Opinion
DOCKET NO. A-2038-14T3
06-14-2016
ALICE SINGER, individually and as the administrator of THE ESTATE OF RUTH SINGER, Plaintiff-Appellant, v. RALPH COZZINO, KERI COZZINO, NANCY A. SORRENTINO, COMPUTERSHARE LIMITED, SOVEREIGN BANK, n/k/a SANTANDER BANK, N.A., MARIA BELGIOVINE, VALLEY NATIONAL BANK, VALLEY NATIONAL BANCORP, TD BANK GROUP, f/k/a/ COMMERCE BANK, and BANK OF NEW YORK MELLON CORPORATIONS, Defendants-Respondents, and SUSAN PURCELL and KRISTI PURCELL, Defendants.
Thomas J. Wall argued the cause for appellant. John M. Delehanty (Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.) of the New York bar, admitted pro hac vice, argued the cause for respondents Computershare Limited, Sovereign Bank, TD Bank Group, and Maria Belgiovine (Seth R. Goldman (Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.), attorney for respondent Computershare Limited; Schenck, Price, Smith & King, LLP, attorneys for respondents Sovereign Bank and Maria Belgiovine; and Pepper Hamilton, LLP, attorneys for respondent TD Bank Group; Mr. Goldman, Mr. Delehanty, James A. Kassis, and Angelo A. Stio III, on the joint brief). Keri Cozzino, respondent, argued the cause pro se. Nancy A. Sorrentino, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz, and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4300-11. Thomas J. Wall argued the cause for appellant. John M. Delehanty (Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.) of the New York bar, admitted pro hac vice, argued the cause for respondents Computershare Limited, Sovereign Bank, TD Bank Group, and Maria Belgiovine (Seth R. Goldman (Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.), attorney for respondent Computershare Limited; Schenck, Price, Smith & King, LLP, attorneys for respondents Sovereign Bank and Maria Belgiovine; and Pepper Hamilton, LLP, attorneys for respondent TD Bank Group; Mr. Goldman, Mr. Delehanty, James A. Kassis, and Angelo A. Stio III, on the joint brief). Keri Cozzino, respondent, argued the cause pro se. Nancy A. Sorrentino, respondent, argued the cause pro se. PER CURIAM
Plaintiff Alice Singer, individually and as the administrator of the estate of her mother, Ruth Singer, appeals from a February 19, 2013 order enforcing a settlement agreement entered after a plenary hearing, as well as a September 19, 2014 judgment after a bench trial, and a subsequent December 8, 2014 order denying both reconsideration of the judgment and a new trial. After reviewing the record in light of the contentions advanced on appeal, we affirm in all respects.
Defendants Ralph and Keri Cozzino are married. Ralph was the son of Ruth's friend and lived in the same building as the Singers for four years in the 1980's. According to Keri, Ralph had a history of substance abuse problems and psychological issues. Defendant Nancy A. Sorrentino is Keri's aunt and a notary. Ralph took stock certificates from Ruth and converted the certificates, using a fraudulent power of attorney with a purported signature of Ruth notarized by Sorrentino. He pled guilty to the theft in federal court.
We refer to the Cozzinos and the Singers by their first names in this opinion for purposes of clarity and ease of reference. We intend no disrespect in doing so.
On August 15, 2011, plaintiff filed a complaint against defendants Ralph, Keri, Sorrentino, Computershare Limited (Computershare), Sovereign Bank, and Maria Belgiovine; and defendants Susan and Kristi Purcell. The complaint, as to all defendants except when otherwise indicated, alleged the following counts: 1) violation of the federal Racketeer Influenced and Corrupt Organizations Act (RICO Act), 18 U.S.C.A. §§ 1961 to 1968; 2) conspiracy to violate the federal RICO Act, 18 U.S.C.A. § 1962(d); 3) violation of the New Jersey Racketeering Act (N.J. RICO), N.J.S.A. 2C:41-1 to :41-6.2; 4) conspiracy to violate N.J. RICO; 5) fraud; 6) breach of fiduciary duty; 7) breach of contract as to Ralph, Computershare, and Sovereign Bank; 8) breach of the duty of good faith and fair dealing; 9) conspiracy; 10) aiding and abetting fraud; 11) unjust enrichment; 12) a request for injunctive relief and constructive trust with respect to amounts owed to the Singers; 13) negligent or intentional misrepresentations or omissions of fact; 14) conversion as to Ralph; 15) a request for the entire fair market value or replacement value of the personal property or for the proceeds of Ruth's stock as to Ralph; 16) a separate unjust enrichment claim as to Ralph; 17) breach of duty as a notary public as to Sorrentino; 18) breach of duty as to Belgiovine and Sovereign Bank based on providing a medallion guaranteed stamp; 19) breach of duty as a transfer agent as to Computershare; and 20) fraudulent transfer and requests for an order of attachment and an order of arrest as to Ralph, Keri, Susan Purcell, and Kristi Purcell. Plaintiff designated Louis H. Miron as her attorney.
