Petition for Writ of Certiorari — Fernandes v. K & J Construction

0212 46 FEB ; 0 2003

No. OPP. ca Fett ee

In The

Supreme Court of the Anited States

NELSON FERNANDES

Petitioner,

V.

K. and J. Construction.

On Petition for Writ of Certiorari

To The Supreme Court of New Jersey

PETITION FOR WRIT OF CERTIORARI

Nelson Fernandes — Pro se

{ 9 Fox Run

Denville, N.J. 07834

| (973) 627 —2138

Hy?

Questions Presented for Review

1. Is petitioner entitled to a second appeal as of right

and did the N.J. Supreme Court deny him that right in

violation of due process and the cited authorities.

2. Does the denial of the petition for certification

constitute a decision on a federal question since the petition

involved an ex parte communication between a judge and

attorney that resulted in a denial of due process by infecting

the outcome, and does that denial provide this Court with

jurisdiction.

3. Is the N.J. Supreme Court in conflict the

authorities cited by the petitioner.

4. Was there an ex parte communication that

infected the decision, was petitioner prejudiced by it, and did

the judge transcend the power conferred by law or did he

cause a structural error which deprived him of jurisdiction.

5. Is a judge deprived of jurisdiction when he

exceeds the authority provided by law, and does raising that

issue at any point during an appeal require that trial result be

set aside for a iack of subject matter jurisdiction.

TABLE OF CONTENTS

Statement on the Orders Entered...............0ecceeeeeees 1

Statement of the Basis for Jurisdiction.................... l

Comatethnennss PRYOR an scinnicecsenssnriencacsdsennsens 2

event OF PTR, nip csncisciinesneiiewlxmassvene 2

I - Reasons for Granting this Petition

The Supreme Court Denied Petitioner

His Apponl ap OE Rig sisi sidiis ioe cccidis iventiceveds 4

The Ex Parte Communication Prejudiced the Outcome.6

The Petition for Certification was a Sham................. 7

Abdication of Jurisdiction and Structural Error .......... 9

CITE AAT UE 01 000tisonieeinsegnensctvene ekiaae 10

TABLE OF AUTHORITIES

CASES:

Alexander v. Primerica Holdings, Inc.,

10-F.SG 155, FOS TREC, TSG hi ovcccsccevsovcnces ...6, 9

Application of Winterhawk Outfitters, Inc. v.

43 P.3d 745 (Colo.App. 02/14/2002)..............0.000 4

Blank v. D.of A., 247 F.3d 1225 (Fed. Cir.2001)................. 6

Burkett v. Cunningham, 826 F.2d 1208 (3™. Cir.1987)......... 5

Cedar Rapids Gas Light Co. v. City Cedar Rapids,

AOS FE GOD iis ice dasarsnciacteainviaksciebussins 1

Epperson et al. v. Arkansas, 393 U.S. 97 (11/12/68)............ 6

Fleck v. E.F. Hutton Group Inc.,

873 F.2d 649 (2nd Cir. 05/04/1989).............. 0c eee 5

Grieco v. Meachum, 533 F.2d 713 (1st Cir. 04/07/1976)....... 6

Homar y. Gilbert, 89 F.3d 1009 (3d Cir. 07/18/1996)........... Zz

Humenik v. Gray, 350 N.J.Super. 5, (A.D. 04/10/2002).........8

In re Sun Valley Foods Co., 801 F.2d 186 (6th Cir.1986)...... 5

Korea Shipping Corp. v., ;

811 F.2d 124 (2nd Cir. 02/04/1987).................0085 5

Mackey v. U.S., 401 U.S. 667 (04/05/71).........cccceeeeeeeeees 10

Moser v. Milner Hotels Inc, 6 N.J.278 (1951)..........eceeeeeee 8

ii

CASES:

I Eg gk A

Palko v. Connecticut, 302 U.S. 319, 327........cccccscccccccscceee 7

Simer v. Rios, 661 F.2d 655 (7th Cir. 10/07/1981)............... 6

Smith v. Robbins,

120 S.Ct. 746, (U.S. 01/19/2000)............csecccsceseees 5

Snyder Realty Co. v. Nat., Inc., Banking Co.,

RR gS Lh hs en ne 8

Standard Oil Co. of Ind. v. Moi,

IE CUED cccnceescccegrenncenseccennenses 9

Tidewater Oil Co. v.

44N.J. 338, 341-42 (N.J. 04/12/1965)................4. 4

United Transportation,

812 F.2d 630 (10th Cir. 02/25/1987)................. 008 9

U.S. v. Adams, 785 F.2d 917 (11th Cir. 03/31/1986)............ 6

U.S. v. Earley, 746 F.2d 412 (8th Cir. 10/11/1984).............. 6

U.S. v. Goodwin, 457 U.S. 368 (1982).............cceessseeee cence 8

ae V. LOVERCD, SOT UB. 1835, CEST)... ..00000scccssereccersness 6

COURT RULES:

SU ES IPSS Re on eae a ee 3,4

STATUTES:

