Sergeant First Class Frank Chiofalo v. State, 080720 NJSUP, A-2349-16T1

Docket Nº:A-2349-16T1
Opinion Judge:PER CURIAM
Party Name:SERGEANT FIRST CLASS FRANK CHIOFALO, a member of the New Jersey State Police (Badge No. 4772), Plaintiff-Respondent/ Cross-Appellant, v. STATE OF NEW JERSEY, DIVISION OF STATE POLICE OF THE STATE OF NEW JERSEY, and DEPARTMENT OF LAW AND PUBLIC SAFETY, Defendants-Appellants/ Cross-Respondents, and ROBERT CUOMO and JOSEPH R. FUENTES, Defendants.
Attorney:Adam Robert Gibbons, Deputy Attorney General, argued the cause for appellant/cross-respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Adam Robert Gibbons, on the briefs). George T. Doggett argued the cause for respondent/cros...
Judge Panel:Before Judges Rothstadt, Moynihan and Mitterhoff.
Case Date:August 07, 2020
Court:Superior Court of New Jersey
 
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SERGEANT FIRST CLASS FRANK CHIOFALO, a member of the New Jersey State Police (Badge No. 4772), Plaintiff-Respondent/ Cross-Appellant,

v.

STATE OF NEW JERSEY, DIVISION OF STATE POLICE OF THE STATE OF NEW JERSEY, and DEPARTMENT OF LAW AND PUBLIC SAFETY, Defendants-Appellants/ Cross-Respondents,

and

ROBERT CUOMO and JOSEPH R. FUENTES, Defendants.

No. A-2349-16T1

Superior Court of New Jersey, Appellate Division

August 7, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 26, 2018

Decided June 21, 2018

Remanded by Supreme Court July 16, 2019

Reargued telephonically May 18, 2020

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0049-13.

Adam Robert Gibbons, Deputy Attorney General, argued the cause for appellant/cross-respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Adam Robert Gibbons, on the briefs).

George T. Doggett argued the cause for respondent/cross-appellant.

Before Judges Rothstadt, Moynihan and Mitterhoff.

PER CURIAM

In Chiofalo v. State, 238 N.J. 527 (2019) (Chiofalo II), the New Jersey Supreme Court affirmed in part, and reversed and remanded in part, our earlier determination that the jury verdict entered in this matter in favor of former New Jersey State Trooper, plaintiff Frank Chiofalo, had to be vacated, and the earlier denial of summary judgment to defendants, State of New Jersey, Division of State Police of the State of New Jersey, Department of Law and Public Safety,

1 Robert Cuomo, and Joseph R. Fuentes, had to be reversed, because plaintiff did not establish a prima facie entitlement to relief under the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. As the Court observed, the appellate court determined that Chiofalo failed to identify at the summary judgment stage any law or regulation that he believed [his supervisor, ] Cuomo violated in allegedly ordering Chiofalo to destroy documents. Nor, in the court's view, did Chiofalo provide legal support for his claim that misreporting vacation time violate[d] a clear mandate of public policy.

[Chiofalo II, 238 N.J.at 537.]

The Supreme Court affirmed our decision as to plaintiff's fraudulent timekeeping allegations but reversed our reversal of the denial of summary judgment as to plaintiff's claim relating to his refusal to destroy documents. Id. at 531, 546. The Court remanded the matter for our "consideration of defendants' unaddressed appellate issues." Id. at 531. Those issues include the same arguments defendants raised as to the entry of summary judgment about plaintiff's failure to establish a prima facie claim under CEPA, except for the issue resolved by the Court as to defendants' conduct violating a law or rule, 2 but are now limited to plaintiff's proofs at trial. The other unaddressed issues include whether: (1) [P]laintiff's testimony alone was insufficient to prove his economic damages; (2) the court erred in permitting plaintiff to testify as to future wage loss when he voluntarily quit his job; and (3) it was error for the trial court to instruct the jury on punitive damages because defendants' conduct was not egregious. In his cross-appeal, plaintiff argues that the trial court's award of counsel fees only accounted for the time he spent in court.

[Chiofalo v. State, No. A-2349-16 (App. Div. June 21, 2018) (Chiofalo I) (slip op. at 3).]

We now address those issues.

I.

A.

