,

Defendant-Respondent.

______________________________

January 31, 2014

Argued December 11, 2013 Decided

Before Judges Grall, Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2341-08.

Jonathan R. O'Boyle, of the Pennsylvania bar, admitted pro hac vice, argued the cause for appellant (Jacobs & Barbone, P.A. and

Mr. O'Boyle, attorneys; Lucille A. Bongiovanni, on the brief).

David W. Sufrin argued the cause for respondent (Zucker Steinberg Sonstein & Wixted, P.A., attorneys; Mr. Sufrin, on the brief).

PER CURIAM

Plaintiff Martin E. O'Boyle appeals from a grant of summary judgment in favor of defendant Peter Isen on a complaint alleging defamation.1 For the reasons that follow, we affirm.

Plaintiff and defendant are both residents of the Borough of Longport, and plaintiff's cause of action rests on a single statement made by defendant. The events preceding defendant's statement provide context. In 2006, Bruce Funk, the assistant chief of Longport's fire department and an employee of its building department, responded to a call received by the fire department about plaintiff's property. While there, Funk observed alterations of the ground level of the premises that, in his view, violated the Borough's building code. That December, plaintiff was issued a notice charging him with violations of the zoning ordinance.

Defendant was a member of Longport's planning and zoning

boards between January 2007 and January 2010.2 He was a long-time and year-round resident of Longport, and for about four years he was plaintiff's neighbor. Although plaintiff resided in both Longport and in Florida, he and defendant had both worked on the mayoral campaign for the candidate who was the mayor during the relevant time period.

In August 2007, Funk pursued the zoning violation charges he had levied against plaintiff. Funk notified the federal and state offices of emergency management, and he made an inquiry to the Department of Homeland Security about canceling plaintiff's flood insurance because of the zoning violations. In Funk's estimation, violation of floodplain regulations would increase flood insurance premiums for the community of Longport.

From September 2007 through early July 2008, plaintiff and members of his family filed multiple requests pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Longport's only clerk worked part-time, and she did not address the requests within the time required by statute. At one point, the clerk went to the emergency room because of the stress she attributed to the flood of OPRA requests. And, in February 2008, the Borough's solicitor notified plaintiff that it would not accept any additional OPRA requests he filed, explaining that the numerous requests were substantially disrupting governmental services. The solicitor claimed that Longport had received 190 requests on October 16 and 17 and thirty filed on October 31, 2007.

In April 2008, plaintiff filed a civil complaint to compel Longport's compliance with OPRA. And in June, Longport retained NFC Global, an investigative firm, to uncover any prior difficulties plaintiff may have had with federal and state agencies. The firm completed its report later that month. On July 2, 2008, the Press of Atlantic City reported on the numerous OPRA requests. There is no dispute that Longport incurred significant legal fees in defending against plaintiff's suit.

Plaintiff's OPRA suit was pending when defendant made the allegedly defamatory statement on July 5, 2008. That day, plaintiff was walking and conversing with Leonard Sylk and Fred Kremer, both residents of Longport, near an entrance to the beach by defendant's home. According to plaintiff, defendant said, "what are you guys doing with him, he's the enemy of Longport." Plaintiff further asserts that defendant made the same comment to William Simon, when Simon stopped his car to talk to the men. According to Simon, defendant, referring to plaintiff, said "he is the enemy of the people of Longport[,] [s]tay away from him."

Those present had different views of defendant's comment. Defendant said he was joking, and Sylk thought the same. According to Sylk's testimony, defendant was "sort of laughing" and "sounded like he was joking" when he and Kremer were asked "why [they were] consorting with the enemy." Sylk also noted that plaintiff laughed. In contrast, Simon thought defendant was angry and serious.

While insisting that he made the remark about plaintiff being the enemy in jest, defendant admitted that he believed plaintiff was fairly characterized as the enemy of the residents of Longport. He based that opinion on plaintiff's conduct, which in his view, led to Longport's unnecessary expenditures for legal fees.

