D.C.A. VS. M.J.A.(L-1026-15, MORRIS COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3744-15T4

D.C.A.,

Plaintiff-Appellant,

v.

M.J.A.,

Defendant-Respondent.
______________________________________________

Submitted May 31, 2017 – Decided November 2, 2017

Before Judges Messano and Grall.

On appeal from the Superior Court of New
Jersey, Law Division, Morris County, Docket
No. L-1026-15.

Stelio G. Papadopoulo, attorney for
appellant.

Bevan, Mosca & Giuditta, PC, attorneys for
respondent (John D. Coyle, of counsel and on
the brief).

PER CURIAM

In this civil action between former spouses on a complaint

and counterclaim alleging "malicious prosecution" and

"abuse/malicious use of process," the trial court granted
defendant's motion for summary judgment on plaintiff's claims

and ordered plaintiff to narrow his "oppressive" discovery

requests. Thereafter, by stipulation and agreement, defendant

dismissed her counterclaim subject to reinstatement in the event

of an appeal and remand.

Plaintiff appeals and challenges both rulings. We affirm

the grant of summary judgment. Because there will be no remand,

the discovery order is moot and we do not address it. Cf. In re

Commitment of N.N., 146 N.J. 112, 124 (1996) (discussing

circumstances warranting consideration of moot orders).

I.

Plaintiff's tort claims are based on defendant's filing and

litigating a complaint seeking a final restraining order (FRO)

pursuant to the Prevention of Domestic Violence Act (PDVA or the

Act), N.J.S.A. 2C:25-17 to -35. In that action, defendant

alleged two predicate acts of "domestic violence" as defined in

N.J.S.A. 2C:25-19(a): stalking, N.J.S.A. 2C:12-10; and

harassment, N.J.S.A. 2C:33-4.

After plaintiff followed defendant while she was driving,

defendant obtained a temporary restraining order (TRO). She

survived plaintiff's motion for dismissal at the close of her

case on issuance of a final restraining order (FRO), but at the

close of defendant's case, the judge of the Family Part

2 A-3744-15T4
determined defendant did not establish all the elements of the

predicate acts. He found defendant failed to prove the

essential element of intent required for harassment, N.J.S.A.

2C:33-4, and the essential repeated acts required to establish

the "course of conduct" for stalking, N.J.S.A. 2C:12-10.

In the course of his final decision, the judge made

findings on elements of harassment and stalking defendant had

established. Addressing the evidence presented during the

extended multi-day hearing, including evidence on the history of

domestic violence in this family, the judge explained: "Putting

all those things together, I think I would have to make a

finding that any plaintiff in a similar situation would

reasonably be seriously annoyed and alarmed by seeing [her

husband] behind her." The judge found defendant "truthful,"

believed "she certainly was upset" and that she believed her

husband was following her and was in a "panic." N.J.S.A. 2C:33-

4; see Cesare v. Cesare, 154 N.J. 394, 414-15 (1998) (requiring

an assessment of annoyance and alarm essential to harassment

from the perspective of the complainant and the circumstances of

the relationship); accord State v. Hoffman, 149 N.J. 564, 585

(1997); cf. N.J.S.A. 2C:12-10; State v. Gandhi, 201 N.J. 161,

187 (2010) (noting that stalking requires a course of conduct

that would cause a reasonable person fear).

3 A-3744-15T4
 Without a predicate act, the judge was required to dismiss

and dissolve the TRO and deny an FRO. Nevertheless, the judge

noted he would not have issued an FRO because he did not think

it was necessary and was concerned defendant "might" use the FRO

"to perhaps, gain an advantage in the custody relationship."

After obtaining a favorable result in the PDVA action,

plaintiff commenced this civil action contending defendant

sought the protection of the PDVA maliciously and without basis.

II.

A.

"Our review of a summary judgment ruling is de novo."

Conley v. Guerrero, 228 N.J. 339, 346 (2017). "[W]e apply the

same standard governing the trial court — we view the evidence

in the light most favorable to the non-moving party." Steinberg

v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 349 (2016) (quoting

Qian v. Toll Bros. Inc., 223 N.J. 124, 134-35 (2015)). To

prevail, the moving party must show entitlement to judgment "as

a matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). A

defendant can prevail on summary judgment in action alleging a

malicious misuse or abuse of process by establishing that

plaintiff cannot, as a matter of law, prove an essential element

of the claim. See, e.g., Brunson v. Affinity Fed. Credit Union,

199 N.J. 381, 399-400 (2009).

4 A-3744-15T4
 B.

The facts discernible from the evidential materials

submitted on the motion for summary judgment are stated here in

the light most favorable to plaintiff.1 This action under the

PDVA was not the parties' first, and they were both represented

by counsel. About a year and a half before this complaint,

defendant filed a complaint under the PDVA that she dismissed

because she and plaintiff agreed to restraints outside the PDVA.2

While plaintiff disputed many of the allegations of prior

domestic violence, he admitted he had pushed defendant into a

table in the past.

