Opinion
DOCKET NO. A-5396-10T4
03-06-2012
C & R REAL ESTATE, INC., Plaintiff, v. CHARLES ROBERTS and STERN LAVINTHAL FRANKENBERG & NORGAARD LLC, Defendants, and DOROTHY CAPPIELLO and STEVE CAPPIELLO, Defendants-Appellants, and LEEANN CERVELLI, Defendant-Respondent.
Vincent J. La Paglia argued the cause for appellants. Geoffrey W. Castello argued the cause for respondent (Kelley Drye & Warren, attorneys; Mr. Castello, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Fisher and Baxter.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5198-07.
Vincent J. La Paglia argued the cause for appellants.
Geoffrey W. Castello argued the cause for respondent (Kelley Drye & Warren, attorneys; Mr. Castello, of counsel and on the brief). PER CURIAM
Justice Potter Stewart, when a member of the United States Court of Appeals, wrote that although "[t]he prompt and vigorous administration of the . . . law is to be commended and encouraged[,] . . . swift justice demands more than just swiftness." Henderson v. Bannan, 256 F.2d 363, 390 (6th Cir.) (Stewart, J., dissenting), cert. denied, 358 U.S. 890, 79 S. Ct. 129, 3 L. Ed. 2d 118 (1958). Similarly, in this court's early years, we held that "[n]o eagerness to expedite business, or to utilize fully the court's time, should be permitted to interfere with our high duty of administering justice in the individual case." Pepe v. Urban, 11 N.J. Super. 385, 389 (App. Div.), certif. denied, 7 N.J. 80 (1951). Here, we remand for a new trial because the denial of a request for an adjournment of the trial -- that relegated two octogenarians, one of whom was physically unable to attend, to representing themselves -- constituted an abuse of discretion.
At the time of trial, defendant Steve Cappiello was eighty-six years old; defendant Dorothy Cappiello was eighty years old.
Like Pepe, we recognize that "this appeal is unusual in that no consideration need be given to the facts that led to the litigation." Id. at 387. We provide only the basic circumstances that led to the events relevant to this appeal.
Plaintiff C&R Real Estate, Inc., a closely-held corporation formed in 1977 by defendants Charles Roberts and Steve Cappiello, owns a commercial building in Hoboken, which contains a restaurant and bar, as well as residential rental units. Plaintiff commenced this action, alleging that its books reveal that Roberts owned fifty percent and defendants Lee Ann Cervelli and Dorothy Cappiello each owned twenty-five percent of the corporation's outstanding shares. Plaintiff sought a declaratory judgment regarding the true ownership of its outstanding shares because defendant Steve Cappiello claimed to be the true owner of shares held in the names of Lee Ann Cervelli, who is Steve Cappiello's grand-niece, and Dorothy Cappiello, his wife. Summary judgment motions led to a determination that Roberts owned fifty percent of the outstanding shares, but factual disputes regarding the other fifty percent necessitated a trial involving the Cappiellos and Cervelli.
A peremptory trial date was scheduled to occur on January 19, 2010. On December 30, 2009, the Capiellos' attorney wrote to the trial judge, seeking "permission to participate in ex parte communications with the [c]ourt relative to the ability and propriety" of his "continuing to participate in this matter" and of defendants' "present intention to proceed pro se." The letter further expressed that defendants "join in this request and also seek to directly communicate their position."
The Cappiellos, when referred to collectively, will hereafter be referred to as "defendants"; when referred to individually, they will be referred to by their first names to avoid confusion.
A conference occurred in court on January 7, 2010; the proceeding was not recorded so we have no insight into who participated and what was said. As a result of this in camera proceeding, the trial was adjourned until April 26, 2010. The clerk's January 11, 2010 notice did not express that the new trial date of April 26, 2010, was peremptory. On January 25, 2010, the trial judge entered an order that permitted counsel to withdraw and defendants to thereafter proceed pro se.
Certifications were executed and filed -- apparently after the conference -- by defendants as well as their attorney at the time. These certifications requested counsel's permission to withdraw and defendants' permission to proceed pro se. Defendants certified that "[t]his substitution will neither cause nor result in any delay of this matter."
