Larry Nikola V Altice Usa Inc
NOT FOR PUBLICATION WITHOUT THE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-1164-22
LARRY NIKOLA and
MEMORIAL PROPERTIES,
LLC,
Plaintiffs-Appellants/
Cross-Respondents,
v.
ALTICE USA, INC., ALTICE
USA NEWS, INC., a
division of ALTICE USA,
INC., d/b/a NJ NEWS 12, NJ
NEWS 12, WALTER KANE,
individually and as an
employee of ALTICE USA,
INC., HOLMDEL CEMETERY
COMPANY, and JEFFREY
ACKERSON,
Defendants-Respondents,
and
FAY GIANARIS,
Defendant,
and
ROBERT BOYCE,
Defendant/Third-Party
Plaintiff-Respondent/
Cross-Appellant,
v.
MICHAEL BERARDI,
Third-Party Defendant,
and
HOLMDEL CEMETERY
COMPANY and JEFFREY
ACKERSON,
Third-Party Defendants-
Cross-Respondents.
_____________________________
Argued April 9, 2024 – Decided July 24, 2025
Before Judges Gooden Brown and Bergman.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-3119-19.
Fruqan Mouzon argued the cause for appellants/cross-
respondents (Fox Rothschild, LLP, attorneys; Fruqan
Mouzon and Daniel Cohen, of counsel and on the
briefs).
Louis E. Granata argued the cause for respondent/cross-
appellant Robert Boyce.
A-1164-22
2
Joseph Ross argued the cause for respondents/cross-
respondents Holmdel Cemetery and Jeffrey Ackerson
(Goldberg Segalla LLP, attorneys; John W. Meyer and
Seth L. Laver, of counsel and on the brief).
Katherine M. Bolger (Davis Wright Tremaine LLP) of
the New York bar, admitted pro hac vice, argued the
cause for respondents Altice USA Inc., Altice USA
News, Inc., d/b/a NJ News 12, NJ News 12, and Walter
Kane (Robinson Miller LLC, attorneys; Katherine M.
Bolger and Keith J. Miller, on the brief).
The opinion of the court was delivered by
GOODEN BROWN, P.J.A.D.
This appeal and cross-appeal follow lengthy motion practice in the Law
Division that ultimately resulted in the dismissal of all claims. Plaintiffs
Memorial Properties, LLC (Memorial Properties or Memorial), a cemetery
management company, and Larry Nikola, its manager, alleged that numerous
defendants attempted to defame them. Defendants include Holmdel Cemetery
Company (Holmdel, Holmdel Cemetery, or the Cemetery); Jeffrey Ackerson, its
president; Robert Boyce, a former maintenance supervisor and cross-appellant
in this action; NJ News 12; and Walter Kane, a reporter. An episode of Kane's
program entitled "Kane in Your Corner" featured a segment alleging that
plaintiffs and Holmdel engaged in "double-selling" interment spaces,
A-1164-22
3
unbeknownst to the purchasers. Boyce appeared in the segment and claimed
that numerous families had complained of this practice over the years.
As a result, plaintiffs filed a three-count complaint against defendants
Altice USA News, Inc., a division of Altice USA, Inc., doing business as NJ
News 12; Kane; and Boyce. In response, Boyce filed a third-party complaint
against Holmdel and Ackerson for indemnification and contribution. Plaintiffs
then amended their complaint to add Holmdel and Ackerson as direct
defendants. Plaintiffs alleged defamation per se and tortious interference with
economic interest against all parties, in addition to civil conspiracy, trespass,
and conversion of property against Boyce, as well as breach of contract and civil
conspiracy to commit fraud against Holmdel and Ackerson.
Ultimately, all of plaintiffs' and Boyce's claims were dismissed by way of
motions to dismiss or summary judgment. Plaintiffs filed two motions for
reconsideration that were both denied. On appeal, plaintiffs now challenge the
denial of their reconsideration motions, as well as the underlying summary
judgment dismissal of their claims. Boyce cross-appeals the denial of his motion
for frivolous litigation sanctions against plaintiffs and the dismissal of his
indemnification claim against Holmdel and Ackerson. For the reasons that
follow, we affirm.
A-1164-22
4
I.
We glean these facts from the motion record. Plaintiff Memorial
Properties is a cemetery management company that contracts with New Jersey
cemeteries, like Holmdel, to sell interment spaces, including graves, crypts, and
mausoleums. Plaintiff Larry Nikola is a manager at Memorial Properties.
Memorial Properties had a contract with defendant Holmdel Cemetery, whereby
plaintiffs acted as agents to sell Holmdel's interment spaces, while Holmdel
maintained the cemetery records and maps necessary to determine the
availability of interment spaces prior to sale. Defendant and cross-appellant
Robert Boyce worked for Holmdel as a maintenance supervisor from September
2005 until August 2018.
Defendant Altice USA News, Inc. (Altice News), is a division of
defendant Altice USA, Inc., a cable operator that offers cable television,
internet, and telephone services, and is doing business in this State as NJ News
12. Defendant Walter Kane is a reporter on NJ News 12's television channel
and has hosted "Kane in Your Corner," an investigative reporting series, for the
past seventeen years. Altice News and Kane will be collectively referred to as
the media defendants.
A-1164-22
5
In March 2019, as part of the "Kane in Your Corner" series, NJ News 12
aired an investigative report on consumer complaints that included interviews
of multiple individuals and an accompanying written article. The complaints
alleged that Holmdel and Memorial had "double-sold" gravesite locations to
multiple individuals without their knowledge, and that some purchasers only
found out years later after their loved one had died. As part of the segment,
Kane interviewed a patron, Fay Gianaris. 1
According to Gianaris, she "purchased a final resting place for her parents
in 2012, and ha[d] the contract to prove it" but, upon her father's death in 2018,
"was infuriated to find someone else buried" at his grave. Gianaris told the
media defendants that the cemetery had dug a new grave in another location on
a steep hill that she feared her elderly mother could not climb. According to the
report, when Gianaris complained, "the cemetery's sales agent produced a
version of the contract that was altered" and included "a handwritten note[] that
read 'authorized by daughter, Fay.'" However, during her interview, Gianaris
reportedly insisted that plaintiffs "never spoke to" or "contacted" her, and
"[t]hey never sent [her] a new contract." The "Kane in Your Corner" report also
1
Gianaris was a named defendant in the lawsuit but was dismissed from the
case by motion.
A-1164-22
6
claimed that the media defendants "found at least six cases of families
complaining that they did not get [the] locations they paid for."
