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C & R Real Estate, Inc v. Charles Roberts and Stern Lavinthal Frankenberg & Norgaard LLC

March 6, 2012

C & R REAL ESTATE, INC., PLAINTIFF,
v.
CHARLES ROBERTS AND STERN LAVINTHAL FRANKENBERG & NORGAARD LLC, DEFENDANTS, AND DOROTHY CAPPIELLO AND STEVE CAPPIELLO, DEFENDANTS-APPELLANTS, AND LEEANN CERVELLI, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5198-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 31, 2012

Before Judges Carchman, Fisher and Baxter.

Justice Potter Stewart, when a member of the United States Court of Appeals, wrote that although "[t]he prompt and vigorous administration of the . . . law is to be commended and encouraged[,] . . . swift justice demands more than just swiftness." Henderson v. Bannan, 256 F.2d 363, 390 (6th Cir.) (Stewart, J., dissenting), cert. denied, 358 U.S. 890, 79 S. Ct. 129, 3 L. Ed. 2d 118 (1958). Similarly, in this court's early years, we held that "[n]o eagerness to expedite business, or to utilize fully the court's time, should be permitted to interfere with our high duty of administering justice in the individual case." Pepe v. Urban, 11 N.J. Super. 385, 389 (App. Div.), certif. denied, 7 N.J. 80 (1951). Here, we remand for a new trial because the denial of a request for an adjournment of the trial -- that relegated two octogenarians,*fn1 one of whom was physically unable to attend, to representing themselves --constituted an abuse of discretion.

Like Pepe, we recognize that "this appeal is unusual in that no consideration need be given to the facts that led to the litigation." Id. at 387. We provide only the basic circumstances that led to the events relevant to this appeal.

Plaintiff C&R Real Estate, Inc., a closely-held corporation formed in 1977 by defendants Charles Roberts and Steve Cappiello, owns a commercial building in Hoboken, which contains a restaurant and bar, as well as residential rental units. Plaintiff commenced this action, alleging that its books reveal that Roberts owned fifty percent and defendants Lee Ann Cervelli and Dorothy Cappiello each owned twenty-five percent of the corporation's outstanding shares. Plaintiff sought a declaratory judgment regarding the true ownership of its outstanding shares because defendant Steve Cappiello claimed to be the true owner of shares held in the names of Lee Ann Cervelli, who is Steve Cappiello's grand-niece, and Dorothy Cappiello, his wife. Summary judgment motions led to a determination that Roberts owned fifty percent of the outstanding shares, but factual disputes regarding the other fifty percent necessitated a trial involving the Cappiellos and Cervelli.

A peremptory trial date was scheduled to occur on January 19, 2010. On December 30, 2009, the Capiellos'*fn2 attorney wrote to the trial judge, seeking "permission to participate in ex parte communications with the [c]court relative to the ability and propriety" of his "continuing to participate in this matter" and of defendants' "present intention to proceed pro se." The letter further expressed that defendants "join in this request and also seek to directly communicate their position."

A conference occurred in court on January 7, 2010; the proceeding was not recorded so we have no insight into who participated and what was said. As a result of this in camera proceeding, the trial was adjourned until April 26, 2010. The clerk's January 11, 2010 notice did not express that the new trial date of April 26, 2010, was peremptory.*fn3 On January 25, 2010, the trial judge entered an order that permitted counsel to withdraw and defendants to thereafter proceed pro se.

At least a week before the April 26, 2010 trial date,*fn4 defendants' current counsel sought an adjournment of the trial. No record regarding this application was created, although the nature of the request and the judge's denial of it were later discussed on the record on April 26, 2010. There appears to be no dispute, as the judge stated in her written opinion, that defendants' current counsel sought an adjournment a week or so earlier because his retention as defendants' attorney was dependent upon an adjournment and, without an adjournment, he felt he would not have sufficient time to prepare for trial.

The judge having denied the request for an adjournment, all counsel of record and the parties -- with the exception of Dorothy -- appeared for trial on April 26, 2010. Defendants' current counsel also appeared and again sought an adjournment. Other than expressing the insufficient time he had to prepare for trial, counsel also asserted that Dorothy had broken her arm, was taking pain medication, and was unable to attend. With that, counsel concluded, "that's the long story to say that at this stage I'm not representing anybody," prompting the following discussion:

THE COURT: Okay. Well, why don't you --MR. La PAGLIA: I just wanted to let you know what's happening.

THE COURT: Well, I guess you can step back down, because if you're not a part of this -MR. La PAGLIA: It doesn't seem that way.

THE COURT: All right. So, then who is pro se then?

MR. La PAGLIA: Well, Dorothy is home, and Steve is here.

THE COURT: So, he's going to represent [him]self?

MR. La PAGLIA: Well, like I said, Judge, they both wanted me to represent them.

THE COURT: Do you want to represent them?

MR. La PAGLIA: Oh, yeah, sure.

THE COURT: Okay. You just don't want to ...


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