JEFFREY ADAMS v. CITY OF JERSEY CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01993-13T3

JEFFREY ADAMS and

CHRISTINE LOADHOLT,

Plaintiffs-Appellants,

v.

CITY OF JERSEY CITY,

ARKADIVSZ ZYLKIEWICZ,

JULIAN BONAPARTE and

JAMES SULLIVAN,

Defendants-Respondents.

____________________________________________________

July 15, 2015

Submitted March 24, 2015 Decided

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0198-12.

Brian F. Curley, attorney for appellants.

Jeremy Farrell, Corporation Counsel, attorney for respondents (Stevie D. Chambers, Assistant Corporation Counsel, on the brief).

PER CURIAM

Plaintiffs Jeffrey Adams and his wife, Christine Loadholt, appeal from the grant of summary judgment in favor of defendants, the City of Jersey City (the City), and three of its police officers, Arkadivsz Zylkiewicz, Julian Bonaparte and James Sullivan (collectively, defendants).1 We set forth some of the allegations contained in plaintiff's complaint to provide context for the issues raised.

In the early morning hours of July 6, 2008, plaintiff was involved in a motor vehicle collision in Jersey City with another car owned and operated by Angel L. Velez, Jr., that resulted, several weeks later, in the death of one of the passengers in the Velez car. Plaintiff fled the scene on foot, claiming he feared for his personal safety, and sought medical treatment for himself. Upon discharge from the hospital, he returned to the accident scene. By then, the vehicles had been cleared.

Plaintiff's complaint stated that his attempts to report the accident were complicated by conflicting instructions he received from police. In any event, he was told that Bonaparte was the officer investigating the accident. Plaintiff claimed his efforts to file a report, or have Bonaparte amend the already-filed report, were unsuccessful, and he further asserted that Bonaparte and Zylkiewicz, with the approval of defendant Sullivan, "signed [a] police report []without probable cause or other justification" alleging that plaintiff left the scene of the accident.

Plaintiff stated that the motor vehicle complaint was not "amended" which resulted in his indictment by the Hudson County grand jury for violation of N.J.S.A. 2C:11-5.1, knowingly leaving the scene of an accident that resulted in death. Plaintiff was arrested, indicted and acquitted after trial.

Plaintiff filed this complaint against defendants alleging various common law causes of action, including false arrest, false imprisonment and malicious prosecution. He also alleged a violation of the New Jersey Civil Rights Act (the CRA), N.J.S.A. 10:6-1 to -2, and 42 U.S.C.A. 1983 ( 1983). Plaintiff's 1983 claim alleged that the individual defendants' actions were pursuant to a policy or regulation adopted by the City, or that the City inadequately trained or supervised the individual defendants. At some point undisclosed by the record but apparently before they had furnished any discovery, defendants moved to dismiss the complaint for failure to state a claim. R. 4:6-2(e).

The motion judge concluded that plaintiff's state law claims, save the CRA count, were barred under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, because plaintiff failed to allege any "permanent injury." See Brooks v. Odom, 150 N.J. 395, 401-03 (1997); N.J.S.A. 59:9-2(d). The judge rejected defendants' argument that the complaint failed to state a claim because it contained admissions that plaintiff had, in fact, left the scene of the accident. She stated

All the factors taken as a whole do not permit a finding of probable cause of leaving the scene of the accident. And granting all favorable inferences to [plaintiff] in this motion, a reasonable fact finder could find in plaintiff's favor.

The judge entered an order on January 11, 2013 that granted defendants' motion dismissing "all claims based upon state statutory or common law" without prejudice, except the CRA claim and plaintiff's claim for punitive damages. The order further provided that defendants' motion to dismiss "all claims based upon federal statutory or common law" was denied without prejudice.

Further discovery was exchanged, and defendants moved for summary judgment on the remaining causes of action. A second judge heard argument and granted defendants' motion. Plaintiff's motion for reconsideration was subsequently denied.