At the time of the "Kane in Your Corner" report, Boyce no longer worked
for Holmdel. However, during his interview for the segment, he reportedly
commented about the alleged double selling, stating, "There's probably about
[fifteen] or [twenty instances] over there that I know of." In fact, Boyce had
previously voiced his concerns about the Cemetery's activities. In 2015, he had
filed a complaint with the New Jersey Cemetery Board (Board), but the Board
did not take action. Instead, in response to Boyce's complaint, the Board had
cited "old maps" as the cause of the problem and found that all related issues
had been rectified and would not reoccur. Nonetheless, according to the media
defendants' report, several families, including Gianaris's, reported issues after
Boyce's 2015 Board complaint.
The media defendants' report also stated that Holmdel's administrator,
Fran Chludzinski, had submitted a resignation letter in which she wrote that she
and Boyce "'were uncovering years of hidden problems,' which she blamed on
Memorial Properties." However, Chludzinski never resigned from her position
and reportedly told Kane in an interview that "she no longer believe[d] what she
wrote."
A-1164-22
7
Nikola also provided a written statement to the media defendants that was
referenced in the report. According to Nikola, "Memorial Properties did not and
does not maintain the Cemetery's maps or grave sale records nor does it locate
graves for interments. Those duties are borne by the Cemetery Administration."
The media defendants' report concluded by stating that "the New Jersey
[A]ttorney [G]eneral is now giving Holmdel Cemetery and Memorial Properties
a second look. 'The cemetery board has received additional complaints against
Holmdel Cemetery, [and] the matter is under review,' [said] spokesperson Lisa
Coryell." The report ended by calling the statement "out of character since the
Attorney General's Office rarely confirms or denies investigations."
On September 3, 2019, plaintiffs filed a three-count complaint against the
media defendants and Boyce. The complaint alleged defamation per se and
tortious interference with economic interests against all defendants, and civil
conspiracy, trespass, and conversion of property against Boyce. The complaint
alleged that in addition to speaking to the press and filing a claim with the Board,
Boyce had threatened Michael Berardi, 2 a Memorial employee, in his office;
made false accusations of wrongdoing to "persuade local funeral directors, vault
2
Berardi was a third-party defendant in Boyce's third-party complaint but is not
a party in this appeal.
A-1164-22
8
dealers, clergy and contractors to steer prospective purchasers and service
providers away from Holmdel"; and had "trespassed" into Memorial's office,
"where he retrieved and made [photocopies] of genuine [c]emetery records" to
"alter[] the copies" and "fabricate documents" to support his false accusations.
According to the complaint, Boyce's disparagement campaign was motivated by
"his envy over the success of Memorial Properties and its employees in
conducting [the] Cemetery's sales," and his desire to "do that job as well as
maintaining the grounds." The complaint asserted that the campaign resulted in
a steady decline in cemetery space sales "starting in 2010."
On October 15, 2019, Boyce filed an answer denying plaintiffs' claims and
asserting an affirmative defense of frivolous litigation. He also filed a third-
party complaint against Holmdel and Ackerson seeking indemnification and
contribution.
On October 28, 2019, the media defendants filed a motion to dismiss for
failure to state a claim on the ground that plaintiffs failed to plead actual malice.
On January 10, 2020, Judge Mara Zazzali-Hogan entered an order dismissing
plaintiffs' claims against the media defendants without prejudice. In an oral
decision, the judge agreed that plaintiffs failed to plead that "defendants acted
with actual malice in publishing the statements at issue in the report." The judge
A-1164-22
9
also found that plaintiffs' tortious interference claim "based on the same speech
underlying the defamation claim" also failed "for the independent reason" that
plaintiffs failed to allege that "defendant[s'] publication of the report maliciously
interfered with plaintiff[s'] economic interests" or that plaintiffs suffered
damages since the sales decline started in 2010, but the report did not air until
2019.
On September 11, 2020, the judge granted plaintiffs' motion to amend the
complaint. The amended complaint included the original three counts and added
Holmdel and Ackerson as defendants in two new counts. The new counts
alleged breach of contract, civil conspiracy to commit fraud, defamation, and
tortious interference with economic interest, as well as a claim for punitive
damages against all defendants.
On May 14, 2021, Judge Zazzali-Hogan entered an order granting
Holmdel's and Ackerson's motions to dismiss plaintiffs' claims for breach of
contract and punitive damages, but denied without prejudice the motion to
dismiss plaintiffs' claims for tortious interference, defamation, and civil
conspiracy. In a supporting written opinion, the judge determined plaintiffs
failed to allege a breach of the sales management agreement between Holmdel
and Memorial's predecessor company to support a breach of contract claim, and
A-1164-22
10
failed to "sufficiently plead facts to claim punitive damages." On October 22,
2021, plaintiffs' motion for reconsideration was denied.
On October 29, 2021, Judge Owen C. McCarthy entered an order and oral
opinion granting Holmdel's and Ackerson's motions for summary judgment on
plaintiffs' remaining claims of tortious interference, defamation, and civil
conspiracy, as well as Boyce's claim for contribution. The judge denied
summary judgment on Boyce's indemnification claim, stating it was "premature
until the scope and basis for [the] liability of Boyce is proper[ly] addressed by
a fact finder." On December 7, 2021, the judge denied plaintiffs' motion to file
a second amended complaint.
On January 31, 2022, in an oral decision, Judge McCarthy reaffirmed the
summary judgment dismissal of the tortious interference, defamation, and civil
conspiracy claims against Holmdel and Ackerson, but found that "the breach of
the implied covenant of good faith and fair dealing" identified in the dismissed
breach of contract claim 3 in the amended complaint "remain[ed] an active
claim." The judge explained that the "cause of action for the breach of the
implied covenant of good faith is a separate and distinct legal theory from the
3
The judge noted that although Judge Zazzali-Hogan had dismissed the breach
of contract claim "without prejudice," plaintiffs had since "abandoned" the
claim.
A-1164-22
11
breach of contract, which was not addressed on the merits during either of the
prior dispositive motions by Holmdel Cemetery and Ackerson."
In the same January 31, 2022 oral decision, Judge McCarthy addressed
Boyce's previously filed motion for summary judgment. The judge granted the
motion as to all counts except defamation. In support, the judge found no legal
authority or evidentiary basis to sustain plaintiffs' claims for trespass,
conversion, or tortious interference against Boyce. Further, because summary
judgment was previously granted to Ackerson and Holmdel Cemetery, the judge
found no basis for a civil conspiracy claim in the absence of a "co-conspirator."
Although the oral decision was placed on the record on January 31, 2022, a
memorializing order was entered on January 21, 2022.
Subsequently, Holmdel and Ackerson moved for summary judgment on
plaintiffs' last claim remaining against them, the breach of the implied covenant
of good faith and fair dealing. In an April 8, 2022 order, Judge McCarthy
granted the motion. In an accompanying oral decision, the judge explained:
The [c]ourt finds that . . . plaintiff[s have] been
unable to demonstrate a prima facie case of a breach of
the implied covenant of good faith and fair dealing. As
noted throughout the record today, and during prior
hearings, . . . plaintiff[s] remain[] in contract with . . .
