P.C. VS. J.P.Q. (L-5258-11, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3439-18

P.C.,

Plaintiff-Appellant,

v.

J.P.Q.,

Defendant-Respondent.
________________________

Argued January 11, 2021 – Decided February 17, 2021

Before Judges Gooden Brown and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-5258-11.

P.C., appellant, argued the cause pro se.

Respondent has not filed a brief.

PER CURIAM
 Plaintiff P.C.1 appeals from three orders of the Law Division: (1) a

November 15, 2018 order granting summary judgment in favor of defendant

J.P.Q. on P.C.'s allegations of malicious prosecution, abuse of process, and

infliction of emotional distress; (2) a December 4, 2018 order denying P.C.'s

motion to compel J.P.Q. to pay P.C.'s costs and attorney's fees for having lied in

an affidavit submitted to the court; and (3) a January 25, 2019 order denying

P.C.'s motion for reconsideration. We affirm.

I.

The following facts are derived from the record. P.C. and J.P.Q. began a

romantic relationship in 2006. In June 2007, P.C. was convicted of the murder

of his former girlfriend. He was incarcerated until September 2009, when his

conviction was reversed and he was released on bail pending a re-trial. After

his release, P.C. resumed his romantic relationship with J.P.Q. The relationship

ended in September 2010.

On October 12, 2010, J.P.Q. filed a domestic violence complaint alleging

harassment against P.C. pursuant to the Prevention of Domestic Violence Act,

N.J.S.A. 2C:25-17 to -35. During the ex parte hearing before a municipal court

1
We use initials to preserve the confidentiality of court records concerning
domestic violence. R. 1:38-3(d)(9).
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judge on her application for a temporary restraining order (TRO), J.P.Q. testified

that P.C. was following her and texting her "every single day" since the end of

their relationship, despite her instructions to him to leave her alone. She testified

that she was in fear for her life and the lives of her children. The complaint also

alleged that P.C. texted J.P.Q. a photograph of her topless and later called her

and threatened to bring a copy of the photograph to her place of employment.

In addition to issuing the TRO, the municipal court judge found probable

cause for the issuance of a criminal complaint charging P.C. with harassment,

N.J.S.A. 2C:33-4. The police officer who responded to J.P.Q.'s home after she

called to report P.C. appeared before the municipal court judge to swear the

complaint. When questioned by the court, the police officer told the judge that

he had "viewed [J.P.Q.'s] cell phone" and saw "[fifteen] text messages from the

1st of October up until today . . . trying to reconnect with her." According to

the officer, one of the text messages was "a picture text" of "an intimate photo"

showing J.P.Q. topless, which "[P.C.] basically threatened to print . . . and bring

. . . to [J.P.Q.'s] place of employment . . . ." The officer stated that J.P.Q. told

him "all these text messages started" after J.P.Q. told P.C. "she want[ed] no part

of him anymore" and refused to "testify on his behalf . . . as a character witness"

at his upcoming re-trial on the murder charge.

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 On October 13, 2010, P.C. was served with the TRO, arrested on the

criminal complaint, and jailed. On the same date, the prosecutor on the murder

charge filed an application in the Law Division to revoke P.C.'s bail and remand

him to custody pending the conclusion of his re-trial, which was then underway.

The application was predicated on the TRO and the criminal harassment

complaint. The prosecuting attorney argued that P.C. was a danger to the

community based on his "history of domestic violence with respect to his former

wife and because of his actions now . . . ." Instead of revoking P.C.'s bail on the

murder charge, the Law Division judge increased the bail from $1 million to

$1.3 million, resulting in P.C. being remanded to custody. He remained in the

county jail until he was convicted of murder at his re-trial.

On November 19, 2010, the Family Part held a hearing on J.P.Q.'s

application for a final restraining order (FRO). P.C. disputed that he engaged in

harassing conduct, claiming he and J.P.Q. "were involved in a dialogue about

the relationship[.]" At the hearing, P.C.'s aunt testified that she had two phone

conversations with J.P.Q. in September 2010 during which J.P.Q. demanded

money she believed P.C. owed her for a credit card debt. According to P.C.'s

aunt, J.P.Q. threatened to "have [P.C.] arrested" if he did not pay the debt. J.P.Q.

denied having said that to P.C.'s aunt.