Plaintiff now appeals from the orders granting summary judgment and denying his motion for reconsideration.2 He argues that the first judge refused to dismiss the CRA and 1983 claims because there were factual disputes as to whether defendants acted with probable cause, and the second judge was foreclosed from finding otherwise pursuant to the "law of the case" doctrine. Plaintiff also argues it was error for the second judge to grant summary judgment because the return of the indictment established, as a matter of law, that defendants acted with probable cause. Lastly, plaintiff contends it was error for the second judge to expand upon his original opinion in deciding the motion for reconsideration, and that the conclusions reached were erroneous.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

Before setting forth the motion record in greater detail, we briefly address plaintiff's contention that the first motion judge's conclusions regarding probable cause became "law of the case," thereby foreclosing any further consideration of the issue. Plaintiff never raised this argument before the second motion judge when opposing summary judgment, or when moving for reconsideration. This permits us to disregard the point when raised on appeal. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).

Furthermore, the argument lacks merit. "[T]he law of the case doctrine is only triggered when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue." Lombardi v. Masso, 207 N.J. 517, 539 (2011) (emphasis added) (citing Gonzalez v. Ideal Tile Imp. Co., 371 N.J. Super. 349, 355-56 (App. Div. 2004), aff'd, 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006)). We have repeatedly said "that an order denying summary judgment is not subject to the law of the case doctrine because it decides nothing and merely reserves issues for future disposition." Gonzalez, supra, 371 N.J. Super. at 356 (citations omitted). Additionally, no legal effect can be given to the reasons expressed for the entry of an order denying summary judgment. A & P Sheet Metal Co. v. Edward Hansen, Inc., 140 N.J. Super. 566, 574-75 (Law Div. 1976).

It necessarily follows that the law of the case doctrine does not apply to the denial of a motion to dismiss for failure to state a claim based upon the pleadings. Even the grant of such a motion is not an adjudication on the merits, Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App. Div. 2009), since the dismissal is without prejudice, as it was here, and subject to possible amendment and re-filing. Pressler & Verniero, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2(e) (2015).

II.

A.

When reviewing a grant of summary judgment, we confine our review to the record before the motion judge. Lombardi, supra, 207 N.J. at 542 (citation omitted).

In his deposition, plaintiff acknowledged that the accident occurred at 2:44 a.m. on July 6, 2008. When he tried to exchange paperwork with Velez, an angry crowd of three or four other people gathered, so he fled in fear. He arrived at Christ Hospital in Jersey City two hours later. Approximately 7:00 or 7:30 a.m., plaintiff returned to the accident scene with his wife, but the vehicles had been removed.

Plaintiff tried to file a police report at the West District stationhouse, was directed to the East District stationhouse, and given Bonaparte's cell phone number. Plaintiff eventually spoke with Bonaparte on the phone and was told that he could not file another accident report, or amend the one already filed, because Bonaparte's sergeant would not permit that. Plaintiff acknowledged that he never spoke with Zylkiewicz, who actually wrote the accident report, nor did he know who Sullivan was and, to his knowledge, had never interacted with him.

Plaintiff testified that he was never served with any motor vehicle summonses. On January 14, 2010, plaintiff was indicted and subsequently arrested by the Essex County Sheriff's Department at his home on January 26, 2010. He estimated spending three or four days in custody. Plaintiff's criminal trial took place in January 2011, and he was acquitted. The motor vehicle summonses that had been issued were subsequently dismissed in Jersey City municipal court.

Bonaparte and Zylkiewicz also testified at deposition. Bonaparte was Zylkiewicz's field training officer the night of the accident and was generally responsible for supervising his work and providing guidance in the field since Zylkiewicz had recently joined the police force. When they arrived at the accident scene, paramedics were already attending to injured passengers in Velez's car and were extracting one of the passengers from the vehicle. People at the scene told Zylkiewicz that the driver of the other vehicle, plaintiff, had fled on foot.

Zylkiewicz procured the vehicle registration from plaintiff's car, and the officers used that to prepare motor vehicle summonses in plaintiff's name. Zylkiewicz and Bonaparte each prepared two summonses, with Bonaparte issuing a summons for a violation of N.J.S.A. 39:4-129, leaving the scene of an accident. Although the officers began the report together on the scene, ultimately Bonaparte was called away and never saw the final report. Zylkiewicz completed the report himself, and the two officers did not speak of the report further.

