LoBiondo v. Schwartz

In LoBiondo v. Schwartz, 323 N.J. Super. 391, 423, 733 A.2d 516 (App.Div.), certif. denied, 162 N.J. 488, 744 A.2d 1211 (1999), decided after trial of this matter, an objector vigorously protested a land-use application to expand a nearby beach club. 323 N.J. Super. at 395, 733 A.2d 516. The applicant filed an action against the objector, claiming defamation and malicious interference with business advantage. Id. at 395-96, 733 A.2d 516. The Court held that the objector could demonstrate a "special grievance" in the context of malicious use of process because of the chilling effect the applicant's complaint had upon her First Amendment freedom of speech and right to protest. Id. at 422, 733 A.2d 516. The Court declined the objectors' invitation to create a new cause of action, the so-called SLAPP-back suit, id. at 417-22, 733 A.2d 516, concluding that "the familiar cause of action of malicious use of process will do just as well." Id. at 422, 733 A.2d 516. The Court determined that a reasonable jury could have found that the protestor satisfied three elements of malicious use of process--lack of probable cause, actuated by malice, and favorable termination. Id. at 423, 733 A.2d 516. As to the "somewhat problematical" element of special grievance, we cited Penwag's holding that a special grievance consists of "interference with one's liberty or property," 76 N.J. at 598, 388 A.2d 1265, and observed: In the context of litigation of this sort, we do not read "interference with one's liberty" as embracing only physical freedom of movement and hence as limited to restraint on that freedom. Rather, we interpret "liberty" as including the entire bundle of freedoms afforded by the Constitution--including freedom of speech and freedom to petition. And we are convinced that the challenge to those freedoms attendant upon the filing of what may be conveniently referred to as a SLAPP suit and the constraint the suit imposes upon the exercise of those freedoms, both intended and thereby achieved, constitute a sufficient interference with one's liberty to satisfy the special grievance element. LoBiondo, supra, 323 N.J. Super. at 424, 733 A.2d 516.