The Purcells, who signed as witnesses to Ruth's power of attorney, which was notarized by defendant Sorrentino, did not appear in this litigation. --------
In March 2012 plaintiff filed her first amended complaint, adding Valley National Bank, Valley National Bancorp, and TD Bank Group (TD Bank) as defendants, and an additional count: breach of duty as to Belgiovine, Sovereign Bank, TD Bank, and Valley National.
After negotiations, a May 4, 2012 Terms Sheet was composed resolving the litigation between plaintiff and defendants Computershare, Sovereign Bank, Belgiovine, and TD Bank (the settling defendants). Plaintiff later repudiated the agreement and, after the settling defendants moved to enforce it, Judge Maureen B. Mantineo conducted a plenary hearing in February 2013. Plaintiff, represented by new counsel, and her former attorney, Miron, testified at the hearing.
Plaintiff testified she never authorized Miron to settle the matter as to any defendant, she never authorized Miron to sign the May 4, 2012 Terms Sheet on her behalf and Miron never explained the contents of the Terms Sheet.
Miron, testifying for defendants, stated that a settlement had been reached. He testified in detail about the legal advice he provided to plaintiff, including the cost-benefit analysis in continuing litigation.
Judge Mantineo concluded Miron possessed authority to enter into the settlement agreement. The judge found Miron "a much more credible witness" than plaintiff. The judge noted Miron recalled plaintiff "was pleased that she was going to net the $65,000." The judge also found that Miron's notes and billing records bolstered his argument "in that he said [plaintiff] was very conscious of the outlay of costs." Judge Mantineo found a May 7, 2012 letter from Miron to plaintiff supported the finding that Miron had authority and that the Terms Sheet was enforceable:
[T]he cover letter . . . [stated] "Enclosed is a copy of the letter agreement concerning many of the terms of the settlement with several of the defendants. A more detailed document will be drafted and circulated." Now, it didn't say that this one didn't count. It just says a more detailed. And those of us who do this recognize that many times we have the terms and then we put all the boilerplate and all of the other stuff.The judge noted that plaintiff, upon receiving the letter from her lawyer referring to a prior agreement, never questioned the existence of that agreement. She also stated that Miron's failure to send a signed copy of the Terms Sheet to plaintiff was not significant. In conclusion, citing to Jennings v. Reed, 381 N.J. Super. 217 (App. Div. 2005), for support, the judge found that Miron was given authority to execute the settlement agreement and that, even if plaintiff did not explicitly give Miron authority, plaintiff failed to overcome the presumption that Miron had authority to act on her behalf.
I suggest, in this particular case, that that is indeed what happened. That he had the authority.
The following month, plaintiff filed a second amended complaint, adding BNY Mellon Corporation (BNY) as a defendant. She also added one count: negligence as to BNY. In her second amended complaint, plaintiff designated a second lawyer as trial counsel.
A different judge conducted a three-day bench trial in August 2014. Plaintiff was represented by her third lawyer, while Keri and Sorrentino represented themselves. Ralph did not appear. Sorrentino admitted she notarized Ruth's signature on the durable power of attorney with the knowledge that Ralph was handling estate issues for his mother's friend. She was not paid for notarizing the document.
After Sorrentino's testimony, plaintiff's counsel called Keri as an adverse witness. During her testimony, the judge informed Keri of her right to remain silent under the Fifth Amendment of the Constitution:
[T]he concern that the Court has with regard to this continued testimony is that further proceedings, other than civil litigation, may result from these questions.
