AMA B. AFIRIYIE v. BANK OF AMERICA, N.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1595-10T2

AMA B. AFIRIYIE,1

Plaintiff-Appellant/

Cross-Respondent,

v.

BANK OF AMERICA, N.A.,2 and

DIANE LOWE, individually and

as agent, servant and/or

employee of BANK OF AMERICA, N.A.,

Defendants-Respondents/

Cross-Appellants,

and

THE TOWNSHIP OF SOUTH ORANGE;

THE TOWNSHIP OF SOUTH ORANGE

POLICE DEPARTMENT; POLICE

CHIEF JAMES CHELEL; POLICE

OFFICER P. ZAZZARO; PATROLMAN

M. LAMANNA; PATROLMAN

CUCCINIELLO; and SGT. YOUNG,

Defendants.

_______________________________

A

February 7, 2013

rgued October 22, 2012 - Decided

 

Before Judges Sabatino, Fasciale and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1987-08.

 

Robert T. Pickett argued the cause for appellant/cross-respondent (Mr. Pickett, attorney and of counsel; Nixon T. Kannah, on the brief).

 

Gregg S. Sodini argued the cause for respondents/cross-appellants (Law Offices of Gregg S. Sodini, LLC, attorneys; Mr. Sodini, on the brief).

PER CURIAM

This appeal and cross-appeal arise out of an incident in which plaintiff, upon attempting to cash a check at a bank's branch office in a supermarket, was erroneously accused of criminal conduct and was briefly arrested. After a jury trial the bank and its branch manager were found liable to plaintiff for defamation, wrongful dishonor of a negotiable instrument, and malicious prosecution. The jury awarded plaintiff an aggregate sum of $710,000 in damages. The trial court set aside the verdict, ordering a new trial. Both parties have now sought relief from this court.

As set forth in this opinion, we affirm the order directing a new trial, albeit for different reasons than those articulated by the trial judge. We further direct that the jurors on the second trial be provided with revised instructions on the applicable law and a revised verdict sheet.

I.

The record adduces the following facts and procedural history.

The March 8, 2007 Check Incident and Plaintiff's Arrest

In 2006, plaintiff Ama B. Afiriyie opened checking and savings accounts with defendant Bank of America ("BOA") as well as a secured credit card account for which she paid a security deposit of $300. In February 2007, BOA sent a letter to plaintiff, advising her that her credit card account was being "graduated" from secured status to unsecured status.

On March 8, 2007, plaintiff received a check from BOA, dated March 5, 2007, in the amount of $300. The check came with an attached "stub," explaining that the check represented "a credit balance refund" from her BOA account. Plaintiff called the toll-free number on the check stub and inquired about why the check had been issued and whether it was "good." She was told by a representative from BOA that the check was valid and could be cashed at any BOA branch. The representative explained that the check had been issued as a result of plaintiff's secured credit card account being upgraded to "unsecured" status.

At approximately 5:30 p.m. on March 8, 2007, plaintiff entered a BOA banking office located at the Pathmark Supermarket in South Orange. Her intention was to cash the check and then pick up her daughters at a nearby daycare facility. The daycare facility closed at 6:00 p.m.

Plaintiff proceeded to a teller window, swiped her bank card, and handed over her driver's license, bank card, and the check, asking that it be cashed. The teller took the check, typed something into the computer, and appeared to have difficulty with the transaction. According to plaintiff, defendant Diane Lowe, the bank manager, was standing nearby assisting another customer, and the teller looked to her for assistance.

According to Lowe, she was in her office when plaintiff first came to the teller window. The teller brought plaintiff's check to her because, when the check was run through the MICR3 reader, a warning box had popped up, indicating that additional verification was needed to proceed with the transaction.

Lowe saw nothing suspicious on the face of the check. However, when she checked the business account on which the check was drawn, she noticed numerous checks drawn from the account in small amounts of "one cents, two cents, [and] three cents." Given that pattern, Lowe found it odd that a check had been issued on the account in the amount of $300. She then called BOA's help desk, which referred her to the credit card department, which was already closed. Lowe then went to speak to plaintiff. She did not inquire as to whether plaintiff was a customer of the bank.

The testimony of the parties substantially varies at this point of the chronology. According to plaintiff, Lowe asked her where she had gotten the check. Plaintiff replied that BOA had issued it, and Lowe responded that the bank does not issue checks like this. Plaintiff explained to Lowe that she had received a letter along with the check, and spoke to a BOA representative over the phone about it. Nevertheless, according to plaintiff, Lowe insisted that the check was "no good" because BOA did not issue checks like this. For her part, Lowe denied ever telling plaintiff that the check was not good.

At that point, a line was forming behind plaintiff, and the supermarket itself was fairly crowded. According to plaintiff, she felt confused, embarrassed, and upset. She continued to explain that she had received the check in the mail, and had spoken with a representative from BOA's card services department who told her that the check was valid. Plaintiff also offered to go get her credit card. Lowe responded that she would have "to verify this" because BOA does not issue checks like this. Plaintiff apparently replied, "fine, no problem. Not a[n] issue."

Lowe then walked to her office, where she called the BOA help desk again. Meanwhile, plaintiff moved aside in line so that other customers could be serviced.

The help desk transferred Lowe to the secured credit card department. The representative from that department looked up the check on her computer system, which was different than Lowe's. The representative told Lowe "that the customer should never have received this check" because the account had not been open for nine months and the representative had no record of plaintiff having graduated to an unsecured card.

Lowe then called BOA's security department for assistance with how to proceed. She reviewed the situation with a representative from that department. The representative did some investigation on her own computer and reportedly told Lowe that she could not return the check to the customer.

According to Lowe, she then advised plaintiff that she was attempting to verify the check but had not been able to do so. Therefore, Lowe could not cash the check, and she was not allowed to give the check back.

Lowe testified that plaintiff responded by saying that she had to pick up her children and she was not leaving without her check. Lowe claimed that she offered to hold the check, wait for plaintiff to bring in further documentation the next day, and, once the check was verified, either deposit it or cash it for plaintiff.4

Lowe denied that she became upset with plaintiff, contending that she acted in a professional manner at all times. However, she maintained that plaintiff became "irate" with her. According to Lowe, plaintiff's voice was loud, and she cursed at Lowe and "said very un-nice things." Plaintiff continued to insist that she was not leaving without her check. She allegedly called Lowe "dumb" and a "bitch," and she used "the F-word."

At that point, Lowe retreated to her office and called the South Orange Police Department. Lowe claimed that she asked that officers be dispatched to deal with an irate customer who had presented a check she had been unable to verify and could not return. Lowe continued to make phone calls regarding the check while she waited for the police to arrive. In particular, she spoke to the security department a second time, explaining the situation again and expressing that the customer was irate and that she felt threatened.

Plaintiff's version of events differed. She denied that Lowe ever came back to the teller window to speak with her, or told her that she could come back the next day. According to plaintiff, at approximately 5:45 p.m., she indicated that she needed to leave in order to pick up her daughters. Plaintiff asked what was going on, and requested that the check be returned to her so she could cash it at another branch. Alternatively, she asked to cash some of it, and deposit the rest. Upon hearing plaintiff's repeated inquiries, Lowe allegedly responded from where she was on the phone, stating that she was on hold, she had to verify the check, and she could not return it to plaintiff.

