STEPHEN GARCIA v. ELIZABETH LILLESTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STEPHEN GARCIA,

Plaintiff-Appellant,

v.

ELIZABETH LILLESTON and

BOROUGH OF FAIR HAVEN,

Defendants-Respondents.

_________________________________

May 28, 2015

Argued February 4, 2015 Decided

Before Judges Alvarez, Waugh, and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1104-13.

Robert B. Woods argued the cause for appellant.

Michael A. Cifelli argued the cause for respondents (Scarinci & Hollenbeck, LLC, attorneys; Mr. Cifelli, of counsel and on the brief; Frances E. Barto, on the brief).

PER CURIAM

Plaintiff Stephen Garcia appeals the Law Division's February 14, 2014 order dismissing his three-count complaint for malicious prosecution, defamation, and abuse of process against the Borough of Fair Haven and its zoning officer, Elizabeth Lilleston. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In 1998, Garcia purchased a vacant lot located on Navesink Avenue in Fair Haven. At the time of purchase, various materials and vehicles had been kept on the lot. Garcia, who lives on the same street, used the lot to park his vehicles. On March 15, 2010, Lilleston issued Garcia two summonses for violations of Borough ordinances. The first summons charged that Garcia violated Borough Ordinance No. 30-4.1 by improperly using his vacant lot for storage without an approved site plan. The second summons charged that he violated Borough Ordinance No. 14-1.8 by failing to maintain his vacant lot properly. Following a trial in municipal court, the judge found Garcia guilty. He imposed fines and required Garcia to remove everything from the property.

Garcia appealed his conviction to the Law Division. Following a trial de novo on the record, the Law Division judge found that Garcia's uncontroverted trial testimony established that his conduct was a preexisting nonconforming use, based upon the fact that Borough Ordinance No. 30-4.1 did not become effective until 2002, approximately four years after Garcia purchased the property. The judge also determined that the municipal court had misread Borough Ordinance No. 14-1.8 as prohibiting "storage" on vacant lots, when it actually applied only to "parking" on lots with structures. The Law Division entered a judgment of acquittal in Garcia's favor on February 6, 2012.

In March 2013, Garcia filed the present action. His complaint alleges that the charges brought against him by Lilleston were "false," and that they were brought "with motives of malice" and without probable cause. Garcia sought damages for (1) loss of reputation and (2) "great mental distress and emotional distress."

On December 31, Fair Haven moved to dismiss Garcia's complaint for failure to state a claim. R. 4:6-2(e). The Law Division granted the motion on February 14, 2014, following oral argument. The implementing order attached a written statement of reasons in accordance with Rule 1:6-2(f). This appeal followed.

II.

Garcia raises the following issues on appeal

POINT I: THE BOROUGH OF FAIR HAVEN AND ELIZABETH LILLESTON [HAVE] CLEARLY DEMONSTRATED [MALICE] . . . WHICH WOULD PERMIT THIS CASE TO GO TO THE JURY.

POINT II: MALICIOUS ABUSE OF PROCESS.

In reviewing the dismissal of a complaint for failure to state a claim, Rule 4:6-2(e), we are bound by the same standard that governed the motion judge. Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005); see also Indep. Dairy Workers Union v. Milk Drivers & Dairy Emps. Local No. 680, 23 N.J. 85, 89 (1956). We are obligated to accept the allegations of the complaint as true and afford plaintiff all reasonable factual inferences. Indep. Dairy Workers, supra, 23 N.J. at 89.

The complaint must be "searched in depth and with liberality to determine whether a cause of action can be gleaned even from an obscure statement." Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002) (citing Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). "If a generous reading of the allegations merely suggests a cause of action, the complaint will withstand the motion." F.G. v. MacDonell, 150 N.J. 550, 556 (1997). A motion to dismiss should be granted "in only the rarest of instances." NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 365 (2006) (quoting Printing Mart, supra, 116 N.J. at 772) (internal quotation marks omitted); accord Cnty. of Warren v. State, 409 N.J. Super. 495, 503 (App. Div. 2009), certif. denied, 201 N.J. 153, cert. denied, 561 U.S. 1026, 130 S. Ct. 3508, 177 L. Ed. 2d 1092 (2010).

Where, however, it is clear that the complaint states no basis for relief and that discovery would not provide one, dismissal of the complaint is appropriate. Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005). As we held in Sickles, supra, 379 N.J. Super. at 106, "a court must dismiss the plaintiff's complaint if it has failed to articulate a legal basis entitling plaintiff to relief." See also Holmin v. TRW, Inc., 330 N.J. Super. 30, 32 (App. Div. 2000), aff'd o.b., 167 N.J. 205 (2001); Camden Cnty. Energy Recovery Assocs. v. N.J. Dep't of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd o.b., 170 N.J. 246 (2001); Pressler & Verniero, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2 (2015). "[A] dismissal is mandated where the factual allegations are palpably insufficient to support a claim upon which relief can be granted." Rieder v. State, 221 N.J. Super. 547, 552 (App. Div. 1987).