[Keri], I want to inform you that you have the right not to incriminate yourself and have the right to remain silent and exert a privilege under the Fifth Amendment, so as not to incriminate yourself, if there are further proceedings that may be contemplated or would arise as a result of your testimony.
Now, your testimony here on direct, as well as your testimony that you may be proffering as part of your case in chief may do just that. I feel as if I have a responsibility of informing you that this testimony that is under oath may result in
you incriminating yourself, which you would be constitutionally protected from doing under the Fifth Amendment.Keri stated that she was invoking her Fifth Amendment right and refused to reply to certain questions, finally saying:
[PLAINTIFF'S COUNSEL] So when you took the $88,000 did you ask Ralph if he had any other money?Keri also stated:
[KERI] SO, I -- I guess, you know what? At this time, I'm going to stop answering questions under the Fifth Amendment. I'm going to stop now. I'm no longer going to answer any questions that could incriminate myself.
[KERI] And I think at this time I am going to assert my Fifth Amendment. I'm not going to answer any more questions and I understand that I may be waiving my opportunity to ask myself questions later on.
The final day of trial, the trial judge discussed with Keri in open court his off-the-record telephone call to the federal judge who had accepted Ralph's guilty plea:
THE COURT: And I asked him a direct question and the direct question was, "As part of [Ralph]'s plea allocution, did he mention anything about [Keri]?" And [the federal judge] said that he did not. . . . [Ralph] didn't say anything.
THE COURT: . . . [W]hat I was looking to have [the federal judge] tell me, if anything, was whether [Ralph] had said anything as part of his plea that would exculpate you, inculpate you, suggest that
the Government was still seeking to target you or anything. Nothing was said. Okay?The trial judge then asked plaintiff's counsel if counsel had "any comment" about his communications with the federal judge, and counsel replied he did not. Keri then stated she did not wish to testify and acknowledged that an adverse inference may be drawn from her refusal to testify. Default judgment was entered against Ralph.
So, I -- it would be inappropriate for anybody to read anything into that, but I give you that to assist you in your determination as to whether you wish to testify or not, based on everything that I have said.
. . . .
[Y]ou are able to [present your defense], but you cannot shield your testimony from cross-examination. But that may expose you to potential criminal prosecution, which is all still a question mark, because . . . [Ralph] . . . didn't say anything as part of his plea allocution, as was recalled by [the federal judge].
The next month, the trial judge gave a lengthy oral decision, stating his findings of fact and conclusions of law. First, the trial judge found that Ralph was liable for the conversion of the stocks in the amount of $1,023,390.80, after calculating treble damages, pursuant to N.J.S.A. 2C:41-4, and attorney fees to plaintiff's third lawyer, in the amount of $35,506.25, and to her second lawyer in the amount of $83,856.89.
Second, the judge dismissed plaintiff's claims against Sorrentino and Keri. Applying the law on liability of co-conspirators, the court found "no direct evidence of the existence of a conspiracy and actual knowledge and direct participation in it" by either Keri or Sorrentino. The judge provided his reasons for dismissing all claims against Sorrentino on the basis of his credibility findings:
Nancy Sorrentino testified at trial. She also provided a written summation in which she unabashedly and undeniably admitted that she notarized the 2006 power of attorney . . . . She was self-represented in this matter. She spoke directly and respectfully during both her direct testimony and on cross-examination, she did not hesitate. Her -- my observations of her body language when she was testifying seemed to mirror her statements. I find her to be quite credible in her testimony and I also find most persuasively that she did not attempt to shirk her responsibility from the breach of her sworn duty as a notary public, I do not however, find her reasons for doing so legally persuasive.
Ms. Sorrentino is accused by the plaintiff of working with Keri Cozzino and Ralph Cozzino to effect the conspiratorial purpose of defrauding [plaintiff]. Although it does appear that Ms. Sorrentino was a catalyst in a purely objective sense, the plaintiff has not produced any evidence whatsoever as to Ms. Sorrentino's involvement with the -- what she
characterizes as a grand scheme. [Plaintiff] has not provided anything other than her own speculative belief as to the relationship between Keri Cozzino and Ms. Sorrentino that would serve to result in this illegal activity. I do not find therefore that the plaintiff has proven as to Ms. Sorrentino that she knew about the essential nature and general scope of which was known to each person who was alleged to be responsible for its consequences as is required to establish a civil conspiracy cause of action.