[Holmdel].
A-1164-22
12
That sales agreement has never been violated.
While there[ have] been multiple attempts to talk about
defamation and other claims that may exist against . . .
Boyce, I do not think the purpose of the implied
covenant of good faith is a catch-all, almost kitchen
sink approach to encompass all claims . . . .
The judge also pointed out that plaintiffs "admitted today, and [during] other
prior arguments, that there are no economic loss[es]" and plaintiffs "cannot
quantify with any specificity or the required certainty[] what sales have been
lost . . . as a result of the breach of the implied covenant of good faith and fair
dealing."
Plaintiffs moved for partial reconsideration of the January 10, 2020 order,
dismissing the media defendants, and reconsideration of the April 8, 2022 order,
dismissing plaintiffs' breach of the implied covenant of good faith and fair
dealing claim against Holmdel and Ackerson. Boyce cross-moved for partial
reconsideration of the January 21, 2022 order, denying dismissal of the last
remaining claim against him, the defamation claim. Judge Zazzali-Hogan
handled the motion for reconsideration of the January 10, 2020 order and Judge
McCarthy handled the remaining motions. In separate oral opinions placed on
the record on October 7, 2022, each judge denied plaintiffs' respective motions
for reconsideration. Judge McCarthy further denied plaintiffs' motion to amend
the complaint to include a claim for false light, finding that the false light claim
A-1164-22
13
essentially mirrored the defamation claim, which two judges had already
dismissed by way of motions.
As to Boyce, Judge McCarthy granted his motion for partial
reconsideration and dismissed with prejudice the remaining defamation claim.
Because the judge dismissed the last claim against Boyce and Boyce's claim for
indemnification against Holmdel and Ackerson was a third-party claim, the
judge dismissed as "moot" Holmdel's and Ackerson's "motion on short notice"
with respect to Boyce's indemnification claim.
Boyce moved for sanctions against plaintiffs pursuant to Rule 1:4-8 and
N.J.S.A. 2A:15-59, which Judge McCarthy denied in an order and oral decision
on November 3, 2022. Viewing the case "in light of the very restrictive lens
through which courts must view requests for [sanctions] under the frivolous
litigation rule and statute," the judge found that there could have been "a
reasonable good-faith belief in the merit of the cause of action." During the
same hearing, Judge McCarthy clarified that Holmdel's and Ackerson's motion
with respect to Boyce's indemnification claim, which had briefly been discussed
during the October 7, 2022 hearing, was "mark[ed] . . . as moot" based upon "the
prior . . . dismissal of all claims."
A-1164-22
14
Plaintiffs appealed, and Boyce cross-appealed. On appeal, plaintiffs raise
the following points for our consideration:
POINT I. [THE] TRIAL COURT COMMITTED REVERSIBLE
ERROR BY APPLYING [THE] "ACTUAL MALICE"
STANDARD
A. Media Defendants Made False and Defamatory Statements
B. Media Defendants Published the False Statements
C. The Trial Court Erroneously Required [Plaintiffs] to Prove
"Actual Malice"
POINT II. SUMMARY DISMISSAL OF THE MEDIA
DEFENDANTS REMAIN[S] INAPPROPRIATE EVEN IF
APPLYING THE "ACTUAL MALICE" STANDARD
A. Certain Defamatory Statements Were Made with
Knowledge of Falsity
B. Defamatory Statements Were Made with a Reckless
Disregard of the Truth
C. Media Defendants' Purposeful Avoidance of the Truth
POINT III. [THE] TRIAL COURT ERRONEOUSLY DISMISSED
[PLAINTIFFS'] CLAIM FOR BREACH OF DUTY OF GOOD
FAITH AND FAIR DEALING
A. [Plaintiffs] Sufficiently Allege[d] Damages
POINT IV. BOYCE SHOULD NOT HAVE BEEN DISMISSED
FROM THE CASE ON SUMMARY JUDGMENT
Boyce raises the following points for our consideration on cross-appeal:
A-1164-22
15
POINT [I]. [PLAINTIFFS] FILED FRIVOLOUS CLAIMS
AGAINST [BOYCE] AND SHOULD HAVE BEEN
SANCTIONED FOR FAILING TO PROVIDE ANY SUFFICIENT
EVIDENTIARY SUPPORT FOR ANY CLAIMS AFTER HAVING
THE OPPORTUNITY FOR FURTHER INVESTIGATION,
PURSUANT TO [RULE] 1:4-8(a)(3)
POINT [II]. [BOYCE'S] THIRD[-]PARTY COMPLAINT
AGAINST THIRD[-]PARTY DEFENDANT[S], HOLMDEL
CEMETERY AND JEFFREY ACKERSON[,] SHOULD BE
REINSTATED AND RETURNED TO THE TRIAL COURT FOR
DISPOSITION
II.
Our analysis begins with some established principles regarding our
standard of review. We review a Rule 4:6-2(e) motion to dismiss for "failure to
state a claim upon which relief can be granted" de novo, and we "owe[] no
deference to the trial court's legal conclusions." Dimitrakopoulos v. Borrus,
Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019). "The
standard traditionally utilized by courts to determine whether to dismiss a
pleading . . . is a generous one." Green v. Morgan Props., 215 N.J. 431, 451
(2013). Accordingly, "[a] plaintiff is entitled to a liberal interpretation and given
the benefit of all favorable inferences that reasonably may be drawn." State,
Dep't of Treasury ex rel. McCormac v. Qwest Commc'ns Int'l, Inc., 387 N.J.
Super. 469, 478 (App. Div. 2006). As a result, motions to dismiss "should be
granted in only the rarest of instances." Printing Mart-Morristown v. Sharp
A-1164-22
16
Elecs. Corp., 116 N.J. 739, 772 (1989); see also Smith v. SBC Commc'ns Inc.,
178 N.J. 265, 282 (2004) ("The motion to dismiss should be granted only in rare
instances and ordinarily without prejudice. As such, '[i]f a generous reading of
the allegations merely suggests a cause of action, the complaint will withstand
the motion.'" (alteration in original) (quoting F.G. v. MacDonell, 150 N.J. 550,
556 (1997))).