As the time approached 6:00 p.m., plaintiff became emotional and close to tears. She had to pick up her daughters, who were respectively two and three years old at the time. She felt as though people were looking at her and that Lowe was treating her dismissively.

Plaintiff testified on direct examination that Lowe's voice was very loud, that her tone was "very nasty," that she "seemed annoyed" that plaintiff "was . . . questioning her authority," and that it appeared that plaintiff "was irritating her." On cross-examination, however, plaintiff denied that she had gotten into an "argument" with Lowe. She characterized her conversation with Lowe as "a discussion" and "a misunderstanding," denying that she or Lowe had been yelling. Plaintiff also denied cursing at Lowe.

Around this point in time, plaintiff's boyfriend came into the supermarket and asked plaintiff what was taking her so long. After she explained the situation, he gave her his cell phone to call BOA herself. She called the BOA checking department and asked to be transferred to credit card services. At that point, two South Orange police officers, Matthew LaManna and Michael Cucciniello, walked into the store. The officers were accompanied by their road supervisor, Sergeant William Young.

Officers LaManna and Cucciniello testified that they had been dispatched on a report of a female trying to cash a "fraudulent" or "counterfeit" check. They were not advised of an irate or disruptive customer.

Officer LaManna and Sergeant Young spoke to Lowe, who was on the phone while Officer Cucciniello remained outside Lowe's office. Lowe pointed plaintiff out to LaManna and Young. She asserted that plaintiff had attempted to cash a check that she believed to be fraudulent, and she was trying to verify whether that was true.

According to Officer LaManna, after hanging up the phone, Lowe said the check did not appear in BOA's system as having been issued to plaintiff, therefore the check was no good. According to Sergeant Young, Lowe told them that the amount of the check appeared to have been changed. They asked if Lowe was willing to sign a complaint, and she responded that she was.

For her part, Lowe denied ever telling the officers that the check was fraudulent or no good. According to Lowe, she "did not [say so] because [she] couldn't verify it. [She] was still trying to verify it when the officers walked in." The problem, as Lowe perceived it, was that she could not verify the check one way or the other, and she had an irate customer.

In any event, Sergeant Young made the decision to arrest plaintiff based upon the information he received from Lowe. Lowe herself did not direct the officers to arrest plaintiff.

According to plaintiff and her boyfriend, the police officer walked over, took the phone out of plaintiff's hand and closed it, placed her in handcuffs, and told her she was under arrest for passing a fraudulent check. The officers allegedly never inquired about plaintiff's version of events.

Plaintiff claims that she was crying "hysterically." She tried to explain that the check was legitimate, but the police took her out of the store, past all the customers, put her in a police car, and drove her to the stationhouse. The officer who drove the car allegedly told plaintiff to "shut up" and "save it for the judge."

According to Officer LaManna's testimony, he walked over to plaintiff, identified himself, and told her that the bank believed her check to be fraudulent. He observed that plaintiff then became "extremely upset . . . extremely irate quickly," before he took her identification. As LaManna described it, she was loudly "spewing off some four-letter words" and "[p]eople started staring," at which point Sergeant Young told LaManna to arrest her. Plaintiff's boyfriend and Lowe also testified that plaintiff had cursed at the officers.

Officer LaManna testified that, after he got plaintiff into his vehicle, he returned to the bank. He told Lowe that plaintiff had been arrested, and asked if Lowe would be available to sign a complaint. She responded that she would. Lowe, however, admitted only that she told the officers she would sign a complaint if she verified that the check was illegitimate. Officer LaManna took identification information from Lowe, and either the original or a copy of plaintiff's check.

Once at the police station, plaintiff was placed in a holding cell where she was handcuffed to a bench. She was also photographed, fingerprinted, and questioned. Officer LaManna described her as "extremely upset, [and] crying." He attempted to calm her down, stating that she would not be there very long, and explaining the charges being brought against her.

Plaintiff was charged in a municipal complaint, signed by Officer LaManna, at the direction of his superior officer, with forgery, N.J.S.A. 2C:21-1(a)(2), and attempted theft by deception, N.J.S.A. 2C:5-1(a)(1) and 2C:20-4(a). The complaint indicated a scheduled court hearing on Monday, March 12, 2007.

Plaintiff was released on her own recognizance after approximately two-and-a-half hours at the South Orange police headquarters. Prior to her release, an officer advised her that it had all been "a mistake."

At home the next day, plaintiff called BOA and explained what had happened. In response to her phone call, she received a letter from BOA, dated March 9, 2007, advising that the check had been issued to her as a refund when her credit card was graduated to an unsecured account.

According to Lowe, she learned on the day after the incident, March 9, 2007, that the check was legitimate. Lowe stated that she "felt horrible" once she learned this. Lowe and her manager left voicemails apologizing to plaintiff, and BOA also sent letters of apology. However, plaintiff denied receiving any such apologies.

Lowe was later disciplined for her handling of the matter. She received what she described as "a verbal coaching" from her supervisor. The manager instructed Lowe that, in the future, she should keep her managers better informed of problems as they arise.

On March 12, 2007, plaintiff appeared in court with an attorney and pled not guilty to the criminal charges. The criminal matter was adjourned to April 16, 2007. In the meantime, counsel for BOA sent a letter requesting that the prosecutor dismiss the charges, advising that the check presented by plaintiff was valid. The criminal complaint was accordingly dismissed on April 2, 2007.

The Litigation

About a year later, in March 2008, plaintiff filed a nineteen-count complaint against BOA and Lowe ("the bank defendants"), as well as the Township of South Orange, the Township of South Orange Police Department, Police Chief James Chelel, Sergeant Young, and police officers LaManna, Cucciniello, and Patrick Zazzaro ("the South Orange defendants"). The complaint alleged: defamation (count one); wrongful dishonor of a negotiable instrument in violation of N.J.S.A. 12A:4-402 (count two); breach of contract (count three); breach of duty (count four); negligent advice (count five); malicious misrepresentation (count six); assault and battery (count seven); violation of her state and federal constitutional rights (count eight); fundamentally unfair government action (count nine); false arrest (count ten); false imprisonment (count eleven); malicious prosecution (count twelve); malicious use of process (count thirteen); intentional infliction of emotional distress (count fourteen); negligent infliction of emotional distress (count fifteen); conspiracy to commit tort (count sixteen); bias crime (count seventeen); supervisory liability (count eighteen); and employer liability (count nineteen).

Following discovery, defendants moved for summary judgment. Plaintiff generally opposed the motion, although she did not specifically oppose dismissal of counts four, five, six, seven, eight (as to BOA and Lowe only), nine, thirteen, fifteen, sixteen, seventeen, eighteen, and nineteen.

After hearing oral argument in March 2010, the trial court denied the summary judgment motions but dismissed the counts plaintiff had consented to dismiss, leaving only counts one (defamation), two (wrongful dishonor), three (breach of contract), ten (false arrest), eleven (false imprisonment), twelve (malicious prosecution), and fourteen (intentional infliction of emotional distress) remaining against defendants. Count eight (violation of state and federal constitutional rights) also remained as against the South Orange defendants.