Additionally, it should be noted that common sense would suggest that even if a person were to be involved in a conspiracy, the likes of which [plaintiff] alleges, this person would have realized some, most specifically financial benefit, from this offense. No evidence is presented to that enrichment by Ms. Sorrentino as a result of her alleged actions by [plaintiff].
For these reasons the plaintiff has not sustained her burden of proof as to any cause of action against Ms. Sorrentino and consequently all counts of the complaint against Ms. Sorrentino are dismissed.
The trial judge did not make an adverse inference based on Keri's refusal to provide testimony during her case-in-chief. The judge found that plaintiff's accusations did not entitle her to the benefit of an adverse inference against Keri because plaintiff herself was not a credible witness:
Now at bottom and quite frankly, I do not find that [plaintiff] presented as a credible witness. Although she initially was polite and cooperative during her direct testimony by [her third attorney], she would frequently relapse into what appeared to be and what I might characterize as a vendetta
against [Ralph], [Keri] as well as Ms. Sorrentino. During her direct testimony she demonstrated an obvious bias against these parties. Her characterization and subsequent exaggeration of the involvement of [Ralph] with her mother as "a complete nightmare" and something that "hastened [Ruth]'s death" further supports the lack of believability of her testimony.
Unsupported and unsubstantiated allegations and accusations were leveled constantly during [plaintiff]'s direct testimony, even when the questions posed to her sought other information. On cross [plaintiff]'s hostile attitude persisted. Commenting in response to an alleged conversion of the stock certificates in response to . . . [Keri]'s questioning of her resulted in a frank correction by [plaintiff], "stole" and the use of the criminally charged word without any provocation bore significantly on this Court and especially to confirm my suspicion that [plaintiff] has an axe to grind against these three defendants.
Further, during cross other information was elicited about the time that passed from the original belief of the impropriety of [Ralph] and the filing of the complaint. [Keri] elicited from [plaintiff] that at least four years passed, with what appears to be by [plaintiff]'s knowledge, [Keri]'s involvement with her mother, yet nothing was done by her. [Keri] probed [plaintiff]'s statements that she was "terrified," meaning [plaintiff] was terrified of [Ralph], yet also elicited testimony from [plaintiff] that she accompanied [Ralph] to a bank and she was the recipient of at least $14,000 following the liquidation of a particular account, suggestive of her knowledge of what [Ralph] was doing. Her knowledge of these incidents, what might be considered [plaintiff]'s active participation in
receiving the benefits of [Ralph]'s alleged actions, suggest again and quite frankly conclude or allow me to conclude a lack of credibility.The trial judge also noted that if Keri was liable, common sense dictated that the United States Attorney's Office would have charged her with a crime.
Despite [plaintiff]'s belief that she was constantly or consistently the victim of a crime, the object specifically of harassment by [Ralph] and the recipient of substantial vitriol by [Ralph], never once did [plaintiff] ever contact law enforcement during this period of time. [Plaintiff] testified on cross by [Keri] that [Ralph] caused a scene at the hospital however, no independent witnesses were called to substantiate the fact, this fact - despite, in [plaintiff]'s words, that [Ralph] was acting as "a screaming nut," despite the circumstances there -- common sense would suggest that nurses, orderlies or other patients would have at least heard such unreasonable behavior. If it indeed occurred, these individuals were not called to testify in support of these allegations.
Now in addition to her direct testimony, the documentary evidence provided does not support the propositions for which [plaintiff] requests that I accept. She presents a deed [to Keri's home] . . . that does not include the name of [Ralph]. However, she does not also present any additional evidence such as mortgage documents, also matters of public record, that would possibly demonstrated the amount borrowed to finance the home. All that I am left with is [plaintiff]'s assertion that [Ralph] gave $88,000 to [Keri] to purchase the home.
[(Emphasis added.)]
The judge also found no credible testimony as to the fraudulent nature of Ruth's signature on the durable power of attorney. He compared the signature with known samples of Ruth's handwriting and found them to be similar. Only plaintiff's testimony, which the judge had found to be incredible, substantiated her theory that Ruth's signature was forged.
