BENJAMIN MANEE, JR. v. EDGEWOOD PROPERTIES, INC.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1159-04T51159-04T5

BENJAMIN MANEE, JR.,

Plaintiff-Appellant/

Cross-Respondent,

vs.

EDGEWOOD PROPERTIES, INC.,

JACK MORRIS, JOHN CHRISTOFFERS,

IRON LEAF, LLC, and FRANK

VERDIC,

Defendants-Respondents/

Cross-Appellants.

_________________________________________________________

 
 

Argued November 9, 2006 - Decided

Before Judges Lefelt, Parrillo and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-10990-01.

Alan L. Krumholz argued the cause for appellant/cross-respondent (Krumholz Dillon, attorneys; Mr. Krumholz, on the brief).

Steven G. Sanders argued the cause for respondents/cross-appellants Edgewood Properties, Inc., Jack Morris, and John Christoffers (Arseneault, Fassett & Mariano, attorneys; Mr. Sanders, of counsel and on the brief).

Gibbons, Del Deo, Dolan, Griffinger & Vecchione, attorneys for respondents/cross-appellants Iron Leaf, LLC and Frank Verdic (Kelly Ann Bird, on the letter relying on the brief filed on behalf of respondents/cross-appellants Edgewood Properties, Inc., Jack Morris, and John Christoffers).

PER CURIAM

Plaintiff Benjamin Manee, Jr. appeals the dismissal of the remaining count of his complaint in which he alleges that defendants Edgewood Properties, Inc. (Edgewood); Iron Leaf, LLC (Iron Leaf); Jack Morris (Morris); John Christoffers (Christoffers); and Frank Verdic (Verdic) violated the Conscientious Employment Protection Act, N.J.S.A. 34:19-1 to -8 (CEPA). The Law Division judge dismissed the complaint when plaintiff failed to pay $25,725 (Sanctions Payment) in counsel fees and costs awarded to defendants after plaintiff failed to timely disclose additional financial information relevant to his wage loss claim. Plaintiff's failure to disclose resulted in an adjournment of the trial and the need to conduct further discovery. We find no error in the court's decision to impose reasonable counsel fees and costs as a sanction for willful discovery violations. For the reasons discussed below, however, we conclude that the trial court mistakenly exercised its discretion when it dismissed the complaint after learning plaintiff had not paid the counsel fees and costs to defendants prior to trial, as the court had ordered. We therefore reverse the dismissal of the complaint and remand for further proceedings.

Defendants have cross-appealed the trial court's decision which (1) drastically reduced the amount of counsel fees and costs defendants sought, (2) denied their motion for partial summary judgment dismissing the CEPA claim in so far as it pertained to the Iron Leaf termination, and (3) denied Morris' summary judgment motion. We are satisfied the trial court correctly reduced defendants' counsel fees and costs requests and properly denied Morris' summary judgment motion. We do, however, agree the trial court erred in denying partial summary judgment to Edgewood and Morris related to their alleged involvement with the termination of plaintiff's Iron Leaf employment. We reverse that aspect of the decision but otherwise affirm the denial of partial summary judgment in favor of Morris.

We summarize the alleged facts as follows. In July 2001, plaintiff was hired by Christoffers to work as a mechanic for Edgewood, a construction company. At the time, Morris was the president and chief executive officer of Edgewood, while Christoffers headed Edgewood's Excavation Division and supervised thirty to forty workers, including plaintiff. After working for Edgewood for approximately "five or six weeks," plaintiff was terminated by Christoffers on the morning of August 25, 2001. Christoffers testified that the decision to hire and fire plaintiff was his own.

On August 24, 2001, the day before his termination, plaintiff claims he observed a pipe discharging oil mixed with "very dirty steam water" on Edgewood's property. The smell emanating from the discharge was "very sour" and "dank," similar to the odor produced when cleaning sediment out of the settlement bins of steam pits, a job plaintiff had performed in the past. When plaintiff complained to Christoffers about the oil discharge, Christoffers acknowledged that the discharge was coming from the Edgewood steam pit and then angrily "stormed away" from plaintiff without giving plaintiff his paycheck.

The following day, plaintiff returned to the site to obtain his paycheck and was immediately fired by Christoffers. That same day, plaintiff proceeded to take photographs of the pipe and surrounding area and took additional pictures when he returned the following week to pick up his final paycheck. Plaintiff subsequently contacted Senator Joseph Vitale's office, as well as the media, to report the environmental damage that he had witnessed. On August 29, 2001, the New Jersey Department of Environmental Protection served Edgewood with a "Notice of Violation" for violating the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 to -20. In addition, a "Discharge Notification Report" dated September 10, 2001 was filed by the Middlesex County Hazardous Materials Emergency Response Unit.

