Baglini v. Lauletta

• Decision Date: 30 March 2001
• Citation: Baglini v. Lauletta, 768 A.2d 825, 338 N.J. Super. 282 (N.J. Super. 2001)
• Court: New Jersey Superior Court
• Parties: Thomas BAGLINI, Jo Ann Baglini, Erich Pfisterer, Melitta Pfisterer, Paul Koren, Bernadine Koren, David Parvin, and Melanie Parvin, Plaintiffs-Respondents/Cross-Appellants, v. Frank LAULETTA and University Executive Campus, Inc., Defendants-Respondents, and Jeffrey I. Baron, Esquire and Baron & Riefberg, a professional corporation, Defendants-Appellants/Cross-Respondents. Thomas Baglini, Jo Ann Baglini, Erich Pfisterer, Melitta Pfisterer, Paul Koren, Bernadine Koren, David Parvin, and Melanie Parvin, Plaintiffs-Respondents/Cross-Appellants, v. Frank Lauletta and University Executive Campus, Inc., Defendants-Appellants/Cross-Respondents, and Jeffrey I. Baron, Esquire and Baron & Riefberg, a professional corporation, Defendants-Respondents.

768 A.2d 825

338 N.J. Super. 282

Thomas BAGLINI, Jo Ann Baglini, Erich Pfisterer, Melitta Pfisterer, Paul Koren, Bernadine Koren, David Parvin, and Melanie Parvin, Plaintiffs-Respondents/Cross-Appellants, v. Frank LAULETTA and University Executive Campus, Inc., Defendants-Respondents, and Jeffrey I. Baron, Esquire and Baron & Riefberg, a professional corporation, Defendants-Appellants/Cross-Respondents.

Thomas Baglini, Jo Ann Baglini, Erich Pfisterer, Melitta Pfisterer, Paul Koren, Bernadine Koren, David Parvin, and Melanie Parvin, Plaintiffs-Respondents/Cross-Appellants, v. Frank Lauletta and University Executive Campus, Inc., Defendants-Appellants/Cross-Respondents, and Jeffrey I. Baron, Esquire and Baron & Riefberg, a professional corporation, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued January 22, 2001.

Decided March 30, 2001.

Paul A. Snyder, Cherry Hill and Robert E. Rochford, argued the cause for appellants/cross-respondents Jeffrey I. Baron and Baron & Riefberg in A-907-98T2 (Marshall, Dennehey, Warner, Coleman & Goggin, and Winne, Banta, Rizzi, Hetherington & Basralian, attorneys, Hackensack; Mr. Snyder and Lawrence Berg, Cherry Hill, on the main brief; Mr. Rochford, on the punitive damages brief).

John C. Eastlack, Jr., Turnersville, argued the cause for appellants/cross-respondents Frank Lauletta and University Executive Campus, Inc. in A-1606-98T3 (Mr. Eastlack, on the brief).

Dennis J. Crawford, Haddonfield, argued the cause for respondents/cross-appellants Thomas and Jo Ann Baglini and Paul and Bernadine Koren in A-1606-98T3; and Joseph A. Del Duca argued the cause for respondents/cross-appellants Erich and Melitta Pfisterer and David and Melanie Parvin in A-1606-98T3 (Duffy & Quinn and Madden, Madden & Del Duca, attorneys; Mr. Del Duca, Mr. Crawford and Heather Azoulay, on the joint brief).

Before Judges HAVEY, WEFING and CUFF. The opinion of the court was delivered by HAVEY, P.J.A.D

These are consolidated appeals¹ from a judgment entered on a jury verdict in plaintiffs' favor against defendants University Executive Corp., Inc. (UEC), Frank Lauletta (UEC's principal), Jeffrey I. Baron, Esquire, and Baron & Riefberg, P.C.

Plaintiffs protested the development application made by UEC and Lauletta to construct office condominiums in Washington Township, Gloucester County. Displeased with these protests, UEC and Lauletta filed an action against plaintiffs sounding in defamation, interference with business advantage, and malicious use of process (the Lauletta complaint). Baron represented UEC and Lauletta in that action, which was voluntarily dismissed prior to trial. In turn, plaintiffs filed the present action charging all defendants with malicious abuse of process, malicious use of process, and intentional and negligent infliction of emotional distress. The trial court granted defendants summary judgment dismissing the malicious use of process count, concluding that plaintiffs had failed to demonstrate a "special grievance." The court also dismissed the intentional and negligent infliction of emotional distress claims. The jury returned a verdict in favor of plaintiffs on their malicious abuse of process claim, awarding compensatory and punitive damages to plaintiffs.

On appeal, UEC and Lauletta argue that plaintiffs failed to establish a malicious abuse of process cause of action as a matter of law because: (1) defendants did not commit "further acts" after filing the Lauletta complaint; and (2) the statements plaintiffs contend constituted "further acts" were protected by the litigation privilege. We agree with defendants on both points. We therefore reverse and vacate the judgment against defendants.

Plaintiffs cross-appeal, arguing that the trial court erred in granting defendants summary judgment on their malicious use of process claim. We agree and accordingly reverse and remand for further proceedings.