The trial judge denied plaintiff's motion for reconsideration of the judgment and for a new trial, making thorough factual and legal findings. The judge emphasized that his credibility determinations were "key to this controversy."
Plaintiff argues both Judge Mantineo and the trial judge committed reversible error. We accord "substantial deference to the trial court's findings of fact provided that they are 'supported by adequate, substantial and credible evidence.'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382-83 (App. Div. 2015) (quoting Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202-03 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998)). "Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). When reviewing factual findings, we "defer to the trial court's determination of a witness's credibility and demeanor." Riley v. Keenan, 406 N.J. Super. 281, 301-02 (App. Div.), certif. denied, 200 N.J. 207 (2009). Unlike findings of fact, "appellate review of legal determinations is plenary." State v. Reece, 222 N.J. 154, 167 (2015) (quoting State v. Handy, 206 N.J. 39, 45 (2011)).
Settlement
Plaintiff asserts Judge Mantineo erred in finding that her attorney had authority to settle with the settling defendants. As a preliminary matter, the settling defendants argue that plaintiff waived her right to appeal the enforcement order because $65,000 was paid to her by the settling defendants.
Generally, "a litigant who voluntarily accepts the benefits of a judgment is estopped from attacking it on appeal." Tassie v. Tassie, 140 N.J. Super. 517, 524 (App. Div. 1976). This principle "governs only where the appeal constitutes a repudiation of the judgment under which the benefits were received or is materially inconsistent therewith." Simon v. Simon, 148 N.J. Super. 40, 42 (App. Div.), certifs. denied, 75 N.J. 12 (1977). Our Supreme Court recognized "the right of a party to accept a sum to which he is in any event entitled and still pursue his request for a legal ruling on appeal which would increase that sum." Adolph Gottscho, Inc. v. Am. Marking Corp., 26 N.J. 229, 242 (1958). As plaintiff argues she is owed more than the settlement amount, we consider her appeal.
Plaintiff argues that Judge Mantineo erred as a matter of law in finding that plaintiff's counsel had authority to settle in accordance with the Terms Sheet. In New Jersey, "settlements are favored and will be enforced whenever voluntarily agreed to by the parties." Cap City Prods. Co. v. Louriero, 332 N.J. Super. 499, 508 (App. Div. 2000). A client is not bound by his or her attorney's negotiations "unless the client has expressly authorized the settlement or the client's voluntary act has placed the attorney in a situation wherein a person of ordinary prudence would be justified in presuming that the attorney had authority to enter into a settlement, not just negotiations, on behalf of the client." Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475 (App. Div. 1997). "[I]t is the clear policy of our courts to recognize acts by the attorneys of the court as valid and presumptively authorized and, unless the contrary appears, it will be presumed that a stipulation was duly authorized." Jennings v. Reed, 381 N.J. Super. 217, 231 (App. Div. 2005) (quoting Bernstein & Loubet, Inc. v. Minkin, 118 N.J.L. 203, 205 (E & A 1937)).
"Generally, an agent may only bind his principal for such acts that 'are within his actual or apparent authority.'" N.J. Lawyers' Fund for Client Prot. v. Stewart Title Guar. Co., 203 N.J. 208, 220 (2010) (quoting Carlson v. Hannah, 6 N.J. 202, 212 (1951)). Actual authority exists "when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal's manifestations to the agent, that the principal wishes the agent so to act." AMB Property, LP v. Penn Am. Ins. Co., 418 N.J. Super. 441, 454 (App. Div. 2011) (quoting N.J. Lawyers' Fund for Client Prot., supra, 203 N.J. at 220). Apparent authority exists "when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations." Ibid. (quoting N.J. Lawyers' Fund for Client Prot., supra, 203 N.J. at 220).