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 On cross-examination, J.P.Q. denied calling P.C.'s aunt solely about the

credit card debt. She testified that she called his aunt because P.C. "was scaring

[her] because of the picture" and P.C. had threatened "that if [she] were to call

the attorney and his aunt . . . to tell them what was going on[,] that [she] was

going to regret it."

Ultimately, a Family Part judge denied J.P.Q.'s application for an FRO,

finding she did not prove a predicate act of domestic violence. As a result, the

court dismissed both the TRO and the domestic violence complaint. The

criminal complaint charging P.C. with harassment was later dismissed for

J.P.Q.'s failure to appear at trial. J.P.Q. moved to restore the criminal complaint

out-of-time. A judge denied J.P.Q.'s motion but modified the dismissal order to

indicate that the dismissal was "not based on [the] victim's failure to appear."

P.C. subsequently filed a four-count complaint in the Law Division

against J.P.Q. alleging malicious prosecution, malicious abuse of process,

intentional, reckless, or negligent infliction of emotional distress, and breach of

contract.2 P.C. alleged that after his release from prison he "made various

2
P.C.'s breach of contract claim alleged he was entitled to $7070 as
compensation for repairs and improvements he made at properties owned by
J.P.Q. That claim was dismissed without prejudice in an August 11, 2014 order
which P.C. did not appeal.
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improvements to and fixed various items in [J.P.Q.'s] residence and an

investment property she owned[,]" and that she "permitted [him] to use her credit

card to buy construction materials needed" for the work. However, as P.C.'s re-

trial approached, J.P.Q. demanded payment of $6000 in credit card charges and

threatened to take legal action against him if he did not pay. P.C. alleged that

when he refused J.P.Q.'s demands because he did not owe her any money, J.P.Q.

"without any probable cause and with malice swore out a criminal complaint"

against him alleging harassment and caused the TRO to be issued against him.

He alleged that as a result of J.P.Q.'s malicious prosecution and malicious abuse

of process he was arrested, imprisoned, and forced to defend against her false

charges, causing him severe emotional distress.

After a failed attempt at arbitration, J.P.Q. moved for summary judgment.

In an affidavit supporting her motion, she averred that she filed the hara ssment

complaint on the advice of the police officer who investigated her complaint.

P.C. opposed the motion and requested oral argument.

The trial court granted the motion, without oral argument, and dismissed

the three counts of the complaint alleging tort claims. The only reasoning

provided by the motion judge was a notation on the order stating "charges

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pursued in municipal court [and] substantiated. Court found sufficient probable

cause for claims. Thus no genuine issue of material facts in dispute."

On February 14, 2018, we vacated the trial court's order granting summary

judgment. P.C. v. J.P.Q., No. A-0185-14 (App. Div. Feb. 14, 2018). We

concluded that the trial court erred when it denied P.C.'s request for oral

argument without stating reasons for the denial, see Rule 1:6-2(d), and failed to

make written or oral findings of fact and conclusions of law, see Rule 1:7-4(a).

We remanded the matter and directed the trial court to consider the motion anew

after hearing oral argument and to issue findings of fact and conclusions of law

explaining the basis for its decision.

On remand, after hearing oral argument, the trial court issued a written

opinion granting summary judgment to J.P.Q. on all claims. The court

concluded that P.C. could not establish his malicious prosecution claims because

"[i]ndependent of any testimony provided by [J.P.Q.]" regarding the criminal

harassment complaint against P.C. "the municipal court considered the

testimony of the police officer who investigated the allegations." The court

explained that the officer's

testimony concerned his review of the texts and the
offending photograph. The police officer's testimony
on its own provided the basis for the finding of probable
cause. Assuming arguendo[] that [J.P.Q.'s] testimony

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 was fabricated[] or willfully false, the municipal court
judge had enough from the police officer's testimony to
make a probable cause finding for harassment and the
TRO.

