SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2802-97T5
JACQUELYN MYRICK,
Plaintiff-Appellant,
v.
RESORTS INTERNATIONAL CASINO &
HOTEL, DAVID CHAN, MIDLANTIC
NATIONAL BANK, and LOUANNE
ALTBAUM,
Defendants-Respondents,
and
DETECTIVE W. SCHULTE, and
MERV GRIFFIN,
Defendants,
_________________________________________
Argued January 19, 1999 - Decided March 22, 1999
Before Judges Havey, Skillman & P.G. Levy
On appeal from the Superior Court of New
Jersey, Law Division, Camden County.
Albert J. Brooks, Jr. argued the cause for
appellant (Sheller, Ludwig & Badey, attorneys,
Mr. Brooks on the brief).
John M. Donnelly argued the cause for
respondents Resorts International Casino &
Hotel and David Chan (Levine, Staller, Sklar,
Chan, Brodsky & Donnelly, attorneys; Mr.
Donnelly and E. Allan Mack on the brief).
Michael K. Tuzzio argued the cause for
respondents Midlantic National Bank and
Louanne Altbaum (Ronan, Tuzzio & Giannone,
attorneys; Mr. Tuzzio and Anthony M. Tracy on
the brief).
The opinion of the court was delivered by
P.G. LEVY, J.A.D.
On April 12, 1993, while an employee of defendant Resorts
International Casino Hotel, plaintiff Jacquelyn Myrick was
mistakenly given the paycheck of another employee, Jacqueline Hill.
According to plaintiff, she did not see that she had received the
wrong check and was unaware that her own paycheck was for a greater
amount. She proceeded to cash it by presenting it to a teller at
an office of defendant Midlantic National Bank. The check had been
drawn on another bank, and that bank returned the check to
Midlantic due to a stop payment order. Midlantic advised Resorts
of the error, and Resorts turned the matter over to the Division of
Gaming Enforcement (DGE). The DGE investigated, identified
plaintiff and learned of her role in the incident. The DGE caused
plaintiff's arrest and subsequently filed criminal charges against
her in the municipal court for theft of movable property worth
$349.48, a fourth degree crime. N.J.S.A. 2C:20-3. The casino
suspended plaintiff and filed a complaint with the Casino Control
Commission, asking for revocation of her casino employee license
and registration.
Both the criminal and the administrative matters were
resolved in plaintiff's favor, but she was discharged from her
employment with Resorts; it has refused to reinstate her, and she
claims she is unable to find other employment in the casino
industry. She brought a multi-count complaint and eventually was
left with a claim for malicious prosecution against Resorts and its
employee David Chan (the casino defendants) and claims for
malicious prosecution and tortious interference with her employment
contract against Midlantic and its employee Luann Altbaum (the bank
defendants). The casino defendants and the bank defendants filed
separate motions for summary judgment and the trial judge granted
each motion, effectively dismissing the complaint as to all
defendants. Plaintiff appeals, but we affirm.
The relevant facts are not disputed. Plaintiff worked as
a blackjack dealer, and she was paid an hourly wage plus a portion
of tips collected. Paychecks were customarily delivered to dealers
in the casino by another employee who would look at the dealer's
name tag (which contained only the first name) and then retrieve
the check from a box and hand it to the dealer. On this particular
occasion, plaintiff was mistakenly given the paycheck of Jacqueline
Hill by an employee she did not know, but recognized. She claimed
that she followed her usual routine and placed the check in her
pocket without examining it closely. Because she received
different amounts each week and did not maintain a bank account,
she drove to a local branch of Midlantic Bank, as she usually did,
and cashed her check by showing her casino employee's
identification documents to the teller. After Louanne Altbaum, the
teller, received the check and identification from plaintiff, she
asked whether plaintiff was married. Plaintiff testified at
deposition that she told Altbaum that she was divorced and asked
why Altbaum wanted to know that information. Altbaum never
responded to plaintiff's question. The amount of the cashed check
was $349.48.
Altbaum was notified sometime after plaintiff had cashed
the check that an order to stop payment had been placed on it
because it had been reported as lost or stolen. At the time of the
transaction, Altbaum was not aware of the stop payment order
because the paycheck was not drawn against a Midlantic account.
Under the guidance of an assistant bank manager, Altbaum wrote a
letter to Resorts in an effort to recoup the money. She explained
in the letter that she was trying to locate Hill, who also may have
been known as Jacqueline Myers, the name Altbaum believed had been
endorsed on the check. She also asserted in her deposition that
she had asked the name of the person who had presented the check
why there was a different last name, and the person replied that it
was due to a recent marriage. Altbaum informed Resorts that a stop
payment had been placed against the check, as the check was
reported "either lost or stolen." She requested Resorts'
assistance in helping her recover the money from "Jacqueline."
