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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 here" but he failed to appear. The judge imposed sanctions of $250 upon Serra for failing to appear.
Judge Brogan then heard testimony on the order to show cause. Serra was present but he did not testify. The court found that Serra's delay in paying the sanctions imposed by the trial judge did not rise to the level of a contempt of court. Judge Brogan dismissed the complaint but refused to rescind the sanctions he had imposed by reason of Serra's failure to appear on December 18, 2007.
The judge entered an order dated March 7, 2008, which stated as follows:
Marc Serra was directed by the trial court to be present initially on December 13, 2007. Marc Serra requested an adjournment of this date and it was denied by this court.
Another adjournment was requested due to the unavailability of Mr. Serra's attorney.
This application was granted. Mr. Serra did not renew his application for an adjournment for him personally for December 18, 2007, which was the new date. Mr. Serra also had the option of appealing this court's denial of his personal request for an adjournment but chose not to. What Mr. Serra chose to do was ignore this court's direction to personally appear.
On appeal, Serra argues that the court abused its discretion by imposing sanctions upon him for failing to appear on December 18, 2007. We disagree.
The judiciary has the inherent power "'to challenge and punish affronts to its authority.'" In re Daniels, 118 N.J. 51, 58-59 (1990) (quoting In re Yengo, 84 N.J. 111, 130 (1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed. 2d 110 (1981)). Furthermore, "[i]t has long been recognized that there are occasions when this inherent authority must be exercised both swiftly and summarily in order to ensure obedience to court orders and respect for court procedures." Id. at 59 (quoting Yengo, supra, 84 N.J. at 130).
Rule 1:10-1 governs the exercise of the court's power to address contempt in its presence. The rule provides that the court may "adjudicate contempt summarily" without the filing of an order to show cause if:
(a) the conduct has obstructed, or if continued would obstruct, the proceeding;
(b) the conduct occurred in the actual presence of the judge, and was actually seen or heard by the judge;
(c) the character of the conduct or its continuation after an appropriate warning unmistakably demonstrates its willfulness;
(d) immediate adjudication is necessary to permit the proceeding to continue in an orderly and proper manner; and
(e) the judge has afforded the alleged contemnor an immediate opportunity to respond.
If an attorney fails to appear in court when required and either refuses to explain his or her absence or provides a "clearly inadequate explanation" for the non-appearance, the court "may treat the matter as a direct contempt." In re Yengo, supra, 84 N.J. at 126-27 (citing State v. Dias, 76 N.J. Super. 337, 340 (App. Div. 1962)). Furthermore, if an attorney refuses to explain or provides an inadequate explanation for failing to appear, the court may "deal immediately with the matter." Ibid. (citing In re Contempt of Carton, 48 N.J. 9, 21 (1966)).
Here, Judge Brogan entered an order that required Serra to appear in court on December 13, 2007, and show cause why he should not be sanctioned for failing to comply with the trial judge's earlier order imposing sanctions. Those sanctions had, in turn, been imposed because Serra had appeared late on two dates. Although Serra may have had pre-arranged travel plans and requested that the matter be heard prior to the scheduled return date, Judge Brogan denied that application. The judge later adjourned the matter to December 18, 2007, upon the request of Serra's attorney. It is undisputed that Serra did not appear on that date. We are convinced that under these circumstances, the court did not err by imposing sanctions upon Serra.
Serra maintains, however, that the court erred by requiring his personal appearance to respond to the order to show cause. Serra contends that he could not be compelled to be a witness to establish his own guilt to the charge. In our view, these contentions are without merit. The court ordered Serra to appear; it did not compel him to testify. Furthermore, Serra had already chosen to address the allegations in a certification that he submitted to the court on November 30, 2007.
Serra further contends that the sanctions must be set aside because the order to show cause did not expressly order his personal appearance in court on the return date. Again, we disagree. The order to show cause was directed to Serra personally and Serra was ordered to appear and show cause why sanctions should not be imposed. Furthermore, as Judge Brogan pointed out in his decision from the bench on February 27, 2008, the court had informed Serra that he must appear in person.
Serra also argues that the proceedings were flawed because the order to show cause was not served upon him by a sheriff's officer. Serra concedes, however, that a copy of the order to show cause and the supporting certification were faxed to his office. Moreover, the record shows that Serra had actual notice of the proceedings. Indeed, as we have stated, on November 30, 2007, Serra filed a certification responding to the order to show cause and sought a change of the return date.
Serra additionally argues that his failure to appear on December 13, 2007, was moot because the court had adjourned the matter. As we stated previously, the court re-scheduled the matter for December 18, 2007, upon the request of Serra's attorney. Although the court suggested on the record that Serra had been sanctioned for failing to appear on December 13, the order of Maarch 7, 2008 makes abundantly clear that the sanctions were imposed because Serra did not appear on December 18, 2007.
Serra also contends that his failure to appear on December 18, 2007, should be excused because he was represented by counsel on that date. We do not agree. The fact that Serra was represented by counsel is irrelevant. The court ordered Serra to appear personally and he failed to comply with the court's order.
We have considered the other arguments raised by Serra and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
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