In evaluating a Rule 4:6-2(e) motion, "our inquiry is limited to examining
the legal sufficiency of the facts alleged on the face of the complaint." Green,
215 N.J. at 451 (quoting Printing Mart, 116 N.J. at 746). "At this preliminary
stage of the litigation the [c]ourt is not concerned with the ability of plaintiffs
to prove the allegation contained in the complaint." Printing Mart, 116 N.J. at
746. Rather, "the test for determining the adequacy of a pleading[ is] whether a
cause of action is 'suggested' by the facts." Ibid. (quoting Velantzas v. Colgate-
Palmolive Co., 109 N.J. 189, 192 (1988)). To that end, courts must "search[]
the complaint in depth and with liberality to ascertain whether the fundament of
a cause of action may be gleaned even from an obscure statement of claim" and
grant the "opportunity . . . to amend if necessary." Ibid. (quoting Di Cristofaro
v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).
Notwithstanding this liberality, "the essential facts supporting [the] cause of
A-1164-22
17
action must be presented in order for the claim to survive," and "conclusory
allegations are insufficient in that regard." Scheidt v. DRS Techs., Inc., 424 N.J.
Super. 188, 193 (App. Div. 2012) (citing Printing Mart, 116 N.J. at 768).
On the other hand, we review a trial court's decision on a motion for
reconsideration under an abuse of discretion standard. Pitney Bowes Bank, Inc.
v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). "An
abuse of discretion 'arises when a decision is "made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis."'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J.
561, 571 (2002)).
A reconsideration motion under Rule 4:49-2 "requires a showing that the
challenged order was the result of a 'palpably incorrect or irrational' analysis or
of the judge's failure to 'consider' or 'appreciate' competent and probative
evidence." Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021)
(quoting Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)).
"Where the order sought to be reconsidered is interlocutory, . . . Rule 4:42-2
governs the motion." JPC Merger Sub LLC v. Tricon Enters., Inc., 474 N.J.
Super. 145, 160 (App. Div. 2022). "Reconsideration under this rule offers a 'far
A-1164-22
18
more liberal approach' than Rule 4:49-2, governing reconsideration of a final
order." Ibid. (quoting Lawson, 468 N.J. Super. at 134).
Indeed, "Rule 4:42-2 declares that interlocutory orders 'shall be subject to
revision at any time before the entry of final judgment in the sound discretion
of the court in the interest of justice.'" Lawson, 468 N.J. Super. at 134 (quoting
R. 4:42-2(b)); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on
R. 4:42-2 (2025) ("[A]n order adjudicating less than all the claims is subject to
revision in the interests of justice at any time before entry of final judgment.").
For summary judgment motions, "we review the trial court's grant of
summary judgment de novo under the same standard as the trial court." Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016). That standard is well-settled.
[I]f the evidence of record—the pleadings, depositions,
answers to interrogatories, and affidavits—"together
with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the
issue to the trier of fact," then the trial court must deny
the motion. R. 4:46-2(c); see Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995). On the other
hand, when no genuine issue of material fact is at issue
and the moving party is entitled to a judgment as a
matter of law, summary judgment must be granted. R.
4:46-2(c); see Brill, 142 N.J. at 540.
[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,
366 (2016) (citation reformatted).]
A-1164-22
19
Where there is no material fact in dispute, "we must then 'decide whether
the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007),
overruled on other grounds by Wilson ex rel. Manzano v. City of Jersey City,
209 N.J. 558 (2012)). "We review issues of law de novo and accord no deference
to the trial judge's [legal] conclusions . . . ." MTK Food Servs., Inc. v. Sirius
Am. Ins. Co., 455 N.J. Super. 307, 312 (App. Div. 2018).
III.
Turning to the substantive principles pertinent to this appeal, the crux of
plaintiffs' arguments in Point I challenges the standard applied to the defamation
claim against the media defendants. Plaintiffs contend that the judge erred in
applying the actual malice standard and requiring plaintiffs to prove actual
malice. Alternatively, plaintiffs posit that even if the actual malice standard
applies, the judge still erred in dismissing the defamation claim against the
media defendants. The media defendants respond that the judge correctly
applied the actual malice standard because the "Kane in Your Corner" report
involved matters of legitimate public interest. Critically, during the October 7,
2022 reconsideration hearing before Judge Zazzali-Hogan, plaintiffs conceded
A-1164-22
20
that the actual malice standard applied, stating that the report involved "a matter
of public concern."
"Defamation imposes liability for publication of false statements that
injure the reputation of another." Printing Mart, 116 N.J. at 765. "The elements
of a defamation claim in New Jersey are (1) 'the assertion of a false and
defamatory statement concerning another; (2) the unprivileged publication of
that statement to a third party; and (3) fault amounting at least to negligence by
the publisher.'" Hyman v. Rosenbaum Yeshiva of N. Jersey, 258 N.J. 208, 236
(2024) (Patterson, J., concurring) (quoting Leang v. Jersey City Bd. of Educ.,
198 N.J. 557, 585 (2009)).
In defamation cases, an "actual-malice standard for liability purposes"
applies "when the alleged defamatory statement concerns a public figure or a
public official or involves a matter of public concern." W.J.A. v. D.A., 210 N.J.
229, 244 (2012) (quoting Senna v. Florimont, 196 N.J. 469, 496 (2008)). "The
actual-malice standard tolerates more falsehood and harm to reputation than the
negligence standard in order to shield highly valued speech from ruinous
lawsuits." Senna, 196 N.J. at 474. "When published by a media or media-related
defendant, a news story concerning public health and safety, a highly regulated
industry, or allegations of criminal or consumer fraud or a substantial regulatory
A-1164-22
21
violation will, by definition, involve a matter of public interest or concern."
W.J.A., 210 N.J. at 244 (quoting Senna, 196 N.J. at 496-97).
We are satisfied that the judge correctly applied the actual malice standard
in this case. Plaintiffs' defamation claims involved consumer fraud and are
therefore a matter of public interest and concern. "[C]onsumer fraud involves a
pattern of repetitive conduct . . . ." Turf Lawnmower Repair v. Bergen Record
Corp., 139 N.J. 392, 416 (1995). "[T]he business practice in question must be
'misleading' and stand outside the norm of reasonable business practice in that
it will victimize the average consumer, and thus most clearly and directly
involve a matter of legitimate public concern." Ibid.
The "Kane in Your Corner" report featured such egregious business
practices. The report alleged that plaintiffs were "double-selling" grave plots to
multiple individuals without their knowledge, with families belatedly
discovering that someone else was buried in the plot they had purchased. These
allegations undoubtedly constitute repetitive conduct standing outside the norms
of reasonable business practices. See ibid. As such, the defamation claims are
a matter of public concern, and the actual malice standard applies. W.J.A., 210
N.J. at 244.
A-1164-22
22
To survive a motion to dismiss, plaintiffs must allege sufficient facts in
the pleadings, which, if proven, would constitute a valid cause of action. Leon
v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001). While a motion
to dismiss must be evaluated "in the light most favorable to plaintiff[s],"
Nostrame v. Santiago, 213 N.J. 109, 113 (2013), mere conclusions and an
intention to rely on discovery are inadequate, Glass v. Suburban Restoration Co.,
317 N.J. Super. 574, 582 (App. Div. 1998).
"To satisfy the actual-malice standard, a plaintiff must show by clear and
convincing evidence that the publisher either knew that the statement was false
or published with reckless disregard for the truth." Neuwirth v. State, 476 N.J.