When defendant filed this complaint in 2014, the parties

were divorced. The divorce did not end amicably. Pursuant to

their decree, neither former spouse is to know where the other

lives. In addition, plaintiff's visitations with their three

1
The materials submitted in support of and opposition to the
summary judgment include the domestic violence complaints, a
post-judgment order entered in the parties' divorce case, and
the pleadings and portions of the transcript of the testimony
and rulings in the final hearing on the PDVA-action underlying
this tort action.
2
In an amended complaint filed after defendant had an attorney,
defendant set forth a history of domestic violence commencing in
1998.

5 A-3744-15T4
children are supervised at a center for evaluation and

counseling (CEC).3

The incident that led defendant to file the complaint under

the PDVA that gave rise to this tort action occurred after

defendant picked their children up from a supervised visit with

their father that ended at 5:30 on an evening in mid-November.

Consistent with their usual procedure for transfer of the

children following visitation, defendant left the CEC with the

children and plaintiff delayed his departure. When plaintiff

left, he was going to his workplace to check his schedule for

the next day, and he took the same road in the same direction

defendant was travelling. There was no evidence that defendant

knew or had reason to suspect that plaintiff was going to his

workplace that night.

There is no dispute that plaintiff drove behind defendant's

car in the same lane for at least a mile. Plaintiff was aware

that he was driving behind defendant's car with only a few cars

between them. Defendant saw the headlights of plaintiff's car

behind her. She recognized them because, to her, they were

unusual and looked "alien," like the lights of a space ship.

3
The record on appeal does not include the judgment of divorce,
but defendant referred to the "decree" in her initial complaint
and the information about its terms was undisputed.

6 A-3744-15T4
Alarmed, she drove into a parking lot in front of a roadside

restaurant. Plaintiff acknowledged seeing defendant enter the

parking lot and driving past her car. By defendant's account,

plaintiff looked into her car as he passed and made a face that

upset her and the children. Plaintiff denied looking into the

car.

After plaintiff had passed the lot, defendant resumed her

course of travel on the same road. Plaintiff later saw

defendant's car in a lane for left turns and saw her make that

turn. After she turned, defendant saw a car with the same

alien-type headlights as plaintiff's behind her. She believed

plaintiff was driving that car and was trying to follow her and

the children home, and she was alarmed. Accordingly, she went

to a nearby firehouse for help and obtained her TRO that night.

By plaintiff's account, which he supported with GPS

tracking records and testimony from a co-worker introduced at

the hearing, he had not turned left and followed defendant.

Instead, he continued to his workplace.

C.

General principles governing claims of malicious use and

abuse of process inform our review of this summary judgment

motion. Our courts consider these claims "with great caution

because of their capacity to chill resort to our courts by

7 A-3744-15T4
persons who believe that they have a criminal complaint or civil

claim against another." LoBiondo v. Schwartz, 199 N.J. 62, 89

(2009).

That cautious approach is especially appropriate when the

civil action is commenced under PDVA. The PDVA is "particularly

solicitous of victims of domestic violence"; the purpose of the

"Act is to assure the victims of domestic violence 'the maximum

protection from abuse the law can provide.'" Hoffman, supra,

149 N.J. at 584 (quoting N.J.S.A. 2C:25-18). The Act

"effectuates the notion that the victim of domestic violence is

entitled to be left alone. To be left alone is, in essence, the

basic protection the law seeks to assure these victims." Ibid.

Recognizing "that in the area of domestic violence, as in

some other areas in our law, some people may attempt to use the

process as a sword rather than as a shield," the Court has

directed the judges of the Family Part to serve as gatekeepers

to avoid such abuse. Id. at 586; accord Cesare v. Cesare, 154

N.J. 394, 416 (1998). As findings of facts quoted above

demonstrate, the Family Part judge who decided this case

mentioned the potential for abuse.

