STATE OF NEW JERSEY v. MICHAEL CEKOT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1717-08T41717-08T4

STATE OF NEW JERSEY,

Plaintiff,

v.

MICHAEL CEKOT,

Defendant-Appellant,

and

STATE OF NEW JERSEY,

Plaintiff,

v.

THOMAS CAMPANA,

Defendant-Respondent.

___________________________________________

 

Submitted December 16, 2009 - Decided

Before Judges Axelrad and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 38-2008.

Richard C. Swarbrick, attorney for appellant (Mr. Swarbrick, of counsel; Jeffrey Zajac, on the brief).

Bob Smith and Associates, attorneys for respondent (Michelle D. Welsh, of counsel and on the brief).

PER CURIAM

Michael Cekot and Thomas Campana, who are neighbors in Piscataway, had a dispute about the location of Campana's fence along their borderline, which culminated in the filing of municipal criminal complaints. The municipal judge viewed the dispute as purely civil in nature and dismissed both their complaints. On de novo review, the Law Division judge reached the same conclusion. In this appeal, we consider Cekot's argument that his complaint was erroneously dismissed on the merits and, also, his argument that he was wrongfully denied counsel fees when Campana failed to appear on two occasions in municipal court. We affirm.

Briefly, the record reveals that Cekot believed that Campana's fence encroached on his property and, as a result, Cekot wrote to Campana demanding the fence's removal and asserting that the failure to comply would result in Cekot's removal of the fence. Campana responded, asserting that the boundary line was in dispute, that his attorney advised the doctrine of adverse possession might come into play, and that the fence would remain in place until a surveyor could provide information necessary to resolve their dispute. A few weeks later, Cekot removed Campana's fence.

Campana responded by filing a criminal complaint in Piscataway Municipal Court, charging Cekot with criminal mischief, N.J.S.A. 2C:17-3(a). In response, Cekot filed a criminal complaint, charging Campana with defiant trespass, N.J.S.A. 2C:18-3(b).

The matter was eventually scheduled for trial in municipal court on February 19, 2008. Outside the courtroom, Cekot and his attorney discussed the matter with Campana, who was without counsel. Campana apparently left the courthouse after their settlement efforts failed to bear fruit. Cekot and his attorney waited on the assumption that Campana would return. When Campana did not reappear after a few hours, Cekot moved for dismissal of Campana's complaint and for an award of fees. Instead, the municipal judge rescheduled the trial and indicated, with regard to the fee request, that he would "take that into consideration" on the next court date.

In advance of the next trial date, Campana filed a motion to dismiss Cekot's complaint. Cekot filed opposition and moved for counsel fees due to Campana early departure on the prior trial date. Apparently there was also a request for an adjournment of the April 9, 2008 trial date, which had been denied. When Campana and his attorney failed to appear on April 9, 2008, the judge stated that he had "made it clear" to Campana's attorney that all parties and counsel were to be in court "so we can get [the case] resolved." Nevertheless, the judge adjourned the trial. Cekot sought an award of counsel fees for again having appeared for no reason. The judge stated that the request would be considered on the next court date.

All parties and counsel appeared on the rescheduled trial date. The municipal judge did not place anyone under oath but instead briefly heard from the parties and their counsel. Campana acknowledged that he left the courthouse at the conclusion of their settlement discussions but that he returned later that day and spoke with the municipal prosecutor, who suggested he retain counsel. As a result, he again left the courthouse. As for the second trial date, Campana's attorney represented there was a misunderstanding about their need to then appear.

As for the merits, the municipal judge struck right at the heart of the matter, asking Cekot's attorney whether it was "the ultimate goal of your client . . . to have the fence located in a proper position off of his property?" When Cekot's attorney responded in the affirmative, Campana's attorney stated:

Again, my client is sorry. Due to no malfeasance of his own, he did hire a professional fencing company, gave them the survey. They made a mistake. They will be happy to come back and correct it. Therefore, the fence will be placed where it should be on Mr. Campana's property, resolving the underlying dispute.

As a result, the municipal judge held:

I do believe . . . there has been a misunderstanding. I do not believe that these cases even belong in this [c]ourt. It's a civil matter. This is a dispute amongst neighbors that should have been resolved in New Brunswick, not in a criminal court. I'm going to dismiss the charges as to all parties. It's been placed on the record by [c]ounsel and affirmed by Mr. Campana that, in fact, the fence issue will be resolved expeditiously and the location of the fence shall be done appropriately with Mr. Cekot. The cases have been dismissed. [The] [m]otions [of all parties] are denied . . . . Motions denied.

Cekot appealed to the Law Division, complaining of the dismissal of his criminal complaint as well as the municipal judge's failure to award counsel fees due to the time expended on the occasions when Campana failed to appear. The Law Division judge found no merit in these arguments.

Cekot then appealed to this court, presenting the following arguments for our consideration:

I. THE MUNICIPAL COURT AND LAW DIVISION ERRED BY DENYING CEKOT'S MOTION FOR COUNSEL FEES FOR THE FEES INCURRED FOR HIS ATTORNEY'S APPEARANCES FOR TRIAL ON FEBRUARY 19, 2 008 AND APRIL 9, 2008.

II. THE MUNICIPAL COURT ERRED BY DISMISSING CEKOT'S CASE AND DENYING HIM THE RIGHT TO PRESENT HIS CASE ON THE MERITS.

We find insufficient merit in these arguments to warrant a discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding Point I.

The imposition of counsel fees due to a litigant's failure to appear for trial rests within the sound discretion of the trial judge. Kohn's Bakery, Inc. v. Terraciano, 147 N.J. Super. 582, 584-85 (App. Div. 1977). Here, the record demonstrates that on February 19, 2008, the first trial date, Campana was without counsel and, in light of the municipal prosecutor's comments, he assumed it was appropriate to leave the courthouse and retain counsel. And the colloquy during the parties' final appearance in municipal court suggests genuine confusion about whether the trial would occur on April 9, 2008. We recognize that Cekot has forcefully asserted there could have been no doubt about Campana's need to be present on earlier occasions and, as a result of Campana's mistakes, Cekot and his attorney were unnecessarily required to be present at times in municipal court. We are satisfied, as held by the Law Division judge, that all litigants acted in good faith and all attorneys acted professionally. In light of their legitimate misunderstandings, the municipal judge and the Law Division judge, in reviewing the matter de novo, acted well within their discretion in refusing to award counsel fees. Just as we would not likely intervene if a reasonable fee commensurate with the harm had been awarded, we find no reason to intervene in the discretionary decision to deny Cekot's fee application.

 
Affirmed.

(continued)

(continued)

2

A-1717-08T4

December 29, 2009