In 1988, UEC contracted to purchase an eleven-and-one-half acre tract in Washington Township, conditioned upon obtaining governmental approvals to construct an office condominium complex. Construction of the complex required a rezoning of the tract from residential to highway/commercial use. After a favorable recommendation by the Planning Board on February 16, 1989, the Township Council rezoned the property to highway/ commercial. Thereafter, the Planning Board granted minor subdivision and site plan approvals. UEC obtained financing and began constructing the project in early 1990.

Plaintiffs became aware of UEC's project in early 1990. Thereafter, regular weekly meetings were held by neighbors, including several of the plaintiffs, to discuss the project. The neighbors, including some of the plaintiffs, also attended Council and Planning Board meetings, voicing their concerns about the project. The neighbors learned that Lauletta had "close" ties with the then Mayor of Washington Township, Jerry Luongo. Lauletta and his wife Jacqueline actively campaigned for Luongo in the Mayor's race and had contributed to his campaign. After Luongo was elected, Jacqueline was retained as his aide. At the time of trial, Jacqueline was still the Mayor's aide at an annual salary of $35,000, and was also his chief-of-staff in his Assemblyman capacity at an annual salary of $12,000.

Several plaintiffs contacted various governmental agencies concerning the project, including the Department of Environmental Protection (DEP), the County Soil Conservation Agency, and the United States Army Corps of Engineers (Corps). Plaintiff Bernadine Koren, who had long been politically active in the Township, spoke against the project to individual Council members. In March and April 1990, Lauletta received notice from the DEP and the Corps that the plans for the project might violate fresh water wetlands regulations. Necessary permits were eventually issued.

On March 28, 1990, plaintiff Melanie Parvin and others authored a letter stating that Lauletta had received favorable treatment from the Township on other development applications. The letter implied that the preferential treatment was due to Lauletta's close personal relationship with the Mayor, and mentioned that Lauletta's wife was the Mayor's employee. It also claimed that UEC's condominium project was being built on wetlands and that UEC's engineer was currently under investigation by the State relating to the engineer's work on Lauletta's other projects. The letter was signed by plaintiffs Melanie Parvin, Bernadine Koren, David Parvin and Jo Ann and Thomas Baglini. It is unclear to whom the letter was sent.

In May or June 1990, UEC's then-attorney overheard Bernadine Koren tell an unsuccessful applicant at a Planning Board meeting that "it's too bad your name's not [Lauletta] ... you could get anything you want...." Others heard Bernadine say "[w]e're going to get those dagos." On another occasion, she stated "I wonder who he paid off for that one" and "[t]hat M F'er is paying everybody off." Bernadine denied making the latter two statements.

In March 1990, plaintiffs and the other neighbors hired John Trimble, Esquire, to represent their interests in opposing UEC's project. In July 1990, plaintiffs Erich Pfisterer, Jo Ann Baglini and Melanie Parvin, filed a prerogative writs action naming the Township, the Mayor, the Council and Planning Board as defendants, challenging the rezoning of the tract. All of the plaintiffs and many neighbors contributed to the payment of Trimble's counsel fees. In response to the complaint, Lauletta met with Baron, his attorney. Lauletta told Baron that he stood to lose over $1 million if plaintiffs prevailed in the suit. It was Baron's view that the prerogative writs complaint was baseless, and suggested that Lauletta compile a list of expenses associated with the project. As a result of the prerogative writs action, UEC's bank froze one construction loan and canceled another. It was necessary for UEC to borrow money from others to continue the project. Lauletta and UEC intervened in the prerogative writs action after submitting to the court a certification stating that UEC had spent $1,185,000 in reliance on the rezoning of the property.

Lauletta testified that Baron told him he and UEC might have a cause of action against plaintiffs for defamation and unlawful interference with prospective economic advantage. Before drafting a complaint against plaintiffs, Baron researched the relevant causes of action and refreshed his recollection regarding the Noerr Pennington² doctrine. He concluded that the doctrine did not apply to certain kinds of speech, such as defamation and contacts with governmental agencies on other projects. He was also aware of the sham exception that excludes from the doctrine baseless claims.

On UEC's and Lauletta's behalf, Baron filed an eleven-count complaint against plaintiffs charging defamation, malicious interference with economic advantage and business relations, malicious abuse of process, interference with economic advantage and business relations, fees under the frivolous complaint statute, N.J.S.A. 2A:15-59.1, and civil conspiracy. UEC and Lauletta demanded compensatory damages in excess of $1 million in each count of the complaint, punitive damages, attorneys' fees and costs.

During the course of construction of the project, UEC had hired Anthony Alberto as the construction manager for the project. Also, an agreement dated March 5, 1990, provided for Alberto's purchase of a ten percent interest in UEC for $80,000. In January 1991, Lauletta observed Trimble representing Alberto before the Planning Board on an application to develop a piece of property. Lauletta told Baron about this because Lauletta thought Trimble might be in a possible conflict of interest, since Alberto was an investor in UEC. During a February 1, 1991 deposition given during the Lauletta complaint litigation, Lauletta advised Trimble that Alberto was a stockholder in...