NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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1 NOT FOR PUBLICTION WITHOUT THE PPROVL OF THE PPELLTE DIVISION SUPERIOR COURT OF NEW JERSEY PPELLTE DIVISION DOCKET NO. JOSEPH MSTROPOLE, v. Plaintiff-Respondent, BENJMIN J. GIUNT, Defendant-ppellant. Submitted September 11, Decided January 15, 2013 PER CURIM Before Judges Lihotz and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. SC Lite DePalma Greenberg, attorneys for appellant (Bruce Greenberg, of counsel and on the brief; Marissa L. uigley, on the brief). Respondent has not filed a brief. Defendant appeals from a Special Civil Part judgment awarding plaintiff $500 as "restitution" for plaintiff's alleged purchase of a trailer from defendant that was never delivered. On appeal, defendant asserts that there was no contract between

2 the parties and, therefore, plaintiff had no "standing" to file suit. We recognize standing is governed by R. 4:26-1, which provides "[e]very action may be prosecuted in the name of the real party in interest.... " Moreover, "standing involves a threshold determination which governs the ability of a party to initiate and maintain an action before the court. Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 80 (pp. Div. 2001) (citations omitted). However, this issue, raised now on appeal by defendant, was never formally presented to or addressed by the trial judge, precluding our review. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, (1973) (appellate courts generally will decline to consider questions or issues not properly presented to the trial court); Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (pp. Div. 1959), certif. denied, 31 N.J. 554 (1960)). More important, as we detail in our opinion, our review of the record convinces us that the trial itself was not fairly conducted. We reverse the judgment because the conduct of the trial judge prevented the parties from fairly presenting testimony, documentary evidence and argument pertaining to their claims and defenses. Moreover, the trial judge's domination of 2

3 the proceedings not only prevented the parties from crossexamining each other and the non-party witness, but also left the factual underpinning of the claims and defenses in doubt. We remand the matter for a new trial and direct that a different judge be assigned to the matter. The record before us is muddled, but it appears that plaintiff filed a complaint in the Small Claims Section of the Special Civil Part, alleging that he paid $1600 to defendant for a trailer that was never delivered to him. 1 The parties appeared without counsel for trial on September 17, It is necessary to recite extensive portions of the record which depict how the trial proceeded. The parties and a witness, nderson Reed, were sworn and the trial judge, after some preliminary observations about obtaining restitution as part of a criminal proceeding, stated to the plaintiff, "let me take your testimony." When plaintiff started to speak, the judge immediately interrupted and asked the following multi-part, leading question: "[y]ou had a relationship with [defendant] and paid him $1,600 for a trailer?" to which plaintiff responded "yes." 1 It appears that the dispute between the parties had initially been the subject of a criminal proceeding. The disposition of that proceeding is not before us. 3

4 The following colloquy then ensued between the judge and plaintiff: order, -- How did you pay, by cash, money Cash. -- check? You paid by cash? Yeah. Through my agent nderson Reed I sent him up there to meet with [defendant] to make the -- to make the payment and the deal. nd you never received the trailer? No. Was that payment actually made to [defendant]? Yes. Was any reason ever given to you as to why you wouldn't receive the trailer? He wanted the $300 rent. When we paid him for the trailer, we told him that I was going to register it and that I would be back for the trailer. pproximately three weeks later I went back for the trailer, and he demanded rent. He wanted $300 rent. nd, you know, that wasn't part of the deal. So I refused to pay rent for a trailer that has been sitting there for years. nd finally he found me as a buyer, and I didn't feel that the rent was due. nd that wasn't part of our deal to pay any rent for the trailer for Did you ask him for the $1,600 to 4

5 -- three weeks of - -- be returned? -- of storage. Pardon? I didn't think that $300 was appropriate for the three weeks that -- that I had been there, paid him, and come back to pick it up. Did you ask him for the return of the money? Well, I -- I did file a complaint in Wanaque. jury? nd that was referred to the grand nd they referred it here. They said that he had problems in Wanaque. No, no, no. I don't want to hear about that. Okay. Now the -- Your Honor, I do indictment that was returned, did it deal specifically with this transaction? Yes. nd he pled guilty? Yes. Your Honor, I -- I -- have the title. So I don't know how he can do anything with the trailer without the title anyway. I -- I have the title, I have the 5