The South Orange defendants then moved for summary judgment on all remaining counts against them. They reached a settlement with plaintiff before the motion was decided.

Prior to trial, the bank defendants moved in limine to bar testimony from plaintiff's experts, which plaintiff opposed. After hearing argument, the trial court denied that application.

Between June 30 and July 6, 2010, the remaining counts against the bank defendants were tried before a jury. The jury heard testimony from plaintiff, Lowe, several of the police officers, and other fact witnesses.

Plaintiff also called an expert witness on banking practices, J. Michael Feeks. In the opinion of Feeks, there was nothing about plaintiff's attempt to cash the $300 check that should have made Lowe suspicious. According to Feeks, nothing on the face of the check suggested that it might be a forgery. Moreover, there was nothing unusual about the account the check was drawn on having a zero balance. Feeks explained that was common for corporate accounts. The activity in the account did not suggest to Feeks that the check was fraudulent.

Feeks also opined that Lowe did not follow generally accepted banking practices or BOA's practices for cashing checks. He maintained that Lowe did not use ordinary care in dealing with plaintiff, who, as a customer of the bank, could have been charged if the check turned out to be fraudulent. Feeks noted that had Lowe acted according to generally accepted banking principles, there never would have been a call to the police. Rather, Lowe should have utilized other options available to her, such as returning the check to plaintiff and asking her to return to the branch the following day, or asking plaintiff to deposit the check and have it validated through the check-clearing process, or simply returning the check to plaintiff and saying it could not be cashed.

Defendants' expert in banking, James J. Kreig, disagreed with Feeks's conclusions. Kreig opined that, given the prevalence of fraudulent and counterfeit checks, and in particular fraudulent cashier's checks drawn on banks' accounts, Lowe acted reasonably in questioning the validity of the check. Moreover, given the late hour of the day, the suspicious amount of the check in light of the prior transactions in the account the check was drawn on, the fact that the account had a zero balance, and Lowe's inability to verify the authenticity of the check within BOA's corporate structure, Kreig concluded that Lowe had acted reasonably in addressing plaintiff and telling her she could not return the check. Given all of the above factors, and plaintiff's having become irate, Kreig asserted that Lowe had acted reasonably in calling the police as a means to calm the situation down. On cross-examination, however, Kreig admitted that

hypothetically, . . . with the benefit of 20/20 hindsight . . . had Ms. Lowe known at the time Ms. Afiriyie was a customer, had Ms. Lowe suggested that the plaintiff deposit the check into her account, had the plaintiff agreed to do so, I suspect none of this would have ever occurred.

 

With respect to damages, plaintiff, who had never been arrested before, testified that she felt "humiliated, embarrassed, [and] ashamed" by what happened to her. She maintained that she was continuing to suffer from the incident. For example, she was unable to enter banks unless accompanied by someone and she feared the police. She testified that she was depressed a lot, that she did not engage in her normal activities, that she was unable to maintain employment due to her emotional instability, and that her relationships with her boyfriend and children had been negatively affected. Plaintiff indicated that she had sought treatment for her mental health issues although she had stopped such treatment after about sixteen sessions (ten with a therapist and six with a psychiatrist) because she could not afford it. Plaintiff acknowledged that she did not take any medication for her emotional stress.

An expert psychiatrist, James R. Cowan, M.D., examined plaintiff and treated her approximately six times. He diagnosed plaintiff with post-traumatic stress disorder with depression. Dr. Cowan felt that she was "a very sensitive person" who was "hurt deeply" by the events of March 8, 2007, with both BOA and the police contributing to her injuries. The expert opined that her psychological injuries were permanent, and she would be "scarred for life."5

The Verdict and Defendants' Post-Trial Motions

At the close of plaintiff's case, defendants moved for judgment under Rule 4:37-2(b). The court denied the motion as to the defamation claim. However, it granted the motion as to the claims of false arrest, false imprisonment, and intentional infliction of emotional distress. The court reserved decision as to the claims of wrongful dishonor, breach of contract, and malicious prosecution.

Upon the close of all evidence, defendants moved to dismiss the remaining counts under Rule 4:40-1. As part of that application, defendants sought to strike plaintiff's claims for punitive damages. On the next trial date, the court dismissed the claim for punitive damages, stating that it would allow three claims to go to the jury: defamation, wrongful dishonor, and malicious prosecution. The court did not specifically address the breach of contract claim but appears to have implicitly granted judgment to the defense on that claim.

The jury returned a verdict for plaintiff on the three claims presented, awarding her: $112,500 for defamation; $112,500 for wrongful dishonor; $225,000 for malicious prosecution; and $260,000 for past and future medical expenses. On July 22, 2010, the court entered an aggregate judgment in accordance with the jury's verdict.

Defendants then moved for judgment notwithstanding the verdict ("JNOV") or, in the alternative, remittitur pursuant to Rule 4:40-2. On October 15, 2010, the court issued an oral opinion granting a new trial, and denying remittitur. In essence, the court granted a new trial because of the size of the jury's aggregate damage award. The court specifically found that the $710,000 award, and its four component parts, "shocked [the judge's] conscience," representing recovery "far beyond what a reasonable factfinder could determine . . . if [it] gave the plaintiff the benefit of every inference." In its corresponding written order dated October 15, 2010, the court vacated the judgment and ordered a new trial on counts one (defamation), two (wrongful dishonor), and twelve (malicious prosecution).

Plaintiff has now appealed the trial court's interlocutory order directing a new trial and has been granted leave to do so. Defendants have cross-appealed from the denial of their pretrial motions for summary judgment, as well as the trial court's refusal at and after the trial to enter judgment in their favor as a matter of law.

II.

We now examine the discrete issues raised on appeal. On the whole, although we sustain a number of the trial court's challenged rulings, we conclude that there were multiple errors in the proceedings to warrant a new trial on both liability and damages.

 

A.

Before delving into the parties' allegations of trial error, we first consider defendants' argument that the court erred before trial in denying them summary judgment on plaintiff's claims of defamation, wrongful dishonor, and malicious prosecution. We review the trial court's denial of the motion de novo, applying the same legal standards that govern such summary judgment motions. W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012). We consider the evidence "in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law." W.J.A., supra, 210 N.J. at 238 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)); R. 4:46-2(c). Applying these standards, we agree with the trial court that plaintiff had sufficient evidence to enable a fact-finder to conclude that she was entitled to relief on each of these three claims. We therefore affirm the denial of summary judgment to defendants.6

1.

To succeed on her defamation claim, plaintiff was obligated to prove, by a preponderance of the evidence, that Lowe: (1) made false and defamatory statements of fact about her, (2) to third parties in a non-privileged setting, (3) with either knowledge that the statements were false, a reckless disregard for the truth or falsity of the statements, or negligence in failing to ascertain the truth or falsity of the statements. G.D. v. Kenny, 205 N.J. 275, 292-93 (2011); DeAngelis v. Hill, 180 N.J. 1, 12-13 (2004); Restatement (Second) of Torts 558 (1977) ("Restatement").