In September 2001, plaintiff was hired by Verdic to work as an equipment truck mechanic at Iron Leaf, a recycling company. At the time, Verdic was a principal of, and operations manager for, Iron Leaf. Verdic testified that he hired plaintiff without consulting anyone else. Soon after joining Iron Leaf, plaintiff was terminated by Verdic.

Plaintiff claims he was terminated because Verdic did not want to damage his twenty-year business relationship with Morris. Plaintiff asserts that on the day Verdic fired him, an Edgewood truck driver had recognized him on the Iron Leaf property. Later that day, plaintiff claims Verdic had a telephone conversation with Morris, after which Verdic called plaintiff into his office. Once plaintiff acknowledged working for Edgewood, Verdic terminated him. Plaintiff then informed Verdic that he intended to include Iron Leaf in a CEPA action he was going to institute against Edgewood, to which Verdic replied, "Oh, wait a minute, wait a minute, let me call Jack Morris, we can work it out."

Despite plaintiff's contentions, both Morris and Verdic deny being in contact either after plaintiff's termination from Edgewood or prior to plaintiff's termination from Iron Leaf. They both assert that during that time period, they had not communicated for approximately ten years.

Several weeks later, in mid-September 2001, Iron Leaf obtained a contract to work at the World Trade Center site and needed someone to work the night shift. Verdic rehired plaintiff for the night shift position but terminated him two weeks later. This termination is not part of plaintiff's claim. Plaintiff contends, however, that during his second two-week period of employment with Iron Leaf, Verdic and Christoffers had repeated conversations regarding plaintiff's termination from Edgewood for reporting the oil leak.

In November 2001, plaintiff filed a complaint against Edgewood, Iron Leaf, Verdic, Morris and Christoffers, alleging violations of CEPA, including lost wages, intentional infliction of emotional distress, breach of an implied employment contract, and breach of an implied covenant of good faith and fair dealing. With the exception of plaintiff's CEPA claim, the trial court dismissed the other counts of plaintiff's complaint.

The discovery sanction arose out of plaintiff's repeated failure to provide documentation related to his wage loss claim. Plaintiff claims that as result of the actions of defendants, he was blacklisted from the construction and heavy equipment industry and therefore turned to self-employment in 2002. He resumed operation of "Budget Cutters," a mechanical repair business he had conducted from 1997 to 2001, prior to his employment with Edgewood. According to plaintiff's May 2003 expert economic loss report, the present value of plaintiff's recoverable wage loss claim caused by his termination from Edgewood was $567,989, composed of $62,462 in pre-trial wage losses and $505,527 in future lost wages.

On December 3, 2003, Morris filed a motion in limine to bar plaintiff's wage loss claim and to strike his expert report. Edgewood and Christoffers joined in the motion. Defendants argued that in order to prove that plaintiff failed to mitigate his damages, they needed "to gather information, look at [plaintiff's] employment history, look [at] what he's capable of earning and then look [at] what he actually is earning" in order to offset those earnings against his claimed losses. Defendants maintained that plaintiff repeatedly refused to produce income tax information and other documents, thereby placing them at a substantial disadvantage in defending against the wage loss claim. In response to this motion, plaintiff's counsel submitted a letter brief in which he represented:

Attached as Exhibit B are plaintiff's just-prepared tax returns for 2001 and 2002. As previously described to the court, plaintiff's [sic] has responded to each and every one of defendants['] demands for discovery by either producing documents or stating clearly and unequivocally that plaintiff has no responsive documents.

On January 16, 2004, the motion judge rendered an oral decision in which he found:

Defendant contends that plaintiff purposely denied defendant's [sic] access to critical information regarding the issue of mitigation. With respect to the tax returns, plaintiff clearly did not have them during discovery and therefore, could not possibly produce them. And he did, in fact, produce the relevant returns as soon as they existed.

The fact that plaintiff did not produce returns for the prior years is neither here nor there as those years are not being requested and are not relevant to this litigation. With respect to the other documents, while plaintiff may have never produced all the documents defendants requested, plaintiff did certify that he did not have the documents as he was living out of his van and in motels and did not keep records.

