FANNY FIRETTO v. MARIO MARCHIONE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3074-06T33074-06T3

FANNY FIRETTO,

Plaintiff-Appellant,

v.

MARIO MARCHIONE,

Defendant-Respondent.

 

Submitted October 29, 2007 Decided

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Union County, SC-1947-06.

Fanny Firetto, appellant pro se.

Mario Marchione, respondent pro se.

PER CURIAM

This is an appeal from a special civil part judgment entered December 19, 2006; both parties are pro se. Plaintiff, Fanny Firetto, sued her landlord, defendant Mario Marchione, for return of the $1950 security deposit on her apartment, pursuant to N.J.S.A. 46:8-21.1. Defendant counterclaimed for the cost of repairs for damages allegedly caused by plaintiff and sought payment of the full month's rent for October as she had been previously ordered to vacate the premises by September 30. At the December 2006 proceeding, plaintiff claimed that she had been authorized by defendant to remain in the premises until October 1, and she attempted to present a witness to that effect. She also disputed the asserted damages.

Immediately prior to the hearing, the trial judge was informed that he had seventy-nine landlord-tenant cases listed for the afternoon session. He then advised the parties that he would be ending the morning's session, a separate list of matters, at 12:15 p.m. During this particular proceeding, he asked each party to explain his or her position. Neither was afforded the opportunity to pose questions of the other, nor the opportunity to present witnesses. After questioning each party, the court said:

The [c]ourt does not know which side to believe. So as a result, the [c]ourt will split the month of October. . . . But I don't know which one to believe. So I'm going to split it in half.

When the plaintiff attempted to inquire about presenting her witness's testimony, the judge replied:

No, not now. You may take an appeal. I only have a little bit of time for everybody else, so I can't just I've made my decision, okay?

. . . .

The case is over ma'am. Thank you.

. . . .

Even if your witness had come up saying she heard it, he disputes it. I would have split down the middle anyway, okay?

Rule 1:7-4 states that in non-jury trials, "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury." The court explained in Curtis v. Finneran, 83 N.J. 563, 569 (1980) that "the role of the trial court . . . is to find the facts and state conclusions of law." When a court fails to make necessary findings, it performs "'a disservice to the litigants, the attorneys and the appellate court.'" Id. at 569-70 (quoting Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). Findings must include assessments as to credibility. It is apparent that because of time constraints, no opportunity was afforded to the parties either to present or cross-examine witnesses. No credibility findings were made.

A fundamental requirement of due process, guaranteed to our citizens by the federal and state constitutions, "is 'the opportunity to be heard'" in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545, 552 (1965), 85 S. Ct. 1187, 1911, 14 L. Ed. 2d 62, 66 (quoting Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779, 783, 58 L. Ed. 1363, 1369 (1914)). This requirement mandates more opportunity than what was afforded to the parties in this case. Although "[t]he formality and procedural requisites for the hearing can vary," there is a "root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Boddie v. Connecticut, 401 U.S. 371, 378-79, 91 S. Ct. 780, 786, 28 L. Ed. 2d 113, 119 (1971). Although it is commonplace in pro se matters for judges to question the parties in an attempt to elicit relevant information, more is required than was done here. "[A] [s]tate must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause." Id. at 379, 91 S. Ct. at 787, 28 L. Ed. 2d at 120. The pressures on our courts to quickly and efficiently dispose of many thousands of cases every year is at times overwhelming to the system as well as individual judges. Nonetheless, "'swift justice demands more than just swiftness.'" Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., Inc., 206 N.J. Super. 405, 406-07 (App. Div. 1986) (quoting Henderson v. Bannon, 256 F.2d 363, 390 (6th Cir. 1958) (Stewart, J., dissenting)). In this case the rush to justice resulted only in swiftness.

The matter will therefore be remanded so that a plenary trial can be conducted.

Reversed and remanded.

(continued)

(continued)

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A-3074-06T3

January 23, 2008