JOSEPH HOO VS. ERIC KAM (L-10297-15, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3326-17T4
JOSEPH HOO,
Plaintiff-Appellant,
v.
ERIC KAM, BRIAN CARLINO,
MICHAEL LAFRANO, DANIEL
LAMORGES, KEVIN VAN SADERS,
FRANCES PAPAPIETRO, NEW
MILFORD POLICE DEPARTMENT,
and NEW MILFORD BOROUGH,
Defendants-Respondents.
__________________________________
Submitted June 4, 2019 – Decided June 26, 2019
Before Judges Fisher and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-010297-15.
Law Offices of Walter M. Luers, LLC, attorneys for
appellant (Walter M. Luers, on the brief).
Kantrowitz, Goldhamer & Graifman, PC, attorneys for
respondent Eric Kam (Randy J. Perlmutter, on the
brief).
PER CURIAM
Appellant, Joseph Hoo, appeals from two orders granting respondent, Eric
Kam, summary judgment and counsel fees. Additionally, Hoo appeals from a
judgment entered in Kam's favor for counsel fees. We affirm the orders and
judgment of the trial court substantially for the reasons expressed in Judge
Friscia's thoughtful and comprehensive opinions.
This appeal stems from a Thanksgiving Day altercation in 2013 between
Eric Kam and his uncle, Joseph Hoo. On that day, Hoo was told he was not
invited to Kam's house for Thanksgiving dinner. Hoo, accompanied by his so n,
then drove to Kam's house in New Milford to challenge Kam about being
excluded from the holiday dinner. Once Hoo arrived at Kam's home, he
confronted Kam. According to Kam, Hoo held a machete while he made
threatening remarks to Kam, including, "You better watch your back. Every day
you step outside you better watch it." Kam's wife was home during the parties'
encounter and called the police. New Milford police officers arrived on scene
and as they pulled up to Kam's home, Hoo and his son left in Hoo's car. Shortly
thereafter, Hoo was stopped by police; they found a black machete in his vehicle.
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Following this incident, Hoo was charged with making terroristic threats,
unlawful possession of a weapon, and possession of a weapon for an unlawful
purpose. At his municipal court trial, he was found guilty of harassment and
two counts of disorderly conduct, but found not guilty of simple assault. During
this trial, Hoo admitted he had been told not to come to Kam's house on
Thanksgiving. He also conceded he made threats to Kam that day. But he
denied wielding a machete during the altercation.
Although Hoo appealed his conviction, the Law Division judge confirmed
the municipal judge's finding of probable cause to arrest Hoo, upheld the
municipal judge's finding that Kam's statements and testimony were credible,
and found Hoo guilty on the two disorderly conduct charges. Hoo was acquitted
of the harassment charge in the Law Division. He appealed from this decision
and we affirmed the Law Division judge's findings.
Subsequently, Hoo initiated a civil action in Essex County against Kam.
In that suit, he alleged Kam was liable for defamation and tort of
outrage/intentional infliction of emotional harm due to the Thanksgiving Day
incident. Hoo then filed a five-count complaint in Bergen County over the same
incident. In the Bergen County suit he added claims against Kam and named as
additional defendants, the Borough of New Milford, the New Milford Police
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Department and the officers who had responded to the call on Thanksgiving
Day. The two cases were consolidated and the entire matter was transferred to
Bergen County. In May 2017, all defendants, except Kam, were dismissed from
the suit on summary judgment. Kam was left to defend against the following
claims: malicious representation/deceit; malicious prosecution; civil
conspiracy; and tort of outrage. Kam then filed a motion in limine against Hoo.
His motion was converted to a motion for summary judgment and was granted
on July 7, 2017. Thereafter, Kam moved for sanctions and counsel fees. This
motion also was granted and Kam was awarded counsel fees in the sum of
$9472.75 on August 31, 2017. A judgment was entered in that amount on
September 14, 2017.
On appeal, Hoo insists summary judgment should not have been entered
against him because material issues of fact relating to the altercation existed.