Additionally, defendant admits that although they were never produced by plaintiff, defendant subpoenaed and received this information from third parties. As such, it seems that defendants will not be prejudiced by plaintiff's inability to produce the documents. All of the arguments defendant makes go to whether a claim for lost wages can actually be established. It comes down to -- an issue of credibility and the evidence presented. If plaintiff has no support for his inability to mitigate [ex]cept his own statement then . . . that is all the jury will hear. Needless to say, this issue should go to a jury.

Trial was thereafter scheduled for April 26, 2004. On that date, Edgewood's attorney advised the court that "shortly before trial," he forwarded correspondence to plaintiff's counsel in which he indicated, "it's been some months now, if your client is operating his own business I assume he's been doing work and generating invoices, but you haven't updated your discovery . . . please do so prior to trial." In response, on April 21, 2004, eight months after discovery had ended, plaintiff supplemented his answers to interrogatories with invoices from September 2003, which revealed additional self-employment receipts totaling approximately $4100.

Edgewood's attorney again moved to strike plaintiff's wage loss claim as a sanction because the newly produced information materially affected Edgewood's defense of the claim. The court entertained lengthy oral argument which consumed the first two days of trial. The court made the following observations:

Although . . . I have managed this case from the very beginning, and I have dealt with the motions throughout this case, and there have been motions that are presented to me by the defendants alleging that the plaintiff has failed continually to provide the information relative to his lost income, relative to failure to provide income tax returns and not filed income tax returns.

The problem that I have is that there has been a failure to provide documents to the defendants. That failure to provide the . . . documents to defendants is somewhat significant, because even the plaintiff's own expert, yesterday, testified that he had requested, in his cover letter to . . . the attorney for the plaintiff, that if any information became available that he needed to know immediately because it could affect his opinion. That was determined in cross[-] examination and the 104 hearing yesterday.

And it appears that the information that has been supplied by the plaintiff is subsequent to the report. And interestingly enough, in the 104 hearing the plaintiff's expert even testified that he did not have the income tax returns until after he filed his report, and [as] a result of that all of that information that he received came directly from the plaintiff. That does not make it inaccurate. It makes it simply an issue of credibility.

The problem that I have here is that I -- as I've indicated, I've managed this case from the very beginning; I entered case management orders; I dealt . . . with the issues of discovery, compelling discovery -- of certain documents and information; I dealt with motions in that regard, and there is a significant impact, I believe, here on some of the documents, which are invoices that have been supplied to the defendant. I believe it was stated yesterday they were supplied last week, or two weeks ago.

Although those statements were dated back in September of 2003, we are now in April of 2004. A trial date having been set by this court. So I find it necessary in this regard to sanction the plaintiff in that regard . . . the sanction that would be fair to the defendants . . . in this case, without substantially impacting . . . upon the plaintiff's case. For example, a sanction would be to not allow the expert to testify, and to throw out the . . . future lost wage claim. That would be, I think, extremely severe in this case, especially since the information that has been supplied really goes to . . . the credibility of not only the plaintiff . . . but to the expert, and . . . the credibility, or . . . the impact of . . . his own position -- opinion, as it relates to the mitigation income.

. . . .

But to hold that the expert should not be allowed to testify and to throw out the plaintiff's future lost wage claims I think would be too severe, and I think another remedy ought to be fashioned in that regard.

The court then invited counsel to express their positions on fashioning another remedy. Defendants responded that if the court was not inclined to bar the wage loss claim, the fairest remedy would be to limit the claim "either through 2003 or -- or up to the time of trial, to the time of judgment. . . . but not to allow future lost wages beyond that point." The court indicated to plaintiff's counsel that it was inclined to impose this remedy as a sanction. The following colloquy took place between the court and plaintiff's counsel:

[PLAINTIFF'S COUNSEL]: But no future lost wage claim, Your Honor?

THE COURT: No future lost wage claim.

[PLAINTIFF'S COUNSEL]: I . . . I think, Your Honor, that that would be extremely severe.

THE COURT: Why?

[PLAINTIFF'S COUNSEL]: We're only three years out of trial. This gentleman's alleged that he's been blackballed and shut out of the industry he's worked in his whole life, Your Honor. If -- and if I could just address one factual point --

THE COURT: What would your remedy be, assuming everything I said -- you know, accepting everything I've said, what kind of a remedy do you think would be fair to your client?