Given the underlying purpose of the PDVA and the

gatekeeping role of judges who decide these cases, an expansive

reading of decisional law addressing these common law torts

8 A-3744-15T4
would be highly inappropriate. In this context where emotions

commonly run high, the potential for an unsuccessful applicant

for an FRO being "forced to defend against one of these claims

based on little more than having filed, and lost, in a court

proceeding as to which the original defendant harbors resentment

and anger" is as apparent as the likelihood that such tort

litigation will exacerbate existing hostilities. LoBiondo,

supra, 199 N.J. at 91. In this case, there is "little more"

than the fact that plaintiff ultimately prevailed in the action

under the PDVA to support plaintiff's tort claims.

(1)

Plaintiff's claim of malicious prosecution fails as a

matter of law, because malicious prosecution refers to actions

seeking redress from malicious pursuit of criminal prosecutions.

LoBiondo, supra, 199 N.J. at 89-90. But an action under the

PDVA is not a criminal prosecution. N.J.S.A. 2C:25-19; N.J.S.A.

2C:25-28 to -29; see J.D. v. M.D.F., 207 N.J. 458, 474-75 (2011)

(discussing the distinction between actions under the PDVA and

criminal prosecutions and the varying standards of proof).

Accordingly, defendant was entitled to summary judgment on this

claim.

9 A-3744-15T4
 (2)

To establish the elements of malicious use of civil process

plaintiff had to show that defendant (1) commenced the PDVA

action; (2) was motivated by malice; (3) did not have probable

cause when she commenced and continued the action; (4) failed to

establish her claim; and (5) caused plaintiff to suffer a

special grievance as a consequence of her filing the complaint

under the PDVA. See LoBiondo, supra, 199 N.J. at 90.

The trial court concluded plaintiff could not establish

defendant lacked probable cause, because the judge of the Family

Part had determined she did when he denied defendant's motion

for involuntary dismissal. Plaintiff objects to this use of

issue preclusion on several grounds, but we are free to and opt

to affirm the grant of summary judgment based on plaintiff's

inability to establish probable cause for a different reason.

See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968)

(noting the commonality and propriety of affirming a valid

determination entered on an erroneous basis).4

4
Reliance on issue preclusion in this context is a matter of
some complexity, and we do not have a full record of the
testimony presented during the hearing on the FRO. See Lind v.
Schmid, 67 N.J. 255, 265-66 (1975) (discussing findings of
probable cause made in the litigation giving rise to a
subsequent claim of malicious prosecution and concluding that
(footnoted continued next page)

10 A-3744-15T4
 Plaintiff could not, as a matter of law, establish that

defendant did not have probable cause. In this context,

"[p]robable cause is a matter of law to be determined by the

court, and it is only submitted to the jury if the facts giving

rise to probable cause are themselves in dispute." LoBiondo,

supra, 199 N.J. at 93. In determining whether probable cause

exists, courts consider the totality of the circumstances known

to the party at the time, not facts learned later. Brunson,

supra, 199 N.J. at 398.

As to this element of his cause of action, plaintiff had to

"establish a negative, namely, that probable cause did not

exist." Lind v. Schmid, 67 N.J. 255, 263 (1975). Stated

differently, plaintiff had to "demonstrate that . . . when the

defendant put the [PDVA] proceedings in motion the circumstances

were such as not to warrant an ordinarily prudent individual in

believing that [a predicate] offense had been committed." Ibid.

(emphasis in original).

(footnoted continued)
some are and some are not determinative of "probable cause" in a
subsequent action on malicious prosecution or malicious use of
process, which depends upon the adequacy of the court's
pertinent findings). There is no reason to ponder the question
of issue preclusion here, because this case can be resolved by
considering the record presented to the trial court on summary
judgment motion in the light most favorable to plaintiff.

11 A-3744-15T4
 Here, the totality of circumstances known and knowable to

defendant were undisputed. Plaintiff had used physical force

against defendant in the past, and the parties were subject to a

judgment that precluded each of them from knowing where the

other lived. This incident occurred in the evening near

suppertime and after the children spent an hour of supervised

visitation with their father — a time when plaintiff would

expect defendant to be bringing the children home. Plaintiff

drove behind defendant for about a mile, and he passed near her

car when she pulled into parking lot to avoid his following her.

After plaintiff passed, defendant continued on that road

and took a left turn onto another street, where she noticed

headlights that looked like plaintiff's unusual headlights

behind her on that street. Plaintiff saw her make that turn.

In the totality of these circumstances, an ordinarily

prudent individual would be warranted in believing that

plaintiff was following, harassing and stalking defendant.

