December 1, 2010
LUIS A. SUAZO, PLAINTIFF-APPELLANT,
MARK J. DILETTO, N/K/A ESTATE OF MARK J. DILETTO, DEFENDANT-RESPONDENT.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2010 - Decided Before Judges Kestin and Coburn.
On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-379-05.
Tomas Espinosa, attorney for appellant.
Ira A. Cohen, attorney for respondent.
This matter arises from a contract for the purchase and sale of real estate. Plaintiff, Luis A. Suazo, appeals, on leave granted, from an order entered on August 24, 2009 "for the reasons set forth on the record on August 21, 2009," declaring him to be in violation of defendant's litigant's rights, and containing a series of provisions mandating and forbidding specified conduct on plaintiff's part. For reasons independent of those advanced in plaintiff's brief on appeal, we vacate the order and remand.
The record on appeal contains a February 19, 2010 letter from Judge Klein amplifying her decision in the matter. See R. 2:5-1(b). In that letter, addressed to the Clerk of the Appellate Division with copies to counsel for the parties, Judge Klein states:
I have received copies of the appellant's brief and appendix [filed on February 9, 2010] pursuant to leave to appeal granted on December 18, 2009. The appellant also provided copies of the transcript from the proceeding that took place before me on August 21, 2009.
Some time ago, I was notified by our senior court clerk that the transcript was defective. A review of it confirms that numerous portions are described as "indiscernible." More importantly, at one point the tape completely malfunctions such that the balance of counsel's argument and the court's entire decision is unavailable. Unfortunately, I have no way of reconstructing the record.
As a result, I held a conference last month with both counsel and advised them of the situation. I suggested that in lieu of pursuit of this appeal, the court would be willing to vacate its order and afford the parties a testimonial hearing which, as I understand it, is the essence of the relief sought on appeal. Counsel for the appellant stated that he would consult with his client and notify the court accordingly. I did not hear from him thereafter, but the filing of his brief and appendix obviously reflects a rejection of the proposal.
I would appreciate your forwarding of this letter to the panel of judges hearing this appeal. I feel compelled to bring these developments to their attention. Frankly, I am unsure as to how the appellate court can adjudicate the issues absent a complete record of the proceedings. I believe that the court's suggestion to counsel is a fair and equitable way of solving the problem.
Both parties, for differing reasons, have argued that the August 24, 2009 order should be vacated and the case remanded. Plaintiff, in his reply brief also argues, inter alia, that the remand should be to another judge. We admire Judge Klein's prompt and proactive action in the matter when she discovered that the verbatim record was deficient and determined that the defect could not be remedied without further proceedings in her court. We agree with her that appellate review of the matter is not possible with the shortcoming that exists.
We are at a loss to understand why plaintiff's counsel did not accept Judge Klein's generous offer to vacate the order appealed from and set the matter down for a plenary hearing, instead of investing the time and incurring the expense to pursue his appeal in which he sought that very same relief. We discern no reason from the documentary record on appeal and such verbatim record as we have, or in any argument advanced by plaintiff, why we should order another judge to preside over the remand proceedings.
For the reasons given by Judge Klein, the order of August 24, 2009 is vacated and the matter is remanded for a plenary hearing and such further proceedings as the trial court may deem appropriate.
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