LISA GRIFFIN v. DIANA M. ROYLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LISA GRIFFIN,

Plaintiff-Appellant,

v.

DIANA M. ROYLE,

Defendant-Respondent.

_____________________________________________________

September 25, 2013

Submitted September 17, 2013 Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-133-11.

Larry S. Loigman, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

This case has its genesis in a prior matrimonial action commenced by defendant Diana M. Royle, against her husband, in which she apparently alleged1 plaintiff Lisa Griffin committed adultery with defendant's husband. Following the voluntary dismissal of the matrimonial action, plaintiff commenced this action, alleging defendant harassed her in a variety of ways and seeking damages for her emotional distress.

Following an unprofitable settlement conference, Judge Linda Grasso Jones considered defendant's motion for summary judgment, as well as plaintiff's cross-motion for her recusal because of her participation in settlement discussions. Judge Jones denied the recusal motion and granted summary judgment.

Plaintiff appeals, arguing that the judge erred in granting summary judgment and in denying recusal. We find no merit in these arguments.

The first of the complaint's two counts alleged that defendant harassed plaintiff through "annoying and insulting telephone communications," by "following [her] when . . . driving," and by making "abusive and threatening communications by screaming, shouting, and gesturing, and similar behavior"; she later asserted, in opposing defendant's summary judgment motion, that she was also harassed by the allegation of adultery contained in defendant's divorce complaint. As to this count, plaintiff asserted in her opposing affidavit that, although she "was very upset" by defendant's conduct and the adultery allegation in the matrimonial action, she "did not seek medical treatment."

Our courts have yet to determine whether conduct constituting the criminal offense of harassment, as defined by N.J.S.A. 2C:33-4, gives rise to a civil cause of action. Aly v. Garcia, 333 N.J. Super. 195, 203 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001). We again decline the invitation to decide that issue. It suffices to recognize, as Judge Jones held, that a civil claim of harassment would be subject to the same analysis given to an intentional infliction of emotional distress claim, see id. at 204, which requires evidence of a physical illness or serious psychological sequelae capable of being diagnosed by trained professionals, see Abouzaid v. Mansard Gardens Assocs., LLC, 207 N.J. 67, 78 n.4 (2011); Taylor v. Metzger, 152 N.J. 490, 515 (1998); Aly, supra, 333 N.J. Super. at 204. Plaintiff's mere claim that she was "very upset" by defendant's alleged conduct is insufficient as a matter of law to sustain such a cause of action. See Juzwiak v. Doe, 415 N.J. Super. 442, 452 (App. Div. 2010); Aly, supra, 333 N.J. Super. at 204. Consequently, the judge correctly granted summary judgment on this count.

The second and last count of plaintiff's complaint claimed defendant knowingly and falsely alleged in her matrimonial complaint that plaintiff had "committed adultery" with defendant's husband. Plaintiff asserted that defendant "maliciously and without probable cause misused, abused or perverted" the court's processes by incorporating that allegation in her matrimonial complaint. Although, as pleaded, this count would appear to be limited to a claim of malicious abuse of process, and was so analyzed by Judge Jones in granting summary judgment, plaintiff on appeal now seems to abandon that theory and argues, instead, that the claim sounds in defamation. To the extent plaintiff may still be arguing the former, we affirm substantially for the reasons set forth in Judge Jones's oral decision. In viewing the second count as a defamation claim, we conclude that a matrimonial plaintiff has immunity to utter an adultery allegation in a matrimonial complaint. See, e.g., Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 558 (1955) (holding "absolute privilege or immunity is . . . afforded in judicial proceedings where judges, attorneys, witnesses, parties and jurors are fully protected against defamation actions based on utterances made in the course of the judicial proceedings and having some relation thereto"). To be sure, an assertion of a party's infidelity in a civil pleading may not be immune in all circumstances, see Hawkins v. Harris, 141 N.J. 207, 219 (1995), but its relevance in a matrimonial action and, thus, the proper cloaking of that allegation with immunity is beyond doubt, see N.J.S.A. 2A:34-2(a).2 For these reasons, we affirm the summary judgment entered on the second count.

We also reject plaintiff's argument that Judge Jones should have recused herself from hearing the summary judgment motion because she had conducted a settlement conference. This argument is frivolous.

We initially note that the argument is rendered moot by our disposition of the merits. That is, appellate courts are required to apply the same legal standard to which Judge Jones was bound in ruling on defendant's summary judgment motion. Estate of Hanges v. Metropolitan Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). Accordingly, even if we were to assume Judge Jones should have recused herself, her ruling was entitled to no deference and any alleged appearance of impartiality could have no impact on the matter's disposition. The very nature of the summary judgment process precludes the weighing of evidence. And, like trial judges, in reviewing the grant or denial of summary judgment, we are bound by the same standard, which only entails an examination of the moving and opposing papers and a legal determination as to whether there is a genuine issue for trial. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

In addition, plaintiff's argument misapprehends the important public policy that favors the settlement of litigation, Nolan v. Lee Ho, 120 N.J. 465, 472 (1990), and the important role judges often play in effectuating settlement, Peskin v. Peskin, 271 N.J. Super. 261, 275 (App. Div.), certif. denied, 137 N.J. 165 (1994). Were we to endorse the standard for disqualification proposed by plaintiff, we would cause the reduction in the participation of judges in settlement discussions. That is, if we were to agree with plaintiff's theory, our hard-working and conscientious trial bench would likely be less inclined to engage in settlement discussions, knowing such action would require recusal and the burdening of a colleague with the matter.

Of course, as we observed in Peskin, a judge's participation in settlement discussions "must always be exercised appropriately and with full recognition that the court must remain fair and impartial," ibid., and the commands of Canon 3(C) of the Code of Judicial Conduct bind judges regardless of the nature of the proceedings. But, here, the record demonstrates nothing unusual about the discussions between and among the judge and attorneys and no basis by which the judge's impartiality could reasonably be questioned.3 Plaintiff's attorney merely claimed in his certification that facts outside the record were revealed during these discussions; for that reason alone plaintiff argues that upon receiving such "ex parte" information "further proceedings should [have] be[en] held before a different judge." Counsel, however, did not reveal the content or even the nature of these additional facts in the trial court or here. Nor has plaintiff presented a plausible argument as to how the judge's alleged receipt of these unrevealed facts required recusal or how those unrevealed facts had a capacity to taint the later proceedings.

Affirmed.

1A copy of the matrimonial complaint was not included in the appendix plaintiff filed in this court.

2Adultery is one of the limited number of grounds for the dissolution of a marriage.

3The parties were not invited into the judge's chambers for these discussions. As a result, insofar as plaintiff's affidavit includes factual assertions regarding the judge's discussions with counsel, those assertions constituted inadmissible hearsay, which would have no bearing on the judge's disposition of the recusal motion or our review of it. See Higgins v. Thurber, 413 N.J. Super. 1, 21 n.19 (App. Div. 2010), aff d o.b., 205 N.J. 227 (2011). We, thus, consider only those statements regarding the settlement discussions that are based on personal knowledge, such as those contained in the certification of plaintiff's attorney.