"The threshold inquiry" on this claim is whether the language used was susceptible of a defamatory meaning. Ward v. Zelikovsky, 136 N.J. 516, 528 (1994); Lutz v. Royal Ins. Co. of Am., 245 N.J. Super. 480, 492 (App. Div. 1991). "A determination of whether certain language is defamatory on its face rests within the power of the trial court. Only when the court finds the words to be capable of both a defamatory and a nondefamatory meaning does a question of fact arise for the jury to decide." Lawrence v. Bauer Publ'g & Printing, Ltd., 89 N.J. 451, 459 (citations omitted), cert. denied, 459 U.S. 999, 103 S. Ct. 358, 74 L. Ed. 2d 395 (1982); accord DeAngelis, supra, 180 N.J. 14.

"As a general rule, a statement is defamatory if it is false, communicated to a third person, and tends to lower the subject's reputation in the estimation of the community or to deter third persons from associating with him." Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 164-65 (1999) (citing Restatement 558, 559); accord 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 meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express." Restatement 563. In deciding whether a statement is defamatory, the court considers its content, verifiability, and context. Lynch, supra, 161 N.J. at 167; McLaughlin v. Rosanio, Bailets & Talamo, Inc., 331 N.J. Super. 303, 312 (App. Div.), certif. denied, 166 N.J. 606 (2000). The content of the statement must be considered in the context of the publication as a whole. Romaine v. Kallinger, 109 N.J. 282, 290 (1988); Hill v. Evening News Co., 314 N.J. Super. 545, 552 (App. Div. 1998). "The focus is on the effect of the alleged defamatory statement on third persons, that is, whether they viewed the plaintiff in a lesser light as a result of hearing or reading the offending statement." Russo v. Nagel, 358 N.J. Super. 254, 263-64 (App. Div. 2003).

Where, as here, the plaintiff is a private figure and the speech relates to a private concern, fault must be established through proof that the defendant communicated his statement while acting negligently in failing to ascertain its truth or falsity. Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 139 N.J. 392, 402-13 (1995), cert. denied, 516 U.S. 1066, 116 S. Ct. 752, 133 L. Ed. 2d 700 (1996); see also W.J.A., supra, 210 N.J. at 242 ("New Jersey, like many other states, maintains a fault standard of negligence for defamation cases involving private-figure defendants.").

Defendants contend that the defamation claim should have been dismissed on summary judgment because plaintiff failed to identify any actionable defamatory statement.

Viewed in a light most favorable to plaintiff, the record reflects that plaintiff has alleged, in essence, two separate defamatory statements. First, she has alleged that Lowe made defamatory statements about her in the presence of bank and grocery store customers. Second, she alleged that Lowe made defamatory statements about her to the police.

With respect to the statements made in front of customers, in the complaint, plaintiff alleged that Lowe said "No, I'm not giving you back the check. What you gave us is a fraudulent check." (Emphasis added). We recognize that at her deposition, plaintiff did not repeat this specific allegation. Nevertheless, at trial, plaintiff testified that Lowe made statements to plaintiff, potentially within earshot of others, to the effect that "the check is no good, BOA does not issue checks like this, and I have to verify the check." A reasonable implication of such alleged remarks is that plaintiff was trying to collect on a fraudulent check. False allegations of criminality are generally considered defamatory as a matter of law. Romaine, supra, 109 N.J. at 291; McLaughlin, supra, 331 N.J. Super. at 313-14; Restatement 571. Although the issue is not free from doubt, we conclude Lowe's alleged statements in the customer area can reasonably be construed as defamatory. See, e.g., Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 584-87 (2009) (holding that although the record was "far from clear," a defamation claim was sufficient to withstand summary judgment motion).

Plaintiff's claims regarding Lowe's communications with the police were likewise sufficient to present to a jury. Officer LaManna testified at his deposition that Lowe told him the check plaintiff had provided was "fraudulent" and "no good." Similarly, Sergeant Young testified at his deposition that Lowe told him the check plaintiff had presented was "forged" and that the amount of the check had been changed. These are also false accusations of criminality that may be considered defamatory as a matter of law. Romaine, supra, 109 N.J. at 291; McLaughlin, supra, 331 N.J. Super. at 313-14; Restatement 571.

Defendants alternatively contend that plaintiff's defamation claim should have been dismissed on summary judgment because, to the extent it was based upon alleged defamatory statements made to the police, those statements were protected by an absolute or qualified privilege. Plaintiff responds that Lowe's statements to the police were protected only by a qualified privilege, and that her proofs on summary judgment were sufficient to overcome the privilege. We agree with plaintiff.

The absolute privilege that defendants claim is the litigation privilege. Whether the litigation privilege applies presents a question of law. Hawkins v. Harris, 141 N.J. 207, 216 (1995).

The litigation privilege immunizes any participant to a judicial proceeding from civil liability for any statements made in the course of the proceeding. Loigman v. Twp. Comm., 185 N.J. 566, 579 (2006). The purpose of the privilege is "to ensure that participants in the judicial process act without fear of the threat of ruinous civil litigation when performing their respective functions." Loigman, supra, 185 N.J. at 581; accord Hawkins, supra, 141 N.J. at 214.

In cases pre-dating Hawkins, our courts repeatedly concluded that only a qualified privilege should apply to statements made to police. See Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 137 (1986); Geyer v. Faiella, 279 N.J. Super. 386, 391-92 (App. Div.), certif. denied, 141 N.J. 95 (1995); Dijkstra v. Westerink, 168 N.J. Super. 128, 134-36 (App. Div.), certif. denied, 81 N.J. 329 (1979); Cashen v. Spann, 125 N.J. Super. 386, 404-07 (App. Div. 1973), modified, 66 N.J. 541, cert. denied, 423 U.S. 829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975). These conclusions are consistent with the concept that the absolute privilege does not protect statements made absent safeguards against abuse, Hawkins, supra, 141 N.J. at 220-21, and does not protect against claims of malicious prosecution. Loigman, supra, 185 N.J. at 584 n.4; Russo, supra, 358 N.J. Super. at 266. We also do not conceive of Lowe's alleged statement to the police to have a sufficient nexus to litigation to be covered within the absolute privilege. The statements were very preliminary in nature, and not tied to an anticipated judicial proceeding. We therefore analyze Lowe's statements under the law of qualified privilege.

The qualified privilege provides that

[a] communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contains criminatory matter which, without this privilege, would be slanderous and actionable.

 

[Bainhauer v. Manoukian, 215 N.J. Super. 9, 36 (App. Div. 1987) (internal quotation marks omitted).]

 

Whether a qualified privilege applies is a question of law for the court to resolve. Feggans v. Billington, 291 N.J. Super. 382, 395 (App. Div. 1996); Lutz, supra, 245 N.J. Super. at 496.

Statements made by a defendant subject to a qualified privilege are not actionable unless the plaintiff can overcome the privilege by showing by clear and convincing evidence that the privilege was abused. Feggans, supra, 291 N.J. Super. at 395; Kass v. Great Coastal Exp., Inc., 291 N.J. Super. 10, 23 (App. Div. 1996), aff'd in part, rev'd in part on other grounds, 152 N.J. 353 (1998). For example, the privilege will not protect a statement made for some improper motive, or if the speaker knew the statement to be false or acted in reckless disregard of its truth or falsity. Feggans, supra, 291 N.J. Super. at 394; Kass, supra, 291 N.J. Super. at 19-23; see also Restatement 599-600, 603-05.