EE BAP. CEL, BUG OE Bi UO in csescsenpacncsceesseesyeess seve l

N.J. CONSTITUTION ~

Articie VI, Section V, Par. 1(a)&(e)............eccessceeescees 2,4

ill

CONTENTS OF APPENDIX

A 12/12/02 S.C. Petition for Certification Denied

B 09/19/02 S.C. Order granting leave to file as timely

Converting notice of appeal as of

right to a petition for certification

C 06/04/02 A.D. Order denying Reconsideration

D 03/18/02 A.D. Order granting extens’on of time

_ E 02/04/02 A.D. Order and Opinion

F 02/05/01 L.D. Order denying recusal motion and

other relief

G 12/81/01 L.D. Judgment

H 11/06/00 A.D. Denying Leave to Appeal

I 09/08/00 L.D. Arbitrartion ruling vacated

J 05/15/98 C.D. Case Transferred from Small Claims

to Law Division

K 06/30/02 Notice of Appeal as of Right

L 06/30/02 Notice of Motion — Leave to file Notice of

Appeal as within time

M 06/30/02 Brief in support of the above motion

N 12/18/00 Letter from Judge granting pre/post judgment

interest without a hearing (not raised at trial)

O 12/03/00 Letter stating interest was added to judgment

In violation of due process

Sections of the Petition filed in the NJ Supreme Court

Ex parte communication and proof of prejudice

Quantum Meruit not permitted w/o rescission

Section on allowing interest w/o due process

Section asking the Court to reconsider its order

Appellate Division avoided the ex parte issue

HnWDO PV

Statement on the Orders Entered

12/12/02 S.C. Petition for Certification Denied

09/19/02 S.C. Order granting leave to file as timely and

converted notice of appeal as of right

06/04/02 A.D. Order denying Reconsideration

03/18/02 A.D. Order granting extension of time

02/04/02 A.D. Order and Opinion (omits ex parte issue)

02/05/01 L.D. Order denying recusal motion & other relief

12/81/01 L.D. Judgment

11/06/00 A.D. Denying Leave to Appeal

09/08/00 L.D. Order vacating arbitration

05/15/98 C.D. case transferred from small claims

ent of the B r ti

Petitioner seeks a review of the N.J. Supreme Court’s

12/12/02 order denying a petition for certification pursuant to 28

USC 1257, 2101, 2104 & 2106. The N.J. Supreme Court denied

petitioner an appeal as of right and reconsideration (Pa.S) in

violation of due process. Then denied certification to consider an

ex parte communication between the trial judge and the attorney

for plaintiff, which prejudiced the outcome, thereby deciding a.

federal question on two separate occasions.’ ,

' "It is not necessary that the express language of the opinion

should recite that a Federal question has been decided, but it is

sufficient for the purpose of the jurisdiction of this court, that the

state court by its decisions necessarily adjudicates the defense

under the Federal Constitution." Cedar Rapids Gas Light Co. v.

City Cedar Rapids, 223 U.S. 655 (1912).

nn

Constitutional Provisions

Article VI, Section V, Par. 1(a)&(e) of N.J.’s Constitution

allows appeals to be taken to the Supreme as follows:

1. Appeals may be taken to the Supreme Court:

(a) In causes determined by the appellate division of the Superior

Court involving a question arising under the Constitution of the

United States or this State;

(e) In such causes as may be provided by law.

Statement of the Case

This case involves a contract matter, a consumer fraud

counterclaim, and damage to petitioner’s home as the result of

careless workmanship. The case was tried in the Law Division

before a judge who violated due process by allowing an ex parte

communication by plaintiff's attorney, which appears in the

record. This communication prejudiced petitioner’s rights and

infected the outcome of the trial. (Pa.P) The trial judge also

surprised petitioner by raising the resulting quantum meruit

claim, thus aligning himself with the plaintiff. (Pa.Q) Moreover,

the judge allowed pre and post-judgment interest without a

hearing on notice, (Pa.N&O) again denying petitioner due

process. (Pa.R) This conduct shows the degree of influence and

prejudice that resulted from the ex parte communication.

Petitioner argued the ex parte issue to the appellate court in

his opening brief and his brief on reconsideration (Pa.C).

However, the appellate division refused to rule on the issue, even

though plaintiff's attorney did not dispute the fact that he had an

ex parte communication with the judge. Petitioner then sought a

second appeal as of right in the Supreme Court. Upon calling the

clerk’s office for notice requirements, petitioner was told the

time to file a notice had run, although petitioner had an order

extending the time (Pa.D) which would make filing timely.

Nevertheless, petitioner was required to file a motion for leave to

timely file, or have his notice of appeal refused.

Petitioner filed a notice of appeal and a motion for leave to

accept the notice as within time. (Pa.K&L) Petitioner did not

present his grounds for appeal (Pa.M) since R.2:2-1(a) allows it

as of right, so leave is not required. The Supreme Court granted

leave on the timeliness issue, but violated due process by treating

the notice of appeal as of right as notice for a petition for

certification though it was not part of the brief (Pa.B). The order

denying petitioner his right to an appeal as of right violated due

process the instant it was entered. That act and the subsequent

denial of the petition for certification makes the Supreme Court’s

action appear to be a denial of substantive due process motivated

by an institutional bias, bad faith or improper motive.