Super. 377, 391 (App. Div. 2023) (quoting Lynch v. N.J. Educ. Ass'n, 161 N.J.
152, 165 (1999)). "In order to demonstrate the reckless disregard element, [a]
plaintiff must show that the statements were published with a 'high degree of
awareness of their probable falsity,' or with 'serious doubts as to the truth of
[the] publication.'" DeAngelis v. Hill, 180 N.J. 1, 13 (2004) (second alteration
in original) (citation omitted) (first quoting Garrison v. Louisiana, 379 U.S. 64,
74 (1964); and then quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)).
"Provided that a reporter or editor does not publish a false and defamatory
statement with actual malice[,] . . . the erroneous statement contained in an
A-1164-22
23
article touching on a matter of public interest is not actionable." Durando v.
Nutley Sun, 209 N.J. 235, 239 (2012).
Here, plaintiffs cannot satisfy the actual malice standard. Plaintiffs failed
to plead any facts indicating that the media defendants published the report "with
knowledge of its falsity or with reckless disregard for the truth," Verna v. Links
at Valleybrook Neighborhood Ass'n, Inc., 371 N.J. Super. 77, 95 (App. Div.
2004), or that the media defendants had any subjective awareness or belief that
the report was false, see Neuwirth, 476 N.J. Super. at 392 (collecting cases).
Instead, plaintiffs' complaint is comprised solely of conclusory allegations that
cannot withstand a motion to dismiss.
Plaintiffs also argue that the media defendants "purposeful[ly] avoided"
reviewing Holmdel's records to verify the authenticity of grave sale contracts
and dispel any allegation of double-selling. According to plaintiffs' complaint,
the media defendants' failure to have plaintiffs verify documents resulted in
them presenting "false claims and misleading documents to the public." We are
unpersuaded. "Mere failure to investigate all sources does not prove actual
malice." Lynch, 161 N.J. at 172. Thus, we conclude that the judge properly
dismissed the claims against the media defendants.
A-1164-22
24
We are also convinced that the judge did not abuse her discretion in
denying plaintiffs' motion for reconsideration. In denying the motion, the judge
reiterated that a "bare conclusory assertion that the [media] defendants knew
and/or reasonably should have known that a statement was false or that any
essential facts that the [c]ourt may find lacking can be dredged in discovery is
insufficient to survive a motion to dismiss." Critically, plaintiffs' "counsel
conceded that there is nothing in the pleadings that specifically states or pleads
any facts that go to the issue of actual malice." The judge also commented on
several facts that undermined plaintiffs' argument that the media defendants
recklessly disregarded the truth, including Boyce's complaint to the Board and
Gianaris's sales contract.
Additionally, we reject plaintiffs' contention that the media defendants
"intentionally took steps to avoid or outright . . . refuse to conduct an
investigation that could[ have] uncovered contradictory information." As the
judge found, the media defendants conducted several interviews; reviewed
Boyce's Board complaint, the Board's response, and Gianaris's sales contract;
and contacted plaintiffs for comment about the allegations. We are satisfied
A-1164-22
25
there is adequate factual support in the record and good cause to support the
judge's ruling denying reconsideration.4
In Point III, plaintiffs argue that the judge erroneously dismissed their
claim for breach of the implied covenant of good faith and fair dealing against
Holmdel and Ackerson. They assert that Holmdel's actions "correlated with a
substantial decline in sales beginning in 2010" and "a myriad of losses that
include both lost sales and damage to business reputation." (Emphasis omitted).
Holmdel and Ackerson counter that plaintiffs failed to provide any proof of
damages.
"The covenant of good faith and fair dealing calls for parties to a contract
to refrain from doing 'anything which will have the effect of destroying or
injuring the right of the other party to receive' the benefits of the contract."
Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J.
210, 224-25 (2005) (quoting Palisades Props., Inc. v. Brunetti, 44 N.J. 117, 130
(1965)). "[I]t is critical to note that, '[i]n the first instance, the implied covenant
of good faith and fair dealing is precisely what its name allows: it is an implied
4
Although the judge cited Rule 4:49-2, governing motions to reconsider final
orders, instead of Rule 4:42-2, governing reconsideration of interlocutory
orders, the judge nonetheless correctly denied plaintiffs' motion for
reconsideration.
A-1164-22
26
covenant.'" Wood v. N.J. Mfrs. Ins. Co., 206 N.J. 562, 577 (2011) (alteration in
original) (quoting Kalogeras v. 239 Broad Ave., L.L.C., 202 N.J. 349, 366
(2010)). As such, "a party can violate the implied covenant of good faith and
fair dealing without violating an express term of a contract." Sons of Thunder,
Inc. v. Borden, Inc., 148 N.J. 396, 422-23 (1997).
Here, plaintiffs failed to identify any actions Holmdel allegedly took to
support its breach of the implied covenant claim. They assert that Holmdel
engaged in "undermining" tactics in an attempt to terminate the sales contract
so that Holmdel could "either take over sales on its own and collect the
commissions or recruit a replacement sales agent on much better terms."
However, despite extensive discovery and motion practice, plaintiffs fail to
provide any evidence of Holmdel's bad motives. "Without bad motive or
intention, discretionary decisions that happen to result in economic disadvantage
to the other party are of no legal significance." Wilson v. Amerada Hess Corp.,
168 N.J. 236, 251 (2001). "Bad motive or intention is
essential, . . . as . . . '[c]ontract law does not require parties to behave
altruistically toward each other; it does not proceed on the philosophy that I am
my brother's keeper.'" Id. at 251-52 (alteration in original) (quoting Original
A-1164-22
27
Great Am. Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970 F.2d
273, 280 (7th Cir. 1992)).
As such, plaintiffs were required to prove that Holmdel and Ackerson
acted with bad faith and deprived plaintiffs of rights or benefits under the
contract. Stated differently, plaintiffs were required to prove that Holmdel and
Ackerson "destroyed [plaintiffs'] reasonable expectations and right to receive
the fruits of the contract." Sons of Thunder, 148 N.J. at 425. Plaintiffs have
failed to meet this burden. In fact, as the judge found, plaintiffs remain under
contract with Holmdel and have admitted there are no economic losses. The
parties' sales agreement has never been violated, nor have plaintiffs shown that
they suffered a deprivation of any contractual benefit. Because plaintiffs failed
to put forth any facts supporting a breach of the implied covenant of good faith
and fair dealing, the judge properly dismissed the claim.
