The opinion of the court was delivered by: Simandle, District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This civil action came before the Court for trial without a jury on July 19, 2010.*fn1 The following constitutes the Court's Findings of Fact and Conclusions of Law pursuant to Rule 52(a)(1), Fed. R. Civ. P.
I. INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff, Ernest Keith Wilkerson ["Wilkerson"], filed his Complaint in 1996 while incarcerated serving a federal prison sentence, alleging essentially that defendant Steve Hallett, Esquire, who had represented him in his federal criminal case, together with others, including a member of the Trenton Police Department, Virginia Council, conspired to forge documents which resulted in his being deprived of his property without due process of law, namely, a 1986 Chevrolet Corvette and the proceeds of his personal bank account. His Complaint was filed under 42 U.S.C. § 1983, and the Court has subject matter jurisdiction under 28 U.S.C. § 1331 & 1343. His Section 1983 claim was eventually dismissed, and this Court retained supplemental jurisdiction under 28 U.S.C. § 1367(a).
Of the nine original defendants, only one remains, namely Steve Hallett, Esquire, who is alleged to have conspired with Wilkerson's former girlfriend, Rashida Brown, and others including Virginia Council, to convert Wilkerson's property while he was incarcerated. Wilkerson alleges that attorney Hallett, assisted by Hallett's former secretary Marion Jefferson, endorsed a false Power of Attorney form on or about September 26, 1994, giving Rashida Brown a power of attorney to manage Wilkerson's affairs while he faced a potentially lengthy period of imprisonment on federal cocaine distribution charges. Wilkerson alleges that he never signed the power of attorney and that Rashida Brown forged his name and that Marion Jefferson falsely signed as a witness to that signature, and that Steve Hallett falsely subscribed the power of attorney, stating that he witnessed Wilkerson personally come before him and sign the document.
Wilkerson further alleges that Rashida Brown used the false power of attorney to store his Corvette in 1994 and to title the Corvette into her own name. He alleges that Rashida Brown then sold the car to her mother, former defendant Virginia Council, who then sold the car to an auto dealership, former defendant Northeast Auto Imports, Inc. Wilkerson alleges that the dealership remitted a check for the Corvette to Virginia Council in the sum of $5,000, while the true value of the Corvette exceeded $30,000.
Wilkerson alleges that Virginia Council received stolen property (i.e., the Corvette) and that the Trenton Police Department was covering up the crime of its employee. (Complaint ¶¶ 9 & 10.) Wilkerson also alleges that the false power of attorney was used by Rashida Brown to close Wilkerson's bank account and withdraw the entire balance of $681.22 on September 29, 1994. He alleged that Rashida Brown applied the money for her own purposes. Wilkerson seeks a judgment against Hallett to compensate him for the value of the Corvette and the bank account, together with interest.
Through motion practice in the early days of this case, the claims against defendant Rodney Thompson (an attorney associated with Mr. Hallett), as well as defendants Joe Duddy and Irvin B. Pierce (both of Northeast Auto Imports, Inc.) were dismissed. In December 1999, this Court entered an Order for administrative termination in view of Mr. Wilkerson's continuing incarceration and temporary inability to pursue this case, subject to reopening the case upon his release from prison.
Mr. Wilkerson was released from prison in 2008 and promptly moved to reopen the case only against defendant Steve Hallett, Esquire. On November 7, 2008, the case was reopened only against Mr. Hallett and claims against all remaining defendants were dismissed, including Rashida Brown, Virginia N. Council, and Marion Jefferson.
Mr. Hallett thereafter filed a motion to dismiss, alleging that he would be prejudiced by the reopening of the case after the passage of time because he no longer had his files regarding his former client, Mr. Wilkerson. The Court denied the dismissal motion for the reasons set forth in the Opinion and Order of July 8, 2009 [Docket Items 141 and 142]. The final pretrial order was prepared through the efforts of U.S. Magistrate Judge Ann Marie Donio and filed on June 7, 2010. [Docket Item 150]. The trial commenced as scheduled on July 19, 2010.
Both Mr. Wilkerson and Mr. Hallett represented themselves and testified at trial. Mr. Hallett's previous attorney, Vera Carpenter, Esquire, withdrew from representation.
Only two witnesses testified at trial, namely, Mr. Wilkerson and Mr. Hallett. Each testified under oath through direct testimony and was cross-examined by the adverse party. The Court also interrogated each witness through clarifying questions and to better develop the factual record, as permitted by Rule 614(b), Fed. R. Ev.