"[T]he question of whether the [qualified] privilege was abused is normally a jury question," Lutz, supra, 245 N.J. Super. at 499, especially where credibility is an issue. Id. at 502; accord Feggans, supra, 291 N.J. Super. at 395; Bainhauer, supra, 215 N.J. Super. at 40-41.

Plaintiff made sufficient allegations to overcome the qualified privilege on summary judgment. Two police officers testified at their depositions that Lowe specifically told them the check was fraudulent. Although Lowe denied making such a statement to them, she did admit that when speaking to the police she did not know whether the check was valid or invalid because she was still investigating. The evidence presented on summary judgment supported a conclusion that, when telling the police the check was fraudulent, Lowe acted with reckless disregard as to the truth or falsity of her statement, and therefore the qualified privilege could be overcome.

Defendants further argue that plaintiff's defamation claim should have been dismissed on summary judgment because she submitted no evidence of damage to her reputation. This argument also fails.

The Supreme Court recently addressed this legal issue in W.J.A., supra, and explained the types of damages available in defamation cases. In particular, it offered the following guidance with respect to "presumed damages" to a plaintiff's reputation:

Damages which may be recovered in an action for defamation are: (1) compensatory or actual, which may be either (a) general or (b) special; (2) punitive or exemplary; and (3) nominal. Actual damages, as the name implies, refers to the real losses flowing from the defamatory statement. It is not limited to out-of-pocket loss, but includes impairment to reputation and standing in the community, along with personal humiliation, mental anguish, and suffering to the extent that they flow from the reputational injury.

 

Contained within the notion of actual damages is the doctrine of presumed damages the losses which are normal and usual and are to be anticipated when a person's reputation is impaired. Presumed damages are a procedural device which permits a plaintiff to obtain a damage award without proving actual harm to his reputation. Among the rationales underlying the doctrine are the difficulty of proving the effects of the defamatory statement and that harm normally results from such a statement.

 

Presumed damages apply in libel cases. In contrast, slander cases generally require proof of special damage an economic or pecuniary loss. However, if the slander is per se (e.g., accusation of a crime, a loathsome disease, misfeasance in business, or serious sexual misconduct), the requirement of proving special or economic damage in a slander case drops away. In that case, slander per se, like libel, permits the jury to consider presumed damages.

 

[W.J.A., supra, 210 N.J. at 239-40 (emphasis added) (internal quotation marks and citations omitted).]

 

The Court in W.J.A. also noted the availability of nominal damages where the harm to plaintiff's reputation is only presumed, without proof of actual loss:

A nominal damages award may be made in a defamation case to a plaintiff who has not proved a compensable loss. Nominal damages are awarded for the infraction of a legal right, where the extent of the loss is not shown, or where the right is one not dependent upon loss of damage. Such an award is a judicial declaration that the plaintiff's right has been violated. It serves the purpose of vindicating the plaintiff's character by a verdict of a jury that establishes the falsity of the defamatory statement.

 

[Id. at 240-41 (emphasis added) (internal quotation marks and citations omitted).]

 

The Court held in W.J.A. that in cases such as the present one, involving private plaintiffs and matters that are not of public concern, "[w]here a plaintiff does not proffer evidence of actual damage to reputation, the doctrine of presumed damages permits [her] to survive a motion for summary judgment and to obtain nominal damages, thus vindicating [her] good name." Id. at 233. As the Court elaborated:

Retention of presumed damages in a private-party/private-concern defamation cause of action exemplifies our common law's respect for the private individual's good name by keeping dignitary loss of one's good name a vital part of damages. Thus, in such cases, our common law may legitimately provide an "effective" remedy for defamation to the private citizen and his or her right to the dignity and peace of mind that comes from maintaining a good name.

 

[Id. at 248 (citation omitted).]

 

Given the Court's recent holding in W.J.A., there is no merit to defendants' argument that plaintiff's defamation claim should have been dismissed on summary judgment based upon her failure to show actual damage to her reputation. Plaintiff could recover, at the very least, nominal damages if defamation liability were proven to the jury. However, she could not recover compensatory damages, absent proof of actual harm to her reputation. Id. at 249. Such proof of actual harm was not adduced in this case.

2.

Defendants next contend that the trial court erred in denying summary judgment on the wrongful dishonor claim. We disagree.

In the complaint, plaintiff alleged wrongful discharge of a negotiable instrument contrary to N.J.S.A. 12A:4-402. During oral argument on the bank defendants' summary judgment motion, plaintiff's counsel clarified that plaintiff also was advancing contract and tort claims for wrongful dishonor. We deal with these facets separately.

N.J.S.A. 12A:4-401 to 12A:4-407, which are provisions within our State's version of the Uniform Commercial Code ("UCC"), address the relationship between a payor bank and its customer. N.J.S.A. 12A:4-402 provides:

a. Except as otherwise provided in this chapter, a payor bank wrongfully dishonors an item if it dishonors an item that is properly payable, but a bank may dishonor an item that would create an overdraft unless it has agreed to pay the overdraft.

 

b. A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. Liability is limited to actual damages proved and may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case.

 

c. A payor bank's determination of the customer's account balance on which a decision to dishonor for insufficiency of available funds is based may be made at any time between the time the item is received by the payor bank and the time that the payor bank returns the item or gives notice in lieu of return, and no more than one determination need be made. If, at the election of the payor bank, a subsequent balance determination is made for the purpose of reevaluating the bank's decision to dishonor the item, the account balance at that time is determinative of whether a dishonor for insufficiency of available funds is wrongful.

 

As defendants argue, and as is evident from the statutory language, the statute addresses wrongful dishonor of checks payable from a customer's own account. In this regard, comment five to the statute states:

Section 4-402 has been construed to preclude an action for wrongful dishonor by a plaintiff other than the bank's customer. Loucks v. Albuquerque National Bank, 418 P.2d 191 (N.Mex. 1966). Some courts have allowed a plaintiff other than the customer to sue when the customer is a business entity that is one and the same with the individual or individuals operating it. Murdaugh Volkswagen, Inc. v. First National Bank, 801 F.2d 719 (4th Cir. 1986) and Karsh v. American City Bank, 113 Cal. App. 3d 419, 169 Cal. Rptr. 851 (1980). However, where the wrongful dishonor impugns the reputation of an operator of the business, the issue is not merely, as the court in Koger v. East First National Bank, 443 So. 2d 141 (Fla.App. 1983), put it, one of a literal versus a liberal interpretation of section 4-402. Rather the issue is whether the statutory cause of action in section 4-402 displaces, in accordance with section 1-103, any cause of action that existed at common law in a person who is not the customer whose reputation was damaged. See Marcum v. Security Trust and Savings Co., 221 Ala. 419, 129 So. 74 (1930). While section 4-402 should not be interpreted to displace the latter cause of action, the section itself gives no cause of action to other than a "customer," however that definition is construed, and thus confers no cause of action on the holder of a dishonored item. First American National Bank v. Commerce Union Bank, 692 S.W.2d 642 (Tenn.App. 1985).

