ERIN LEITNER v. CINDY WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4879-10T1

ERIN LEITNER AND SONIA MARQUEZ,

Plaintiffs-Respondents,

v.

CINDY WILLIAMS,

Defendant,

 

and

ERNEST WILLIAMS

Defendant-Appellant,

and

IMAGINE THE FUTURE, LLC,

Defendant.

____________________________________

February 23, 2012

 

Argued February 8, 2012 - Decided

 

Before Judges Fuentes, Graves, and Harris.

 

On Appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. DC-10098-10.

 

Chinemerem N. Njoku argued the cause for appellant (Michael I. Okechuku, P.C., attorneys; Mr. Njoku, of counsel and on the brief).

 

Erin Leitner, respondent, argued the cause pro se.

 

Sonia Marquez, respondent, argued the cause pro se.

PER CURIAM

In April 2010, plaintiffs Erin Leitner and Sonia Marquez filed a deceptively simple breach of contract complaint1 against two individuals, defendants Cindy Williams and Ernest Williams, seeking remedies for their alleged failure to perform a contract to provide education and training in the field of diagnostic medical sonography. The complaint sought damages "adding up to [$]3600 for Sonia [and] [$3300] for Erin," stemming from their futile payment of tuition. More than one year later, on May 2, 2011, after at least five court appearances, the Special Civil Part entered judgments against only appellant Ernest Williams, pursuant to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, in the amount of (1) $10,200 plus costs in favor of Leitner and (2) $10,800 plus costs in favor of Marquez.2 We reverse and remand for a new trial because we have no confidence that the parties received the full measure of due process to which they were entitled, which constitutes a miscarriage of justice under the law.

I.

The underlying facts of the parties' dispute are less significant than the tortured procedural process they endured. Part of our difficulty in reconstructing the facts is due to the informality of the trial process. Instead of allowing each witness to testify in turn, and then be subjected to cross-examination, the trial court engaged in an unstructured and amorphous exchange merely an under-oath conversation among the four parties. Although this may have suited the trial court's goal of efficiency, it has rendered effective appellate review impossible.

In short, plaintiffs enrolled in a technical school once operated by the individual defendants, which possibly was owned by Imagine the Future, LLC.3 Williams denied ownership, claiming only to have been a member of the LLC that operated the facility.

After paying tuition and attending a year of classes throughout 2009, plaintiffs were set to begin their required externships. They claimed that in January 2010, the school was sold to a new operator and soon closed, leaving them without the opportunity to complete their course of study. When they tried to transfer their credits to a comparable school, they were unable to do so and were required to repeat the entire curriculum.

Williams agreed that the school was sold, but contended that its successor PC Tech Learning Center, LLC kept the facility open and operating, but plaintiffs elected to transfer anyway. Williams proffered documentary evidence "certificates of students who graduated in 2010" (the certificate evidence) to prove that the school continued in operation. Although the trial court did not expressly refuse to review Williams's certificate evidence, in the tumult of the proceeding, those certificates were not examined.

At the conclusion of the give-and-take, none of which included permitting the pro se parties to cross-examine each other, the court made the following findings:

I credit the testimony of the two plaintiffs that they were at a meeting with Mr. Williams, the CEO of . . . Imagine the Future, LLC, and that Mr. Williams told them, introduced them to the new owners of the PC Tech Learning Center[, LLC].

 

. . . .

 

I find that there was never a legitimate sale of Imagine the Future, LLC.

 

. . . .

 

[T]here's no evidence that [PC Tech Learning Center, LLC] ever succeeded to the license of Imagine the Future, LLC, and that's essentially the only, the only asset which is worth anything of the corporation, the LLC that plaintiffs were under contract to.

 

. . . .

 

Mr. Williams did not follow through on [e]nsuring that the plaintiffs were given the education and the instruction to which they were entitled which has caused them harm. Their loans are in default, and they cannot obtain new loans because of that.

 

So I find that this is an unconscionable commercial practice. It's deceptive. It was taking of money and not arranging for the completion of the course of study. It was done purportedly as an LLC, but it was also done by Mr. Williams who on the student enrollment agreement is not even noticed as a party. The Imagine the Future is not identified as an LLC, and Mr. Williams is a CEO. He's responsible for its administration and, therefore, under the contract between the parties he is personally liable.

 

So I'm entering a [j]udgment on behalf of Ms. Leitner . . . in the amount of $3400 against both Imagine the Future, LLC and Mr. Williams, personally. Imagine the Future is in default, and that will be [trebled] under the Consumer Fraud Act to $10,200 plus costs.

 

As to Ms. Marquez, I make the same findings that she was a party to a contract, that her, she had paid $3600 for that contract and could not get the benefit of the agreement at all because she was [deprived] of doing so by the purported sale which apparently never took place. She's entitled to damages of $3600 for violation of the Consumer Fraud Act. It's [trebled] to $10,800 plus costs against Imagine the Future and Mr. Williams.