The court also found that P.C. could not prove his abuse of process claim.

The court held that

[a] successful claim of abuse of process requires proof
that the defendant made an improper, illegal and
perverted use of the legal procedure for an ulterior
motive. In the view of this court, the finding of
probable cause by the municipal court and the above-
referenced independent basis for that finding subverts
the claim of abuse of process. Once the municipal court
judge found probable cause to exist for the complaint
and the TRO, the issue of whether [J.P.Q.] made an
improper use of the process was dispatched. The
motive for this proper use of the process became
immaterial once the finding of probable cause was
made.

Finally, the court concluded that P.C. could not establish his claim of

intentional, negligent, or reckless infliction of emotional distress. The court

found that

[i]t cannot be said that [J.P.Q.] didn't act intentionally
when she made her harassment complaint or when she
sought the TRO. Such conduct must be proved to be
extreme and outrageous so as to exceed the bounds of
decency. Testifying falsely before a judicial officer and
falsely reporting any claim to police would certainly be
extreme and outrageous. Again, the judicial
determination that the testimony was credible, coupled
with the independent testimony of the police officer,

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 negates any ability of [P.C.] to prove the necessary
intent to inflict emotional distress.

A November 15, 2018 order memorializes the court's decision.

On December 4, 2018, the court entered an order denying P.C.'s motion

to compel J.P.Q. to pay his expenses and attorney's fees for having filed a false

affidavit with the court. The court reasoned that the motion was moot in light

of its decision granting summary judgment to J.P.Q.

P.C. subsequently moved for reconsideration of both the November 15,

2018 order and the December 4, 2018 order. The trial court denied the motion,

concluding that "[a]ll the arguments and information raised upon

reconsideration were previously raised and duly considered by the [c]ourt." A

January 25, 2019 order memorializes the court's decision.

This appeal followed. Plaintiff raises the following arguments for our

consideration.

POINT I

THE COURT BELOW COMMITTED REVERSIBLE
ERROR WHEN IT FAILED TO ORDER [J.P.Q.] TO
PAY [P.C.'s] REASONABLE EXPENSES AND
ATTORNEY FEES FOR KNOWINGLY AND
INTENTIONALLY FILING AN AFFIDAVIT IN BAD

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 FAITH AND ADJUDGE HER GUILTY OF
CONTEMPT.3

POINT II

THE COURT BELOW COMMITTED REVERSIBLE
ERROR BY ISSUING AN OPINION MUDDLED
WITH FACT FINDING ERRORS AND BY THE
ENTRY OF SUMMARY JUDGMENT AND
DISMISSAL OF COUNTS ONE, TWO AND THREE
OF THE PLAINTIFF'S COMPLAINT CONTRARY
TO THE GENUINE ISSUES OF MATERIAL FACTS
PRESENTED WHICH DEFEAT SUMMARY
JUDGMENT AND SHOULD BE SUBMITTED TO
THE JURY.

POINT III

THE COURT BELOW COMMITTED REVERSIBLE
ERROR AND ABUSED ITS DISCRETION BY
PROVIDING THE PARTIES WITH AN OPINION
DEVOID OF CITATION TO EVEN A SINGLE CASE
IN SUPPORT OF ITS DECISION TO GRANT
SUMMARY JUDGMENT RESULTING IN AN
ARBITRARY AND CAPRICIOUS DISMISSAL OF
COUNTS ONE, TWO AND THREE OF THE
PLAINTIFF'S COMPLAINT.

3
P.C. does not list the December 4, 2018 order in his notice of appeal or case
information statement. He does, however, address the order in his brief.
Normally, we do not consider judgments or orders not identified in the notice of
appeal. See R. 2:5-1(e)(3)(i) (stating that a notice of appeal "shall designate the
judgment, decision, action or rule, or part thereof appealed from"); Fusco v. Bd.
of Educ., 349 N.J. Super. 455, 461-62 (App. Div. 2002) (stating that appellate
review pertains only to judgments or orders specified in the notice of appeal).
In light of the fact that our decision with respect to the trial court's Novem ber
15, 2018 and January 25, 2019 orders obviates P.C.'s demand for costs and
attorney's fees, we affirm the December 4, 2018 order.
A-3439-18
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 II.