6 registration. Made a good forth (sic) effort to pick... up my trailer. This was followed by the judge asking defendant, "[w]hat would you like to say in response to all this?" Defendant thereupon asked plaintiff "on what day did you come to look at my trailer the first time?" Plaintiff began to respond, but the trial judge immediately interjected and the following exchange took place: THE COURT: No, no, no, no, no, no, no, no. He answers the questions. You're not going to coach him on it. don't -- time -- MR. MSTROPOLE: Your Honor, I THE COURT: What was the first MR. MSTROPOLE: I don't remember exactly what day. When defendant then attempted to ask plaintiff if he had ever "called" defendant, the trial judge cut the question off and began to ask the defendant questions. What follows is the exchange between defendant and the judge which took place: Wait. Let's get down to the specifics here. Was there any agreement for him to buy the trailer for $1,600? I'm not going to go -- I'm not going to allow you to play a game here of being a lawyer. Okay. I'm not going to play -- 6

7 Let's get to the issue. The issue is that he paid you [$]1,600 for the trailer. bsolutely not. He's got the title. bsolutely not, Your Honor. He -- Then what did you plead guilty to? I plead guilty to a disorderly person. It was -- it was reduced from a third-degree crime down to a DP. nd what was the DP? There are many kinds of DPs? I'll -- I'll give you the copy right now if you'd like. What did you admit to? Let's -- let's get to that. I don't care about the - - the charge -- Okay. Well, first of all then I should say to you that -- that he was not my buyer. He was not the person that actually bought the trailer. It was Mr. Reed. nd that was -- and that I've always stated from day one. It took three years for the Prosecutor to admit that they didn't have a case because Joe Mastropole didn't buy it. It was ndy Reed that bought it. charge. ll right. Okay. Let me see the I -- to? I want to know what did you admit 7

8 I'm going to tell you exactly what I admitted to. Here you go. Can I present these two pieces of documents? Yeah. Give them to the Court Officer. I'll give them to the Court Officer. THE COURT: Is there any kind of written document that evidences this transaction? MR. MSTROPOLE: Your Honor, he signed the bill of sale. Your Honor, I'm not asking for that right now. THE COURT: Wait a minute. You don't control what goes on here, sir. No. But he's talking. Sir, I asked him the question. He responds. You don't interrupt. ll right. What do you think you -- you admitted to in court? That I received $500, but I did not receive it from Mr. Mastropole. Mr. Mastropole and I did not -- No, no, no. -- have any business -- I -- I'll get to your defense here. What did you admit to? When you went before -- That's exactly what I told him. -- Judge Portelli, -- Yes. 8

9 -- before you can plead guilty you have to give a factual basis. What did you tell the Judge you did? nd I'm -- and I'm telling you if you allow me to, sir. I will allow you. Don't be cute. I will -- No. If allow you. Okay. I pleaded that, yes, I took $500 from Mr. Reed. Now I didn't have any business with Mr. Mastropole. nd that's why Mr. Mastropole never got the trailer. Can you tell me why the indictment, which was then reduced to theft and failure -- by failure to make a required disposition of property, is written and it basically says that you failed to -- let me see here how they have it. You purposely did retain certain movable property, namely, money belonging to Joseph Mastropole upon agreement or subject to a known legal obligation to make specified payment or other disposition whether some -- from such property or its proceeds or from his own property to be received or an equivalent amount. nd you did deal with the property obtained as your own and failed to make the required payment or disposition. It specifically has his name in it. Not for the -- That's the charge. It's also got ndy Reed right on top of Joseph Mastropole, Your Honor. Well it says ndrew Reed and/or Joseph Mastropole. 9