Harassment may be established by proof of a "course of alarming

conduct" undertaken "to alarm or seriously annoy" another,

N.J.S.A. 2C:33-4(c). And, stalking may be established by proof

of a "course of conduct" that includes knowingly maintaining

physical proximity under circumstances that "would cause a

reasonable person to fear" for his or her safety or the safety

12 A-3744-15T4
of another, N.J.S.A. 2C:12-10(a)(1), (b). An ordinarily prudent

person aware of the totality of these circumstances would have

reason to believe plaintiff followed on the first and second

streets to, at least, annoy her, and on the circumstances known

at the time would have no reason to think plaintiff was simply

driving to his workplace to check on his schedule for the next

day.

We reject plaintiff's claim that plaintiff's exculpatory

explanation eradicated probable cause and required defendant to

withdraw her PDVA-complaint as soon as she heard it.

Plaintiff's explanation did not cover his decision to drive

behind defendant's car until she disrupted her travel and opted

to retreat to a parking lot off the road. Thus, his explanation

did not obliterate the foundation for defendant's complaint.

As the undisputed facts established probable cause as a

matter of law, there was no question for the jury to resolve and

defendant was entitled to summary judgment on plaintiff's claim

of malicious use of process.

(3)

Defendant was also entitled to summary judgment as a matter

of law on plaintiff's claim for malicious abuse of process. An

"action for abuse of process lies for the improper, unwarranted,

and perverted use of process after it has been issued." Earl v.

13 A-3744-15T4
Winne, 14 N.J. 119, 128 (1953) (emphasis added) (quoting Ash v.

Cohn, 119 N.J.L. 54, 58 (E. & A. 1937)). "[P]rocess has not

been abused unless after its issuance the defendant reveals an

ulterior purpose [the defendant] had in securing it by

committing 'further acts' whereby [the defendant] demonstrably

uses the process as a means to coerce or oppress the plaintiff."

Tedards v. Auty, 232 N.J. Super. 541, 550 (App. Div. 1989)

(quoting Gambocz v. Apel, 102 N.J. Super. 123, 130-31 (App.

Div.), certif. denied, 52 N.J. 485 (1968)).

The only process issued in this case was the TRO. The TRO

addressed visitation, contact between plaintiff and defendant

and plaintiff's possession of a weapon. As to visitation, the

TRO incorporates the arrangement already provided in the

judgment of divorce; the TRO changed nothing.5 Similarly, the

limitations on contact between the parties included in the TRO

are no more burdensome than those provided in the judgment of

divorce, which precludes each party from knowing where the other

resides.

The prohibition against possession of weapons included in

the TRO is the only significant change effectuated by the TRO,

5
Although the Family Part judge was concerned that defendant
might use an FRO in furtherance of an ulterior purpose related
to custody, the TRO was the only process issued and it was not
used to alter custody or parenting time.

14 A-3744-15T4
and that temporary restriction was dissolved at the conclusion

of the hearing on the FRO. Plaintiff contends that because he

could not carry a weapon, he lost the opportunity to earn about

$20,000 overtime pay while the TRO was in place pending

conclusions of the hearing on the FRO.

Granting that plaintiff established economic harm as a

consequence of entry of the TRO, there was no evidence that

would permit a jury to find that defendant sought a TRO with the

"ulterior purpose" of reducing plaintiff's income. There is

nothing in the record that suggests she had that purpose, and

because divorced spouses share the responsibility of supporting

their children, Pascale v. Pascale, 140 N.J. 583, 593 (1995), it

would not be reasonable to infer that defendant, the custodial

parent, sought a TRO with the purpose of diminishing plaintiff's

income. In the absence of any evidence to the contrary, the

economic ramifications of the TRO are more reasonably viewed as

an undesirable and unintended consequence of the TRO than they

are viewed as the malicious motive or the ulterior purpose

actuating defendant's pursuit of an order requiring plaintiff to

leave her alone. Accordingly, defendant was also entitled to

summary judgment on the count of plaintiff's complaint alleging

abuse of process.

15 A-3744-15T4
 Plaintiff presents several arguments that do not require

discussion given our disposition of the case. R. 2:11-

3(e)(1)(E). He claims the trial court erred by: relying on

issue preclusion; applying the wrong legal standard in granting

judgment on malicious abuse of process; granting judgment on

abuse of process cause without notice and opportunity to be

heard; granting judgment on abuse of process without an adequate

explication of findings and conclusions; overlooking defendant's

failure to provide a statement of material facts; and finding

absence of malice when defendant had not raised the point.

Affirmed.

16 A-3744-15T4