[PLAINTIFF'S COUNSEL]: I would suggest, if Your Honor requires some sanction, that -- a monetary sanction be appropriate.

THE COURT: That doesn't help at time of trial.

The court adjourned the trial, reopened discovery, and awarded defendants reasonable counsel fees and costs. The judge memorialized his decision in a written order dated May 11, 2004. The portion of the order addressing counsel fees provided:

5. ORDERED that, by no later than 10 days after the last deposition conducted pursuant to Paragraph 4 of this Order, counsel for defendants shall file with this Court and serve on counsel for plaintiff, Certifications for Services with respect to:

A. The reasonable attorneys fees and costs incurred by counsel for defendants on April 26 and April 27, 2004;

B. The reasonable attorneys fees and costs incurred by counsel for defendants in preparing for and conducting the depositions described in Paragraph 4 of this Order; and

C. Any other reasonable attorneys fees and costs counsel for defendants are forced to incur investigating any additional information plaintiff produces in compliance with this Order (or fails to produce in violation of this Order); and it is further

6. ORDERED that, within 21 days of being served with a subsequent Order of this Court setting forth the reasonable attorneys fees and costs for which plaintiff is responsible (the "Sanctions Payment"), plaintiff (through his counsel) shall tender to counsel for defendants the Sanctions Payment; and it is further

7. ORDERED that plaintiff's failure to comply with Paragraph 6 of this Order shall result in the imposition of additional sanctions, including without limitation striking plaintiff's claim for future lost wages[.]

During the reopened discovery period, additional documents surfaced relating to plaintiff's income from Budget Cutters. Those documents showed that plaintiff had received income from entities that he had never disclosed to defendants. In addition, during this period, defendants served information subpoenas upon a number of check cashing entities because plaintiff had no checking account and discovery had revealed that he utilized check cashing establishments. Plaintiff's counsel moved to quash those subpoenas.

Prior to the return date of the motion to quash, the court conducted, on the record, a case management conference during which it addressed the request to adjourn the scheduled August 2, 2004 trial date and other matters. The court learned that defendants received records which revealed plaintiff had an additional $8,000 in income from 2002 he had not disclosed. The court also learned that plaintiff's counsel had advised the entities served with subpoenas not to appear for depositions or to produce records until further notice. As a result of these developments, the court extended discovery to August 27, 2004 and also permitted defendants to serve an initial expert report. The court expressed its dismay with the plaintiff's conduct:

Mr. Manee has a tendency not to give [the defense] all the information all the time. I'm getting tired of it, quite frankly, so you've got to have -- have you got a comment, Mr. Manee? I suggest you be very careful with your comment, too. I've given you every opportunity in this case, every opportunity, to get done what has to be done and these defendants have been blocked almost at every aspect for failure to provide information. You can shake your head no all you want but every . . . time I come up here there's something else that you failed to produce. I'm going to give them the opportunity to get it so that we can have a full and fair trial here, sir.

On September 7, 2004, pursuant to the court's May 11, 2004 order, defendants requested a total of $108,113.37 in attorneys' fees and costs. On September 16, 2004, the court ordered plaintiff to pay defendants $25,725.00 by the scheduled trial date of September 27, 2004, or face dismissal, with prejudice, of his remaining CEPA claim.

On September 27, 2004, plaintiff appeared for trial without having satisfied the "Sanctions Payment." Plaintiff offered to pay defendants "approximately $1,000" which he claimed he had "been able to gather." Plaintiff's counsel argued that the monetary sanctions imposed by the court were punitive in nature. Believing that it had no other options available to it under the circumstances, the court dismissed plaintiff's remaining CEPA claim with prejudice. This appeal followed.

I.

Plaintiff contends the trial court's imposition of a $25,725 discovery sanction was an abuse of discretion and tantamount to dismissal. Specifically, he claims the sanction was punitive in light of his economic status and asserts that an alternative, more appropriate, sanction was available to the court. In addition, he contends the excessive nature of the sanction ultimately precipitated dismissal of his CEPA claim. As such, plaintiff urges this court to reverse the trial court's order of dismissal.

A trial court's decision to impose sanctions is reviewed under an abuse of discretion standard. Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 571 (App. Div. 2000). We will not disturb a trial court's exercise of that discretion unless an injustice has been done. See Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995).