 

[N.J.S.A. 12A:4-402, Uniform Commercial Code Comment 5.]

 

The parties dispute whether N.J.S.A. 12A:4-402 applies, because they dispute whether the check at issue was payable from an account of plaintiff. The facts of this case are somewhat unusual in this regard.

The summary judgment record shows that plaintiff opened a secured credit card account with BOA, making a $300 deposit that the bank held pursuant to the terms of a secured credit card agreement. Under the terms of that agreement, plaintiff's $300 deposit was to be placed in a "collateral account" that would "be used as collateral to secure the obligations" to BOA that plaintiff might incur in connection with her secured card account. The owner of the collateral account was plaintiff, the cardholder on the secured card account. However, plaintiff also agreed "to be bound by the terms and conditions of the Security Agreement." The Security Agreement provided that no portion of the deposit account would be available to plaintiff or could be used by her to secure other loans. Moreover, BOA had the right to "make settlements or compromises on the Deposit Account; transfer the Deposit Account to the Bank['s] own name; or exercise ownership rights on the Deposit Account."

The record therefore shows that the money in the account originated with plaintiff and was being held to secure her own account. To be sure, pursuant to the parties' agreement, BOA exercised control over the money. BOA ultimately determined that plaintiff was entitled to receive the money in refund of her security deposit. In addition, the check by which BOA refunded the security deposit was drawn on an account in BOA's name. Yet the problem for BOA is that the correspondence from the bank to plaintiff dated March 5, 2007 enclosing the $300 check refers to the bank account as her account:

Enclosed you will find a check which represents a credit balance refund from your Bank of America account.

 

Remember that all credit balance refunds are subject to final audit. Any adjustments will be posted to your account.

 

[Emphasis added.]

 

In light of this correspondence from the bank, it is reasonable to regard the refund check in this case, even though (as plaintiff's expert acknowledged) it was drawn upon a BOA corporate account, as the functional equivalent of funds coming from plaintiff's own account. It was a matter of administrative convenience for BOA to return or credit the money to plaintiff in this particular fashion. Although we recognize that some out-of-state authorities7 might suggest a different legal conclusion, we conclude that the distinctive circumstances of this matter can support plaintiff's statutory claim for wrongful dishonor. Moreover, the embarrassment caused to plaintiff by the bank's refusal to honor the refund check at the supermarket branch in the presence of other persons, as well as plaintiff's ensuing arrest, allegedly produced the kind of harm that can be remedied by a statutory wrongful dishonor claim. See N.J.S.A. 12A:4-402(b) (authorizing recovery for "actual damages proved," including "damages for an arrest or prosecution of the customer or other consequential damages").

Defendants alternatively contend that there was no wrongful dishonor under the UCC because, under N.J.S.A. 12A:3-501(b)(4), BOA had until the day after plaintiff came to the bank to process her request for payment. That argument does not work here because defendants' actions are inconsistent with the benign ordinary processing of a check. During the interval between plaintiff's presentment of the check and BOA's ultimate authentication of it, Lowe called the police and plaintiff was arrested and charged with forgery and attempted theft by deception. Viewing the facts in a light most favorable to plaintiff, Lowe told the police that the check was fraudulent and the police arrested and charged plaintiff based upon Lowe's statements. BOA cannot, on the one hand, cause plaintiff to be arrested for attempting to pass a fraudulent check, and, on the other hand, claim that they never dishonored that check.

Plaintiff has further alleged, regardless of the viability of her statutory claim for wrongful dishonor, that she has a common-law basis in contract and tort to recover for harm caused by the dishonor. We need not recognize such novel causes of action in this matter. The case upon which plaintiff has relied, Buckley v. Trenton Savings Fund Society, 111 N.J. 355 (1988), does not recognize a claim for wrongful dishonor other than a statutory claim under N.J.S.A. 12A:4-402. In Buckley, the Court analyzed the statutory cause of action for wrongful dishonor, in order to determine what damages were permitted and "conclude[d] that [it] is a hybrid cause of action, and that characterizing it as tort or contract is not as important as identifying the elements of the cause of action and the recoverable damages." Id. at 361-62.

Contrary to plaintiff's argument, our own opinion in Buckley, 216 N.J. Super. 705 (App. Div. 1987), which was modified by the Supreme Court's subsequent holding, does not establish a common-law tort or contract claim for "wrongful dishonor." Rather, we analyzed the statutory wrongful dishonor claim under N.J.S.A. 12A:4-402 and, like the Supreme Court, we considered whether the statutory claim sounded in tort or contract in order to determine what damages were permissible. Id. at 712-14.

The Supreme Court has cautioned that only in rare instances should courts permit common law claims outside the UCC's comprehensive scheme. See City Check Cashing v. Mfrs. Hanover Trust Co., 166 N.J. 49, 58-64 (2001) (considering a claim of a non-customer against a bank, concluding that this was not one of the rare instances in which Court should sanction common law claim outside scheme provided by UCC); accord Pa. Nat'l Turf Club, Inc. v. Bank of W. Jersey, 158 N.J. Super. 196, 202-03 (App. Div.), certif. denied, 77 N.J. 506 (1978); see also Trump Plaza Assocs. v. Haas, 300 N.J. Super. 113, 123-24 (App. Div.) (holding that a claim of a bank's negligence in failing to adhere to internal procedures was "subsumed" by N.J.S.A. 12A:4-402, notwithstanding N.J.S.A. 12A:1-103, which "may be interpreted as permitting a claim of negligence under the UCC absent a specific provision preempting such a claim"), certif. denied, 151 N.J. 75 (1997). For these many reasons, we do not adopt plaintiff's common-law theory.

In sum, the trial court did not err in declining to grant summary judgment dismissing plaintiff's statutory claim of wrongful dishonor. The wrongful dishonor claim is confined, however, to the statutory basis under the UCC, rather than expanded to include tort or contract remedies.

3.

The trial court also rightly denied summary judgment on plaintiff's claim of malicious prosecution.

To prove malicious prosecution, plaintiff was obliged to prove four elements: (1) that defendants instituted the criminal action against her; (2) that defendants acted with malice; (3) that there was an absence of probable cause for the criminal action; and (4) that the criminal action terminated in her favor. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 393-94 (2009); Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003).

Although no doubt a recognized tort, malicious prosecution is not a favored cause of action because citizens should not be inhibited in instituting prosecution of those reasonably suspected of crime. On the other hand, one who recklessly institutes criminal proceedings without any reasonable basis should be responsible for such irresponsible action. . . .

 

It is through that prism the precarious balance between encouraging the orderly resolution of disputes and preventing the abuses that may result therefrom that a claim alleging malicious prosecution must be evaluated.

 

[Brunson, supra, 199 N.J. at 394-95 (internal quotation marks and citations omitted).]