10 Well, it's supposed to read ndy Reed. MR. MSTROPOLE: Well, Your Honor -- Your Honor, if I may say I do have a -- Why don't you tell me what happened here? Well, if you'll allow me to present a check that was given to me by the Prosecutor's Office? No. I don't want a check presented by the -- Well, -- First of all, what did the -- the Prosecutor's Office paid you money? Excuse me? You said a check presented to me by the Prosecutor's office. You mean, they gave you a copy of check? That was part of my discovery, yes. ll right. Let me see it. What is it? Just make a proffer. THE CLERK: D-2, YOUR HONOR. THE COURT: D-2. (D-2, Copy of $1,600 check, marked for identification) BY THE COURT: What is it? It's a copy of a [$]1,600 [] check, Your Honor. nd it is made out to ndy Reed. It's made out to ndy Reed? 10

11 Yes, it is, sir. THE COURT: Who signed -- who made out this check? MR. MSTROPOLE: My bookkeeper, Your Honor. THE COURT: Okay. So -- all right. BY THE COURT: Now what's your point? In other words, ndy Reed winds up with $1,600? Well, that's between those two. I've got no business with them. ll right. Well, then why -- why are you telling me? I'm trying to find out what happened between you and Mr. Mastropole. Nothing. Why don't we stick to that. bsolutely nothing. I have no business with -- with Joe Mastropole. I have business with ndy Reed. That's what I'm trying to tell you. The judge then addressed himself to the witness, nderson Reed, and asked him to "tell me what happened here?" Reed responded initially by observing "there's a penalty for perjury" and, after the judge chided him, the judge remarked, "[m]aybe everybody seated at counsel table should... worry about perjury." There followed lengthy questioning of Reed by the judge, after which the judge called upon plaintiff to answer 11

12 additional questions. The judge then turned to defendant and asked him a series of further questions and then returned to plaintiff. During this process, the parties and the witness interrupted frequently with random statements and arguments. fter this process went on for a while, the judge stated, in pertinent part: THE COURT: Look, I can go around and around, and around, and around, and around here, but I'm going to tell you right now, number one, I'm going to find -- because there is a lot of confusion here, and I don't know who to believe, and I -- quite frankly, I don't like what's going on here on either side. But I think that the amount in controversy is going to be reduced to [$]500 and not sixteen [hundred]. That's what we're going to start with. I'm telling you right now. nd, number two, I don't like the way this transaction took place. I don't like that Mr. Reed is doing all the talking. Even here in court he's the one who is the know it all. Everything is between him and Mr. Giunta. I understand why Mr. Giunta doesn't want to do anything initially because he doesn't even know who he sold it to. Mr. Reed is the one who's doing everything. This is what I find. nd, you know, Mr. Mastropole is busy building his houses, which is fine, but how is this individual supposed to know what's going on? fter this statement, the parties continued to speak under oath about the transaction. The judge then concluded: THE COURT: Well, here's what I'm going to do. The only proof that I have before me as far as any transaction is for $500. I 12

13 find this entire transaction to be very shady. I don't like what's going on on either side. nd I'm going to enter a judgment for $500. I do find that $500 made its hands into this individual. Mr. Giunta, I do find that the trailer never came back to Mr. Mastropole. I find that Mr. Mastropole or nderson Reed, or a combination of the two of them, could have been more diligent in picking up the trailer. I don't care what the excuses were. nd at this point I'm only going to enter a judgment for [$]500 because that's the only thing that there is a record of. lthough we assume the judgment was reduced to writing, the record before us does not include a written judgment. The irregular manner in which the trial was conducted denied defendant simple due process and thus requires a reversal of the judgment and a remand for a new trial. The judge essentially asked all the questions, many of which were clearly objectionable, afforded the parties no opportunity for crossexamination, failed to ascertain if either party had additional testimony or evidence to offer, announced a finding and conclusion, and, thereafter, considered what appeared to be assertions of fact or argument by the parties and the witness, before stating his decision. While we understand the difficulties entailed in a bench trial with self-represented litigants, such difficulties cannot justify the manner in which the trial was conducted here. s 13