At least a week before the April 26, 2010 trial date,defendants' current counsel sought an adjournment of the trial. No record regarding this application was created, although the nature of the request and the judge's denial of it were later discussed on the record on April 26, 2010. There appears to be no dispute, as the judge stated in her written opinion, that defendants' current counsel sought an adjournment a week or so earlier because his retention as defendants' attorney was dependent upon an adjournment and, without an adjournment, he felt he would not have sufficient time to prepare for trial.
Defendants' current counsel asserts that the request was made eleven days prior to the trial date; in her written opinion of June 30, 2010, the judge stated that the request was made "[t]he week prior to the scheduled trial date." This minor disagreement about the timing of the adjournment request is not relevant to our disposition of the issues on appeal.
The judge having denied the request for an adjournment, all counsel of record and the parties -- with the exception of Dorothy -- appeared for trial on April 26, 2010. Defendants' current counsel also appeared and again sought an adjournment. Other than expressing the insufficient time he had to prepare for trial, counsel also asserted that Dorothy had broken her arm, was taking pain medication, and was unable to attend. With that, counsel concluded, "that's the long story to say that at this stage I'm not representing anybody," prompting the following discussion:
THE COURT: Okay. Well, why don't you --The judge then criticized the doctor's letter regarding Dorothy's unavailability, and added the following comments regarding the adjournment request and Dorothy's absence:
MR. La PAGLIA: I just wanted to let you know what's happening.
THE COURT: Well, I guess you can step back down, because if you're not a part of this --
MR. La PAGLIA: It doesn't seem that way.
THE COURT: All right. So, then who is pro se then?
MR. La PAGLIA: Well, Dorothy is home, and
Steve is here.
. . . .
THE COURT: So, he's going to represent [him]self?
MR. La PAGLIA: Well, like I said, Judge, they both wanted me to represent them.
THE COURT: Do you want to represent them?
MR. La PAGLIA: Oh, yeah, sure.
THE COURT: Okay. You just don't want to represent them today.
MR. La PAGLIA: I just can't represent -- well, first of all, there's an objection to me coming in,[] but aside from that, I couldn't represent Dorothy today because
she's ill.
THE COURT: Okay. . . . So, Dorothy's unavailable.
MR. La PAGLIA: She's unavailable.
THE COURT: Was Dorothy deposed?
MR. CASTELLO [counsel for Cervelli]: Yes, Your Honor, she was.
THE COURT: Okay. Well, we'll use her deposition. So, that[] problem is solved.
If Dorothy were, you know, indispensable, and the key to the whole case, I think she would at least appear on somebody's witness list, and she doesn't.After a short break, the judge again discussed the adjournment request insofar as it related to Dorothy's circumstances:
So, I'm not going to adjourn the trial. So, we're moving forward today whether Mr. Cappiello represents himself, or whether you [LaPaglia] give it some further thought and decide to represent him.
It's a bench trial, it has to finish Thursday, because I'm leaving on vacation.
So, I note the four to five day estimate in here, but I'm holding you to four; okay? Because at least Mr. Castello has one, two, three, four, five witnesses, and I don't know what your [Steve's] intentions are, who you plan on calling. But it would seem this is a closely held corporation.
The issue is who owns what, and what's the formation of the corporation. It would seem the same witnesses would be called by both sides. So, I think it's doable. We can get it done by the end of Thursday. And if Mrs. Cappiello . . . changes her mind, or feels
better, she can join us in progress. There's no jury, there's no stigma attached to her not being here. . . . I'm not going to adjourn the trial.
I've seen [the doctor's] letter of April 22nd, 2010. It's in front of me now.Defendants' current counsel then left the courtroom, and the trial proceeded with Steve representing himself and Dorothy in absentia.
And although he says, "Dorothy Cappiello cannot attend and participate in the trial before I have an opportunity to reevaluate her in early May," I am not satisfied with the statements and the opinions given by [the doctor] that she is unable to be here.
In my view, she's electing not to be here. Maybe it's inconvenient, maybe it's not the optimum circumstances, but as long as she's not hospitalized, and she's not bedridden, or confined to a bed, she's electing not to be here.
So, I spoke to a -- I raised this issue in chambers, and it bears mentioning on the record, that number one, she's not -- and I know she's a party, she has a right to be here, but I -- I view this as her choosing not to be here.
. . . She's not listed as a witness . . . . Mr. Castello indicates that in her deposition on the dispositive issues her testimony was that she didn't remember anything, and she had no useful information to share during discovery.