Turning to the denial of plaintiffs' motion for reconsideration, the judge
found plaintiffs failed to demonstrate a mistake by the court, a change in
circumstances, or the court's misappreciation of what was previously argued.
As a result, the judge found no reason to vacate the April 8, 2022 order because
plaintiffs failed to articulate damages for any of their alleged causes of action
and proffered no evidence to support financial harm to plaintiffs. We agree that
A-1164-22
28
the judge correctly denied plaintiffs' motion to reconsider the dismissal of the
claims against Holmdel and Ackerson and see no basis to intervene.
Finally, in Point IV, plaintiffs argue that the judge erroneously granted
Boyce's motion for reconsideration and erroneously granted Boyce summary
judgment dismissal of the defamation claim. They assert that Boyce made
numerous false statements, which plaintiffs characterize as "by definition,
defamatory." They identify the statements as follows:
Stated, on local television, that there were [fifteen to
twenty] [inter]ment spaces at Holmdel Cemetery that
were intentionally double-sold;
Opined that Memorial was motivated by greed to
commit fraud on vulnerable families at the wors[t] time
of their lives;
Posted on his wife's Facebook page that he "witnessed
first-hand the deceptive sales practices of Memorial
Properties"; and
Regularly disparaged Memorial to Cemetery lot
owners, visitors, and funeral directors in an attempt to
discourage further patronage.
Citing Carey v. Piphus, 435 U.S. 247, 262 n.18 (1978), and Biondi v.
Nassimos, 300 N.J. Super. 148, 154 (App. Div. 1997), plaintiffs posit that
"Boyce's purposeful statements concerning [plaintiffs'] business likely rise [] to
the level of defamation per se" because they relate to plaintiffs' business practice
A-1164-22
29
and are false. (Italicization omitted). Although plaintiffs maintain that they
"intended to prove such falsity at trial," they do not specify what damages
flowed from the statements. Boyce counters that plaintiffs presented no
evidentiary support for their defamation claim, despite "two years of
opportunities for further investigation [and] discovery."
In Carey, the Supreme Court described the "essence of slander per se" as
"the publication by spoken words of false statements imputing to a person
a . . . matter affecting adversely a person's fitness for trade, business, or
profession." 435 U.S. at 262 n.18 (italicization omitted). In Biondi, we further
explained that "[i]f a defamatory statement constitutes slander per se, a plaintiff
may establish a cause of action not only without proving 'special damages,' that
is, damages of a pecuniary nature, but without proving any form of actual
damage to reputation." 300 N.J. Super. at 154 (italicization omitted) (citing
Ward v. Zelikovsky, 136 N.J. 516, 540-41 (1994)). "This is sometimes referred
to as the 'presumed damages' doctrine." Ibid. (citing Sisler v. Gannet Co., 104
N.J. 256, 281 (1986)).
In Biondi, we also cautioned, however, that although slander per se
remains part of New Jersey defamation law, "the [Supreme] Court's
characterization of the doctrine as 'a relic from tort law's previous age' and its
A-1164-22
30
conclusion that 'the trend should be toward elimination . . . of the per se
categories[]' suggests that [trial] courts should invoke the slander per se doctrine
only in cases where it clearly applies." Id. at 155-56 (omission in original)
(italicization omitted) (citation omitted) (quoting Ward, 136 N.J. at 541).
Applying these principles, we agree with the judge that, in this case,
plaintiffs cannot rely solely on the doctrine of presumed damages without
meeting the actual malice standard. In W.J.A., our Supreme Court summarized
the United States Supreme Court jurisprudence regarding when presumed
damages may apply in a defamation case as follows:
In New York Times Co. v. Sullivan, 376 U.S. 254
(1964), the United States Supreme Court declared that
the First Amendment to the United States Constitution
prohibits a public official from recovering damages for
defamation related to his [or her] official position, in
the absence of actual malice on the part of the publisher
of the defamatory statement. Subsequently, in Gertz v.
Robert Welch, Inc., the Supreme Court addressed the
doctrine of presumed damages, denominating it an
"oddity of tort law." 418 U.S. 323, 349 (1974). In
Gertz, the Court declared presumed damages to be
inconsistent with First Amendment values, unless the
actual malice standard of New York Times Co. is
satisfied. Ibid. A few years later, in Dun & Bradstreet,
Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760-61
(1985), the Court modulated its ruling in Gertz and
concluded that the First Amendment principles that
informed Gertz do not restrict the right of the states to
award presumed damages in cases involving private
plaintiffs commenting on private matters.
A-1164-22
31
[W.J.A., 210 N.J. at 241-42 (citations reformatted).]
The Court also reiterated that "presumed damages continue to play a role
in our defamation jurisprudence in private plaintiff cases that do not involve
matters of public concern" and explained that "[w]here a plaintiff does not
proffer evidence of actual damage to reputation, the doctrine of presumed
damages permits him [or her] to survive a motion for summary judgment and to
obtain nominal damages, thus vindicating his [or her] good name." Id. at 233.
But where, as here, the case involves a matter of public concern, actual damages
must be articulated. Indeed, in public concern cases, "a plaintiff asserting a
defamation claim cannot rely on the doctrine of presumed damages absent a
finding that the defendant published the statement 'with knowledge that it was
false or with reckless disregard of whether it was false or not.'" Rocci v. Ecole
Secondaire Macdonald-Cartier, 165 N.J. 149, 156 (2000) (quoting N.Y. Times
Co., 376 U.S. at 279-80). Because plaintiffs have failed to articulate damages,
they cannot survive a motion for summary judgment, and the judge correctly
granted Boyce's motion.
We add that even if plaintiffs articulated damages, summary judgment was
still proper because plaintiffs failed to show that a genuine issue of material fact
existed. "[O]nce the moving party presents sufficient evidence in support of the
A-1164-22
32
[summary judgment] motion, the opposing party must 'demonstrate by
competent evidential material that a genuine issue of fact exists[.]'" Globe
Motor Co. v. Igdalev, 225 N.J. 469, 479-80 (2016) (last alteration in original)
(quoting Robbins v. Jersey City, 23 N.J. 229, 241 (1957)). "'Competent
opposition requires "competent evidential material" beyond mere "speculation"
and "fanciful arguments."'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App.
Div. 2014) (quoting Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426
(App. Div. 2009)). "[C]onclusory and self-serving assertions by one of the
parties are insufficient to overcome the motion." Puder v. Buechel, 183 N.J.
428, 440-41 (2005); accord Hoffman, 404 N.J. Super. at 425-26.