 

Here, the summary judgment record reflects that plaintiff made out a prima facie case of all four elements of her malicious prosecution claim. First, the record reflects that defendants caused criminal proceedings to be commenced against plaintiff. Although Lowe never signed the criminal complaint, she admittedly called the police on plaintiff, and the police testified in their depositions that they arrested plaintiff and charged her with crimes based upon Lowe's allegation that plaintiff had attempted to pass a fraudulent check, and her assurances that she would sign a criminal complaint against plaintiff. These facts are sufficient to establish the first element of a malicious prosecution claim. See Epperson v. Wal-Mart Stores, Inc., 373 N.J. Super. 522, 531 (App. Div. 2004) (similarly finding the first element established where a defendant took an active part in instigating or encouraging the prosecution, assisting another person to begin one, or in ratifying or otherwise aiding it).

Second, there was sufficient evidence to support plaintiff's allegation that Lowe acted with malice. Proof of malice does not require proof that defendants acted with malevolence or personal ill will toward plaintiff. Epperson, supra, 373 N.J. Super. at 532. Rather, malice is defined as "'the intentional doing of a wrongful act without just cause or excuse.'" Brunson, supra, 199 N.J. at 395 (quoting McFadden v. Lane, 71 N.J.L. 624, 630 (E. & A. 1905)).

According to Lowe's deposition testimony, when she spoke to the police she admittedly did not know whether the check plaintiff had presented was valid or fraudulent. However, the police testified that Lowe definitively told them it was fraudulent and that she agreed to sign a criminal complaint against plaintiff, which Lowe could not recall doing. Viewing these facts most favorably to plaintiff, there was sufficient evidence that Lowe acted with malice by intentionally providing the police with inaccurate information alleging plaintiff's criminal behavior, without just cause or excuse.

Third, there was sufficient evidence adduced to prove a lack of probable cause. In this regard, "[t]he plaintiff must demonstrate that at the time when the defendant put the proceedings in motion the circumstances were such as not to warrant an ordinarily prudent individual in believing that an offense had been committed." Lind v. Schmid, 67 N.J. 255, 263 (1975); see also Brunson, supra, 199 N.J. at 398.

"Where the facts are undisputed, the existence or nonexistence of probable cause is a question of law. Factual disputes are to be resolved by the jury, but the finding of probable cause must be made on adequate instructions by the court." Lind, supra, 67 N.J. at 266 (citation omitted).

Viewing the facts here most favorably to plaintiff, when Lowe put the criminal proceedings in motion, the circumstances were not such as to warrant an ordinarily prudent person in believing that an offense had been committed. Lowe herself denied definitive knowledge that the check was fraudulent, as she was still investigating. However, even assuming that she did tell the police the check was fraudulent, a reasonable jury could infer a lack of probable cause based upon Lowe's failure to come to the police station to sign the criminal complaint notwithstanding her statement to the police that she would.

Finally, it is undisputed that plaintiff could satisfy the fourth element of her malicious prosecution claim that the criminal proceedings terminated in her favor.

For these reasons, we affirm the denial of summary judgment on plaintiff's malicious prosecution claim.

B.

In keeping with our legal analysis of the summary judgment motion, supra, we likewise sustain the trial court's denial of defendant's motions for judgment at the close of plaintiff's case in chief under Rule 4:37-2(b) and at the close of evidence at the end of the trial under Rule 4:40-1.

Motions for judgment should be denied if the evidence and all legitimate inferences that may be deduced from it could sustain a judgment in favor of the opposing party. Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). On appeal we apply the same legal standard in reviewing the trial court's ruling. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003).

The trial court found that defendants failed to overcome this heavy legal burden to obtain dismissal. We agree with that determination. Plaintiff's proofs on her liability claims sufficed to be considered by a jury, according her all reasonable inferences from the evidence actually presented at trial.

C.

Defendants assert that the jury instructions were flawed in at least two critical respects. First, they contend that a new trial was warranted on the defamation claim because the trial court did not charge the jury on the privilege applicable to Lowe's statements to the police, including the heightened burden of proof to overcome the qualified privilege. Second, they contend that a new trial was warranted on the wrongful dishonor claim because, among other things, the trial court did not charge the jury that emotional distress damages could not be awarded on such a claim. We agree with these contentions.

The standard of review for jury charges is well-established. "It is axiomatic that clear and correct jury charges are essential to a fair trial[.]" Das v. Thani, 171 N.J. 518, 527 (2002). Courts should correctly explain the controlling law in clear and understandable language. Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 374 (2007); Velazquez v. Portadin, 163 N.J. 677, 688 (2000).

Incorrect jury instructions are poor candidates for rehabilitation as harmless, and generally are presumed to constitute reversible error. Das, supra, 171 N.J. at 527. In making that assessment, we must consider the jury charge as a whole. Mogull v. CB Commercial Real Estate Grp., Inc., 162 N.J. 449, 464 (2000). Having done so here, we concur with defendants that the jury instructions on defamation and wrongful dishonor were fundamentally and irreparably deficient.

Defendants proposed at trial the inclusion of a charge on qualified privilege with respect to Lowe's statements to the police, including the clear and convincing burden of proof necessary to overcome the privilege. The trial court rejected defendants' request, mistakenly concluding that no privilege applied. Plaintiff, however, concedes on appeal that Lowe's statements were subject to a qualified privilege.

The charge on defamation did not include any mention of qualified privilege or the burden of overcoming it, nor did the court's response to a jury question on the elements of defamation. The court charged instead that plaintiff had the burden of proving all her claims by merely a preponderance of the evidence. This was harmful error. See Model Jury Charge (Civil), 3.11B "Private Defamation" (March 2010) (noting in subpart 3 that a jury charge on qualified privilege "must be given where the court has determined that the statement is conditionally privileged but the jury must decide whether the privilege has been abused").

The court's failure to charge qualified privilege was significant, since such a charge would have entirely altered the legal framework of the jury's deliberations. The remedy must be a new trial with the inclusion of a proper charge on qualified privilege. See, e.g., Erickson v. Marsh & McLennan Co., 117 N.J. 539, 562 (1990) ("Because the trial court incorrectly charged the jury on the burden of proof necessary to overcome a qualified privilege, . . . we reverse so much of the Appellate Division's judgment as affects the libel claim and remand for a new proceeding."); Kass, supra, 291 N.J. Super. at 25-26 (holding that the rejection of a charge request on the aspect of a qualified immunity constituted reversible error; since the jury was not posed that question, "we . . . have no way of knowing whether the defense of qualified immunity was overcome").

The jury charge was also significantly flawed by the trial court's rejection of defendants' request that the jury be told that emotional distress damages could not be awarded on the wrongful dishonor claim unless the standard for intentional infliction of emotional distress had been met. Instead, the court issued a wrongful dishonor charge that essentially just tracked the statutory language of N.J.S.A. 12A:4-402.

In Buckley, supra, 111 N.J. at 368 (citations omitted), the Supreme Court held that to recover emotional distress damages for wrongful dishonor under an older version of N.J.S.A. 12A:4-402, a plaintiff must show that "the bank's conduct [was] intentional, as well as reckless or outrageous, and the distress [was] severe or result[ed] in bodily injury. When those conditions are met, a customer should be compensated for the emotional distress that is caused by the wrongful dishonor of a check."

