GSS&P, INC. v. FELICIA BONANNO RUSSELL et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1747-03T31747-03T3

GSS&P, INC.,

Plaintiff-Respondent,

v.

FELICIA BONANNO RUSSELL and

RONALD J. SAMA,

Defendants-Appellants.

__________________________________________________________

 

Argued October 18, 2005 - Decided January 11, 2006

Before Judges Kestin, R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, L-629-00.

Ronald J. Sama argued the cause for appellants (Sama & Russell, attorneys; Mr. Sama and Felicia Bonnano Russell, on the brief).

Gregg P. Tabakin argued the cause for respondent (Fein, Such, Kahn & Shepard, attorneys; Mr. Tabakin on the brief).

PER CURIAM

Defendants, Felicia Bonanno Russell and Ronald J. Sama, are law partners who were sued for breach of a contract in connection with their purchase of an office condominium unit. They appeal from a judgment against them, entered after a bench trial, in favor of plaintiff GSS&P Developers, Inc., in the amount of $52,933.56. We affirm.

On or about January 3, 1995, defendants signed an installment land contract to purchase a condominium unit from plaintiff at the Wharfside Office Condominium Complex located on Route 9 in Forked River. The purchase price was $100,000. Pursuant to the contract, the initial $3,000 was to be paid in six equal monthly installments of $500. Over the next three years, defendants were to pay $716.82 per month, which payments were based on an amortization of the balance of $97,000 at seven and one-half percent interest on a twenty-five year payment schedule. The balance of the purchase price was to be paid at a closing, which was scheduled to take place either at the end of the specified three-year period or within six weeks of notification by the buyers that they were prepared to close earlier. The property was sold "as is" and defendants were responsible for all risk of loss, maintenance, utilities, taxes and condominium fees once they began occupying the premises.

Defendants moved into the premises in or about February 1995, but it was agreed they would not begin payment of the monthly installments until the following month. Defendants occupied the unit through and including December 1998, at which time they vacated the premises. At the time that defendants vacated, they had not made monthly payments for a period of thirty-four months and there were unpaid taxes and fees. Defendants were entitled, however, to certain credits for legal work they had performed for plaintiff.

The matter was tried before Judge Edmund R. Bernhard, who concluded that plaintiff undertook reasonable efforts to mitigate its damages by listing the unit with a broker immediately after defendants vacated. Accordingly, the judge awarded plaintiff $52,933.56 with costs and interests, but no prejudgment interest. The court calculated those damages on the basis of testimony and evidence at trial that established the following debits and credits:

$14,770.45 Unpaid Rent

2,198.81 Initial $3,000

2,750.00 Condo Fees

1,350. 14 Taxes 1995

761. 12 Taxes 1997

__________

$21.830.52

3,125.00 Post breach condo fees

3,573.04 Post breach taxes

26,000.00 Loss on sale

__________

$54,528.56

(800.00) Credit for legal work

(795.00) Credit for monies paid on behalf

of defendants

__________

$52,933.56 Total Damages

We affirm substantially for the reasons expressed by Judge Bernhard in his written opinion dated September 26, 2003. There is substantial evidence in the record to support the judge's findings and conclusions. Rova Farms Resort v. Investors, Inc. Co., 65 N.J. 474, 483-84 (1974). We add the following brief comments.

Defendants contend the trial judge erred in permitting plaintiff to voluntarily dismiss its first complaint without prejudice and then to file a new complaint raising similar claims. That contention is based upon an unduly narrow reading of the rule regarding voluntary dismissal. See, e.g., Woodward-Clyde Consultants v. Chem. & Pollution Sciences, Inc., 105 N.J. 464, 474 (1987) (observing that "[a]lthough it may have been within the discretion of the Law Division to dismiss [a] counterclaim with prejudice, a dismissal without prejudice, such as was entered, is more consistent with the policy favoring the determination of claims on the merits"). Pursuant to R. 4:37-1, the voluntary dismissal of an action can be achieved by either of two methods: 1) by the plaintiff, through the use of a stipulation, signed by all parties to the action; or 2) by order of court. The rule states a dismissal in accordance with either of these methods is without prejudice, unless otherwise stated in the stipulation or order.

In this case, the trial court entered an order on November 13, 2000, granting plaintiff's request for a voluntary dismissal. The order specifically noted that the dismissal was without prejudice and that it was taken with defendants' consent. Under such circumstances, defendants' claim of error is totally devoid of merit.

Similarly, defendants' contention that the trial court erred in dismissing their counterclaim for attorney's fees is without merit. That contention fails to take into account R. 1:20A-6, which forbids a lawyer from instituting a lawsuit to recover fees from a client until thirty days after the client is given the required Pre-Action Notice in the form set forth under the rule. The rule's notice requirement is unequivocal and does not differentiate between a standard claim and a counterclaim. Even if that were not so, defendants' argument is moot since the trial court actually awarded defendants legal fees as an offset to the amount awarded to plaintiff.

Lastly, we reject defendants' contention that the trial judge abused his discretion when he determined that if Ms. Russell, who acted as counsel for defendants, were to testify she would be required to do so in a question-and-answer format, rather than by testifying in a narrative fashion. This argument was not raised by defendant below and, thus, has been waived. R. 1:7-2; R. 2:10-2. Not only did Ms. Russell not object when the judge informed her of the format required if she wished to testify, her statements on the record indicate that she did not plan to testify. Therefore, any asserted error is harmless.

Nevertheless, we take this opportunity to reiterate that trial judges are given wide discretion in exercising control over the courtroom. State v. Cusumano, 369 N.J. Super. 305, 311 (App. Div.), certif. denied, 181 N.J. 546 (2004) (citations omitted). "The exercise of this authority, however, is circumscribed by the judge's responsibility to act reasonably and within constitutional bounds." Ibid. (citations omitted). Pursuant to N.J.R.E. 611(a), the court is required to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment."

While there may be a need at times to restrict the narrative presentation of testimony by a pro se litigant, we find the challenged practice of requiring such a party to testify by asking him or herself a question and then answering it, if employed unswervingly, to have the potential to be unduly restrictive, demeaning and inappropriate. Subject to a contrary direction from our Supreme Court, and depending upon context, we direct trial courts to refrain from rigidly employing that device.

 
Affirmed.

(continued)

(continued)

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A-1747-03T3

January 11, 2006