Among other documents, the sworn statement of Rashida Brown, given to the Trenton Police Department's Criminal Investigation Bureau on May 23, 1996, was also admitted into evidence (Ex. P-4) without objection.*fn2 Upon Wilkerson's filing of a criminal complaint, the police were investigating Rashida Brown for theft and forgery in connection with the disposition of Wilkerson's Corvette, as well as a Mitsubishi which is not material to the present case. In her written, signed statement, Ms. Brown stated that Wilkerson told her to title the Corvette (and another car, a Mitsubishi not involved in this litigation) into her name because he didn't want his wife, from whom he was separated, to get the cars. She stated that Wilkerson told her to sell the cars in September 1994. She said that there was not a writing or a power of attorney, but that Wilkerson told her to sell the cars over the phone. She admitted signing Wilkerson's name in order to register the Mitsubishi because he told her to do it. She also admitted that she titled the Corvette into her name in the latter part of September or October 1994, and that she signed it over to her mother in December of 1995. She admitted selling the Corvette in February 1996 to Northeast Auto Imports for $5,000. The Trenton Police charged her with forgery and theft in connection with the Corvette, and with forgery in connection with the Mitsubishi. (Ex. P-4).*fn3
According to Mr. Wilkerson, Rashida Brown received a diversionary sentence in municipal court and was ordered to pay restitution in the amount of $5,000 to Wilkerson at the rate of $50 per month, of which only one payment was made. (Mercer County Probation Department Letter, Feb. 19, 1997). There is no evidence that she was actually adjudicated guilty of any charge. Rashida Brown's whereabouts are unknown, according to Wilkerson and Hallett, but her sworn statement to the Trenton Police is in evidence.
There are three key facts in dispute: (1) Is the power of attorney from Ernest Wilkerson to Rashida Brown genuine? (2) Whether or not the power of attorney is genuine, did Ernest Wilkerson authorize Rashida Brown to title the Corvette in her name and to withdraw funds from his bank account? (3) Was Mr. Hallett's culpable conduct a proximate cause of the losses Mr. Wilkerson claims in this case?
We will first examine the disputed power of attorney document (Ex. P-1). The disputed power of attorney purports to be a grant of authority by Wilkerson to Brown appointing her to do each and every act that he could do including buying and selling his goods and other property and transacting "all and every kind of business of what nature or kind, so ever." It also would specifically permit "business bank withdrawals, personal bank withdrawals." (Ex. P-1). In other words, it purported to be a full power of attorney.
The power of attorney also purports to bear the signature of Ernest K. Wilkerson in two places, each dated September 26, 1994.
Each signature on the disputed power of attorney document purports to be witnessed by Marion Jefferson, whose signature appears twice on the witness lines, dated September 26, 1994, immediately beneath Wilkerson's signature lines. There then appears a certification by Mr. Hallett, certifying that on September 26, 1994, "Ernest K. Wilkerson personally came before me and acknowledged under oath, to my satisfaction, that this person... (a) is named in and personally signed this document; and (b) signed, sealed and delivered this document as his and her act and deed." (Ex. P-1). Curiously, next to Steve Hallett's signature appears the stamped date "SEP 28 1994." (Ex. P-1).
Mr. Hallett claims that he traveled from his Trenton office to Mr. Wilkerson's place of confinement at Mercer County Jail and witnessed Wilkerson signing the document on September 26, 1994. Wilkerson, on the other hand, claims that Mr. Hallett never visited him in that period of time, and that Wilkerson never signed the document. Wilkerson alleges that he was visited by Rashida Brown and also by the attorney associated with Mr. Hallett, namely, Rodney Thompson, Esquire. To assess these competing statements, some additional background about Mr. Wilkerson's criminal case would be in order.
The federal grand jury returned an Indictment against Wilkerson on August 19, 1994. (See United States v. Wilkerson, Crim. No. 94-436 (JEI) (Docket Item 1)). Mr. Wilkerson was arrested by federal authorities at his job in Trenton on August 30, 1994. He was charged with the felony of distribution of CDS, had his initial appearance in Trenton before U.S. Magistrate Judge John J. Hughes (id., Docket Item 4), and he was remanded to the custody of the U.S. Marshal without bail. He testified he was temporarily lodged in the Union County Jail. He states he was never lodged in the Mercer County Jail, and there is no other evidence in this case as to his actual lodging place. Wilkerson was temporarily represented at his initial appearance by Assistant Federal Public Defender Brian Reilly (id., Docket Item 4), and Judge Hughes granted Wilkerson's application for appointment of counsel under the Criminal Justice Act, appointing CJA Panel Attorney Frederick Klepp, Esquire. (Id.)
The criminal case was assigned to the Honorable Joseph E. Irenas, U.S. District Judge in Camden, New Jersey. Wilkerson's arraignment took place in Camden on September 8, 1994, represented still by Mr. Klepp. (Id., Docket Item 10.) His detention was continued, and he was temporarily lodged in the Camden County Jail, which was used as a holding facility by the United States Marshal at that time, according to Mr. Wilkerson's testimony. Within a very short period, he recollects that the Marshal took him to FCI Fairton, in Fairton, New Jersey, where he remained in pretrial detention awaiting trial. Wilkerson's next Camden appearance occurred on September 13, 1994, at a hearing upon Mr. Klepp's appeal from Judge Hughes' detention order, which Judge Irenas affirmed in an Order filed September 14, 1994 (Cr. No. 94-436, Docket Item 13.)
Mr. Hallett previously represented Mr. Wilkerson in other criminal cases. Upon arrest, Wilkerson contacted Hallett and asked him to represent him. Hallett agreed to do so for a $5,000 fee, with $2,500 payable up front. Mr. Hallett replaced Mr. Klepp on or about September 13, 1994, which was the date Mr. Klepp submitted his final CJA payment voucher (id., Docket Item 15), ...