On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-10459-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2009
Before Judges Grall and Messano.
Defendants Ernest Markoglu and Archimedes USA Electric*fn1 appeal from a $6118.81 judgment entered in favor of plaintiff Federated Financial Corp. of America (Federated Financial) after a non-jury trial in the Special Civil Part. Defendant contends that he was denied a fair trial because the judge 1) permitted plaintiff's central witness to testify telephonically; 2) improperly admitted documents that were hearsay into evidence; and 3) should have recused himself sua sponte after he "erroneously accused the defendant of fabricating evidence."
We have considered defendant's arguments in light of the record and applicable legal standards. We reverse and remand the matter for a new trial.
This is a collection case. The complaint, which erroneously listed "Capital One Bank" as plaintiff, alleged that "[d]efendant, by request, was issued a credit card . . . ." Plaintiff alleged defendant owed a balance of $5568.81. Attached to the complaint were a "sample" "Advanta Business Card Agreement" and a credit card statement from Advanta in the defendant's name showing the balance allegedly due and owing. Defendant filed a pro se answer in which he denied "order[ing] the goods or services," and also claimed that he "reported to the creditor that [his] identity was stolen and that [he] did not make any of the charges."
When trial commenced, plaintiff indicated that its witness, Patrick David, was "ready by phone." Its only other witness was to be defendant. The judge noted that he did not "have a significant problem with telephonic testimony," but expressed some concern about the witness's ability to view any of the documentary evidence. Defendant advised the judge that he intended to produce no witnesses, but also told the judge, "I would like to have the opportunity to discuss this gentleman that he's going to be on the phone out of sight." The judge responded, "Absolutely. I'll hear you. Go ahead."
Defendant began a rambling statement that went to the merits of his defense. Noting this was akin to an opening statement, the judge stopped defendant, and had the clerk administer oaths to defendant and David, who was on the phone. The judge did not address the issue of permitting David to testify telephonically ever again.
Defendant contends that his right to a "fair trial" was denied by permitting plaintiff's main witness to testify telephonically. In light of the record before us, under the circumstances presented, we agree.
In Aqua Marine Prods., Inc. v. Pathe Computer Control Sys. Corp., 229 N.J. Super. 264, 274 (App. Div. 1988), we noted that while our Rules permit argument by telephone in lieu of personal appearance before the court in some circumstances, "that procedure does not extend to the routine taking of testimony." In Aqua Marine, we found the telephonic testimony was improperly admitted because there were "no special circumstance compelling the taking of telephone testimony and no circumstantial voucher of the integrity of the testimony so taken and no consent." Id. at 275.
Plaintiff argues that in this case the judge exercised his discretion to permit the telephonic testimony. It contends that David, who was in Michigan, was produced for trial on an earlier date, but the case was adjourned. Plaintiff alleges that it incurred certain expenses in this regard.
Plaintiff's appendix includes two orders, one dated March 3, 2008 that adjourned the trial from that date to March 17, and a second, dated March 31 that adjourned the trial to April 1.*fn2
At the bottom of this second order, the judge wrote, "No further adjournments and plaintiff[']s witness may testify telephonically."*fn3 In its brief, plaintiff alleges that the judge granted its request to produce its witness telephonically, and that defendant did not object. Plaintiff submits that "[i]t is conceivable that the court ...