Judge Mantineo properly found that Miron had authority to settle in accordance with the Terms Sheet. The judge's decision relied heavily on her credibility finding that Miron was more credible than plaintiff. See Riley, supra, 406 N.J. Super. at 301-02 (requiring appellate courts to "defer to the trial court's determination of a witness's credibility and demeanor"). Judge Mantineo's credibility findings are supported by substantial, credible evidence. Miron had actual authority to execute a settlement agreement on May 4, 2012, as he possessed a reasonable belief that plaintiff permitted him to act. See AMB Property, LP, supra, 418 N.J. Super. at 454. The subsequent May 7, 2012 letter provides sufficient, credible evidence that Miron reasonably believed he was authorized to execute a fully, enforceable settlement agreement. The letter addresses the Terms Sheet and states that a "more detailed document will be drafted" for the parties to execute. Judge Mantineo found that the "more detailed document" was merely to address boilerplate language. The later June 26, 2012 letter from Miron to plaintiff also confirmed that plaintiff authorized Miron to agree to a $65,000 settlement proposal. It provides evidence of the communication between lawyer and client:
You authorized and agreed to the original settlement in return for $65,000.00. Yesterday, you stated that you really wanted $75,000, but settled for $65,000. This is completely accurate. However, you seem to have forgotten two (2) important details: a) these defendants would not pay you any more money despite our repeated demands; and b) I agreed to waive my 15% fee (pursuant to your retainer agreement) with respect to this settlement in order to maximize your net recovery. Thus, you are to receive the entire $65,000.00 from the settlement rather than $75,000.00, less 15%, or $63,750.00. You may also be able to recover the additional money due to you or Ruth's estate that relates to the five (5) stocks. Moreover, there is nothing in the Settlement Agreement that prevents you from making claims on behalf of your father's estate, to the extent that any such claims can be substantiated.Further, Miron's credible testimony demonstrated plaintiff was "pleased" that she was going to receive $65,000. His billing records showed thirteen phone conversations with plaintiff between April 4th and May 4th, the date of the execution of the Terms Sheet. Because the determination of Miron's reasonable belief of authority is a factual determination founded on credibility determinations, we defer to Judge Mantineo's well-reasoned decision.
Bench Trial
Plaintiff argues that the trial judge erred by impermissibly contacting a federal judge off the record, performing his own signature comparison, failing to draw an adverse inference from Keri's invocation of her Fifth Amendment right not to testify, and dismissing the case against Keri and Sorrentino. We disagree.
Plaintiff argues that the judge "conducted his own independent research on the issue of handwriting analysis" and improperly compared signatures on Ruth's power of attorney and other documents. To the contrary, "the fact-finder may compare a known sample of a person's handwriting with handwriting on a contested document and thereby determine whether the handwriting is the same on both without the aid of competent lay or expert testimony." State v. Carroll, 256 N.J. Super. 575, 597 (App. Div. 1992), certif. denied, 130 N.J. 18 (1992). As the factfinder, the judge properly compared Ruth's signature with other handwriting.
The judge's discussion of privilege with Keri constituted a permissible warning to a self-represented party. "The judge is not barred from alerting the witness of her self-incrimination right, but the judge's authority to caution the witness should be exercised sparingly and with caution," especially when the witness is represented by counsel. Attor v. Attor, 384 N.J. Super. 154, 164-65 (App. Div. 2006). Keri did not have counsel.
Plaintiff also argues the trial judge's reporting of his telephone call to the federal judge violated N.J.R.E 605, which provides "[t]he judge presiding at the trial may not testify as a witness in that trial." N.J.R.E. 605 is intended in large part to avoid prejudice in jury trials. See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 605 (2016). The judge was not a sworn witness, N.J.R.E. 603, although he did report on his brief conversation with the federal judge.
Generally, "an appellate court's ability to assess the impact of an ex parte, unrecorded communication is essentially impossible without an affirmative showing of what actually occurred in the ex parte proceeding." State v. Basit, 378 N.J. Super. 125, 135 (App. Div. 2005) (discussing an off-the-record discussion between the trial judge and the criminal jury). The judge here told the parties that he asked the federal judge the following question: "As part of [Ralph]'s plea allocation, did he mention anything about [Keri]?," and received the information that Ralph did not mention Keri. Plaintiff's trial counsel did not object to this brief telephone call and the judge fully reported on the record the question asked and the answer given. In his findings of fact, the judge noted that Keri was not charged with a crime and stated that "common sense" would dictate that she was not liable. Plaintiff does not claim that Keri was in fact charged, and the federal judge's report that Ralph did not mention Keri when pleading guilty was subject to verification by ordering the transcript of that proceeding.