While a trial judge has broad discretion in formulating sanctions for failure to make discovery, the sanctions imposed must be just and reasonable. Manorcare Health Servs. Inc. v. Osmose Wood Preserving, Inc., 336 N.J. Super. 218, 230 (App. Div. 2001). A range of "discovery-type" sanctions is available to the court, including orders to compel, the award of reasonable expenses incurred in obtaining the discovery, counsel fees and dismissal where warranted. Casinelli v. Manglapus, 181 N.J. 354, 365 (2004) (citing R. 4:23-1 to -5). When imposing a sanction, "the court must consider a number of factors, including whether the plaintiff acted willfully and whether the defendant suffered harm, and if so, to what degree." Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005). Generally, "the policy of our courts is to impose, not the harshest possible remedy for discovery violations, but a remedy that adequately addresses the problems created without undue prejudice." Seacoast Builders Corp. v. Rutgers, 358 N.J. Super. 524, 549 (App. Div. 2003).

From the outset of the instant case, defendants were convinced that plaintiff had intentionally concealed his income to minimize his mitigation income and inflate his wage loss claim. Initially, the trial court found that plaintiff's failure to produce income tax information was unintentional and, in January 2004, denied defendants' motion to bar the wage loss claim and strike the expert report. When plaintiff again supplemented his discovery responses, one week prior to trial, with invoices from September 2003 that revealed additional income, defendants again moved to bar plaintiff's wage loss claim. Defendants argued that "plaintiff deliberately concealed Budget Cutters invoices from September 2003 (and thereafter) while affirmatively representing to [the] [c]ourt in December 2003 that all information relevant to his lost-wage claim had been produced." This time the court was convinced that plaintiff's conduct was intentional and entered its May 11, 2004 order finding "willful discovery violations."

We are satisfied the record clearly demonstrates that the sanction adequately addressed the problems created by plaintiff's concealment of discovery without unduly prejudicing his case. Not only did plaintiff fail to produce his December 2003 invoices until April 2004, but subsequently during the reopened discovery period, defendants discovered $8,000 in additional receipts that plaintiff had failed to reveal during the earlier discovery periods or in his 2002 income tax return. These additional receipts were also not reflected in plaintiff's supplemental expert report. Defendants were unquestionably prejudiced in their defense of plaintiff's wage loss claim because they were not provided with an accurate picture of plaintiff's post-termination finances. In addition, plaintiff's actions forced defendants to take further depositions and to engage in further trial preparation. The imposition of sanctions was clearly justified.

Moreover, it was plaintiff's counsel who suggested the imposition of a monetary sanction rather than any limitation on plaintiff's wage loss claim, as the court initially contemplated. We find the imposition of monetary sanctions under these circumstances just and reasonable and not unduly prejudicial to plaintiff. We merely take issue with the court's conclusion that once plaintiff appeared for trial on September 27, 2004 without having paid the $25,725, it had no other alternative but to dismiss the complaint.

Because the dismissal of a plaintiff's cause of action with prejudice is the ultimate sanction, it should be invoked sparingly and ordered only "'when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party.'" Manorcare, supra, 336 N.J. Super. at 231 (quoting Hirsch v. Gen. Motors Corp., 266 N.J. Super. 222, 261 (Law Div. 1993)). Thus, if a less severe sanction "could erase the prejudice against the non-delinquent party, dismissal of the complaint with prejudice would not be appropriate and would therefore constitute an abuse of discretion.'" Id. (quoting Johnson v. Mountainside Hosp., Respiratory Disease Assocs., 199 N.J. Super. 114, 119 (App. Div. 1985), certif. denied, 122 N.J. 188 (1990)).

Here, the court determined that plaintiff's failure to provide discovery in a timely fashion was willful, resulting in the imposition of the sanction of reasonable counsel fees and costs. The court did not, however, prior to dismissing the complaint, make a specific finding that the failure to pay the $25,725 eleven days after the court ordered its payment was willful. Abtrax, supra 139 N.J. at 514-17. Plaintiff's counsel argued that plaintiff was indigent and that "[plaintiff] has, through tremendous efforts, been able to gather approximately $1,000 . . . ." In response, the court stated:

I don't know that I consider . . . the plaintiff indigent. I haven't . . . seen it. And . . . I've got an income tax return, I don't know what that means quite frankly. He has retained good [c]ounsel in this matter. Competent [c]ounsel, he is obviously. I don't know what his arrangement is with . . . his [a]ttorney and I . . . will not delve into that. But that is something I had to take into consideration also.

We note that throughout the pre-trial stages of this matter, the trial judge's handling of plaintiff's violations exemplified patience and judicial restraint in the face of recalcitrant conduct by plaintiff. Nonetheless, before dismissing the complaint, the court was required to make specific factual findings as to whether plaintiff's failure to pay was willful. Gonzalez, supra, 185 N.J. at 115. That was not done. Further, the trial court was mistaken in its belief that dismissal was the only alternative. The $25,725 award could have been reduced to a money judgment, which "establishes an indisputable obligation and confers upon the successful party the right to issue execution or other process of the court for its enforcement." Biddle v. Biddle, 150 N.J. Super. 185, 191 (Ch. Div. 1977); see also N.J.S.A. 2A:16-11. Additionally, the court, if satisfied there was no ability to pay the counsel fee award, could, as it originally considered, "limit the lost wage claim to [plaintiff's] actual lost wages to the date of trial." We therefore reverse the dismissal of the CEPA claim and remand to the trial court for reconsideration of the appropriate sanction. We emphasize that to justify dismissal of the case, the court must determine whether plaintiff had both the ability to pay the sanction and willfully refused to do so.

II.

In the event that the CEPA claim is reinstated, we reverse the order granting partial summary judgment dismissing plaintiff's punitive damages claim. We are persuaded that there were genuinely disputed issues of fact on the issue of punitive damages sufficient to defeat a summary judgment motion.

In reviewing a trial court's grant of summary judgment, we employ the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App Div.), certif. denied, 154 N.J. 608 (1998). See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995) (articulating summary judgment standard). We must decide "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party. Brill, supra, 142 N.J. at 540.

Punitive damages may be awarded under CEPA. Green v. Jersey City Bd. of Educ., 177 N.J. 434, 445 (2003). However, "[a] greater threshold than mere negligence should be applied to measure employer liability for punitive damages[.]" Abbamont v. Piscataway Twp. Bd. of Educ., 314 N.J. Super. 293, 297 (App. Div. 1998), aff'd o.b. 163 N.J. 14 (1999). Such damages are to be awarded when clear and convincing evidence establishes two conditions: "(1) 'actual participation in or willful indifference to the wrongful conduct on the part of upper management' and (2) proof that the offending conduct [is] 'especially egregious.'" Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 113 (1999) (quoting Rendine v. Pantzer, 141 N.J. 292, 314 (1995)).

Determining whether an offending employer should be considered part of "upper management" is highly fact-sensitive and requires the court to evaluate whether the employee had "sufficient authority so that the imputation of damages against the employer is fair and reasonable." Id. at 126. The concept of "upper management is not confined to those individuals occupying the top-most tier in an organizational chart[;]" it also "includes those individuals who have 'significant power, discretion and influence within their own departments.'" Lockley v. Turner, 344 N.J. Super. 1, 20 (App. Div. 2001), aff'd in part and remanded by, Lockley v. Dep't of Corrections, 171 N.J. 413 (2003) (quoting Cavuoti, supra, 161 N.J. at 123). Thus, for instance, "an employee on the second-tier of management" may be considered a member of "upper management" if he or she possesses "either: (1) broad supervisory powers over the involved employees, including the power to hire, fire, promote and discipline; or (2) the delegated responsibility to execute the employer's policies to ensure a safe, productive and discrimination-free workplace." Cavuoti, supra, 161 N.J. at 129.

As for the second prerequisite, conduct may be considered "especially egregious" where there is proof that a defendant acted with "actual malice" or "a wanton and willful disregard of the rights of another." Id. at 120 n.2. The question of whether a plaintiff has alleged the type of wanton, reckless, or malicious conduct necessary to support an award of punitive damages must ordinarily be resolved by a jury. See, e.g., Spragg v. Shore Care, 293 N.J. Super. 33, 59 (App. Div. 1996) (observing that summary judgment is "particularly inappropriate" on the question of the availability of punitive damages "where subjective elements such as intent and motivation are involved"); Weiss v. Parker Hannifan Corp., 747 F. Supp. 1118, 1135 (D.N.J. 1990) ("Under New Jersey law, the exceptional nature of a given case and the wanton or malicious nature of the defendant's conduct are questions for the finder of fact."); Santiago v. City of Vineland, 107 F. Supp. 2d 512, 570 (D.N.J. 2000) (noting that "the issue of punitive damages is [typically] a fact question which should be decided by a jury").

Here, Morris was president and CEO of Edgewood. He frequented the work site and there is evidence, albeit post- termination, of discussions he purportedly had with Verdic about plaintiff. A reasonable jury could infer his knowledge and actual participation in the events surrounding plaintiff's termination despite Christoffers' testimony to the contrary. Christoffers headed the Excavation Division, supervised more than two dozen employees, and acknowledged that he terminated plaintiff. Both men, therefore, in so far as their control and influence over the day-to-day operations of Edgewood, were "[a]t the margins" of the easy definitions of "upper management," chief executive officers or chief operating officers. Cavuoti, supra, 161 N.J. at 122. Likewise, if the jury finds that plaintiff was terminated because he complained about the discharge of a hazardous substance, the jury could reasonably conclude, on these facts, that the termination was especially egregious. Cavuoti, supra, 161 N.J. at 113. Therefore, the question of whether the allegations against defendants, if believed, clearly and convincingly prove "wanton" or "reckless" conduct sufficient to support an award of punitive damages is a jury question. See Rendine, supra, 141 N.J. at 314-15; Kluczyk v. Tropicana Prods., 368 N.J. Super. 479, 495-98 (App. Div. 2004). Accordingly, we reverse the order granting summary judgment on plaintiff's punitive damages claim.

III.

In their cross-appeal, defendants urge that in the event plaintiff's CEPA claim is reinstated, a remand to the trial court is necessary for "additional consideration of, and specific findings on, the actual hours expended by each firm and whether those hours were reasonable and necessary," given plaintiff's misconduct. Defendants contend the motion judge did not provide specific reasons for reducing the number of hours allotted to each firm when setting the appropriate sanction.

A trial court's fee determination will only be disturbed "'on the rarest of occasions, and then only because of a clear abuse of discretion,'" Packard-Bamberger & Co. Inc. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine, supra, 141 N.J. at 317), because a "trial court [is] in the best position to weigh the equities and arguments of the parties." Id. at 447. After determining an award of reasonable counsel fees, the trial court must state its reasons on the record for awarding a particular fee. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004).

On September 16, 2004, of the $100,000 in attorneys' fees and costs defendants sought, the trial court ordered plaintiff to pay $25,725 prior to September 27, 2004, the scheduled trial date. In reaching that figure, the court limited the amount of reimbursement to four categories: "[p]reparation for the trial; [a]ttendance in [c]ourt on April 26th and April 27th; [a]ttendance at plaintiff's deposition and the preparation for that deposition; and [a]ttendance at the . . . plaintiff's expert's deposition and preparation for that deposition." In considerably reducing the amount of attorneys' fees requested by defendants in their certifications, the court reasoned that "much of the certification includes some[]time that the [c]ourt did not intend to reimburse the [defendants] for."

The court essentially allotted each defendant the same amount of time in preparing for and attending trial and depositions. The only thing that differed between defendants' awards was the hourly rates of their attorneys. Thus, the court allowed each law firm five hours for trial preparation, which was "the lesser of the time that was spent by any one of the three law firms." In reducing that time, the judge explained, "I reduced it, because the preparation time would have been involved in any event." In addition, the court allowed five hours for preparation of the April 26 and April 27, 2004 court appearance, and allowed 11.5 hours for the actual attendance on the same dates, including travel time; 2.7 hours for preparation of plaintiff's deposition; 7.4 hours for attendance at plaintiff's deposition; 1.8 hours for preparation of plaintiff's expert's deposition; and 6.6 hours for attendance at plaintiff's expert's deposition. In total, the court allowed thirty-five hours to each of the three law firms representing defendants. Although defendants requested costs for such expenses as tolls and parking fees, the court considered these costs as "overhead issues and not to be the obligation of the plaintiff here."

Based on the hourly rates of the attorneys, which the court found to be reasonable, the court subsequently ordered plaintiff to pay "to the firm of Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., the sum of $8,225 . . . the law firm of Arseneault, Fassett & Mariano, the sum of $7,875 . . . the law firm of Giordano, Halleran & Ciesla, the sum of $9,625."

The trial judge clearly stated both his reasons for the award of counsel fees and costs as well as his reasons for the amount. Those reasons are fully supported by the record. We find no abuse of discretion in the amount awarded. As such, there is no basis to disturb the trial court's fee determination.

IV.

