March 5, 2009
MARK ROMANO, PLAINTIFF-RESPONDENT,
EEJ MECHANICAL, DEFENDANT,
AND FREDERICK J. FRITZ KOEBERT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. SC-13-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 12, 2009
Before Judges Carchman and R. B. Coleman.
This is an appeal from a final judgment entered in the Law Division, Special Civil Part, Small Claims Section in favor of plaintiff Mark Romano and against defendant Frederick J. Fritz Koebert in the amount of $2,000. The judgment represented the return of a deposit for HVAC work to be performed by defendant. Following a bench trial, the judge found plaintiff more credible than defendant and entered judgment. Defendant appealed. We now reverse and remand for a new trial.
The facts are briefly stated. On October 23, 2007, Koebert provided an estimate to Romano for the installation of a heating and air conditioning unit, referred to at trial as a "92EFI unit and 14 sear AC unit." The estimate, which was provided for on Koebert's letterhead, also called for Koebert to move an existing condenser unit. Apparently, at some point in November 2007, the plans changed, and (1) the existing unit no longer had to be moved by Koebert and (2) Koebert agreed to run a "chase" from an existing HVAC unit through the second floor roof for $300.00. These changes were reflected on the left-hand side of the estimate, which indicated that $2,000 was paid to Koebert as well as "BA/ 800 Includes Stack." The "800" figure appears to represent a $500 reduction in the estimate, plus $300 for running the chase through the second floor roof, bringing the actual total of the project to $2,800.
At trial, Romano indicated that a friend had recommended Koebert, and at the time Koebert provided the estimate, the parties understood that the project had to be completed by November 20 because Romano had his "original inspection date" on that day. Koebert orally indicated that he would begin the work on November 17, in order to meet the November 20 deadline; however, Koebert did not begin work on that date and did not respond to Romano's inquiries until November 19. The following day, Koebert began to work on the project, and Romano "was very happy" as the inspector informed Romano that he would not be coming to the house until November 27.
Allegedly, in light of the change in circumstances, the parties amended their agreement (on the reverse side of the original agreement) on or about November 19*fn1 to reflect Koebert's obligation to complete the project by November 26 "or full refund will be issued by Dec. 1st."
Romano further indicated that during the next few days, he attempted, to no avail, to contact Koebert. Finally, on November 25, Koebert returned to the site with his nephew and "[t]hey put in three boots," which are "where the -- the air returns from." According to Romano, no duct work was done. To illustrate this point, Romano provided the trial judge with photographs from his home reflecting the lack of progress.
Following Romano, the trial judge heard from Edward Polaski, a principal of defendant EEJ Mechanical. Polaski indicated that Koebert was formerly an employee of EEJ and had been terminated, in part, because the company learned that Koebert used its truck when working on other independent projects, including Romano's house. Based on that testimony, EEJ was dismissed from the suit.
Although Koebert did not controvert Romano's testimony regarding Koebert's lack of communication, he did contend that Romano told him "if you cannot finish this job one hundred percent tonight [the 25th] . . . don't come to my house." Koebert contends that after this statement was made, he tried to explain to Romano that there was no way the project would pass inspection because walls were not even "drywalled" and the furnace had to be "fire rocked."
Following that testimony, the following colloquy occurred regarding the amendment to the agreement:
THE COURT: Then why in the world would you have, on November 19th, signed, and I quote, knowing that --
THE DEFENDANT: I never signed that paper.
THE COURT: -- all work to be completed by November 26th or a full refund will be issued by December 1st?
THE DEFENDANT: May I see that? I've never seen that.
. . . . THE DEFENDANT: Where's my signature?
THE DEFENDANT: It's not my signature. This is not my signature.
THE DEFENDANT: This is not my signature. Would you like to see my signature.
THE COURT: No. I'm . . . listening to your testimony and you're telling me --
THE DEFENDANT: Never.
THE COURT: -- under oath that you've never -- you never saw that particular part of the contract and you never signed it?
THE DEFENDANT: No, this is on the back of my contract.
THE COURT: Yeah, it is because the first page probably matches up. Officer, can I have [the estimate] back?
THE COURT: Sir, you realize your credibility is at issue since your past employer was just here and told me that he fired you because you did unauthorized --
THE DEFENDANT: Yes.
. . . . [ROMANO:] That is his signature.
THE COURT: Did he sign it in front of you?
[ROMANO:] He absolutely did.
THE DEFENDANT: That is not my signature.
THE COURT: Well, I hear what you're saying. This all comes down to credibility.
Sir, if you did the job, and I'm trying to understand, that . . . you said you'd do, and why did the plaintiff have to pay Greg Trudo (phonetic) Remodeling to redo the work that you're telling me you did?
THE DEFENDANT: He wouldn't --
THE COURT: The very same work?
THE DEFENDANT: -- he wouldn't let me back into the house so I could finish to even make inspection.
THE COURT: Okay. Judgment in this matter is for the $2,000 that you originally paid and no other. There's huge credibility problems. I find [Romano] to be very credible. I find [Koebert] to be very incredible . . . . [(Emphasis added).]
Following the judge's oral decision, Romano agreed to send copies of the front and back of the estimate to Koebert.
This appeal followed.
On appeal, defendant asserts that the trial judge's questioning of defendant was improper, that certain documents and photos were admitted into evidence without authentication, that it was error to consider defendant's termination from employment as relevant to defendant's credibility and that the judge improperly precluded defendant's witness from testifying.
Our review of the record leads us to conclude that the judge properly exercised her authority in questioning the witness; however, the specific questions asked by the judge impacted on the defendant's ability to exercise his rights as a litigant.
We have previously recognized the appropriateness of judicial intervention in the questioning process, especially in cases involving pro se litigants, see Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006), yet we noted that such questioning must be conducted in an "orderly and predictable fashion . . . and not at the expense of the parties' due process rights." Ibid. Most recently, the Supreme Court reaffirmed the propriety of a judge making inquiry to clarify testimony, and also observed that concerns about influencing the trier-of-fact by intrusive questioning "are less acute in the context of bench trials, where judges serve as fact finders and have more latitude." State v Taffaro, 195 N.J. 442, 451 (2008) (noting that in jury cases, judges should question witnesses to clarify testimony but show restraint when the witnesses' responses are "perfectly plain") (citing State v. Medina, 349 N.J. Super. 108 (App. Div.), certif. denied, 174 N.J. 193 (2002), (a non-jury case)). However, even in a non-jury case and considering the realities of a judge presiding over a trial involving pro-se litigants, there is a fine line where the nature and tone of questioning becomes less inquiry than advocacy. Taffaro, supra, 195 N.J. at 451.
What was lost in the fast-paced nature of this trial was defendant's right of cross-examination and the right to call witnesses. Peterson v. Peterson, 374 N.J. Super. 116, 125 (App. Div. 2005), Franklin, supra, 385 N.J. Super. at 543. At no point was defendant offered an opportunity to cross-examine plaintiff nor was he advised of his right to call a witness who apparently was present and able to testify.
We recognize the dynamics of a burgeoning and extensive small claims calendar, yet the due process protections afforded to litigants are critical to insure that the trial will ultimately provide for a full exploration of the relevant facts so that the truth of the matter before the judge will fully emerge. Although no proffer was made of defendant's witness, identified as Kevin Koebert, we must assume, without more, that he had relevant information that could provide additional probative evidence for the judge's consideration.
An additional problem arose with the nature of the testimony provided by Polaski. The gravamen of Polaski's testimony was that defendant was "moonlighting" when working for plaintiff and was not acting within the scope of his employment. The judge then properly dismissed the action as to EEJ. Polaski also offered that defendant was fired for, among other reasons, using the EEJ truck while working on private jobs. That fact was not relevant to the facts of the pending litigation, yet it became a critical factor in the judge's ultimate determination as to defendant's credibility. In fact, on at least two occasions, the judge linked defendant's improper use of EEJ's vehicle with the ultimate determination of credibility. As the judge said and then repeated: "Sir, you realize your credibility is at issue since your past employer was just here and told me that he fired you because you did unauthorized . . . you drove the car without authorization." Later, she stated: "But your credibility is at issue because you, frankly, were fired for --for not listening to what your employer had to say - - ."
We recognize that we will give appropriate deference to a trial judge's findings of fact, especially on issues of credibility, McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388, 397 (App. Div. 2008) (noting that an appellate court must give "deference to the findings of the trial judge . . . where . . . the findings are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.") (internal quotations omitted), but we fail to understand the probative value of Polaski's testimony as it applies to defendant's credibility. The factual issue in dispute here was remote and unrelated to the improper use of the truck, and even if related cannot, standing alone, form the basis of facts affecting credibility. See N.J.R.E. 608. Since EEJ is no longer a party to this action, we assume that Polaski's testimony will not be necessary on the retrial, but in any event, the circumstances of defendant's termination from EEJ are not germane and have little place in this case.
A critical issue raised by plaintiff and challenged by defendant was the amendment to the contract and defendant's signature. Plaintiff urged that he observed defendant sign the amendment; defendant vehemently denied that the signature was his, even at one point offering to show the judge a sample of his signature from another source. The judge refused to consider the sample and decided the signature issue on the basis of credibility.
We recognize that the Rules of Evidence may be relaxed in small claims matters in the Special Civil Part. N.J.R.E. 101(a)(2)(A); Penbara v. Straczynski, 347 N.J. Super. 155, 162 (App. Div. 2002). The purpose of such relaxation is to generally allow testimony and documents to be presented in a less restrictive manner than in a Law Division trial, recognizing, as here, that the majority of litigants appear pro se. The converse of the proposition is true as well that where a proffer is made that may prove relevant to the ultimate issue in dispute, judges, in the interest of justice, must accommodate the litigants to insure that all relevant and probative facts are before the judge.
When confronted with the signed copy of the amendment to the contract, defendant vehemently denied that he had signed the document and that the signature was his. At one point he said to the judge: "This is not my signature. Would you like to see my signature?" The judge declined. There is authority for the proffer.
N.J.S.A. 2A:82-1, provides:
In all cases where the genuineness of any signature or writing is in dispute, comparison of the disputed signature or writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by the witnesses; and such writings and the testimony of witnesses respecting the same may be submitted to the court or jury as evidence of the genuineness or otherwise of the signature or writing in dispute; provided nevertheless that where the handwriting of any person is sought to be disproved by comparison with other writings made by him, not admissible in evidence in the cause for any other purpose, such writings before they can be compared with the signature or writing in dispute, must, if sought to be used before the court or jury by the party in whose handwriting they are, be proved to have been written before any dispute arose as to the genuineness of the signature or writing in controversy. [(Emphasis added).]
Whether the trial judge could compare the signature from the front of the estimate with the one on the back, which purportedly signified defendant's acceptance of the amended terms is unclear to discern from this record. However, the judge should have given Koebert the opportunity to provide her with a pre-existing signature for comparison purposes - perhaps a driver's license or other form of identification - that met the requirements of N.J.S.A. 2A:82-1, specifically, that it was "written before any dispute arose as to the genuineness of the signature." The significance of this signature cannot be understated since it emerged as the defining issue in the case. On retrial, defendant should be given an opportunity to present such documentation subject to the judge's determination as to whether such documentation satisfies the other provisions of the statute or rules of evidence.
We have considered defendant's other claims of error and conclude they are without merit. We do note, however, that at oral argument, plaintiff raised the issue of whether defendant was properly licensed to perform the contracted work. The issue was not before us, and we decline to address that question; however, at the retrial of this matter, plaintiff may raise the issue, if appropriate.
We reverse and remand for a new trial.