He particularly complains there is a material issue of fact relating to whether he
held a machete during the fight. Kam responds that the statements he made to
police about the incident (directly and in an affidavit) are subject to a qualified
privilege, as part of a police investigation. Thus, he asserts his statements to
law enforcement cannot be defamatory. Kam also notes Hoo was found guilty
of offenses that arose from the altercation, further substantiating his statements
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to police. Additionally, Kam argues the counsel fee award is more than justified
because he had to defend against Hoo's unsustainable causes of action and Kam
spent far more in fees than he was awarded.
The scope of our review of a judgment entered in a non-jury case is
limited. "[W]e do not disturb the factual findings and legal conclusions of the
trial judge unless we are convinced that they are so manifestly unsupported by
or inconsistent with the competent, relevant and reasonably credible evidence
as to offend the interests of justice[.]" Seidman v. Clifton Sav. Bank, S.L.A.,
205 N.J. 150, 169 (2011) (quoting In re Trust Created By Agreement Dated
December 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)). When
"supported by adequate, substantial and credible evidence," a trial court's
findings "are considered binding on appeal." Rova Farms Resort, Inc. v.
Investors Ins. Co., 65 N.J. 474, 484 (1974).
"That the finding[s] reviewed [are] based on factual determinations in
which matters of credibility are involved is not without significance." Ibid."[I]n reviewing the factual findings and conclusions of a trial judge, we are
obliged to accord deference to the trial court's credibility determination[s] and
the judge's 'feel of the case' based upon his or her opportunity to see and hear
the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81,
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88 (App. Div. 2006) (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). Our
task is not to determine whether an alternative version of the facts has support
in the record, but rather, whether "there is substantial evidence in support of the
trial judge's findings and conclusions." Rova Farms, 65 N.J. at 484. It is the
role of the factfinder to sort through conflicting evidence, often with the aid of
credibility assessments, to determine what occurred. We will engage in
independent fact-finding "sparingly and in none but a clear case where there is
no doubt about the matter." Ibid. Legal conclusions, however, are reviewed de
novo. Manalapan Realty, L.P. v. Twp. Comm.of Manalapan, 140 N.J. 366, 378
(1995).
Applying these guiding principles, we conclude Hoo's challenges to the
orders granting summary judgment and counsel fees, as well as the judgment for
counsel fees entered in Kam's favor, are without merit. We affirm Judge
Friscia's summary judgment order, as well as her order and judgment for a partial
counsel fee award, substantially for the reasons expressed in her detailed
opinions of July 7, 2017 and August 31, 2017. We are more than satisfied her
findings of fact were supported by substantial credible evidence and her legal
conclusions were correct. Indeed, we find no error in her adoption of the
municipal judge's finding of probable cause to arrest Hoo and her determination
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that Kam's verbal and written statements to the police were corroborated by
witnesses and provided in good faith. Likewise, we agree with Judge Friscia's
assessment that statements Kam made to police for detection or prevention of a
crime were subject to a qualified privilege and Hoo did not overcome the
qualified privilege by clear and convincing evidence. Thus, Hoo could not
sustain a defamatory cause of action against Kam. Based on additional findings
wholly supported by the record, we also are satisfied Judge Friscia appropriately
found Hoo could not sustain a claim for malicious prosecution, civil conspiracy
or a tort of outrage. It is readily apparent Judge Friscia painstakingly evaluated
the viability of each of Hoo's claims against Kam, before granting summary
judgment in Kam's favor.
Turning to the order and judgment relating to counsel fees, we discern no
basis to disturb same, even though this unfortunate family feud caused Kam to
incur counsel fees well in excess of what he was awarded by Judge Friscia. We
agree with Judge Friscia that Hoo "had three different attorneys throughout the
course of the litigation, in seeking to pursue his unsupported claims," that he
had "personal knowledge of the facts and was advised as to the legal
circumstances of this matter throughout the litigation and appeals. It is evident
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that [Hoo] litigated this matter with no newly discovered facts and as such, has
acted in bad faith by protracting frivolous unsupportable litigation."
Affirmed.
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