14 stated by the Court in J.D. v. M.D.F., 207 N.J. 458, 481 (2011), referring to the trial court's role in addressing selfrepresented litigants in a domestic violence case, [M]any are unfamiliar with the courts and with their rights. Sifting through their testimony requires a high degree of patience and care. The pressures of heavy calendars and volatile proceedings may impede the court's willingness to afford much leeway to a party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount. judge is authorized to ask questions of witnesses, N.J.R.E. 614, which we review under an abuse of discretion standard. State v. Medina, 349 N.J. Super. 108, (pp. Div.), certif. denied, 174 N.J. 193 (2002). court may examine witnesses to clarify testimony, aid the court's understanding, elicit material facts, and assure the orderly and expeditious conduct of the trial. Ibid. Concerns about the impact of the judge as questioner "are less acute in the context of a bench trial, where judges serve as fact finders and have more latitude in questioning witnesses." State v. Taffaro, 195 N.J. 442, 451 (2008). Nonetheless, even in a bench trial, "a trial judge must take special care to craft questions in such a manner to avoid being perceived as an advocate." Super. 523, 537 (pp. Div. 2011). L.M.F. v. J..F., 421 N.J. "There is a point at which 14

15 the judge may cross that fine line that separates advocacy from impartiality. When that occurs there may be substantial prejudice to the rights of one of the litigants." Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958). We have no doubt that the trial judge was engaged in a good faith search for the truth. We also recognize that in cases involving self-represented parties, the court's involvement as questioner is often required to assist parties in presenting essential facts in support or in defense of a claim. Cf., J.D., supra, 207 N.J. at 481. However, in this case, even before plaintiff had the opportunity to present his case, the judge prematurely and unnecessarily intervened and dominated the examination of the parties and the witness. s the judge began to form conclusions about the facts, he, in effect, assumed the role of advocate in his questioning. In so doing, the judge deprived defendant of a fair trial. lso, a court may not, in the interests of expedition or because it believes sufficient facts have been elicited, fail to afford a party the opportunity to cross-examine a witness. Ibid. lthough the trial judge did not completely refuse to allow the parties to cross-examine each other, his failure to afford such examination was a functionally-equivalent mistake. 15

16 In Peterson v. Peterson, 374 N.J. Super. 116, (pp. Div. 2005), we observed: "Our system is committed to a search for truth within the context of the adversary system. Over the years that system has provided a reliable measure of justice." Graham v. Gielchinsky, 126 N.J. 361, 373 (1991). "trial, although inevitably an adversarial proceeding, is above all else a search for truth," State v. Fort, 101 N.J. 123, 131 (1985), and we have recognized that "[c]ross-examination is the most effective device known to our trial procedure for seeking the truth." Tancredi v. Trancredi, 101 N.J. Super. 259, 262 (pp.div.1968) (quoting First Nat'l Bank of Freehold v. Viviani, 60 N.J. Super. 221, 225 (pp. Div. 1960)). The error is particularly harmful when the denial pertains to the principal witness against the party. Thus, in this matter, the judge's failure to afford defendant an opportunity to cross-examine plaintiff and his witness was error. Without this critical safeguard, "the integrity of the fact-finding process" was compromised because the trial court was unable to fully and fairly assess credibility. Kentucky v. Stincer, 482 U.S. 730, 736, 107 S. Ct. 2658, 2662, 96 L. Ed. 2d 631 (1987) (quoting Davis v. laska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974)); see moresano v. Laufgas, 171 N.J. 532, 557 (2002). We also note other procedural errors adversely impacting the fairness of the proceedings. It was inappropriate for the 16

17 judge to make findings of fact before the trial was complete. The judge should not have considered claims pertaining to the preceding criminal matter without a proper foundation having been laid as to relevance, N.J.R.E. 401, and the absence of undue prejudice, N.J.R.E Further, the judge's procedure did not adequately inform defendant of his opportunity to present his defense case. Moreover, it is unclear that either party had completed the presentation of their case when the judge decided to render his decision. For all these reasons, we vacate the judgment and remand for a new trial. Because the original judge accorded weight to the testimony and may be committed to his findings, upon remand the matter should be assigned to a different judge. J.L. v. J.F., 317 N.J. Super. 418, 438 (pp. Div. 1999). Reversed and remanded. We do not retain jurisdiction. 17

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

[Cite as State v. Raines, 2015-Ohio-5089.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 15AP-477 (C.P.C. No. 14CR-3827) v. : (REGULAR CALENDAR) Dawn