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In re Serra

September 29, 2009

IN THE MATTER OF MARC D. SERRA, DEFENDANT-APPELLANT.


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3353-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2009

Before Judges Reisner and Yannotti.

Defendant Marc D. Serra ("Serra") appeals from an order entered by the trial court on March 7, 2008, imposing a sanction of $250 upon him for failing to appear in court on December 18, 2007. For the reasons that follow, we affirm.

This appeal arises from the following facts. In September 2007, Serra was representing the plaintiff in a matter being tried in the Law Division. On September 11, 2007, the court proceedings were scheduled to begin at 9:30 a.m. and Serra arrived about ten minutes late. On September 12, 2007, the proceedings were scheduled to begin at 9:00 a.m. and Serra arrived at approximately 9:20 a.m., in the apparent belief that the proceedings would begin at 9:30 a.m.

The trial judge imposed sanctions of $250 upon Serra for failing to appear on time. When the trial concluded, the judge asked counsel for the defendants in the case to submit an order of judgment. Counsel submitted the order, which stated, among other things, that the court had imposed sanctions upon Serra in the amount of $250 and the sanctions must be paid within twenty days. The court signed the order and filed the same on September 14, 2007.

Serra objected to the inclusion of the sanctions in the order of judgment, asserting that the sanctions should be in a separate order. On September 21, 2007, the defendants' attorney submitted a revised order of judgment to the trial judge. On that same date, Serra submitted a proposed order addressing the sanctions, which stated that he had been "fined" $250 and should pay the sanctions within thirty days.

The following week, Serra called the judge's chambers to inquire as to the status of the orders. According to Serra, it was clear that the court would rescind the September 14, 2007 order but it was unclear whether the court would enter the proposed orders. Serra called the court again on October 1, 2007, and, according to Serra, the judge's law clerk said that he could not clarify what had been done with the proposed orders. Serra says that he tried to pay the sanctions but was told that he could not do so without a signed court order.

It appears that the trial judge signed the order for sanctions on September 25, 2007, but Serra did not receive a copy of the order. On November 26, 2007, the judge's law clerk called Serra and asked whether he paid the sanctions. Later that day, the court faxed a copy of the order to Serra. Serra paid the sanctions the following morning.

On November 29, 2007, the Presiding Judge of the Civil Part in Passaic County, Thomas F. Brogan, issued an order requiring that Serra appear on December 13, 2007, and show cause why he should not be held in contempt for failing to pay the previously-imposed monetary sanctions within the time required by the trial judge. In support of the order to show cause, the trial judge submitted a certification dated November 27, 2007, in which he stated that Serra had willfully violated the court's September 25, 2007 order.

On November 30, 2007, Serra filed a certification in response to the order to show cause. In an accompanying letter, Serra asked that the matter be heard before the December 13, 2007 return date since he had plans to be out of the country beginning on December 12, 2007. In his letter, Serra provided no other details and did not state when he would be returning from his trip. Judge Brogan denied the request.

Serra retained an attorney to represent him in the matter and counsel requested an adjournment of the December 13, 2007 return date. Judge Brogan granted the application and adjourned the matter to December 18, 2007. Serra's attorney appeared on that date but Serra did not. The judge adjourned the matter to February 27, 2008.

Judge Brogan stated on the record on February 27, 2008 that he had set the matter down initially on a "particular date[.]" Serra had asked the judge to change the return date "because he would be out of the country" but the judge had refused his request. The judge stated that he expected Serra to be in court on the return date. The judge added that he "told [Serra] to be ...


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