MICHAEL DePIETRO v. ALLSTATE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01423-14T4

MICHAEL DePIETRO,

Plaintiff-Appellant,

v.

ALLSTATE a/s/o W2L, INC.,

MARK WERTHER COMPANY, and

AVIVA WERTHER,

Defendants-Respondents.

___________________________________

October 26, 2015

Argued September 24, 2015 Decided

Before Judges Fuentes, Koblitz and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3089-11.

Vincent E. Halleran, Jr., argued the cause for appellant.

John C. Prindiville argued the cause for respondents.

PER CURIAM

Plaintiff Michael DePietro appeals from the trial judge's September 19, 2014 order granting a new trial as to liability to defendant Aviva Werther in this two-car accident case. The jury returned a verdict, determining DePietro to be only 25% liable and Werther 75% liable, although plaintiff was taking a left turn, or had begun to take a left turn and stopped in the intersection, when the cars collided. Given the discretion generally afforded the trial judge, who had an opportunity to view the proceedings, we affirm.

DePietro represented himself throughout. The trial was adjourned six times, twice at plaintiff's request, twice at defendant's request and twice due to the unavailability of a trial judge. Finally, on the seventh time the case was called for trial, more than three years after the complaint was filed, a jury was selected. Due to the unavailability of plaintiff's expert witness, the judge bifurcated the trial over the objection of defense counsel. The judge decided that the jury would determine only the issue of liability.

Prior to the beginning of trial, the judge explained the trial procedure to DePietro and supplied him with a hearing amplifier due to his hearing difficulty. The judge explained that DePietro was forbidden from mentioning insurance or the insurance company, any privileged communication between lawyer and client, or police reports. The judge explained that DePietro was bound by the same rules as an attorney. DePietro acknowledged that he understood.

Additionally, after the judge bifurcated the trial, the judge explained to DePietro that he was prohibited from discussing his injuries and the damage to his car, unless he could "show that the damage shows the point of impact." DePietro was told not to give testimony of "what he concludes based upon his 58 years of driving experience." The judge also instructed DePietro that the discussion of a person's credibility is permitted only on summation and not while DePietro is questioning that person.

Beginning with opening statements, it became clear that DePietro would not follow these instructions. DePietro improperly: 1) attempted to explain why he was representing himself; 2) stated that defendants were unable to produce a witness from the scene of the accident; 3) stated that the community or "congregation" in the neighborhood was attempting to protect Werther, while DePietro was an outsider; 4) argued with the court while the court was making a ruling; 5) told "the jury to put themselves in [his] shoes"; and 6) stated that as a result of the accident, the town synchronized the traffic lights.

Additionally, DePietro discussed his prior driving experience, by telling the jury in his opening statement

I've been driving for 57 years without no accident, and no tickets within the last 20 years. I have a lot of experience driving vehicles. In the service I drove a tank, I drove all kinds of vehicles . . . . And I assure you, I made a lot of left turns, and drove through all the states of the United States . . . .

My age is there to have that experience. I'm 79 years old, and I've been around . . . .

DePietro also told the jury about the damage to the cars that resulted from the crash

My car was totalled . . . . Her car nothing happened, just the bumper, and I have pictures to show it . . . . She turned my car, spinned me around, and demolished my car -- my front end. It's all bent, and -- and I couldn't drive -- I had to get it towed.

DePietro also improperly mentioned his injuries, telling the jury after the judge sustained numerous defense counsel objections: "I can't tell you I got hurt either."

In his own testimony, assisted by the judge's questioning, DePietro again volunteered information about the extent of his injuries and the damage to his car. DePietro also argued with the police officer called as a witness by the defense, as well as defendant herself. He told defendant that she was just parroting what her lawyer told her to say. In front of the jury, while cross-examining defendant, DePietro attempted to leave the courtroom. In front of the jury, DePietro stated that he did not need the "aggravation" the judge was giving him, and that he was "sick enough."

In his brief summation, DePietro mentioned insurance, the police report, his extensive driving experience, the fact that Werther said what her lawyer told her to say; and indicated that he was permanently disabled due to the accident, saying "I got the injuries to sustain for the rest of my life." After deliberating for approximately an hour, the jury unanimously found both parties liable, finding by a six to one vote that DePietro was only 25% liable.

DePietro responded to defendant's motion for a new trial with a typed letter. He included with the typed letter a blank page with the words "Oral Argument Michael DePietro 8/27/14" hand-written on it. The judge granted a new trial without affording oral argument, commenting that oral argument was not requested by plaintiff. The judge put his reasons on the record, finding that DePietro's numerous improper and prejudicial comments clearly had the capacity to sway the jury.

"A jury verdict is entitled to considerable deference and 'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)). A trial court must, however, grant a new trial if "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). A miscarriage of justice is "a pervading sense of 'wrongness.'" Baxter, supra, 74 N.J. at 599 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The sense of wrongness "involves the reaction of trained judges in the light of their judicial and human experience" where the judges believe that "a mistake must have been made." Ibid. (quoting Johnson, supra, 42 N.J. at 162). This sense can arise from a "manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, a clearly unjust result, and many other" things. Johnson, supra, 42 N.J. at 162.

Prejudicial error exists if a party "consciously engages repeatedly in questions and practices he knows are in violation of rules of evidence and proper court room decorum." Haid v. Loderstedt, 45 N.J. Super. 547, 554 (App. Div. 1957); see also Wimberly v. Paterson, 75 N.J. Super. 584, 612 (App. Div.) (reversing after finding that the trial court was "continually called upon to sustain objections to questions which were beyond the issues or involved highly prejudicial matter"), certif. denied, 38 N.J. 340 (1962), and overruled on other grounds by Johnson v. Dobrosky, 187 N.J. 594 (2006). Additionally, the court can find prejudice if a party persists in improper questioning. See Schueler v. Strelinger, 43 N.J. 330, 347-48 (1964) (finding that cumulative error required reversal when a party engaged in improper questioning, despite the court's admonishment).

An appellate court shall not reverse a trial court's decision on a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. The standard of judicial review at the appellate level is "substantially similar to that used at the trial level." Jastram v. Kruse, 197 N.J. 216, 230 (2008) (citing Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)); see also Dolson v. Anastasia, 55 N.J. 2, 7 (1969) (stating that the standard "is essentially the same as that controlling the trial judge"). However, an "appellate court must afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility." Jastram, supra, 197 N.J. at 230 (quoting Feldman, supra, 97 N.J. at 463). The "feel of the case" is a trial judge's personal observations of the case, including observations regarding the witnesses, attorneys, and jury. Ibid. Intangibles include witness credibility, demeanor, and "other criteria which are not transmitted by the written record." Dolson, supra, 55 N.J. at 7.

Our review of the transcript reveals that the judge was patient and courteous in his treatment of DePietro. The judge was understanding of DePietro's advanced age and hearing impairment. In his statements to the jury, DePietro made clear that he was aware he was not allowed to mention his injuries or insurance, but had decided to do so anyway. A "plaintiff's status as a pro se litigant in no way relieves [him] of [his] obligation to comply with the court rules." Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997).

With regard to DePietro's handwritten mention of oral argument attached to his typed response to the defense motion for a new trial, a request for argument on a substantive motion should ordinarily be granted. LVNV Funding, L.L.C. v. Colvell, 421 N.J. Super. 1, 5 (App. Div. 2011). DePietro took the opportunity to express his opposition to the motion in writing. We do not view the miscommunication in his request for oral argument, stemming from DePietro's cryptic method of communicating his desire for oral argument, to have deprived him of an opportunity that could have changed the ultimate result.