Here, after extensive discovery and motion practice, plaintiffs have failed
to show a genuine issue of material fact as to the defamation claim against
Boyce. Despite a voluminous record, plaintiffs' argument relies entirely on
conclusory allegations, offering no concrete evidence ascertained from any of
the numerous certifications and depositions that were conducted over the
lengthy course of this case. "[B]are conclusions in the pleadings[,] without
factual support in tendered affidavits, will not defeat a meritorious application
for summary judgment." Brae Asset Fund, L.P. v. Newman, 327 N.J. Super.
129, 134 (App. Div. 1999) (quoting U.S. Pipe & Foundry Co. v. Am. Arb. Ass'n,
A-1164-22
33
67 N.J. Super. 384, 399-400 (App. Div. 1961)). We therefore affirm the judge's
ruling granting reconsideration and granting summary judgment to Boyce on the
defamation claim.
IV.
We now turn to Boyce's cross-appeal. First, Boyce argues that plaintiffs'
claims against him amounted to frivolous litigation and, as such, plaintiffs
should have been sanctioned, as they produced no evidentiary support for any
of their claims against him.
We review a trial judge's decision on a motion for frivolous litigation
sanctions pursuant to Rule 1:4-8 under an abuse of discretion standard.
McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div. 2011). Under
that standard, reversal is warranted "only if [the decision] 'was not premised
upon consideration of all relevant factors, was based upon consideration of
irrelevant or inappropriate factors, or amounts to a clear error in judgment.'"
Ibid. (quoting Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)).
Rule 1:4-8 "is designed to ensure that attorneys do not initiate or pursue
litigation that is frivolous." LoBiondo v. Schwartz, 199 N.J. 62, 98 (2009); see
also McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 560 (1993)
(holding that pursuant to N.J.S.A. 2A:15-59.1, a prevailing party may also move
A-1164-22
34
for sanctions against a party who has filed a frivolous pleading, defined similarly
to Rule 1:4-8(a)(1) to (2)). The imposition of sanctions, which can include
reasonable attorney's fees, is one mechanism under the rule intended to deter
frivolous litigation. LoBiondo, 199 N.J. at 98-99.
"The sanctions for frivolous litigation apply when an attorney . . . has
violated Rule 1:4-8 by presenting papers for an 'improper purpose' or asserting
claims or defenses that lack the legal or evidential support" that the rule requires.
State v. Franklin Sav. Acct. No. 2067, 389 N.J. Super. 272, 281 (App. Div. 2006)
(citing R. 1:4-8(a), (b)(1)(i) to (ii)). "For purposes of imposing sanctions under
Rule 1:4-8, an assertion is deemed 'frivolous' when 'no rational argument can be
advanced in its support, or it is not supported by any credible evidence, or it is
completely untenable.'" United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379,
389 (App. Div. 2009) (internal quotation marks omitted) (first quoting R. 1:4-8;
and then quoting First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432
(App. Div. 2007)).
In a November 3, 2022 oral decision, Judge McCarthy denied Boyce's
motion for sanctions. Citing United Hearts, 407 N.J. Super. at 390, the judge
astutely explained that "New Jersey courts restrictively interpret what is
A-1164-22
35
frivolous in order to avoid limiting access to our court system." The judge
continued:
Attorney's fees and sanctions . . . should not be awarded
if a plaintiff had a reasonable and good-faith belief to
believe in the merits of a cause of action. That was also
noted by the Appellate Division . . . in S & R Associates
v. Lynn Realty Corp., 338 N.J. Super. 350, 364 (App.
Div. 2001), as well as Arrow Manufacturing Co. v.
West New York, 321 N.J. Super. 596, 600 (App. Div.
1999)[, and] In re Estate of Ehrlich, 427 N.J. Super. 64,
77 (App. Div. 2012).
Here, and in light of the very restrictive lens
through which courts must view requests for counsel
fees under the frivolous litigation rule and statute, the
[c]ourt finds that the movant has not satisfied that
burden. The [c]ourt does find that there can be, when
viewing this under the prism, as suggested by the
Supreme Court and the Appellate Division, that there
was a reasonable good-faith belief in the merit of the
cause of action. The fact that summary judgment
ultimately was granted following the conclusion of
discovery does not limit that fact.
[(Citations reformatted.)]
We discern no abuse of discretion in the judge's denial of Boyce's motion
for sanctions. The record supports the judge's finding that plaintiffs had a
colorable basis for their causes of action against Boyce based on his statements
to the media defendants and the other documentary evidence. We therefore
A-1164-22
36
agree that Boyce has failed to satisfy the high burden required to impose
sanctions.
Finally, Boyce argues that the judge erred in dismissing his third-party
indemnification claim against Holmdel and Ackerson because plaintiffs' claims
against Boyce arose from his employment with Holmdel.
The judge dismissed Boyce's indemnification claim as moot because all
claims against Boyce had been dismissed. We review a decision to dismiss a
matter on mootness grounds de novo. Stop & Shop Supermarket Co. v. Cnty.
of Bergen, 450 N.J. Super. 286, 290 (App. Div. 2017). "Mootness is a threshold
justiciability determination rooted in the notion that judicial power is to be
exercised only when a party is immediately threatened with harm." Id. at 291
(quoting Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div.
2010)). "[F]or reasons of judicial economy and restraint, courts will not decide
cases in which the issue is hypothetical, [or] a judgment cannot grant effective
relief[.]" Ibid. (alterations in original) (quoting Cinque v. N.J. Dep't of Corr.,
261 N.J. Super. 242, 243 (App. Div. 1993)).
In an October 29, 2021 hearing, the judge denied Holmdel's and
Ackerson's motions for summary judgment on Boyce's indemnification claim,
explaining:
A-1164-22
37
The amended complaint asserts a broad array of
negligent, tortious and unlawful conduct by . . . Boyce,
including conduct that predated the conclusion of his
employment relationship with Holmdel Cemetery on
August 1, 2018.
To the extent that tortious, negligent and/or
unlawful conduct occurred while Boyce was employed
by Holmdel, this may provide a basis for
indemnification. The timing and scope of the
negligent, tortious and unlawful conduct of Boyce may
trigger indemnification by his former employer
Holmdel Cemetery, and this can be addressed through
detailed jury interrogatories on the verdict sheet as to
the timing of the negligent and/or unlawful conduct.
However, the request for summary judgment on
the issue of indemnification is premature until the scope
and basis for [the] liability of Boyce is proper[ly]
addressed by a fact finder.