Finally, Altbaum asked for confirmation that Jacqueline Hill and
Jacqueline Myers are the same person, and if not, whether Resorts
had any information about Jacqueline Myers.
Upon receipt of the letter, Resorts contacted the DGE,
and Detective Schulte undertook an investigation. He deduced that
plaintiff was the person who had cashed the check, based on her
identification number on it. Later, when she returned from a
vacation, he and two other investigators interviewed her.
According to the investigative report, when they confronted her
with what they knew, she admitted that her signature was on Hill's
check but stated that she did not realize the check belonged to
Hill. She denied having a conversation with Altbaum about her
recent marriage and could not explain: (1) why she did not realize
that Hill's name, not hers, was the named payee of the check, or
(2) why Hill's check was for $65 less than her own. At this point,
plaintiff was arrested for "unlawfully taking certain movable
property" in violation of N.J.S.A. 2C:20-3 and released on her own
recognizance.
Plaintiff's version of what transpired during the
interrogation is slightly different. She claimed there were five
men in the room, all of whom were yelling at her, accusing her of
stealing the check and telling her that she must admit to doing so.
She tried to explain the absurdity of such a theory given the fact
that she signed her name and placed her Casino Control Commission
identification number on the back of the check. Plaintiff admitted
that the endorsement on Hill's check looked like her signature,
though she was not sure.
After plaintiff was fingerprinted, she was escorted to
the employee locker room so that she could remove her personal
property. Defendant Chan, a Resorts shift manager and plaintiff's
supervisor, gave her a written notice of suspension. On May 26,
1993, plaintiff was discharged for "Rules of Conduct," which she
believed meant stealing another employee's property.
Schulte's investigation was summarized in a report dated
May 10, 1993. Among other things, the report stated that on April
30, 1993, plaintiff had "inquired about her April 12, 1993 check
and said she did not receive her check." Plaintiff testified at
her deposition that this was not true. She suggested that she had
been set up by Resorts, and she did not ask about her April 12
check. Rather, she may have asked about her "vacation check."
The criminal charges against her were administratively
dismissed on July 30, 1993. In addition, on August 17, 1993, the
Casino Control Commission informed plaintiff that it had denied
Resorts' application to have her casino employee license and
registration suspended. Nonetheless, Resorts refused to reinstate
her.
On the motion for summary judgment, the judge was primarily concerned with "whether or not the action of Resorts was activated by malice and whether or not there was probable cause to take the action which they took." He noted that probable cause is analyzed under the objective standard of "what would a reasonably prudent person do under these facts and circumstances." For purposes of the motion, the judge accepted as true plaintiff's assertion that she never attempted to pick up her check, and he summarized the claim against the casino defendants as follows:
[T]his check was endorsed by Myrick with her name, that she put her number on it, her casino control number on it, and it was all a big mistake. And, therefore they must have had malice against her or they wouldn't have taken the action that they took.
Malicious prosecution was thoroughly explained in Lind v. Schmid, 67 N.J. 255 (1975):
[M]alicious prosecution is not a favored cause of action because citizens should not be inhibited in instituting prosecution of those reasonably suspected of crime. On the other hand, one who recklessly institutes criminal proceedings without any reasonable basis should be responsible for such irresponsible action. Development of the malicious prosecution cause of action as we know it today is the result of a balancing of these antithetical considerations.
A malicious prosecution action arising
out of a criminal prosecution requires proof:
(1) that the criminal action was instituted by
the defendant against the plaintiff, (2) that
it was actuated by malice, (3) that there was
an absence of probable cause for the
proceeding, and (4) that it was terminated
favorably to the plaintiff. The plaintiff
must establish each element. Upon failure to
prove any one, the cause must fail. Each
element is separable from the others, although
evidence of one may be relevant with respect
to another. For example, proof of lack of
probable cause may be appropriate evidence
from which to infer but not necessarily
establish malice.
The essence of the cause of action is
lack of probable cause, and the burden of
proof rests on the plaintiff. The plaintiff
must establish a negative, namely, that
probable cause did not exist.
[Id. at 262-63(citations omitted).]