And I don't understand why her testimony would be any different at trial.
So, in terms of her being an essential witness at the trial, that doesn't seem to be the case. And yes, she's a party. She
can be here. She's welcome to be here. The trial, I've blocked out four days. She's welcome to join us at any point in time. We don't have a jury. So, there's no stigma attached to her joining us in progress, and she's free to do that. Hopefully, someone will communicate that to her.
But I'm not adjourning the trial based on what [the doctor] submitted.
Cervelli claimed counsel's representation of defendants was barred by a conflict of interest allegedly arising from some involvement counsel had with the plaintiff-corporation in 1990. The judge heard argument and concluded: "I don't see an actual conflict, and I'm not sure that I see an appearance of any impropriety." This ruling is not questioned here nor is it relevant to our disposition of this appeal.
The judge found the doctor's letter unworthy of credit because "[c]onspicuously absent from his letter was any information as to when she injured her arm, and when everybody knew about this."
After Cervelli's counsel waived his right to make an opening statement, the judge directed him to call his first witness without asking Steve if he cared to make an opening statement. Before the first witness was called, however, the following occurred:
THE COURT: I just want the record to reflect, Mr. Cappiello, this is Steven Cappiello; correct? Yes?The judge stated that Linda Cappiello could assist her father if he could not hear or locate a document but that she could not object on his behalf or speak for him.
MR. CAPPIELLO: Yes.
THE COURT: And you're representing yourself here today, sir?
MR. CAPPIELLO: I guess so.
THE COURT: Okay. Well, you don't have an attorney with you; right?
MS. L. CAPPIELLO: Correct.
THE COURT: And can you identify yourself?
MS. L. CAPPIELLO: Yes. Yes, Your Honor. My name is Linda Cappiello. I'm Steve Cappiello and Dorothy Cappiello's daughter. I've had power of attorney which may or may not be relevant for several years.
My intention here was just to guide him, and in light of him not having an attorney, and him having severe deafness, and speech discrimination,[] I was hoping I might be able to help along.
We assume the speaker was referring to a difficulty Steve may have had in discerning the speech of others. This circumstance was not further explored.
In the many instances during the trial when Linda Cappiello was required to assist her father, she was first identified in the transcript as "Ms. L. Cappiello." She later testified, revealing when asked that she was a physician, and was later referred to in the transcript when assisting her father as "Dr. L. Cappiello."
Again, without providing Steve with an opportunity to make an opening statement, the judge directed Cervelli's counsel to call his first witness and the trial proceeded with more than a few snags caused, at least in part, by Steve's difficulty in hearing what was said in the courtroom. We need not recite, item by item, the difficulties caused by Steve's representation of himself due not only to his hearing limitations but also possibly because of other physical or cognitive limitations.
We note that on the morning of the second day of trial, Steve presented the letter of a board certified neurologist, dated April 26, 2010, which stated that Steve has been his patient for years and "carries the following neurological diagnoses; frontotemporal dementia, cerebrovascular disease, and a severe form of cervical myelopathy[], [which] can cause a severe difficulty in impulse control and cognitive functioning." The letter also stated that "the patient will also easily fatigue and can get very weak physically from standing or sitting for any prolonged period of time . . . which for him may be as short as 15 minutes of standing." The neurologist further opined that Steve "is neither physically nor medically capable of representing himself in a court of law." The judge responded by saying, "luckily you don't have to stand at all, sir." She also expressed her opinion that Steve had "shown no signs of dementia or difficulty with . . . controlling [his] impulses or [his] cognitive functioning." And, as for the neurologist's opinion that Steve was not capable of representing himself, the judge held that that was "a legal conclusion, not a medical one." The judge did, however, advise Steve that he should alert her if "at any time you're feeling ill." With that advice, the judge then directed that the trial continue.
The record demonstrates that Steve was incapable of representing himself in a reasonably competent manner. Indeed, this is glaringly demonstrated by the fact that Steve did not testify, leaving unrebutted much of the evidence upon which the judge relied in ruling against him on the merits. And Dorothy was unable to appear, leaving her interest in the case completely unrepresented.
The judge observed in her written opinion that Steve attempted to convey facts in his written summation, which she properly found were not evidential.