The report referenced plaintiff's vehicle as vehicle #2, and it further indicated that all parties to the accident, including plaintiff, went to Jersey City Medical Center for treatment. Before the grand jury and at plaintiff's criminal trial, Zylkiewicz testified that this notation was a mistake, and he did not know and was not told that plaintiff reported to any hospital after the crash. Before the grand jury, Zylkiewicz also testified that plaintiff did not "during the course of [the] investigation . . . or to [Zylkiewicz's] knowledge at any time thereafter . . . identify [himself] as being the driver of vehicle 2 to [Zylkiewicz], any other police officer or anyone else at the scene." Through another witness, however, the grand jurors were aware that plaintiff went to Christ Hospital after the accident.

Bonaparte acknowledged in his deposition testimony that Zylkiewicz's report was not completed properly and that the desk sergeant, who may have been Sullivan, should have made several corrections to it before permitting it to be filed. Bonaparte did not recall speaking to plaintiff at all.

When they sought summary judgment, defendants essentially argued that the motor vehicle summonses and the indictment were separate matters, the indictment was the result of independent action by the Prosecutor's Office and, in any event, both the summons for leaving the scene and the indictment were supported by probable cause, an absolute defense to plaintiff's CRA and 1983 claims. Defendants argued that summary judgment was appropriate, absent any proof of fraud in procuring the indictment.

Plaintiff countered by arguing that the hospital records reflect a call was made to the police department, and the accident report reflects that plaintiff was taken to a hospital, albeit, not Christ Hospital. Plaintiff argued a factual question was presented as to whether Zylkiewicz or Bonaparte knew plaintiff had an excuse for leaving the scene of the accident and tried to report the accident the next day, and that Zylkiewicz knowingly testified falsely before the grand jury.

The judge applied the five-factor malicious prosecution test set forth in Camiolo v. State Farm Fire and Casualty Company, 334 F.3d 345, 362-63 (3d Cir. 2003), in which the Third Circuit explained

[A] plaintiff must show that: (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.

[(Citation omitted).]

The judge applied the test to each individual defendant and the City and concluded that summary judgment was appropriate. He entered a conforming order on October 4, 2013.

Plaintiff filed a timely motion for reconsideration. R. 4:49-2. During argument, plaintiff's counsel urged the judge to reconsider because even if there initially was probable cause to issue the summons, "the police had a duty, an ongoing duty . . . if they found any exculpatory evidence to reevaluate" whether probable cause existed, based upon plaintiff's appearance at the hospital, the hospital's call to police and plaintiff's attempts the next day to report the accident.

The judge concluded that plaintiff had not presented any new case law or information and had not demonstrated any legal errors in the judge's prior ruling. He denied the motion and entered a conforming order on December 3, 2013. This appeal followed.

B.

"An appellate court reviews an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). We "review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

[Brill, supra, 142 N.J. at 540.]

"The practical effect . . . is that neither the motion court nor an appellate court can ignore the elements of the cause of action or the evidential standard governing the cause of action." Bhagat, supra, 217 N.J. at 38.

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006). "The 'trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Town of Kearny v. Brandt, 214 N.J. 76, 92 (2013) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).3

We begin by recognizing that a claim brought under the CRA is analogous to a claim brought under 1983, and our courts have generally applied the same analysis. Filgueiras v. Newark Pub. Sch., 426 N.J. Super. 449, 468 (App. Div.), certif. denied, 212 N.J. 460 (2012); Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 115 (2011). The five-part test used by the Third Circuit in Camiolo has found wide acceptance in the federal district court of New Jersey in analyzing a 1983 claim based upon malicious prosecution. See, e.g., Jones v. Dalton, 867 F. Supp. 2d 572, 584 (D.N.J. 2012) (citing Camiolo, supra, 334 F. 3d at 362-63); Peterson v. Bernardi, 719 F. Supp. 2d 419, 427 (D.N.J. 2010) (citing Camiolo's five-part analysis). Our Supreme Court has defined the elements of the tort similarly

In order to establish a claim for malicious prosecution, plaintiff must prove (1) that the criminal action was instituted by the defendant against the plaintiff, (2) that it was actuated by malice, (3) that there was an absence of probable cause for the proceeding, and (4) that it was terminated favorably to the plaintiff.

[Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003) (citing Lind v. Schmid, 67 N.J. 255, 262 (1975); JEM Marketing, LLC v. Cellular Telecomm. Indus. Ass'n, 308 N.J. Super. 160, 172 (App. Div. 1998)).]

"The plaintiff must establish each element. Upon failure to prove any one, the cause must fail." Lind, supra, 67 N.J. at 262.

Citing our decision in Vickey v. Nessler, 230 N.J. Super. 141, 150 (App. Div. 1989), defendants argue that the issuance of a traffic summons is not the initiation of a "criminal action," and hence, plaintiff cannot prevail. However, in Vickey, we only resolved whether plaintiff's malicious prosecution claim required the need to show "a special grievance," because the summons was not criminal in nature, and the recipient may not be arrested or subjected to the other consequences of a criminal prosecution. Id. at 147.

In this case, plaintiff was ultimately arrested after being indicted for violating N.J.S.A. 2C:11-5.1, which provides, "A motor vehicle operator who knows he is involved in an accident and knowingly leaves the scene of that accident under circumstances that violate the provisions of [N.J.S.A.] 39:4-129 shall be guilty of a crime of the second degree if the accident results in the death of another person." A predicate element of the crime is a violation of N.J.S.A. 39:4-129, and, in that sense, the summons issued to plaintiff was a precursor of the indictment.

Defendants also argue that prong one could not be established as to Zylkiewicz because only Bonaparte issued the summons. However, both officers responded to the scene, both commenced completing the report of the incident, and Zylkiewicz appeared in the grand jury to testify as to this critical element of the crime. For these reasons, we reject defendants' claim that plaintiff failed to establish sufficient proof as to prong one.

However, we agree with defendants that plaintiff failed to establish a prima facie case as to both the absence of probable cause and the presence of malice. The federal courts have said that "[g]enerally, a grand jury indictment definitively establishes probable cause." Rucci v. United States INS, 405 F.3d 45, 49 (1st Cir. 2005) (citation omitted). "However, courts have recognized an exception if law enforcement defendants wrongfully obtained the indictment by knowingly presenting false testimony to the grand jury." Ibid.

Our Court has said, "[a]lthough a grand jury indictment is prima facie evidence of probable cause to prosecute, when the facts underlying it are disputed, the issue must be resolved by the jury." Helmy, supra, 178 N.J. at 191 (emphasis added) (citing Zalewski v. Gallagher, 150 N.J. Super. 360, 367-68 (App. Div. 1977). In a malicious prosecution case, we have said that "[p]robable cause must be measured by the objective standard of the perceptions of a reasonable and prudent person in like circumstances." Campione v. Adamar of New Jersey, Inc., 302 N.J. Super. 99, 120, (App. Div. 1997), aff'd as mod., 155 N.J. 245 (1998).

The fact of a favorable termination sheds no light on the existence of probable cause at the time of the initial complaint; the burden remains on the plaintiff to demonstrate by independent proof that the criminal complaint was filed without probable cause.

[Id. at 120-1 (citation omitted).]

In this case, plaintiff contends that the facts underlying the issuance of a summons for leaving the scene are contested and there was sufficient evidence for a rational factfinder to infer that Zylkiewicz testified falsely before the grand jury. We disagree.

N.J.S.A. 39:4-129 reads

(a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section. . . .

. . . .

(c) The driver of any vehicle knowingly involved in an accident resulting in injury or death to any person or damage to any vehicle or property shall give his name and address and exhibit his operator's license and registration certificate of his vehicle to the person injured or whose vehicle or property was damaged and to any police officer or witness of the accident, and to the driver or occupants of the vehicle collided with and render to a person injured in the accident reasonable assistance . . . .

In the event that none of the persons specified are in condition to receive the information to which they otherwise would be entitled under this subsection, and no police officer is present, . . . after fulfilling all other requirements of subsections (a) and (b) of this section, insofar as possible on his part to be performed, shall forthwith report such accident to the nearest office of the local police department . . . .

[(Emphasis added).]