We review the trial court's decision granting summary judgment de novo,

using "the same standard that governs trial courts in reviewing summary

judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.

162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant

summary judgment when "the pleadings, depositions, answers to interrogatories

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." "Thus, the movant must

show that there does not exist a 'genuine issue' as to a material fact and not

simply one 'of an insubstantial nature'; a non-movant will be unsuccessful

'merely by pointing to any fact in dispute.'" Prudential, 307 N.J. Super. at 167

(quotations omitted).

Self-serving assertions that are unsupported by evidence are insufficient

to create a genuine issue of material fact. Miller v. Bank of Am. Home Loan

Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015). "Competent

opposition requires 'competent evidential material' beyond mere 'speculation'

and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.

415, 426 (App. Div. 2009) (citations omitted). We review the record "based on

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our consideration of the evidence in the light most favorable to the parties

opposing summary judgment." Brill v. Guardian Life Ins. Co., 142 N.J. 520,

523-24 (1995).

Having carefully reviewed the record in light of these precedents, we find

no grounds to reverse the trial court's November 15, 2018 order. We agree with

the central premise of the trial court's decision: that the municipal court's finding

of probable cause for the criminal harassment complaint and TRO based on the

testimony of a police officer nullifies each of P.C.'s tort claims.

The municipal court's finding of probable cause negated a necessary

element of P.C.'s malicious prosecution claim. Lind v. Schmid, 67 N.J. 255,

262 (1975). "The essence of the cause of action is lack of probable cause.

Particularly, the plaintiff must establish a negative, namely, that probable cause

did not exist." Brunson v. Affinity Federal Credit Union, 199 N.J. 381, 394

(2009) (internal quotation and citations omitted). The fact that a judge later

determined that J.P.Q. had not established the necessary elements for an FRO

and the criminal harassment complaint was dismissed does not equate with a

finding that there was an absence of probable cause to initiate those proceedings.

The municipal court's probable cause finding also precluded P.C.'s

malicious abuse of process claim. The substantive distinction between

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malicious use, which is the civil equivalent of malicious prosecution, and

malicious abuse of process is simply "that the malicious use is the employment

of process for its ostensible purpose, although without reasonable or probable

cause, whereas the malicious abuse is the employment of a process in a manner

not contemplated by law." Tedards v. Auty, 232 N.J. Super. 541, 549 (App.

Div. 1989) (quoting Ash v. Cohn, 119 N.J.L. 54, 58 (E. & A. 1937)). "[B]asic

to the tort of malicious abuse of process is the requirement that the defendant

perform 'further acts' after issuance of process 'which represent the p erversion

or abuse of the legitimate purposes of that process.'" Baglini v. Lauletta, 338

N.J. Super. 282, 294 (App. Div. 2001) (quoting Penwag Prop. Co., Inc. v.

Landau, 148 N.J. Super. 493, 499 (App. Div. 1977)). "In the absence of some

coercive or illegitimate use of the judicial process there can be no claim for its

abuse." Ibid. "The tort of malicious abuse of process lies not for commencing

an improper action, but for misusing or misapplying process after it is issued."

Hoffman, 404 N.J. Super. at 431. In a malicious abuse of process claim the

court must focus not on what prompted the suit but what action was engaged in

after its commencement. Ibid.

Once the municipal court judge found probable cause to issue the criminal

harassment complaint and TRO, J.P.Q. took no actions that a reasonable

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factfinder could find to be an abuse of process. The record contains no evidence

that J.P.Q. acted in an untoward manner at any point after the municipal court

issued the criminal harassment complaint and TRO. A hearing was held on the

domestic violence complaint, at which J.P.Q. testified. The criminal complaint

ultimately was dismissed, although the reason for the dismissal is not entirely

clear from the record. J.P.Q.'s failure to prove her allegations does not amount

to an abuse of the judicial process. P.C.'s opinion that J.P.Q. lied and had an

improper motive when initiating the two proceedings is insufficient to prevent

entry of summary judgment against him.