The deposition testimony that, in the judge's view, made unnecessary Dorothy's appearance was never offered by any party, and it is not contained in the record on appeal. As a result, we cannot gauge the effect her absence had on the trial and ultimate disposition of the merits.
We are thoroughly satisfied that a proper exercise of discretion militated against proceeding with the trial in the circumstances that existed on April 26, 2010. The trial judge may have felt that defendants were attempting to play fast and loose with her schedule. And she may have been correct to some degree. To be sure, defendants executed certifications in January 2010, expressing their desire to proceed pro se and, if permitted to do so, they would not delay the proceedings. As noted earlier, the record does not reveal the content of the conference that led to the filing of those certifications. But, even if it was unreasonable for these defendants to have changed their mind about acting pro se at trial, this alleged affront to the court's calendar could have been redressed through other less draconian means. For example, if the request was not made in accordance with the rules, see R. 4:36-3(b), or appeared designed to merely delay the proceedings, the judge could have permitted the delay and imposed an appropriate sanction. See R. 1:2-4(a). Nothing in the record suggests that the judge entertained any lesser sanctions before proceeding in Dorothy's absence and with Steve acting pro se through the assistance of his daughter.
Cervelli argues that no harm was done because the case was "simple," "not complicated" and "straight forward." We are not convinced that is so even though a review of the trial transcripts might suggest the case's simplicity. The case may now seem to appear uncomplicated because Steve was not capable of eliciting evidence, precluding the admission of other evidence, or cross-examining witnesses in a way that might have better supported his position.
Ultimately, a trial judge has considerable discretion in ruling upon requests for adjournments which we will not second-guess "unless it appears an injustice has been done." Allegro v. Afton Village Corp., 9 N.J. 156, 161 (1952); Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 343 (App. Div. 2000); Nadel v. Bergamo, 160 N.J. Super. 213, 218 (App. Div. 1978). We conclude that an injustice was done here.
To be sure, the course of managing cases in our courts does not always run smooth and, in many instances, desultory conduct by an attorney or a litigant permits a denial of an adjournment request. See, e.g., Vargas v. Camilo, 354 N.J. Super. 422, 430-31 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003). Experience, however, instructs that cases are often expedited more efficiently when judges permit rather than intractably deny adjournment requests that only briefly delay matters. Instead of tolerating a thirty-day delay, the judge conducted a trial at which an eighty-six year old man with hearing and possibly cognitive difficulties was required to represent himself -- and made a poor job of it -- and an eighty-year old woman, who was physically unable to attend, went unrepresented. As a result of the judge's insistence upon proceeding at a most unpropitious time, the parties' expenses and efforts, as well as the court's time and efforts, over the course of a three-day trial were wasted. The judge's inauspicious decision to proceed also generated this appeal, requiring further efforts, incurring additional costs, and delaying even further the ultimate disposition of the merits of this case. And now the unreasonable denial of the adjournment request requires a new trial. In balancing what might have been permitted with what eventually occurred, the trial court and the parties would have been better served by the mere thirty-day delay sought by defendants.
In Vargas, we affirmed the trial judge's decision to commence a trial in the defendant's absence where his attorney delayed until the week before trial to advise the defendant of the trial date and was then unable to locate him. The trial judge held the case over from the Wednesday trial date -- the third trial date in the case, id. at 431 -- to the following Monday to provide counsel with additional time, a response that we viewed as "more than generous and certainly an appropriate response to defense counsel's casual approach to litigation responsibilities," id. at 430.
We find the judge's holding with respect to Dorothy to be particularly perplexing. The fact that she was deposed hardly resolved the problem about her absence. The judge's finding that she was available but chose not to attend is the product of pure speculation and flies in the face of a letter from a physician who opined that Dorothy could not be present. Moreover, the fact that Dorothy was deposed only alleviated problems regarding her unavailability as a witness; it did nothing to ameliorate the damage caused by her inability to be present to represent her own interests. In other words, the deposition could take the place of Dorothy's live testimony but the deposition could not cross-examine witnesses, introduce evidence, object, or make arguments to the court.