The statute itself provides no exceptions to the duty imposed upon motorists.

Plaintiff concedes that he failed to remain at the scene until the requirements of subsection (c) were met. Plaintiff claims he fled because he feared for his own safety and sought necessary medical attention. He argues that police were charged with this knowledge because the hospital notes imply contact was made and because plaintiff appeared the next day in an attempt to file a report. However, an after-asserted set of facts, even viewed in a light most favorable to plaintiff, does not negate the objectively reasonable conclusion that police had probable cause to charge plaintiff with a violation of N.J.S.A. 39:4-129. Campione, supra, 302 N.J. Super. at 120.

Plaintiff cites State v. Saulina, 177 N.J. Super. 264 (App. Div. 1980), for the proposition that his conduct was a defense to the summons that rebuts the presumption as to probable cause evidenced by the indictment. We disagree.

In Saulina, a seventy-seven-year-old driver struck a parked car in a residential neighborhood while on his way to a friend's home. Id. at 266. No one else was around to witness the accident, and the defendant, bleeding, chose to continue to his friend's house which was "within sight of the accident scene." Ibid. By the time the defendant finished cleaning himself, a matter of minutes after the accident, an officer had already arrived to question him. Id. at 267.

We reversed the defendant's conviction for violating N.J.S.A. 39:4-129(a). Our concern centered on the key phrase contained in the statute, i.e., requiring that a defendant "shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section." Id. at 268 (quoting N.J.S.A. 39:4-129(a)). We recognized that the [10] "[d]efendant had a right to reasonably assist himself medically after the accident as well as the duty to so assist others at the scene." Id. at 270.

Plaintiff seizes on this language to assert that his flight from the scene and appearance at Christ Hospital, nearly two hours after the accident, not only provides an affirmative defense to the charge, but also raises a material factual dispute as to whether police had probable cause to issue the summons. We disagree with both propositions.

In Saulina, our decision was premised upon a number of facts which we summarized

On the present record, where the time lapse between the accident and the police appearance at the [friend's] home was between 7 and 15 minutes, where the factfinder concluded that defendant was injured, and where defendant had just finished tending to his injury when the police arrived at the [friend's] home, we conclude that there is reasonable doubt as a matter of law whether defendant violated his duty under subsection (c) to "forthwith" seek out a police officer.

[Saulina, supra, 177 N.J. Super. at 271.]

The facts in this case, in a light most favorable to plaintiff, bear no resemblance to those presented in Saulina.

In short, plaintiff's version of the facts did not rebut the presumption of probable cause based upon the issuance of the summons or, for that matter, the indictment because they did not dispute the underlying facts that gave rise to the charges. However, even if we misconstrue the Court's guidance in Helmy, plaintiff failed to demonstrate that the officers acted with malice.

We acknowledge that if Zylkiewicz knowingly testified falsely before the grand jury, that might raise a material disputed fact as to the presumption accorded the indictment, and hence be important as to whether probable cause was present. It also might be sufficient to raise a genuine factual dispute as to malice. But the record is clear. Plaintiff only spoke to Bonaparte the day after the accident, although Bonaparte denied this. There is no evidence that Bonaparte ever told Zylkiewicz about the conversation. There is no evidence that suggests Zylkiewicz violated his oath when he told the grand jurors that plaintiff had never identified himself as the driver of the second car involved in the accident.

We do not address the balance of plaintiff's arguments regarding the judge's decision on his motion for reconsideration because they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Because Christine Loadholt's claims are wholly-derivative of her husband's claims, we refer hereafter to "plaintiff," in the singular, meaning plaintiff Jeffrey Adams.

2 Although plaintiff's notice of appeal includes the first judge's January 11, 2013 order granting in part and denying in part defendant's motion to dismiss the complaint, plaintiff has not set forth any legal arguments in his brief regarding that order. We deem any challenge to the order, if intended, to have been waived. Finderne Heights Condo. Ass'n v. Rabinowitz, 390 N.J. Super. 154, 166 (App. Div. 2007).

3 Plaintiff fails to present any argument in his brief challenging the grant of summary judgment to Sullivan or the City. The issue is waived. Finderne, supra, 390 N.J. Super. at 166.