DENISE VON WILKE v. PASTORIUS HOME ASSOCIATION, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DENISE VON WILKE,

Plaintiff-Appellant,

v.

PASTORIUS HOME ASSOCIATION, INC.

Defendant-Respondent.

_____________________________________

June 2, 2015

Submitted April 15, 2015 Decided

Before Judges Ashrafi and Kennedy.

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

L-0172-12.

Gareth David De Santiago, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

In this unopposed appeal, plaintiff Denise von Wilke appeals from three orders of the Law Division by which her case was dismissed in its entirety. We are constrained to remand for further proceedings because the court's orders and decision did not adequately address all counts of plaintiff's complaint.

Plaintiff alleged in her complaint that she was a member of defendant Pastorius Home Association, Inc., which is a German social club located in Germansville, Pennsylvania. The club owned a bed-and-breakfast style home in Germany. In September 2010, the housekeeper at the home resigned unexpectedly, and the club asked for volunteers to undertake temporary housekeeping duties in Germany. Plaintiff and another club member volunteered. Plaintiff alleged that she performed her tasks in Germany professionally and without compensation.

Her airline tickets for travel to Germany were provided by the club. After she returned, however, the club's board of directors asked her to pay for the tickets. At the time that she volunteered, there had been no request that she pay for her own flights. Plaintiff refused to reimburse the club.

Thereafter, according to plaintiff, during one or more club meetings in 2011, the president of the club called her a "deadbeat," and other board members appeared to nod their heads in agreement. As a result of this insult, plaintiff stopped attending the meetings, and she fears she will not find employment in the German community because of the negative comments the board of directors made about her.

Based on these factual allegations, plaintiff alleged three counts in her complaint: (count one) breach of contract; (count two) violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20; and (count three) defamation. Defendant took plaintiff's deposition in discovery. She testified she had no direct evidence that her reputation had been damaged as a result of the insult.

Defendant moved for partial summary judgment to dismiss the defamation count of the complaint. Plaintiff cross-moved for summary judgment on all counts of her complaint. The Law Division heard oral argument on June 5, 2013. For purposes of its summary judgment motion, defendant conceded that the president of the club made the "deadbeat" comment, but it cited Ward v. Zelikovsky, 136 N.J. 516 (1994), and argued that plaintiff could not establish a prima facie case of defamation because she had no proof that her reputation had been damaged.1 In response, plaintiff argued that the nodding of heads by board members was enough proof of damage to plaintiff's reputation. The court agreed with defendant and issued a thorough written opinion explaining its reasons for dismissing plaintiff's defamation claim. On June 14, 2013, the court entered an order granting defendant's motion for summary judgment and denying plaintiff's cross-motion.

In October 2013, three orders were entered by the court for which we have an inadequate record on appeal. On October 4, 2013, an order was entered granting plaintiff leave to file an amended complaint. The form of that order was submitted to the court by plaintiff's attorney. On October 15 and 18, 2013, two orders were entered that the court itself prepared. The October 15 order, styled as an "Amended Order," denied plaintiff leave to amend her complaint and stated that the "original Complaint was dismissed when summary judgment was granted in favor of Defendant." The October 18 order, styled as an "Order to Vacate," stated that "the prior Order dated October 4, 2013 granting Plaintiff leave to Amend the Complaint is vacated."

On appeal, plaintiff argues correctly that the court erred in ruling that her complaint had been dismissed in its entirety by the June 14, 2013 order for summary judgment, which only disposed of the defamation count. The October 15, 2013 order erroneously stated that the June order had dismissed the complaint in its entirety.

The court's June decision pertained only to the denial of plaintiff's cross-motion for summary judgment and the granting of defendant's motion for partial summary judgment dismissing the third count of plaintiff's complaint. At the oral argument on June 5, 2013, the court accurately described defendant's motion as one for partial summary judgment, and the argument was entirely focused on the defamation count. The court's written decision, too, which plaintiff has not challenged on appeal, discussed only the defamation count. Nothing was said substantively at the oral argument or in the court's written decision about plaintiff's counts for breach of contract and for violation of the Consumer Fraud Act.

We do not know what prompted the court to enter the October 4, 2013 order granting plaintiff leave to file an amended complaint. Plaintiff's appendix for this appeal does not include the motion her attorney must have filed that resulted in the October 4 order, although it was plaintiff's obligation as appellant to provide to us the pertinent record. See R. 2:6-1(a)(I).

It appears that the court itself generated the purportedly corrective October 15 and 18 orders without any application filed by either party. Since plaintiff has not provided an adequate record, we have no reason to question the propriety of the October 18 order vacating the October 4 order granting plaintiff leave to amend her complaint.2 But for the reasons we have stated, the October 15 order was premised on an erroneous understanding of the prior summary judgment order.

We doubt the viability of plaintiff's breach of contract, Consumer Fraud Act, and additional claims. In particular, because plaintiff never paid for the airline tickets, she does not seem to have suffered any monetary damages to support a breach of contract claim, or any "ascertainable loss," N.J.S.A. 56:8-19, to support a Consumer Fraud Act claim, even if we assume that Act could apply in this case. As to plaintiff's additional claims as proposed in her amended complaint, we doubt they can be substituted for her dismissed defamation claim.

However, defendant never moved for summary judgment to dismiss the first two counts of plaintiff's complaint, and the court never ruled specifically as to those counts. As far as we know, the court also never ruled as to the viability of the proposed new counts in the amended complaint. Plaintiff should have the opportunity to present any evidence she has supporting her claims. While it may be that plaintiff cannot survive a motion for summary judgment on the evidence she has, the trial court must in the first instance consider all arguments and make a ruling.

We reverse the Law Division's order of October 15, 2013, and remand for further proceedings consistent with this decision. We reach no conclusion as to whether plaintiff should be permitted to amend her complaint. We do not retain jurisdiction.

1 In Zelikovsky, supra, 136 N.J. at 540, the Court stated

To succeed in an action for slander, the plaintiff must demonstrate actual harm to reputation through the production of concrete proof. Awards based on a plaintiff's testimony alone or on inferred damages are unacceptable. Rather, proof that an existing relationship has been seriously disrupted or testimony of third parties detailing a diminished reputation will be necessary to satisfy the requirement that special damages exist before a jury may award any other type of damages.

[(citations and internal quotation marks omitted).]

2 Plaintiff's amended five-count complaint (misnumbered as six counts) did not repeat the defamation claim but expanded her claims by three counts added to the original breach of contract and Consumer Fraud Act counts: an additional contract claim stating that defendant breached a contract with plaintiff by "placing Plaintiff under duress"; a claim for "extreme and outrageous conduct"; and a claim for "negligently false information," for which plaintiff was seeking "astronomical monetary damages."