Pursuant to the New Jersey Court Rules, however, "[a]ll trials . . . shall be conducted in open court unless otherwise provided by rule or statute." R. 1:2-1. We do not assess the brief one-question conversation as constituting reversible error in these circumstances, although having the telephone conversation on the record in the presence of the parties would have been preferable and feasible. See Manual for Interpreters Delivering Services by Telephone to Court Proceedings and Court Support Services, New Jersey Judiciary 6 (Apr. 24, 2001), https://www.judiciary.state.nj.us/directive/vicops/timan4.pdf (stating that rooms where "proceedings or hearings are held" will have a "speakerphone situated on the judge's bench").
Plaintiff also argues that the trial judge erred by misapplying the holding of Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976), asserting that Baxter requires him to draw an adverse inference from Keri's assertion of her Fifth Amendment privilege. The Fifth Amendment privilege against self-incrimination is codified in the New Jersey Statutes and New Jersey Rules of Evidence. See N.J.S.A. 2A:84A-19; N.J.R.E. 503. Our Supreme Court has "treated our state privilege as though it were of constitutional magnitude, finding that it offers broader protection than its Fifth Amendment federal counterpart." State v. O'Neill, 193 N.J. 148, 176-77 (2007).
The United States Supreme Court has recognized that the Fifth Amendment protects a person, not only in criminal prosecutions, but also in answering "official questions put to him [or her] in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Baxter, supra, 425 U.S. at 316, 96 S. Ct. at 1557, 47 L. Ed. 2d at 820 (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322, 38 L. Ed. 2d 274, 281 (1973)). However, "in administrative and civil proceedings, it is permissible for the trier of fact to draw adverse inferences from the party's plea of the Fifth Amendment." State v. Merlino, 216 N.J. Super. 579, 587 (App. Div. 1987) (emphasis added), aff'd, 109 N.J. 134 (1988).
The trial judge did not abuse his discretion in failing to draw an adverse inference from Keri's refusal to testify. The law does not mandate an adverse inference and, like other evidentiary rulings, it is subject to the trial judge's discretion. See Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 474 (App. Div.), certif. denied, 212 N.J. 198 (2012) (applying an abuse of discretion standard for adverse inference rulings); N.J. Div. of Child Prot. & Permanency v. K.G., ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 26) (stating that appellate courts "review a trial judge's evidentiary rulings for abuse of discretion").
Plaintiff also argues that the trial court erred by dismissing all claims against Sorrentino and Keri. Plaintiff argues that the facts show that "there can be no doubt that [Sorrentino] did not exercise due care in performing her functions [as a notary]." As to Keri, plaintiff argues that the judge improperly found Keri credible and plaintiff not credible.
"We defer to the credibility determinations made by the trial court because the trial judge 'hears the case, sees and observes the witnesses, and hears them testify,' affording it 'a better perspective than a reviewing court in evaluating the veracity of a witness.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). Deferring to the trial judge's credibility findings, we affirm the dismissal of plaintiff's claims against both Sorrentino and Keri. We affirm substantially for the lengthy and detailed reasons placed on the record by the trial judge.
As the judge stated, a civil co-conspirator must "share the general conspiratorial objective" and know "the essential nature and general scope" of the conspiracy. Morgan v. Union Cty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 365 (quoting Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir. 1979), rev'd on other grounds, 446 U.S. 754, 100 S. Ct. 1987, 64 L. Ed. 2d 670 (1980)), certif. denied, 135 N.J. 468 (1994). The trial judge found no proof that Sorrentino was aware of a conspiracy. The trial judge also found that plaintiff failed to show "direct evidence of the existence of a conspiracy and actual knowledge and direct participation in it by" Keri. The judge explained that plaintiff's allegations were "[u]nsupported and unsubstantiated" and were based on plaintiff's "vendetta" against Keri.
The final point of plaintiff's appellate brief consists of only the following statement: "For the reasons set forth the court also erred when it failed to grant the motion to vacate the judgment and for a new trial. Rule 4:49-2, R. 1:7-2, and to amend the final judgment." In light of our review of plaintiff's other claims, this final argument is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).
Because Judge Mantineo, who conducted the pre-trial plenary hearing, and the trial judge who presided over the bench trial did not commit reversible error in any respect, we affirm the February 19, 2013 and December 8, 2014 orders and the September 19, 2014 judgment in their entirety.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION