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Mercer v. Weyerhaeuser Company

July 13, 1999


Before Judges Long, Kestin and Carchman.

The opinion of the court was delivered by: Long, P.J.A.D.


Argued May ll, l999

On appeal from Superior Court of New Jersey, Law Division, Camden County.

On October 13, 1993, plaintiffs Michael and Melissa M. Mercer, Thomas E. and Sharon A. Guarino, James T. and Frances M. Fox, Thomas G. and Kathy Jo Brodecki, Edmund J. and Patricia M. Decker, Francis X. and Delores M. Murphy, and William M. and Cynthia S. Hartman filed a four-count complaint against defendants Weyerhaeuser Company, Weyerhaeuser Real Estate Company, Inc. (WRECO), Scarborough Corporation, Amberfield Associates and three fictitiously named corporations seeking damages which they allegedly incurred as a result of the selection and installation of Capitol Products Corporation aluminum windows in their new homes constructed by Scarborough and Amberfield.

The complaint alleged negligent selection of Capitol aluminum windows and doors for plaintiffs' homes (Count One); negligent installation of those windows and doors (Count Two); consumer fraud (Count Three); and negligent misrepresentation as to the quality of the windows and doors, as well as the quality of their installation (Count Four).

After considerable procedural maneuvering, the details of which need not be related here, WRECO and Weyerhaeuser were granted summary judgment and the case went to trial against Scarborough and Amberfield solely on the consumer fraud claim. *fn1 The seventeen-day trial centered on representations allegedly made to plaintiffs by Scarborough's salesman William Kryzk *fn2 (denied by him) that Capitol windows are "as good as Andersen windows" and are "thermal break windows." *fn3 Plaintiffs claimed these statements were made during the option selection process, after they had signed contracts to purchase their respective homes from Scarborough. Andersen windows, which are wood-framed windows, were offered as an upgrade for a substantial additional cost in lieu of Capitol's aluminum framed windows which were the Amberfield standard at the time.

The issues at trial were, first, whether the statements as to the relative quality of Capitol versus Andersen windows were indeed made to plaintiffs and, second, whether these statements were in fact false or misleading within the contemplation of the Consumer Fraud Act which provides in pertinent part

[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice. . . . [N.J.S.A. 56:8-2.]

In the event that the jury answered the above questions affirmatively, defendants sought to demonstrate that plaintiffs sustained no ascertainable loss.

It is not necessary to set forth the facts in detail for the purpose of this opinion other than to say that the jury was presented with sharply differing versions of what transpired between plaintiffs and defendants. Plaintiffs all testified that Krzyk told them that Capitol windows were as good if not better than Anderson and that they were "thermal break windows." Kryzk denied saying that Capitol windows were as good as Anderson windows, but admitted telling plaintiffs that Capitol windows were thermal break windows. It was his understanding that the Capitol windows had a thermal break in the sash.

The parties' experts also disagreed. Plaintiffs' experts essentially concluded that Capitol windows were not thermal break windows and that they were not as good as Anderson windows. As might be expected, the defense expert stated that the Capitol window was a thermal break window and was as efficient as an Anderson window.

The jury returned a verdict in plaintiffs' favor awarding compensatory damages in the amount of $146,350, which when trebled by the court, under N.J.S.A. 56:8-9, amounted to $439,050. The Judge entered partial summary judgment in that amount by an order dated April 7, 1997, and directed plaintiffs to apply for prejudgment interest, counsel fees, and costs within thirty days of the March 19, 1997, jury verdict.

By motion dated March 31, 1997, defendants sought judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied. However, defendants were deemed entitled to a credit equal to the net amount that plaintiffs received from an earlier settlement with the installers of the windows.

On April 18, 1997, plaintiffs moved for counsel fees and costs in the amount of $1,120,265.82, and prejudgment interest in the amount of $22,417.62. The Judge awarded plaintiffs counsel fees totaling $725,952.50.

More procedural maneuvering occurred including a motion for stay which was denied by the trial Judge and later granted by us on July l, l997, and a supplemental motion by plaintiffs for counsel fees which was granted in the amount of $38,6l2.l5.

Defendants now appeal, claiming that the trial Judge's hostility toward them, their witnesses and counsel deprived them of a fair trial; that numerous trial errors, from dismissals and evidential rulings to the jury instructions, require reversal; that they are entitled to remittitur; that prejudgment interest should not have been awarded; and that the counsel fees awarded to plaintiffs are excessive.

On their cross-appeal, plaintiffs contend that defendants should not have received the settlement credit; that Weyerhaeuser and WRECO were not entitled to summary judgment; and that the attorney's fees awarded were inadequate.

We have carefully reviewed this record, including the transcripts of the entire trial along with the videotaped portions submitted by defendants. We determine that defendants were denied a fair trial by the Judge's hostile treatment of their counsel and witnesses in the presence of the jury and that the verdict against them cannot stand.


The Code of Judicial Conduct, Canon 3A(3), requires that a Judge "be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the Judge deals in an official capacity . . . ." James v. City of East Orange, 246 N.J. Super. 554, 564 (App. Div. 1991). A Judge must conduct a trial in a fair and impartial manner, refraining from remarks that might prejudice a party or might influence the minds of the jury. Cestore v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971).

We set out the most direct statement as to the standard of conduct expected of a trial Judge in State v. Zwillman, 112 N.J. Super. 6, 20-2l (App. Div. 1970), certif. denied, 57 N.J. 603 (1971):

Great latitude is given to a trial Judge in the conduct of a trial. There are, however, bounds within which he must stay. A trial Judge may intervene in the trial during the introduction of evidence to qualify or expedite matters. The trial Judge is the symbol of experience, wisdom and impartiality to the jury and, as such, must take great care that an expression of opinion on the evidence should not be given so as to mislead the jury. He must not throw his judicial weight on one side or the other.

It is not proper for a trial Judge to indicate his belief or disbelief of a witness, for to do so would be a usurpation of a duty solely within the province of the jury.

A trial Judge should never unfairly criticize or

humiliate defense counsel or a defense witness. Where it appears that the trial Judge has turned the jury against the defendant by mistreating defendant's counsel in front of the jury, a new trial is required. Canons 5 and 10 of Canons of Judicial Ethics make it clear that trial Judges must be courteous to counsel and be temperate, attentive, patient and impartial. A Judge's failure to comply with these canons can easily prejudice a jury since it conveys the opinion of the Judge as to his belief or disbelief in one side of the case. Attorneys are as much a part of the judicial system as Judges. Without the active cooperation of attorneys our system of Justice will come to a grinding halt. To demean an attorney, particularly in front of a jury, is completely unacceptable. It not only prejudices the litigant, but it goes to discourage lawyers from becoming trial attorneys. If we do not have an adequate number of lawyers willing to be trial attorneys, the judicial system as we know it will not survive. (Citations omitted).

In Zwillman, we prefaced our declaration with the observation that prejudicial conduct by a trial Judge is properly reviewable by an appellate court "considering the entire transcript," and that harmless error is not to be found simply because the appellate court may believe that the defendant was guilty as charged. Id. at 20. Although Zwillman is a criminal case, we see no reason why the same standard should not apply in a civil case. In other words, the fact that this verdict could be sustained does not mean that it should be sustained.

In Zwillman, we concluded that the conduct of the trial Judge toward defense counsel "tended strongly to prejudice the defendant in the eyes of the jury." While no single instance may have been sufficient to warrant a reversal, we determined that in the aggregate, the actions of the trial Judge deprived the defendant of a fair trial. Ibid. In our view, the same observation can be made about the trial Judge's conduct in this case.

The tone of the trial Judge's interaction with defense counsel was set during a colloquy concerning an earlier pretrial motion. The Judge asked about the motion, which had been heard by a different Judge. When defense counsel was slow in responding with the name of the Judge, he told her to "forget it." Defense counsel apparently did not understand this directive and continued explaining that the motion was denied, relating the basis for the denial. The Judge immediately became annoyed, breaking in on her response, questioning "what's bringing all this chatter forth?" Inquiring sarcastically (and this is clear from the videotape) whether he had asked her a question, he continued, directing that she "please learn something." He instructed that when she was in his courtroom and was asked a question, she was to answer it and then "that's the end of the Discussion. . . . If I want to hear more, please, I'll ask you. Do you understand that?" After defense counsel indicated in the affirmative, the Judge continued:

That's very important, very critical, because we don't do sidebars. Notwithstanding the window case. . . in which they suggested that perhaps that wasn't the appropriate procedure. *fn4 The suggestions I don't follow; orders and directives I do. So we don't do sidebars. And, therefore, when I ask a question, I expect the question to be answered directly, forthright, candidly and honestly, without equivocation. But nothing else, understand? . . . Because the jury's going to be sitting here and I don't want you to get the idea that hey, here's a great chance to get a lot of material before the jury that I couldn't do if we were at sidebar. . . . The only reason I'm making a point of this is because you've apparently never worked before me before, and you're not familiar with my style.

Unfortunately, while the trial Judge insisted on hearing nothing more than a simple answer to his questions in order to prevent extraneous and inappropriate material from reaching the jury, he did not abide by that rule himself. Indeed, the trial record is replete with gratuitous comments by the Judge which redounded to the detriment of defense counsel and her clients.

Defense counsel's next problem with the trial Judge arose during her opening statement. She introduced to the jury Rick McMichael (who was a representative of Scarborough) who was sitting at counsel table. Defense counsel had barely mentioned the name when the Judge broke in, sua sponte, commenting, "I did that when we did voir dire, please." Moments later, counsel was in the process of telling the jury that her opening had a four-pronged but simple theme because "this is actually a very simple case." When she commented that Scarborough had not brought into court "blown-up exhibits" or "glossy photographs," plaintiffs' counsel objected. The Judge sustained the objection asserting that that kind of statement was argument and directing that defense counsel "keep it to what you propose to prove." After defense counsel indicated that she would, the Judge added, "you don't attack or criticize your adversary in an opening statement." This comment was unwarranted; the Judge had already explained why the objection was proper, and he ascribed what appears to us to be an unfounded characterization to a simple and only arguably improper statement about trial exhibits.

Likewise, in many instances, in sustaining plaintiffs' counsels' objections, the Judge went far beyond what was required and lectured defense counsel about the rules of evidence, creating the unmistakable impression that defense counsel simply did not know what she was doing or, worse, was deliberately flouting the Judge's rulings in an attempt to get improper material before the jury.

For example, when defense counsel showed a document to plaintiff Thomas Guarino and asked if it was the sales agreement that he had signed, he responded that it appeared to be. Defense counsel then made the mistake of verbally acknowledging the Judge's earlier ruling that the sales agreements would not go into evidence. Instead of acknowledging that her understanding of his ruling was correct, the Judge stated:

Well if you understand it why are you bringing it up in front of the jury, Counselor? I previously made a determination, I made a ruling and now what you're trying to do is bring up in front of the jury an issue that is not properly brought before them. Don't do it again.

On another occasion, defense counsel was cross-examining plaintiff William Hartman about whether he ever mentioned to a Scarborough representative that the condensation on the windows was bothering him. When he indicated that he did not remember, counsel asked if he recalled testifying at his deposition that he had never complained to Scarborough about the condensation. Hartman professed not to remember. She showed him a page from his deposition and asked if he would silently read certain lines. The witness agreed that what he read "says basically what I said." Counsel then asked if it refreshed his recollection that he never reported condensation problems to Scarborough.

Hartman disagreed, claiming that was not what his deposition said; plaintiffs' counsel objected, also asserting that that was not how the testimony read. Instead of simply sustaining the objection, the Judge launched into another evidence rules speech, complete with reference to counsel's violation of them:

Just a minute. The witness just got done saying that, Counselor, no, that's not what it reads. That's what the witness said. Now, you see what you've done is you've taken a document and allegedly used for refreshing recollection and as I told you yesterday, anything can be used to refresh the recollection of a witness as Cardozo said, even the smell of a rose. But you do not identify it before the jury. You don't read it before the jury. You show it to the witness, take it away and question the witness on the refreshed recollection. You just violated all those rules. And we're at a point now where somebody says that what you were representing to the jury isn't even what was on the document.

Defense counsel asked permission to rephrase the question. She was attempting to ask her question when plaintiffs' counsel interrupted, asking for "an instruction now, not later, with all due respect. A representation has been made." The Judge agreed and asked defense counsel if she was going to "clear it up . . . or aren't you." She said that she would, and wanted to show plaintiff a different line, a few lines down the page. The Judge responded: "No, no, no, read it. Let's clear it up right now. Because you read something to the jury or suggested something . . . which you shouldn't have done, number one. And it's now been alleged that what you said wasn't even accurate . . . so that's another violation, number two." Shortly thereafter, the Judge gave the jury a "curative" instruction, reminding them that [n]one of the rulings that I make, nothing that I do or say is to be taken as any indication as to how I feel the case should be decided. I'm not trying to help anybody or hurt anybody. I'm just trying to see to it that the matter does progress in accordance with the accepted rules promulgated by our Supreme Court and matters of that nature.

Again, during Frances Fox's cross-examination, plaintiffs' counsel objected to defense counsel's use of a certain document. Although the Judge "sustained" the objection, he did not stop there. He chastised defense counsel:

You didn't use it properly under Evidence Rule 803(c)(5). I've been over that with you numerous times. We're not going to deal with it again. The objection is sustained. The witness testified that she did not have a- - didn't know if the model had Beagle windows - - Beagle had Andersen windows or not. That's it. This document is not dealt with on cross-exam - -on direct examination. It's beyond the scope of direct examination. There are reasonable inferences to be drawn therefrom. You didn't deal with it under 803(c)(5). You didn't deal with it under 6-12A [sic] so the objection is sustained. Let's move on.

Defense counsel then asked Fox "to look at D-40" (the document) to see if it refreshed her recollection. Counsel was not permitted to finish her question to specify which of Fox's recollections she was referring to because the Judge broke in and the following exchange took place:

THE COURT: You're not supposed to identify the document, and you're not supposed to make known to the witness the content of the document. When you're refreshing recollection you merely show the document to the witness and ask the witness if, in fact, it refreshes their recollection with respect to the matter under Discussion Now, having looked at it, does it refresh your recollection?

MS. FOX: It's my signature, but I don't --

DEFENSE COUNSEL:Would you read it and tell me if it refreshes

THE COURT: She said it's my signature, but I don't and you cut her off. Take it away. It has not refreshed her recollection. Let's move on.

MS. FOX: It's not something that I dealt with on a consistent basis.

DEFENSE COUNSEL: What isn't something you dealt with on a consistent basis?

PLAINTIFFS' COUNSEL: I'd object. She's --objection.

THE COURT: I would suggest, counselor that when I sustain an objection you listen to what I say and ...

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