This appeal followed.

II.

Our review of a judgment in a non-jury case is extremely limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). The general rule is that "'we 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[.]'" In re Trust Created By Agreement Dated December 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008) (quoting Rova Farms Resort, Inc. v. Invest. Ins. Co., 65 N.J. 474, 484 (1974)). "While we will defer to the trial court's factual findings so long as they are supported by sufficient, credible evidence in the record, our review of the trial court's legal conclusions is de novo." 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84; Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Our review of the record convinces us that the manner in which the trial was conducted, while even-handed and unbiased, nevertheless resulted in a miscarriage of justice. Recently, the New Jersey Supreme Court commented upon the due process rights of litigants in domestic violence proceedings:

Many litigants who come before our courts in domestic violence proceedings are unrepresented by counsel; many 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.

 

[J.D. v. M.D.F., 207 N.J. 458, 481 (2011).]

These concerns, and their underlying principles, are applicable to civil proceedings such as the subject of this appeal.

Although the trial court did not outright refuse to allow the parties to cross-examine each other, its failure to afford such examination was a functionally-equivalent mistake. See Peterson v. Peterson, 374 N.J. Super. 116, 124-26 (App. Div. 2005) (denying defendant the opportunity to cross-examine witnesses or to present witnesses violates due process). "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). A "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." First Nat'l Bank of Freehold v. Viviani, 60 N.J. Super. 221, 225 (App. Div. 1960). "[I]n the absence of th[e] critical safeguard [of the right to cross-examination], the integrity of the fact-finding process was compromised because the trial court was unable to fully and fairly assess credibility." Peterson, supra, 374 N.J. Super. at 125 (internal quotations and citations omitted).

In another significant due process lapse, the trial court invoked the CFA's treble damages remedy, which (as far as the record reveals) sprang deus ex machina, without plaintiffs' requesting such relief. To comport with due process, a judicial hearing requires notice defining the issues and an adequate opportunity to prepare and respond. McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993) (citing Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 162 (1978). We are not assured that Williams was properly on notice of his potential exposure to the forceful deterrent effect of the CFA.

Lastly, our ability to review the parties' contentions has been materially hampered by the trial's overly casual administration. We fully expect that trial courts will properly exercise their discretion to indulgently welcome pro se litigants to the unfamiliar milieu of the courtroom. That reception, however, cannot come at the expense of the effective administration of justice.

We recognize that "a trial court has wide discretion in controlling the courtroom and the court proceedings," and any alleged missteps "must be reviewed within the context of the entire record in order to determine whether it had [a] prejudicial impact." D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.) (citations omitted), certif. denied, 196 N.J. 346, cert. denied, 555 U.S. 1085, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008). The totality of the circumstances here convinces us that our appellate function has not just been impeded, instead, it has been completely thwarted.

For example, notwithstanding the trial court's clear and articulate factual findings, we are unable to trace whether those findings are supported by competent evidence in the record. Moreover, the failure perhaps inadvertent to address Williams's proffer of the certificate evidence warrants a second look.4 The granting of a new trial following a bench or jury trial springs from a court's assessment of whether "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). Regretfully, that high threshold has been surmounted in this case.

R

eversed and remanded for a new trial. We direct the trial court to proceed as expeditiously as possible. We do not retain jurisdiction.

1 The characterization of the complaint as deceptively simple is perhaps belied by the following guidance of the trial judge to plaintiffs at a hearing approximately two months before the trial, which was good advice:

 

You'll have to amend the Complaint to name at least Imagine the Future, LLC and serve them, and you, you may wish to add other defendants, but before you do that, and you should do that as soon as possible, but before you do that you really ought to consider retaining an attorney because you, you need legal help on this case. That's all I can tell you. You don't have to, but you ought to talk to yourselves and consider that before you file an Amended Complaint, all right.

 

[(Emphasis added).]

 

2 The record supplied by the parties leaves many fundamental questions unanswered, such as: (1) Were the claims in the complaint against Cindy Williams dismissed? (2) Were there any additional individual and corporate defendants actually added to the dispute by way of an amended complaint? (3) Did plaintiffs ever affirmatively pursue remedies under the CFA by amending their complaint? (4) If there were other defendants in the case, were default judgments ever entered against them or were those claims abandoned? The trial record indicates that amendments to the pleadings were, in fact, filed, but they have not been provided to us for review.

3 We regret having to use the term possibly. However, because the documentary evidence relating to ownership was neither marked for identification nor formally admitted into evidence, we cannot be sure. Moreover, none of the documents submitted in Williams's appendix comply with Rule 2:6-1(c)'s requirement that the table of contents include references to "the pages of the stenographic record at which each exhibit was marked for identification and was offered into evidence." Thus, competent evidentiary materials for this issue, and many others, in the appeal cannot be discerned with clarity.

4 We do not address whether such evidence, in fact, is admissible and leave that determination to the trial court if such evidence is offered at the new trial.