To the extent Garcia sought to state claims sounding in defamation, whether libel or slander, they are barred by the one-year statute of limitations. N.J.S.A. 2A:14-3 provides that "[e]very action at law for libel or slander shall be commenced within [one] year next after the publication of the alleged libel or slander." The summonses were issued on March 15, 2010. The complaint was filed on March 20, 2013, more than three years later. Even if the pendency of the charges tolled the running of the statute of limitation, the complaint in this action was filed more than a year after entry of the February 6, 2012 judgment of acquittal.

Claims for malicious prosecution and malicious abuse of process are closely related, the difference being that the former involves the bringing of a criminal prosecution whereas the latter involves the issuance of process in connection with a civil action. The Supreme Court explained the requirements of each as follows

Malicious prosecution requires the plaintiff to prove four elements: (1) a criminal action was instituted by this defendant against this plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to the plaintiff. Lind v. Schmid, 67 N.J. 255, 262 (1975). Although each factor is distinct, "evidence of one may be relevant with respect to another." Ibid. Nevertheless, each element must be proven, and the absence of any one of these elements is fatal to the successful prosecution of the claim. Klesh v. Coddington, 295 N.J. Super. 51, 58 (Law Div.), aff'd, 295 N.J. Super. 1 (App. Div. 1996), certif. denied, 147 N.J. 580 (1997); see Penwag Prop. Co. [v. Landau], 76 N.J. [595, 597-98 (1978)].

Malicious use of process requires the plaintiff to prove the civil counterpart to each of those elements, but adds a fifth requirement, namely, that the plaintiff has suffered a special grievance caused by the institution of the underlying civil claim. Mayflower Indus. v. Thor Corp., 15 N.J. Super. 139, 152 (Ch. Div. 1951), aff'd, 9 N.J. 605 (1952). The added special grievance requirement reflects the significantly different implications that flow from being sued in a civil matter as compared to being prosecuted on a criminal charge. See Vickey v. Nessler, 230 N.J. Super. 141, 148-49 (App. Div.), certif. denied, 117 N.J. 74 (1989). That is to say, the special grievance is designed to take the place of the injurious effects, including arrest, restraint, or the attendant humiliation of being held on bail, finger-printed, and photographed, that ordinarily flow from a wrongfully instituted criminal charge. Id. at 147. Because in contrast, the minimal impact of the commencement of civil litigation is insufficient on its own to demonstrate an injury, the civil remedy of malicious use of process demands the additional showing of a special grievance. Ibid.

Our longstanding reluctance to permit parties to utilize these causes of action springs from our recognition that they carry with them the significant potential for abuse. Left unchecked, they create the possibility that a party will be forced to defend against one of these claims based on little more than having filed, and lost, in a court proceeding as to which the original defendant harbors resentment and anger. Decisions throughout all levels of our judiciary, including [LoBiondo v. Schwartz (LoBiondo I), 323 N.J. Super. 391, certif. denied, 162 N.J. 488 (1999)], caution that the appropriate remedial uses of these causes of action must not become swallowed up by new efforts to utilize them to punish the exercise of rights by those who, in good faith, have sought redress in our courts. See, e.g., Penwag Prop. Co., supra, 76 N.J. at 598 (relying on special grievance to achieve balance); LoBiondo I, supra, 323 N.J. Super. at 422 (cautioning about use of these claims to "impair accessibility"); Tedards v. Auty, 232 N.J. Super. 541, 549 (App. Div. 1989) (commenting on role played by special grievance to "distinguish between a plaintiff who is naive and . . . [one] who is a knave"); Mayflower Indus., supra, 15 N.J. Super. at 153 (referring to need for "[e]xtreme care" to avoid deterring legitimate suits).

[LoBiondo v. Schwartz (LoBiondo II), 199 N.J. 62, 90-91 (2009) (third and fourth alterations in original).]

Issuance of a summons for a violation of a municipal land use ordinance, such as those involved in this case, cannot give rise to a claim of malicious prosecution because the offense does not carry a deprivation of liberty or the stigma resulting from a criminal conviction. Klesh, supra, 295 N.J. Super. at 62 ("Because there is no inherent harm arising from the filing of a complaint alleging a disorderly persons offense, the charges are more civil in nature than criminal."). Consequently, the motion judge did not err in dismissing the complaint to the extent it sought to state a claim for malicious prosecution.

As the Court held in LoBiondo II, supra, 199 N.J. at 90-91, an action for abuse of process "demands the additional showing of a special grievance," as well as the four elements required for an action for malicious prosecution. "[T]he special grievance is designed to take the place of the injurious effects, including arrest, restraint, or the attendant humiliation of being held on bail, finger-printed, and photographed, that ordinarily flow from a wrongfully instituted criminal charge." Id. at 90.

Garcia's complaint is replete with generalized allegations of damage, but alleges nothing that can be considered a "special grievance." Litigation expenses, "mental anguish, emotional distress, or loss of reputation" do not constitute "special injuries." Turner v. Wong, 363 N.J. Super. 186, 205 (App. Div. 2003). As a result, Garcia has no viable claim for abuse of process.

For the reasons outlined above, we find no error in the motion judge's dismissal of Garcia's complaint for failure to state a claim.

Affirmed.