GERALD W. LaCROSSE v. RONALD JONES, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5770-09T2

GERALD W. LaCROSSE,

Plaintiff-Respondent,

v.

RONALD JONES, JR.,

Defendant-Appellant.

________________________________

March 30, 2011

Submitted March 21, 2011 - Decided

Before Judges Grall and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3218-08.

Levin Cyphers, attorneys for appellant (Harry Jay Levin and Colleen Flynn Cyphers, on the brief).

Gerald W. LaCrosse, respondent pro se.

PER CURIAM

Defendant Ronald Jones, Jr., appeals from the denial of his application for attorney fees under the Frivolous Lawsuit Act, N.J.S.A. 2A:15-59.1b(2), and Rule 1:4-8(a)(3). Defendant gave the requisite notice of frivolous litigation to plaintiff shortly after the complaint was filed. When the complaint was not withdrawn, plaintiff secured a summary judgment dismissing the complaint on the merits after discovery.

Defendant then filed a motion for an award of attorney fees, which the judge denied. The judge explained that the case did not fit within the class of frivolous litigation. This was so because, after extensive discovery, the matter came down to an issue of whether or not there was malice on defendant's part in circulating a political flyer. That flyer accused plaintiff of being criminally charged with theft of moveable property, defendant's political signs. The judge pointed out that plaintiff had no right to remove the signs because they were not on his property. Even though the judge who dismissed the action on summary judgment found that the action was "technically deficient," the judge denying the attorney fees reasoned that the first effort to dismiss was unsuccessful and the complaint was dismissed only after the second effort and the then-recent report of Salzano v. North Jersey Media Group, Inc., 201 N.J. 500 (2010). He noted that the mere fact that defendant won on summary judgment did not mean that the action was frivolous.

The judge found that there was no evidence that plaintiff filed the complaint in bad faith for the purpose of causing harassment, delay, or malicious injury. There was also no evidence that plaintiff knew when he filed the complaint that he could not prove that defendant was acting with actual malice in accusing plaintiff of theft. The judge observed that the facts of this case were distinguishable from those of Gooch v. Choice Entertaining Corp., 355 N.J. Super. 14 (App. Div. 2002), where the defamation occurred during the course of litigation and was absolutely immune. The judge also noted that the award of fees even where the action was frivolous was not mandatory but committed to the discretion of the judge. The judge found defendant was not entitled to counsel fees and that any award of counsel fees under the facts of this case would not be equitable. Thus, he denied the application for fees under the statute and rule.

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the motion judge in his oral opinion delivered on July 15, 2010. Defendant has simply failed to demonstrate that plaintiff knew or should have known that the statements made by defendant in his political flyer were true at the time they were made or that the action had no legal basis.