On January 21, 2022, Judge McCarthy stated on the record that the issues
of vicarious liability and indemnification remained active in the case. On
October 7, 2022, Judge McCarthy dismissed plaintiffs' defamation claim against
Boyce, which was the last remaining claim against him. Because Boyce was
granted summary judgment on his last claim, and because his claim for
indemnification against Holmdel and Ackerson was a third-party claim, the
A-1164-22
38
judge further dismissed as moot a motion filed by Holmdel and Ackerson
seeking dismissal of Boyce's indemnification claim. 5
Common-law indemnification is not limited to the costs of judgments or
damages. "A common-law indemnitee, forced to defend claims for which its
liability is only vicarious, is entitled not only to the cost of any judgment or
reasonable settlement, but also to costs of defense occasioned by the
5
Part of Boyce's argument on appeal is that the judge did not address his
indemnification claim but dismissed the claim as "[s]ettled by conference with
judge" with a disposition date of October 11, 2022. The motion filed on short
notice by Holmdel and Ackerson to dismiss the indemnification claim does not
appear in the record or in any of the parties' appendices. In Judge McCarthy's
oral decision, he stated, "I know there was a motion on short notice filed by
[Holmdel and Ackerson's attorneys]. But in light of the fact summary judgment
has been granted to . . . Boyce, his case was only a third[-]party claim against
you. With the case against . . . Boyce[] being dismissed, that motion is moot as
well." In their appendix, Holmdel and Ackerson included a letter written to
Judge McCarthy addressing Boyce's motion for sanctions and noted that they
disagreed with Boyce's assertion that the granting of Boyce's reconsideration
motion "concluded the litigation as to all issues, except Boyce's [t]hird[ -p]arty
complaint for indemnification for the expenses he incurred defending
[plaintiffs'] claims against him while employed by Holmdel Cemetery."
Holmdel and Ackerson cited Judge McCarthy's oral decision, referenced above.
They also stated that "Boyce's attorney reached out to the [c]ourt to confirm the
status of this matter with th[e] [c]ourt" and that, "[i]n an email to counsel,
counsel for Boyce stated 'I received a telephone call from Judge McCarthy's
chambers[.] [T]he [j]udge reviewed my letter and said the case was
"Dismissed."'" A copy of this email was not included with Holmdel and
Ackerson's submission. Based on the foregoing, the judge appears to have
dismissed as moot Boyce's claim for indemnification, and we disagree with
Boyce that the case needs to be remanded for disposition.
A-1164-22
39
indemnitor's fault." Cent. Motor Parts Corp. v. E.I. duPont deNemours & Co.,
251 N.J. Super. 5, 9 (App. Div. 1991). Because Boyce had to defend himself
from plaintiffs' claims prior to their dismissal, we disagree with the judge that
Boyce's indemnification claim was moot. However, we are convinced that
dismissal was appropriate on other grounds.
The right to common-law indemnification in a tort context "rests upon a
difference between the primary and secondary liability of two [parties,] each of
whom is made responsible by the law to an injured party." Adler's Quality
Bakery, Inc. v. Gaseteria, Inc., 32 N.J. 55, 80 (1960) (quoting Builders Supply
Co. v. McCabe, 77 A.2d 368, 370 (Pa. 1951)). Common-law indemnification is
"a right which [insures] to a [party] who, without active fault on his [or her] own
part, has been compelled, by reason of some legal obligation, to pay damages
occasioned by the initial negligence of another, and for which [the party] is only
secondarily liable." Ibid. (quoting Builders Supply Co., 77 A.2d at 370).
"Although a third-party tortfeasor cannot seek contribution from an
employer, it may obtain indemnification where that course is specifically
permitted by way of an express contract." Port Auth. of N.Y. & N.J. v.
Honeywell Protective Servs., Honeywell, Inc., 222 N.J. Super. 11, 19 (App. Div.
1987). Here, Boyce does not proffer any evidence of an express indemnification
A-1164-22
40
agreement between himself and Holmdel. He relies instead on the fact that
Holmdel was his employer. Holmdel and Ackerson counter that no contractual
or special relationship existed requiring them to indemnify Boyce, and that when
Boyce appeared on "Kane in Your Corner," he was no longer employed by
Holmdel.
In the absence of express contractual indemnification, we analyze Boyce's
claim under a theory of implied indemnification. "The contours of the doctrine
[of implied indemnification] are somewhat narrow . . . ." Id. at 20. "As a general
rule, a third party may recover on a theory of implied indemnity from an
employer only when a special legal relationship exists between the employer
and the third party, and the liability of the third party is vicarious." Ibid.
(quoting Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 103 N.J. 177, 188-
89 (1986)).
Perhaps the most common example of a special
legal relationship that gives rise to an implied right of
indemnification is the relationship of principal to agent.
When an agent commits a tort in good faith reliance on
the directions of his [or her] principal, the agent is
entitled to indemnification from the principal for his [or
her] liability to an injured third party.
[Stephenson v. R.A. Jones & Co., 103 N.J. 194, 209
(1986) (Stein, J., dissenting).]
A-1164-22
41
Even assuming that a special relationship existed between Boyce and
Holmdel at the time of Boyce's alleged conduct, nothing in the record shows that
Boyce acted under Holmdel's direction. In fact, plaintiffs' complaint
characterizes Boyce's conduct as harmful not only to plaintiffs, but to Holmdel
as well. According to the complaint, "[t]he short-term goal of Boyce's campaign
of deceit and economic sabotage was to inflict economic damage upon Memorial
Properties and the Cemetery, driving away prospective purchasers by telling
them the Cemetery and its sales company were untrustworthy and would cheat
them in one manner or another," and "[t]he long-term objective of his campaign
was to persuade the Cemetery to terminate Memorial Property's contract so that
Boyce could take control of the cemetery." This alleged conduct can only be
imputed to Boyce, not Holmdel. Thus, reliance on an implied indemnification
theory fails.
"Costs incurred by a [party] in defense of its own active negligence . . .
are not recoverable, but those costs incurred on defending claims on which the
[party] is found only derivatively or vicariously liable are recoverable." Cent.
Motor Parts Corp., 251 N.J. Super. at 11. Without an express indemnification
agreement, Boyce cannot recover from Holmdel for his own negligence. See
Mantilla v. NC Mall Assocs., 167 N.J. 262, 275 (2001) (holding that "absent
A-1164-22
42
explicit contractual language to the contrary, an indemnitee who has defended
against allegations of its own independent fault may not recover the costs of its
defense from an indemnitor").
As such, we are satisfied that dismissal of Boyce's indemnification claim
was appropriate, albeit for different reasons than those expressed by the judge.
Hayes v. Delamotte, 231 N.J. 373, 387 (2018) ("A trial court judgment that
reaches the proper conclusion must be affirmed even if it is based on the wrong
reasoning.").6
Affirmed.
6
We acknowledge that the motion judges exhibited tremendous competence in
wading through poorly drafted pleadings and submissions by counsel throughout
the course of this case, including "pleadings [that were] difficult to untangle,"
making it "difficult to find clear distinctions in the arguments regarding each
cause of action in the moving papers and opposition," which "made it extremely
challenging for[] . . . the opposing counsel to understand and articulate, . . . as
well as th[e c]ourt."
A-1164-22
43