In plaintiff's opinion, defendant made the remark intending to have the residents of Longport ostracize and isolate him and succeeded. He based that opinion on subsequent municipal actions singling him and his friends out for unfavorable treatment and affording defendant favorable treatment. In plaintiff's view, defendant's comment was the cause of his ill-treatment.

Plaintiff gave several examples. Days after defendant made the comment, Longport's mayor called the County Health Department, which subsequently directed plaintiff to remove portable toilets from his property on the beach. In August, plaintiff filed a complaint against another resident for threatening his life, which the police did not investigate. Moreover, a friend of plaintiff's asserted that in May 2009, a police officer, who had detained him for forty minutes without proper cause, admitted that he had been directed to give him a hard time because of his friendship with plaintiff, who was an enemy of the people. Plaintiff also had evidence of defendant's favorable treatment. Another police officer admitted that he had not issued defendant a ticket when he saw him violate the law prohibiting use of a cell phone while driving.

Plaintiff filed this lawsuit alleging defamation on July 15, 2008, while his OPRA complaint was still pending. One month later, the Law Division ruled on one issue in the OPRA action. The court directed Longport to accept future OPRA requests from plaintiff. In that decision, the court did not address the merits of plaintiff's claim that Longport's disposition of the OPRA requests it had accepted violated the law, and the record does not include the final order in that action.

The zoning violations were resolved in plaintiff's favor later in August 2008. Longport and plaintiff reached an agreement under which the municipality dismissed the charges based on plaintiff's alleged non-compliance.

Summary judgment in favor of defendant on plaintiff's defamation claim was not entered until September 23, 2011. Judge Higbee determined that defendant's statement describing plaintiff as "the enemy of Longport" cannot, as a matter of law, support a finding of defamation, because the asserted description is an opinion, not a fact.

In reviewing a grant of summary judgment in favor of defendant, this court applies the same standard as the trial court. The question is whether defendant is entitled to judgment as a matter of law, because a jury giving the plaintiff the benefit of all favorable evidence and inferences could not return a verdict for plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying that standard, we agree with and affirm Judge Higbee's determination.

Plaintiff contends that the judge erred in concluding that defendant's comment was incapable of having a defamatory meaning. That is a question of law for the courts, DeAngelis v. Hill, 180 N.J. 1, 14 (2004), which we must review de novo. Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J.502, 549 (2002). Judge Higbee, in our view, correctly resolved this question.

Liability for defamation is imposed based upon publication of a false statement that injures the reputation of another. Salzano v. N. Jersey Media Grp., Inc., 201 N.J. 500, 512 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1045, 178 L. Ed. 2d 864 (2011). The tort recognizes that people should be free to enjoy their reputations without suffering false and defamatory attacks. Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 139 N.J. 392, 409 (1995), cert. denied, 516 U.S. 1066, 116 S. Ct. 752, 133 L. Ed. 2d 700 (1996).

Thus, to establish defamation, a plaintiff must show that he or she suffered damages as a result of a statement of fact made by the defendant concerning the plaintiff, which was false and which was communicated to a person other than the plaintiff. Singer v. Beach Trading Co., Inc., 379 N.J. Super. 63, 80 (App. Div. 2005). A statement is not defamatory unless it is false. W.J.A. v. D.A., 210 N.J. 229, 238 (2012).

In determining whether a statement is capable of defamatory meaning, courts consider three factors: the content, the verifiability and the context of the challenged statement. DeAngelis, supra, 180 N.J. at 14. To analyze the content of the statement, courts consider the fair and natural meaning that the words would be given by persons of reasonable intelligence. Ibid. Although "epithets, insults, name-calling, profanity and hyperbole" may be offensive, they are not actionable as defamatory. Ibid. Thus, courts must distinguish defamation from offensive "obscenities, vulgarities . . . and other verbal abuse." Ibid.