The casino defendants argued that plaintiff had failed to
establish that the criminal complaint was actuated by malice and
that there was no probable cause. The essence of the inquiry on
summary judgment is "whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law." Brill
v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 536
(1995)(quotation omitted). We conclude here that the evidence is
"so one-sided" that the casino defendants were entitled to summary
judgment as a matter of law on the claim for malicious prosecution.
First, although not relied on by the motion judge as a
ground of decision, we conclude that the casino defendants did not
institute the prosecution of the defendant.See footnote 1 McLaughlin v. Lehigh
Valley R.R. Co.,
93 N.J.L. 263 (Sup. Ct. 1919), held that a company
reporting suspected criminal activity to the authorities cannot be
liable for malicious prosecution when the authorities decide to
prosecute the suspected criminals. There, the defendant railroad
company's security personnel saw some individuals break into and
steal some rolls of leather from one of its rail cars. Id. at 264.
The security guards called the Jersey City police and, based on
their descriptions of the individuals involved, the police arrested
plaintiff, who was then identified by the guards. Ibid.
Ultimately, the prosecutor dismissed the indictment because the
security guards had moved and were unavailable to testify. Id. at
264-65.
The plaintiff then instituted a malicious prosecution
action against the railroad company and recovered a judgment after
a jury trial. On appeal, it was held that the police, but not the
defendant, had instituted the prosecution. The court explained:
The defendant company's two detectives
reported the robbery to police headquarters at
Jersey City, and described the occurrence to
the officer in charge; he, thereupon, acting
as the representative of one of the
departments of the city government, and not at
all as the agent of the defendant company,
caused the arrest of the plaintiff and his
confinement in prison. It appears that the
complaint then made against the plaintiff was
made by a member of the city police force, and
there is nothing in the case to show that the
defendant was responsible for the making of
that complaint.
[Id. at 267.]
The DGE is a division of the Department of Law and Public
Safety and is clearly not an agent of the casino. Moreover, it was
from the official investigation that facts were revealed that
enabled the DGE to identify plaintiff and deduce her role in the
incident; the DGE arrested her on its own. Thus, unlike the
security guards in MacLaughlin, the casino did not even tell the
DGE that plaintiff (or anyone else for that matter) had stolen
Hill's paycheck. Instead, the casino merely passed along the
Altbaum letter requesting assistance in locating Hill or Myers,
whom Altbaum believed was the endorser of the paycheck that she had
wrongfully cashed over a stop payment.
It is clear to us that the casino defendants did not "put
the proceedings in motion," Lind, supra, 67 N.J. at 263 (emphasis
in original), when they called in the DGE to investigate the
incident reported in the Altbaum letter. The casino defendants
were not aware of plaintiff's involvement at the time, and, as in
MacLaughlin, it was the DGE--not the casino defendants--that
concluded that plaintiff was involved. There is no doubt that it
was the DGE that made the decision to arrest plaintiff. Pursuant
to MacLaughlin, therefore, the casino defendants cannot be said to
have instituted the prosecution of plaintiff.
Even if the call to the DGE may be considered to be the
institution of criminal proceedings, we do not accept plaintiff's
contention that there was no probable cause to contact the DGE.
The DGE was called after the casino received Altbaum's letter,
which enclosed Hill's paycheck and the stop notice and advised that
a paycheck issued to Hill and reported lost or stolen had been
cashed by someone believed to be named Jacqueline Myers.
Certainly, at this point, "the perceptions of a reasonable and
prudent person in like circumstances," Campione v. Adamar of New
Jersey, Inc.,
302 N.J. Super. 99, 120 (App. Div. 1997), would have
resulted in some kind of investigation.
The Casino Control Act provides:
All licensees . . . shall have a duty to
inform the commission or division of any
action which they believe would constitute a
violation of this act.
[N.J.S.A. 5:12-80(g).]
It is a violation of the Casino Control Act for an individual
casino licensee to commit an act of theft, in any degree, whether
the licensee is ultimately convicted or not. N.J.S.A. 5:12-86(g);
State of New Jersey, Dept. of Law and Public Safety, Div. of Gaming
Enforcement v. Diglio,
94 N.J.A.R 2d (CCC) 15 (1992) Even though
the Casino defendants did not know of plaintiff's involvement at
that point, the allegedly lost or stolen paycheck did belong to one
of its employees and, therefore, the possibility existed that the
Casino Control Act might have been violated. Furthermore, even if
the casino defendants knew, or should have known of plaintiff's
involvement, they certainly would have been required to report the
incident to the DGE for investigation.