The facts underlying plaintiff's CEPA claims and the matter's procedural history were set forth in the Court's and our earlier opinions. See Chiofalo II, 238 N.J. at 531-37; Chiofalo I, slip op. at 4-8. We need not repeat them at length here.[3] Instead, we limit our recitation to those facts pertinent to our discussion of each of the previously unaddressed issues.[4]

Unlike our earlier opinion that addressed the issue of summary judgment, we consider the parties' contentions now in the context of the trial court's denials of defendants' post-trial motions for a judgment notwithstanding the verdict (J.N.O.V.) under Rule 4:40-2 and for remittitur or a new trial under Rule 4:49-1(a). As to the motion for J.N.O.V., defendants argued that plaintiff failed to prove each element of a CEPA claim. Specifically, defendants contended that plaintiff's supervisor, Cuomo, asking plaintiff to destroy documents did not constitute a violation of CEPA, as there were various copies of the documents and the contents of the documents were public knowledge. They also argued that this was not a whistle-blowing act, plaintiff's lack of promotion was not pretextual, plaintiff's transfer to Netcong was both temporary and advantageous, his loss of designation was not retaliatory, and therefore, any actions against plaintiff were "the simple realities of working at the State Police."

On the motion for a new trial or in the alternative, remittitur, among other contentions, defendants argued that it was improper for the trial court to have barred testimony relating to why plaintiff was transferred. As to remittitur, defendants argued that the jury was not provided with evidence necessary to determine the amount of damages to which plaintiff was entitled, the jury should not have been instructed about future wage loss as plaintiff did not have an expert testify, there was no evidence as to how plaintiff was constructively discharged, and punitive damages should not have been allowed as Cuomo's actions were not "egregious." They further asserted that the award of future lost earnings should be offset to reflect amounts already received and further reduced to reflect the present-day value.

In response to defendant's Rule 4:40-2 motion, the trial court concluded that "[t]he elements of the CEPA claim founded by the jury neither fail[ed] as a matter of law, nor [fell] contrary to the weight of the evidence." The court cited to plaintiff's reasonable belief that "Cuomo was asking to cover up documents," regardless of the number of copies that were available at the time; plaintiff's refusal to destroy the documents was "sufficient . . . to constitute a whistle[-]blowing act"; "defendant[s'] acts of transferring plaintiff, stripping [him] of his designation of [S]ergeant [M]ajor and denying him of his promotion constituted an adverse employment action"; and that there was evidence of a causal connection between plaintiff's whistle-blowing act and the adverse actions taken against him afterwards.

On the motion for a new trial or remittitur, the trial court held there was "no clear and convincing proof that the verdict constitute[d] a miscarriage of justice as reasonable minds could have reached the same verdict." The trial court found it was "clear that the jury must have taken into consideration that [plaintiff] was getting a pension and award[ed] the $10, 000 a year difference that he would have gotten if he had been promoted and sta[yed] employed." The trial court did not find that the jury's award was "tainted in any way" and the "jury used their discretion in viewing the plaintiff's claim sympathetically."

The issues on appeal, "may [therefore] be simply characterized as: (1) [W]hether the evidence, together with all legitimate inferences, may sustain a judgment in favor of defendant[s], R. 4:40-2(b); or (2) whether the jury verdict was 'a miscarriage of justice under the law' to warrant a new trial, R. 4:49-1(a)." Judge v. Blackfin Yacht Corp., 357 N.J.Super. 418, 423-24 (App. Div. 2003).

"The standard for J.N.O.V. is the same as for involuntary dismissal at the close of evidence under [Rule] 4:37-2. The 'judicial function . . . is quite a mechanical one.'" Id. at 424 (alteration in original) (citation omitted) (quoting Dolson v. Anastasia, 55 N.J. 2, 5 (1969)). Motions brought pursuant to Rule 4:40-2 are governed by the following evidential standard: [I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied . . . .

[Filgueiras v. Newark Pub. Sch., 426 N.J.Super. 449, 455-56 (App. Div. 2012) (alterations in original) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)).]

In our review of the trial court's decision on such motions, we apply the same standard. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005); Filgueiras, 426 N.J.Super. at 456; Judge, 357 N.J.Super. at 424. "Neither the trial [court] nor [this] court[, as a reviewing court, ] is concerned with the weight, worth, nature or extent of evidence . . . ." Polyard v. Terry, 160 N.J.Super. 497, 505-06 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979). "A [court] is not to consider 'the worth, nature or extent (beyond a scintilla) of the evidence,' but only review 'its existence, viewed most favorably to the party opposing the motion.'" Lechler v. 303 Sunset Ave. Condo. Ass'n, 452 N.J.Super. 574, 582 (App. Div. 2017) (quoting Dolson, 55 N.J. at 5-6); Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 572 (2010).

In our review, we are guided by the principle that the factfinder's determination is "entitled to very considerable respect" and "should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination." Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977). However, despite our hesitancy to interfere with a jury's verdict, granting a motion under Rule 4:40-2 is appropriate where at trial, plaintiff fails to establish a prima facie claim to relief. As the Court stated in Brill v....

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