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December 10, 2014


Submitted October 27, 2014 - Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket Nos. L-1959-11 and L-1960-11.

Gregory A. Molyneux, attorney for appellant.

Marshall Dennehey Warner Coleman & Goggin, attorneys for respondents (Walter F. Kawalec, III, on the brief).


Plaintiff David Hodge, a unit owner in the Fieldstone Neighborhood Community condominium complex in Bedminster ("Fieldstone"), appeals the Law Division's dismissal of his lawsuit against the Fieldstone Neighborhood Association ("the Association") and the Association's vice-president, Thomas McGrath. We affirm.

The record shows that in July 2009 plaintiff and McGrath had an argument over the telephone in which McGrath allegedly yelled and cursed at plaintiff. Without notice to plaintiff, McGrath later unbolted the gate of plaintiff's unit and went onto his porch, a limited common area. According to McGrath, he went there to check the patio area and the condition of the sprinkler heads, which McGrath claimed were broken. McGrath then allegedly told plaintiff that he wanted him expelled from the condominium.

The incident prompted plaintiff to file a complaint in municipal court against McGrath for criminal harassment, N.J.S.A. 2C:33-4(a), and trespassing. McGrath, in turn, filed a municipal complaint for harassment against plaintiff.

In August 2010, plaintiff and McGrath, each represented by counsel, entered into a settlement agreement withdrawing their dueling municipal complaints against one another. The settlement was placed on the record before the municipal judge.

Thereafter, in September 2010, the Association and McGrath sent letters to plaintiff's neighbors, which allegedly disparaged him. Those letters prompted plaintiff, who was then self-represented, to file two civil actions in the Law Division, one naming the Association as a defendant and the other naming McGrath. The two lawsuits were consolidated.

The five counts of the complaint against each defendant alleged (1) malicious prosecution, (2) harassment, (3) intentional infliction of emotional distress, (4) "intentional financial hardship," and (5) invasion of privacy.

Represented by common defense counsel, both McGrath and the Association moved to dismiss the complaints for failure to state a claim upon which relief can be granted under Rule 4:6-2(e). After considering the parties' arguments, Assignment Judge Yolanda Ciccone dismissed the lawsuits with prejudice. Plaintiff then retained counsel and moved for reconsideration, which Judge Ciccone denied.

On appeal, plaintiff contends that the trial court erred in finding his allegations insufficient on their face and also in depriving him of discovery. We conclude that the trial court's decision was sound as a matter of law. We do so substantially for the reasons expressed in Judge Ciccone's discrete rulings initially set forth on the record on February 22, 2013, and her subsequent oral opinion of April 23, 2013 denying reconsideration. We add only a few comments.

Plaintiff's civil harassment claim was properly dismissed because New Jersey law has not recognized harassment as a free-standing civil cause of action for damages. See, e.g., Juzwiak v. Doe, 415 N.J. Super. 442, 454-55 (App. Div. 2010); Aly v. Garcia, 333 N.J. Super. 195, 203-04 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001).

The claim for intentional infliction of emotional distress was properly dismissed. Plaintiff failed to allege in his pleadings all of the elements necessary to prove such a claim, namely extreme and outrageous conduct, or extreme emotional distress "'so severe that no reasonable man could be expected to endure it.'" Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988) (quoting Restatement (Second) of Torts 46 comment j (1965)). To be actionable, a defendant's conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (quoting Restatement, supra, 46 comment d at 77). It is for the court to decide "whether as a matter of law such emotional distress can be found." Id. at 367. Plaintiff did not allege that he received medical treatment or that he suffered the sort of extreme debilitating mental anguish that must be established to prevail on this kind of claim.

Plaintiff's claim for malicious prosecution fails as a matter of law because the municipal cases with McGrath were terminated by settlement rather than by a merits-based ruling in plaintiff's favor. The mutual settlement of the criminal harassment charges was not a termination in plaintiff's favor, which is a crucial element of malicious prosecution. Lind v. Schmid, 67 N.J. 255, 262 (1975) (citing Prosser, Law of Torts, 119 at 835 (4th ed. 1971)). "If the charge is withdrawn or the prosecution abandoned pursuant to an agreement of compromise with the accused, the termination is viewed as indecisive and insufficient to support the cause of action. Having compromised for his peace in the criminal proceeding, the accused may not later contend that the proceedings terminated in his favor." Mondrow v. Selwyn, 172 N.J. Super. 379, 384-85 (App. Div. 1980) (internal citations omitted).

Plaintiff's fourth pleaded claim of "intentional financial hardship" is not a recognized cause of action. The trial court appropriately dismissed this claim without the need for elaboration.

Lastly, plaintiff's claim for invasion of privacy is legally unsound for several reasons. To the extent the claim is based on McGrath's intrusion onto the porch, it is barred by the municipal settlement, and is also barred by the two-year statute of limitations in N.J.S.A. 2A:14-2(a). To the extent the claim is based on the 2010 letters revealing his address, such conduct does not amount to public disclosure of a private fact. Bisbee v. John C. Conover Agency, Inc., 186 N.J. Super. 335, 339 (App. Div. 1982). Plaintiff's claim that the letters placed him in a false light in the public eye, e.g., by alleging he broke sprinkler heads, is time-barred by the one-year statute of limitations for libel and slander in N.J.S.A. 2A:14-3. See also Rumbauskas v. Cantor, 138 N.J. 173, 183 (1994) (noting that the one-year statute of limitations for defamation claims also applies to false light claims).

Given the flawed legal foundation for plaintiff's various claims, the trial court did not misapply its discretion in curtailing discovery. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2006) (reiterating the wide discretion granted to trial judges on discovery matters); see also Hurwitz v. AHS Hospital Corp., ___ N.J. Super. ___, ___ (App. Div. 2014) (slip op. at 48) (curtailing discovery where a plaintiff's claims for damages were not viable as a matter of law).

Although plaintiff, after retaining counsel, presented numerous materials beyond the text of the pleadings in support of his motion for reconsideration, the trial court had the prerogative to deny that motion because plaintiff failed to demonstrate that those items could not have been marshalled earlier before the court heard defendant's motion to dismiss. Nor did plaintiff show that the dismissal ruling was based on a "palpably incorrect or irrational basis," or that the court "did not consider, or failed to appreciate the significance of probative, competent evidence."" Fusco v. Board of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)); see also R. 4:49-2.