We need not tarry long on P.C.'s claim of intentional, reckless, or

negligent infliction of emotional distress. To sustain such a claim P.C. must

establish "intentional and outrageous conduct by the defendant, proximate

cause, and distress that is severe." Griffin v. Tops Appliance City, Inc., 337 N.J.

Super. 15, 22 (App. Div. 2001) (quoting Buckley v. Trenton Sav. Fund Soc'y,

111 N.J. 355, 366 (1988)). For the intentional act to result in liability, the

defendant must intend to do the act and produce emotional distress. Ibid.

"Liability will also attach when the defendant acts recklessly in deliberate

disregard of a high degree of probability that emotional distress will follow."

Ibid. "The conduct must be '[S]o outrageous in character, and so extreme in

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degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.'" Ibid. Additionally,

the defendant's actions must be the proximate cause of the plaintiff's emotion al

distress. Id. at 22-23. Finally, the emotional distress must be so severe that no

reasonable man could be expected to endure it. Id. at 23. "[S]evere emotional

distress is a severe and disabling emotional or mental condition which may be

generally recognized and diagnosed by trained professionals." Juzwiak v. Doe,

415 N.J. Super. 442, 452 (App. Div. 2010) (quoting Turner v. Wong, 363 N.J.

Super. 186, 200 (App. Div. 2003)).

The fact that the municipal court judge found probable cause to issue the

criminal harassment complaint and TRO based on the testimony of a police

officer obviates any finding of outrageous conduct by J.P.Q. P.C. does not deny

that he sent several text messages to J.P.Q. after their romantic relationship

ended. A police officer reviewed those texts and described them to the

municipal court judge. Any reasonable person in J.P.Q.'s position would be

justified in reporting to police what she viewed as harassing communication s

from a man who was awaiting trial for the murder of his former girlfriend. We

note, too, that J.P.Q. had no control over the prosecutor's decision to move to

revoke P.C.'s bail on the murder charge, the court's decision to increase P.C.'s

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bail, or P.C.'s inability to raise the funds necessary to secure his pretrial release

on the murder charges.

With respect to the January 25, 2019 order, Rule 4:49-2 provides:

Except as otherwise provided by R. 1:13-1 (clerical
errors) a motion for rehearing or reconsideration
seeking to alter or amend a judgment or order shall . . .
state with specificity the basis on which it is made,
including a statement of the matters or controlling
decisions which counsel believes the court has
overlooked or as to which it has erred, and shall have
annexed thereto a copy of the judgment or order sought
to be reconsidered and a copy of the court’s
corresponding written opinion, if any.

"A motion for reconsideration . . . is a matter left to the trial court's sound

discretion." Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Guido v. Duane

Morris, LLP, 202 N.J. 79, 87 (2010)); see also Cummings v. Bahr, 295 N.J.

Super. 374, 389 (App. Div. 1996). A party may move for reconsideration of a

court's decision pursuant to Rule 4:49-2, on the grounds that (1) the court based

its decision on "a palpably incorrect or irrational basis," (2) the court either

failed to consider or "appreciate the significance of probative, competent

evidence," or (3) the moving party is presenting "new or additional information

. . . which it could not have provided on the first application." Bahr, 295 N.J.

Super. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div.

1990)). The moving party must "initially demonstrate that the [c]ourt acted in

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an arbitrary, capricious, or unreasonable manner, before the [c]ourt should

engage in the actual reconsideration process." D'Atria, 242 N.J. Super. at 401.

Our review of the record reveals that P.C.'s motion for reconsideration

was largely a recapitulation of the arguments he raised in opposition to J.P.Q.'s

motion for summary judgment or were of insufficient significance to warrant

reconsideration.

To the extent we have not specifically addressed any of P.C.'s remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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