Finally, plaintiff did not show that the casino
defendants acted with malice in contacting the DGE. Putting aside
any claim that plaintiff attempted to obtain her own paycheck after
cashing Hill's, the evidence "as to the circumstances under which
the [casino defendants] acted in initiating the proceedings,"
Campione, supra, 302 N.J. Super. at 122 (citation omitted)(emphasis
removed), was undisputed. Hill did not receive her paycheck, which
had a stop notice issued against it because it was reported as lost
or stolen. Despite the stop notice, the paycheck was cashed. The
casino defendants reported this information to the DGE for
investigation at a point in time when they were unaware of
plaintiff's involvement. Therefore, they could not have had any
malice toward her in doing so.
Therefore, given the Supreme Court's position that
"malicious prosecution is not a favored cause of action," Lind,
supra, 67 N.J. at 262, the casino defendants' contact with DGE upon
receipt of Altbaum's letter was not the initiation of the criminal
proceedings against plaintiff. In addition, plaintiff failed to
present evidence from which a trier of fact could find that (1) the
casino defendants lacked probable cause to contact the DGE, or that
(2) the asserted lack of probable cause establishes malice on their
part.
Plaintiff contends it was error to grant summary judgment to the bank defendants concerning her claim of malicious prosecution, because those defendants need only have been the "proximate and efficient cause of maliciously putting the law in motion," citing Seidel v. Greenberg, 108 N.J. Super. 248, 258 (Law Div. 1969)(quotation omitted)(emphasis removed). In Seidel, however, it was the defendants' crimes that led to an investigation and eventual criminal prosecution of plaintiff. Thus, that court held that "defendants are liable to plaintiff because his wrongful prosecution was proximately caused by the wrongful criminal acts for which they were convicted." Id. at 269-70. We reject that "but for" theory of proximate cause here.
As previously discussed, the casino defendants cannot be considered to have put the law in motion. Certainly, then, the bank defendants, who are one step removed from the casino defendants, could not be considered to have done so either. Indeed, the bank defendants were merely exploring the possible recoupment of their monies, which had been paid as a result of Altbaum's mistake in judgment. There was no indication in Altbaum's letter that Midlantic was considering pressing criminal charges against anyone. The judge specifically determined that the bank defendants did not initiate any prosecution, and we agree with that decision.
Plaintiff has also failed to prove that the bank defendants acted with malice by sending the Altbaum letter to Resorts. She contends the letter was self-serving and malicious in that it contained false information about the circumstances of the check cashing incident. However, it is undisputed that the letter contained the truth on the relevant issue: Hill's paycheck, which had been reported as lost or stolen, had been cashed at Midlantic. There is nothing malicious or false about the statement itself or about making it. Altbaum simply wanted to recover the money that Midlantic wrongfully gave to plaintiff. Moreover, even if Altbaum lied about plaintiff's representation as to her marital status, the fact remains that Altbaum did not lie about the relevant fact, that the bank defendants had erroneously cashed Hill's lost or stolen paycheck.
Additionally, given that plaintiff's casino identification number was endorsed on the check made out to another person, the bank also had probable cause to ask the casino for assistance in ascertaining the identity of the person to whom that number was assigned.
Therefore, based on the undisputed facts, the evidence was so one-sided that the bank defendants were entitled to summary judgment as a matter of law on plaintiff's malicious prosecution claim, because they did not institute criminal proceedings against plaintiff, and because no reasonable jury could conclude they either lacked probable cause or acted with malice when Altbaum wrote the letter to Resorts. Brill, supra, 142 N.J. at 536.
A claim for tortious interference with the performance of a contract must be based, in part, on "facts claiming that the interference was done intentionally and with 'malice.' ... For purposes of this tort, '[t]he term malice is not used in the literal sense requiring ill will toward plaintiff.' ... Rather, malice is defined to mean that the harm was inflicted intentionally and without justification or excuse." Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 751 (1989)(citations omitted). Plaintiff contends this claim is sustainable because she established that the bank defendants' conduct was the proximate cause of her termination of employment by Resorts and that they acted with malice in accusing her of stealing Hill's paycheck, evidenced by Altbaum's ulterior motives and lies. We have already discussed and rejected these allegations. Thus we conclude that this last contention lacks merit and requires no further discussion. R. 2:11-3(e)(1)(E).
Affirmed.
Footnote: 1The only mention of this issue, as it affected the casino defendants, was the judge's statement that as a result of the wrong person cashing the check, "the matter was reported to the Casino Control Commission. Action was taken. As far as the arrest is concerned, Resorts had nothing to do with that. That was done by the officer."