We agree with the sentiments expressed by our colleague in his concurring opinion. Expanding caseloads and decreasing availability of trial time impose a duty on litigants to immediately advise of conditions -- such as defendants' physical ailments -- that might jeopardize a trial date. We have no doubt that defendants acted irresponsibly in waiting until the morning of the trial date to advise of Dorothy's condition and until the morning of the second day of trial to advise of Steve's neurological problems. Nevertheless, as we have explained, the judge still should have adjourned this trial. Indeed, nonjury trials are more amenable to rescheduling or continuations. And the existence of congested trial calendars, particularly in our more populated vicinages, such as here, suggest that the trial judge could likely have found in the courthouse other parties more anxious to go to trial that day or some other ready matter to fill the void created by the unanticipated but necessary adjournment.
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Notwithstanding expanding caseloads and goals for disposing of cases within specified time periods, our court rules remain "a means to the end of obtaining just and expeditious determinations between the parties on the ultimate merits." Ragusa v. Lau, 119 N.J. 276, 284 (1990) (quoting Tumarkin v. Friedman, 17 N.J. Super. 20, 27 (App. Div. 1951), certif. denied, 9 N.J. 287 (1952)); see also Ponden v. Ponden, 374 N.J. Super. 1, 9-10 (App. Div. 2004), certif. denied, 183 N.J. 212 (2004); Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003). The interests of justice were disserved here. Because the judge abused her discretion in denying the adjournment request, we are required to remand for a new trial that must now take place before a different judge unfamiliar with the case. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617 (1986) (recognizing that a court that has heard evidence and ruled on the merits "may have a commitment to its findings" and that "it is best that the case be reconsidered by a new fact-finder"); In re Guardianship of R., G., and F., 155 N.J. Super. 186, 195 (App. Div. 1977) (assigning a termination case to a new judge because "[t]he judge who heard the matter below has already engaged in weighing the evidence and has rendered a conclusion on the credibility of the Division's witnesses"); see also State v. Henderson, 397 N.J. Super. 398, 416-17 (App. Div. 2008), aff'd in part, modified in part on other grounds, 208 N.J. 208 (2011); State v. Gomez, 341 N.J. Super. 560, 579 (App. Div.), certif. denied, 170 N.J. 86 (2001).
The judgment under review is vacated. We do not retain jurisdiction.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELATE DIVISION
CARCHMAN, P.J.A.D., concurring.
I concur in the decision of the court to remand for a new trial. I write separately to focus on two issues that I deem troublesome and worthy of additional comment.
I agree that a remand is appropriate as a result of the purported inability of defendant Dorothy Cappiello to attend trial because of a broken arm. I am unable to discern from the record whether she had any information relevant to resolving the dispute in issue, but as a party, she did have the right to be present, to cross-examine witnesses and participate in the trial as would any other litigant. However, the information regarding her alleged disability, as well as the belated information about the cognitive limitations of defendant Steve Cappiello, provide a link to my other issue of concern.
The history of this litigation and the facts relevant to what transpired at trial are thoroughly presented by my colleagues in the opinion of the court. Yet, these facts exemplify the difficulties and frustration that trial judges must deal with when they have nurtured and managed a case to the eve of trial only to be confronted with an application by a litigant's attorney to be relieved as counsel, together with a stipulation by the litigant that, with a four-month continuance, the party can proceed pro se, and the withdrawal will not further delay the trial.
Unfortunately, what transpired between counsel, the judge and opposing counsel was not preserved for the record. The record is also devoid of any indication that defendant Steve Cappiello's alleged neurological conditions, raised in the middle of trial, were ever brought to the attention of the trial judge during the two years preceding trial. I ask, rhetorically, when was the judge going to be informed of these facts? According to the record before us, she became aware of these facts on the second day of trial when defendant presented the judge with a letter from his doctor.
Although I agree that Dorothy's circumstances warranted a continuance of the trial date, the information regarding her condition was similarly not conveyed to the trial judge until the day of trial. No mention was made of when the fracture occurred, her medical regimen or the circumstances of her condition. Most important, no mention is made of when this information was first known or whether it could have been raised earlier so as to assist the trial judge in making a fully informed decision and an opportunity to adjust her calendar accordingly.
I cannot disagree with any of the tenets of law cited by my colleagues. Nor can I disagree with the result. However, given the trial courts' ever expanding case loads and decreasing availability of trial time, trial judges cannot be placed in the position of having to grant an adjournment on the eve of trial, or later, especially with a date certain for trial, based on skeletal information about previously undisclosed disabilities. Such circumstances serve no one's interests, certainly not the litigants, the lawyers, or the courts.
I concur in the result.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELATE DIVISION