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Joseph Mastropole v. Benjamin J. Giunta

January 15, 2013

JOSEPH MASTROPOLE, PLAINTIFF-RESPONDENT,
v.
BENJAMIN J. GIUNTA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. SC-1235-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2012

Before Judges Lihotz and Kennedy.

Defendant appeals from a Special Civil Part judgment awarding plaintiff $500 as "restitution" for plaintiff's alleged purchase of a trailer from defendant that was never delivered. On appeal, defendant asserts that there was no contract between the parties and, therefore, plaintiff had no "standing" to file suit.

We recognize standing is governed by R. 4:26-1, which provides "[e]very action may be prosecuted in the name of the real party in interest . . . . " Moreover, "standing involves a threshold determination which governs the ability of a party to initiate and maintain an action before the court. Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 80 (App. Div. 2001) (citations omitted).

However, this issue, raised now on appeal by defendant, was never formally presented to or addressed by the trial judge, precluding our review. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-235 (1973) (appellate courts generally will decline to consider questions or issues not properly presented to the trial court); Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).

More important, as we detail in our opinion, our review of the record convinces us that the trial itself was not fairly conducted. We reverse the judgment because the conduct of the trial judge prevented the parties from fairly presenting testimony, documentary evidence and argument pertaining to their claims and defenses. Moreover, the trial judge's domination of the proceedings not only prevented the parties from cross- examining each other and the non-party witness, but also left the factual underpinning of the claims and defenses in doubt. We remand the matter for a new trial and direct that a different judge be assigned to the matter.

The record before us is muddled, but it appears that plaintiff filed a complaint in the Small Claims Section of the Special Civil Part, alleging that he paid $1600 to defendant for a trailer that was never delivered to him.*fn1 The parties appeared without counsel for trial on September 17, 2010. It is necessary to recite extensive portions of the record which depict how the trial proceeded.

The parties and a witness, Anderson Reed, were sworn and the trial judge, after some preliminary observations about obtaining restitution as part of a criminal proceeding, stated to the plaintiff, "let me take your testimony." When plaintiff started to speak, the judge immediately interrupted and asked the following multi-part, leading question: "[y]ou had a relationship with [defendant] and paid him $1,600 for a trailer?" to which plaintiff responded "yes."

The following colloquy then ensued between the judge and plaintiff:

Q How did you pay, by cash, money order, --

A Cash.

Q -- check? You paid by cash?

A Yeah. Through my agent Anderson Reed I sent him up there to meet with [defendant] to make the -- to make the payment and the deal.

Q And you never received the trailer?

A No.

Q Was that payment actually made to [defendant]?

A Yes.

Q Was any reason ever given to you as to why you wouldn't receive the trailer?

A He wanted the $300 rent. When we paid him for the trailer, we told him that I was going to register it and that I would be back for the trailer. Approximately three weeks later I went back for the trailer, and he demanded rent. He wanted $300 rent. And, you know, that wasn't part of the deal. So I refused to pay rent for a trailer that has been sitting there for years. And finally he found me as a buyer, and I didn't feel that the rent was due. And that wasn't part of our deal to pay any rent for the trailer for --

Q Did you ask him for the $1,600 to --

A -- three weeks of --

Q -- be returned?

A -- of storage.

Q Pardon?

A I didn't think that $300 was appropriate for the three weeks that -- that I had been there, paid him, and come back to pick it up.

Q Did you ask him for the return of the money?

A Well, I -- I did file a complaint in Wanaque.

Q And that was referred to the grand jury?

A And they referred it here. They said that he had problems in Wanaque.

Q No, no, no. I don't want to hear about that.

A Okay.

Q Now the --

A Your Honor, I do --

Q -- indictment that was returned, did it deal specifically with this transaction?

A Yes.

Q And he pled guilty?

A Yes. Your Honor, I -- I -- have the title. So I don't know how he can do anything with the trailer without the title anyway. I -- I have the title, I have the registration. Made a good ...


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