Given the holding in Buckley, the trial court clearly erred by failing to charge the requirements for recovering emotional distress damages on the wrongful dishonor claim. The error warrants a new trial. The jury's award of $112,500 in wrongful dishonor damages is irreparably tainted because the jury rendered its decision after having been provided with an inaccurate statement of the governing law.8

These critical flaws in the defamation charge and the wrongful dishonor charge are so fundamental that we cannot, with confidence, conclude that they did not taint the jury's consideration of the separate claim for malicious prosecution and the $225,000 in damages awarded on that claim. Plaintiff presented this case thematically as an integrated narrative of wrongful treatment by the Bank and its employee. The verdicts and damage awards are too closely linked to be segregated in this context. A retrial on all issues is necessary. See Conklin v. Hannoch Weisman, 145 N.J. 395, 410 (1996); Ahn v. Kim, 145 N.J. 423, 434 (1996) (noting that the "general rule [is] that issues in negligence cases should be retried together unless the issue unaffected by error is entirely distinct and separable from the other issues"); accord Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 461 (2009).

D.

Although we need not comment about the verdict form at length, in light of our decision to order a new trial, we agree with defendants that the form should have been revised. In particular, the court should have separated the defamation claim into two parts on the form because, as we have previously discussed, different legal standards applied to the statements Lowe made in front of customers and the statements she made to police. The form also should have included a section addressing qualified privilege. See Kass, supra, 291 N.J. Super. at 23 (noting that separate questions on the verdict form addressing a claim of privilege abuse should be "the norm" in a defamation case).

As to the verdict form's separate lines for damages, we note, consistent with W.J.A., supra, 210 N.J. at 249, there should have been no line for damages corresponding to the defamation claim, because plaintiff failed to prove any actual damage to her reputation. For the reasons we have already explained, plaintiff was entitled to recover only nominal damages on her defamation claim.

E.

In her own appeal, plaintiff contends that the trial court erred by granting defendants a new trial because of its perception that the jury award was excessive and also by not offering her the less severe remedy of remittitur. These arguments are moot because, as we have already held, a new trial is required on independent grounds due to the defects in the jury instructions. Because the damages were awarded without proper judicial guidance on the law, there is no need for the court to consider whether the jury's $710,000 award, in the aggregate or individually, was so excessive as to warrant intervention in accordance with He v. Miller, 207 N.J. 230, 248-55 (2011) and other pertinent case law. We do note in passing that there are significant questions raised about whether the $253,250 component of the award for future medical expenses was reasonably supported by the proofs relating to plaintiff's discontinued treatment for emotional distress. In any event, we decline to pass on that now-academic question.

F.

For sake of completeness, and for guidance on a retrial, we address briefly defendants' contention that the trial court erred in denying their motion to bar the testimony of plaintiff's psychiatric expert, Dr. Cowan, as improper "net opinion." We reject that contention.

The net opinion rule requires an expert to "give the why and wherefore that supports the opinion, rather than a mere conclusion." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011) (internal quotation marks omitted); see also Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). We agree with the trial court that Dr. Cowan did not transgress this standard.

In his expert report, Dr. Cowan noted that he had examined plaintiff on two occasions, and he detailed the reason for her visits, as well as her relevant history. He noted the findings of his mental status examination, which included plaintiff's "somewhat blunted" affect, and her "slightly depressed" mood. Based upon his examination, he diagnosed plaintiff with post-traumatic stress syndrome with depression, and psychological stressors associated with the incident, and he proposed a treatment plan. Dr. Cowan concluded:

It is with a probable degree of medical certainty that this particular incident has significantly and permanently scarred [plaintiff] emotionally. She continues to have extreme difficulties when law enforcement officials are present. She no longer drives her automobile. She now has somebody drive for her to attend to personal and family needs. She continues to be depressed and anxious. She explains that some days are better than others, but she does remain angry. [Plaintiff] wants to put this behind her, but she still struggles with anxiety and stress, especially when law enforcement people are present, because she feels like she is reliving the experience all over again.

 

Defendants complain that Dr. Cowan did not specifically differentiate in his assessment between the conduct of the bank and the conduct of the police, stating only that the "incident" was the cause of plaintiff's psychiatric troubles. This is hardly surprising, however, since Dr. Cowans' report was dated July 1, 2009, almost a year before trial, and before plaintiff had settled her claims with the South Orange defendants. Moreover, since it was Lowe who called the police and allegedly told them that plaintiff's check was fraudulent, it was arguable that, given the chain of events, the bank defendants were responsible for any psychiatric injuries caused by plaintiff's arrest. Thus, there was little need to differentiate between Lowe's conduct and that of the police. In any event, this criticism goes to the weight to be afforded to Dr. Cowan's opinion, not its admissibility. Defendants could have deposed Dr. Cowan to further elucidate the bases for his opinions, but they chose not to do so.

Dr. Cowan's opinions were not inadmissible net opinions because they were supported by sufficient facts gleaned from his two examinations of plaintiff and his experience in the field of psychiatry. He adequately provided the "why and wherefore" of his opinions, and not just mere conclusions. Moreover, defendants were able to cross-examine Dr. Cowan on the substance of these matters at trial, including questioning whether plaintiff's psychiatric injuries were caused more by her interactions with the police or by her interactions with Lowe.

G.

The balance of the arguments raised on the appeal and cross-appeal lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed in part, reversed in part, and remanded for a new trial on liability and damages. Given the intervening passage of time, the trial court shall have the discretion to allow supplemental discovery relating solely to damages.

1 Appellant/Cross-Respondent's last name is incorrectly spelled "Afiriye" in the pleadings but, according to her trial testimony, the correct spelling is Afiriyie.

2 Respondent/Cross-Appellant is incorrectly referred to as "Bank of America" in the caption. The correct name is Bank of America, N.A.

3 Magnetic ink character recognition.

4 In this regard, Lowe admitted that she made a mistake by not inquiring as to whether plaintiff was a customer of BOA. Lowe maintained that if she had known plaintiff was a customer, she would have simply had plaintiff deposit the check into her account at that time, so it could be verified in the normal course.

5 Another of plaintiff's experts, however, whom she did not call to testify at trial, issued a report stating that, as of April 5, 2007, she had no psychiatric symptoms. The report was read into evidence at trial, over plaintiff's objection.

6 In evaluating those issues, we disregard items improperly contained in plaintiff's reply appendix, including opposition that plaintiff filed to a separate summary judgment motion by the South Orange defendants.

7 See, e.g., Casco Bank & Trust Co. v. Bank of N.Y., 584 F. Supp. 763, 765 (D. Me. 1984); JTM, Inc. v. Totalbank, 795 So. 2d 161, 162 (Fla. Dist. Ct. App. 2001).

8 This error makes it unnecessary to resolve defendants' separate contention that the wrongful dishonor charge was flawed because it omitted mention that under N.J.S.A. 12A:3-501(b)(4) banks have until the day after presentation of a check to decide whether to honor it. Although such a charge may have been informative, we are not persuaded that it was legally required in the factual context of this case. On remand, we defer to the trial court's further consideration as to whether such a jury instruction should be provided in the court's discretion.