Plaintiff relies on Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S. Ct. 2695, 2706, 111 L. Ed. 2d 1, 18 (1990), a case involving an expression of the writer's opinion that a coach committed perjury. Recognizing that opinions cannot be "false," the Court stressed that there is no "wholesale defamation exemption" for any statement that might be labeled an opinion. Id. at 18, 110 S. Ct. at 2705, 111 L. Ed. 2d at 17. The Court explained that if a reasonable fact-finder could conclude that the speaker implied plaintiff committed perjury, then the implied assertion of fact would amount to defamation, if proven false. Id. at 20, 110 S. Ct. at 2706-07, 111 L. Ed. 2d at 19.

The Court's opinion in Milkovich points out the difference between the statement at issue in that case and this one. The Court stated: "unlike a subjective assertion[,] the averred defamatory language [here] is an articulation of an objectively verifiable event," i.e., whether the plaintiff had actually committed perjury. Id. at 22, 110 S. Ct. at 2707, 111 L. Ed. 2d at 20. But in this case, defendant's characterization of plaintiff as the town's enemy, while arguably insulting, does not imply any particular conduct or event that could be verified as true or false. For example, defendant did not refer to the zoning violation or the number of OPRA requests. He simply indicated that plaintiff was an "enemy" of Longport.

It is well-settled that a statement is not actionable when it has an imprecise meaning. Buckley v. Littell, 539 F.2d 882, 893 (2d Cir. 1976) (holding that the terms "fascist," "fellow traveler" and "radical right" were too imprecise, loose and insusceptible of proof to be considered defamatory). When the meaning of an insulting assertion here the enemy of Longport is not settled, its truth or falsity cannot be proven. On similar reasoning, this court has held that a statement that could be understood to describe another as one who is not "a decent resident" cannot support a defamation claim because it does not state or imply something amounting to slander per se, such as criminality. Taurus v. Borough of Pine Hill, 381 N.J. Super. 412, 427-28 (App. Div. 2005), aff'd in part, rev'd in part on other grounds, 189 N.J. 497 (2007); see also Romaine v. Kallinger, 109 N.J. 282, 291 (1988) (discussing slander per se).

Like a statement implying that one is not "decent," a statement that one is an "enemy" of a municipality does not imply any verifiable fact. Relying on the various contexts in which the phrase public enemy has been used over time, plaintiff argues that defendant's statement could be understood as calling him a traitor, an outlaw, a criminal or a pirate. That may be, but it could just as easily be understood to describe a person who disapproves of the town's leaders, the way they do business or their goals.

We reject plaintiff's attempt to equate this statement of uncertain meaning to a "false attribution of criminality," which is deemed slanderous as a matter of law. Romaine, supra, 109 N.J. at 291. As previously noted, statements alleged to be defamatory or slanderous must be assigned the "'fair and natural meaning'" that would be assigned by "reasonable persons of ordinary intelligence.'" Id. at 290 (quoting Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 431 (App. Div.), aff'd on rehearing, 49 N.J. Super. 551 (App. Div. 1958)). So viewed, defendant's labeling of plaintiff as an enemy of Longport or its people could not be understood as anything other than name calling.

Because defendant's statement did not imply any verifiable conduct or event and simply voiced his opinion, it cannot be proven false. Even if every resident of Longport other than defendant deemed plaintiff to be a friend of the municipality, it would not make defendant's opinion false, because he did not imply that his view was universally held or was based on a verifiable event.

Our resolution of the case on the ground that this statement is not, as a matter of law, defamatory makes it unnecessary to consider the arguments addressing plaintiff's status as a public figure.

Affirmed.

1 We do not detail the complicated procedural history of this case in the trial court because it is not material to the issue raised on appeal. It suffices to note, this complaint was consolidated with others for a time and several of plaintiff's claims were dismissed. This claim of defamation by defendant was ultimately severed, and the grant of summary judgment is the only matter before us.

2 Defendant issued a public statement on January 12, 2010, advising that he was resigning from the boards. In that notice he indicates that he held the position for the past three years.