Next, we agree with defendants that CEPA does not impose liability upon a former employer for alleged post-employment actions that affect a former employee. Zubrycky v. ASA Apple, Inc., 381 N.J. Super. 162, 168 n.2 (App. Div. 2005) (citing Young v. Schering Corp., 141 N.J. 16, 32 (1995); Beck v. Tribert, 312 N.J. Super. 335, 343-44 (App. Div.), certif. denied, 156 N.J. 424 (1998)). In both Young, supra, and Beck, supra, the plaintiffs brought CEPA claims against their former employers, alleging that they were terminated for objecting to company practices. Young, supra, 141 N.J. at 21-22; Beck, supra, 312 N.J. Super. at 338-39. In addition, they asserted claims for post-employment defamation, slander and malicious interference with prospective employment. Young, supra, 141 N.J. at 23; Beck, supra, 312 N.J. Super. at 344. In finding that CEPA did not extend to the employers' post-employment conduct, the Court in Young stated, and we reiterated in Beck, that "'[e]ven if plaintiff can establish that . . . [his employer] interfered with prospective employment opportunities, such conduct will not constitute a violation of CEPA.'" Young, supra, 141 N.J. at 32 (quoting Young v. Schering Corp., 275 N.J. Super. 221, 239-40 (App. Div. 1994), aff'd, 141 N.J. 16 (1995)). According to the Court in Young, the statute "'covers action taken only with respect to the employment relationship established between the employer and employee.'" Ibid. Hence, the post-employment aspect of plaintiff's claims against Edgewood and Morris should have been dismissed.

V.

Finally, Morris contends that the trial court erred in denying his motion for partial summary judgment dismissing plaintiff's CEPA claim against him because plaintiff failed to create a disputed issue of material fact as to his actual participation in plaintiff's termination from Edgewood and Iron Leaf.

In denying Morris' motion for summary judgment, the trial court reasoned as follows:

Mr. Morris is the chief executive officer of Edgewood. He, at one point, says I leave everything to Christoffers . . . I leave it up to him to fire, I leave it up to him to hire, but there is some statements that indicates that Mr. Morris knows everything that goes on in that company. Well, you know, that's no shock to my mind because he is the chief executive officer in the corporation. Whether or not there's been illegal dumping going on, an inference can be drawn that he, Mr. Morris, was aware of that, only because of his attendance at the job site. I mean, in his deposition he -- he admits that one Saturday morning he came in, even made eggs for the plaintiff in this matter. So, there is some ongoing relationship, there is obviously a certain knowledge that must be [imputed] to Mr. Morris as the chief executive officer as to the activities that are ongoing on this property, and the activities of his own company.

[A] jury and fact finder can reasonably conclude that Mr. Morris was fully aware of what was going on relative to Mr. Manee and participate in the firing, and the firing was retaliatory. I'm not making a finding that it was. I'm simply making a finding that a legitimate inference can be drawn in that regard and in the motion for summary judgment all legitimate inferences must be granted to the nonmoving party in this situation.

Therefore, with regard to the motion for summary judgment relative to Morris, I'm going to deny the motion for summary judgment relative to the CEPA claim.

When we view the record in the light most favorable to plaintiff, we are satisfied that the motion judge correctly concluded there was clearly a genuine issue of material fact as to Morris' involvement in plaintiff's termination from Edgewood, irrespective of Christoffers' testimony that he, not Morris, was solely responsible for plaintiff's termination from Edgewood. However, as previously discussed, CEPA does not apply to post-employment conduct. Consequently, partial summary judgment should have been granted as to Morris' alleged involvement in the Iron Leaf termination. Zubrycky, supra, 381 N.J. Super. at 168 n.2.

To summarize, we reverse the dismissal of the CEPA claim and remand to the trial court for proceedings to determine whether there was a willful failure to pay the sanction. In the event the court determines that a sanction other than dismissal is appropriate, the CEPA count must be reinstated in all respects except as to plaintiff's claim that defendants Edgewood and Morris' post-judgment employment conduct interfered with plaintiff's employment relationship with Iron Leaf. Further, in the event of reinstatement, the punitive damages claims must be reinstated as well. The judgment of the trial court is affirmed in all other respects.

Affirmed in part, reversed in part, and remanded for proceedings in conformity with this decision.

 

Improperly pled as Verdek.

At oral argument, plaintiff's counsel confirmed that plaintiff's appeal was limited to the dismissal of the remaining CEPA count and plaintiff's punitive damages claim.

Although no viable claim exists for defendants' alleged post-employment conduct under CEPA, we do not decide whether this evidence may be relevant and admissible for other purposes.

(continued)

(continued)

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A-1159-04T5

February 1, 2007