Petitioner filed a notice of appeal as of right (Pa.K) and a

motion ? for "leave to file that notice as within time" (Pa.L). The

Supreme Court found the notice was timely. But, exceeded its

authority by converting the notice into one for a petition for

certification. By so doing, it violated Article VI, Section V, Par.

1(a) of the N.J. constitution, R.2:2-1,> and a Supreme Court

ruling, which allows a second appeal as of right without the need

for leave if a party wants it.* Therefore, the Supreme Court

2 A "motion" is defined as "a written or oral application

requesting a court to make a specified ruling or order." Black's

Law Dictionary 1031 (7th ed. 1999) Application of Winterhawk

Outfitters, Inc. v. Office of Outfitters Registration, 43 P.3d 745

(Colo.App. 02/14/2002).

>"R. 2:2-1. Appeals to the Supreme Court from Final Judgments

(a) As of Right. Appeals may be taken to the Supreme Court

from final judgments as of right: (1) in cases determined by the

Appellate Division involving a substantial question arising under

the Constitution of the United States or this State."

* The very limited provision for double appeals without

leave arises as an aspect of the new judicial structure of this State

created by the Constitution of 1947, which is based on the sound

tenet of judicial administration that there should ordinarily be

only one appeal as of right. Midler v. Heinowitz, 10 N.J. 123,

129 (1952). The exception of additional review in cases

involving constitutional questions has to be based on the thinking

that matters of interpretation or application of the organic

documents of government and of fundamental rights and

obligations warrant a second judicial look if the losing party

wants it because they are intrinsically of basic importance.

denied petitioner due process, the instant it entered its order

(Pa.B).* The right to appeal as of right is clearly protected by the

due process clause.® So, an appeal as of right is not subject to a

motion for leave or the Supreme Court’s discretion.’

Tidewater Oil Co. v. Mayor and Council of Borough of Carteret,

44N.J. 338, 341-42 (N.J. 04/12/1965).

> "Such a result is equally consistent with our cases holding a

violation of due process to be complete when a defendant is

denied a right to the appeal he is otherwise entitled to pursue.

See Peguero v. United States, 526 U. S. 23, 30-31 (1999)

(O'Connor, J., concurring). Smith v. Robbins, 120 S.Ct. 746, 528

U.S. 259, 145 L.Ed.2d 756 (U.S. 01/19/2000)

° "The Supreme Court has found that the Due Process clause

protects the right to direct appeal when that right is guaranteed

by the state, even though the Constitution does not require states

to grant that right. See, e.g., Evitts, 469 U.S. at 393. Due process

requires that a right to appeal be a right to an "adequate and

effective’ appeal" which is "more than a 'meaningless ritual."" Id.

at 393, 394 (quoting Griffin v. Illinois, 351 U.S. 12, 18, 100 L.

Ed. 891, 76 S. Ct. 585 (1956), and Douglas v. California, 372

U.S. 353, 358, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963)). Due

process further protects not only the right "to obtain a favorable

decision," but also the right "to obtain a decision at all . . . on the

merits of the case." Evitts, 469 U.S. at 395 n.6." Burkett v.

Cunningham, 826 F.2d 1208 (3rd Cir. 07/10/1987).

7 “Sun Valley's appeal to the district court was not subject to the

discretion of the district court; rather, it was an appeal as of right,

properly before the district court." Jn re Sun Valley Foods Co.,

801 F.2d 186 (6th Cir. 09/11/1986); Fleck v. E.F. Hutton Group

Inc., 873 F.2d 649 (2nd Cir. 05/04/1989) ("since congress has

now granted defendants an appeal as of right, it is unnecessary

for us to exercise our discretion"); Korea Shipping Corp. v. N.Y.

Shipping Assoc., 811 F.2d 124 (2nd Cir. 02/04/1987) ("where a

district court balances the equities of a particular situation guided

The Ex Parte Communication Prejudiced th ome

Petitioner sought a second appeal as of right because the

appellate division twice refused to address the trial judge’s ex

parte communication with plaintiffs attorney. That contact

prejudiced * petitioner by infecting the outcome of the trial, thus

proving a due process violation. So, refusal to grant the petition

for certification was a decision on a federal question that

conflicts with the law of a number of circuit courts.”

by no more than its own conscience, an immediate appeal as of

right is a prudent safeguard against possible abuses of

discretion"); Epperson et al. v. Arkansas, 393 U.S. 97 (11/12/68)

("the present case was brought, the appeal as of right is properly

here, and it is our duty to decide the issues presented.")

* Proof of prejudice is generally a necessary but not sufficient

element of a due process claim." U.S. v. Lovasco, 431 U.S. 783,

(1977).

° "In the absence of any showing that the (ex parte

communication) infected the fact-finder's determination of the

issues at trial, we hold that the challenged practice did not violate

the petitioner's rights to due process of law." Grieco v. Meachum,

533 F.2d 713 (1st Cir. 04/07/1976), cert. denied, 429 U.S. 858

(1976); Simer v. Rios, 661 F.2d 655 (7th Cir. 10/07/1981)

(same); U.S. v. Earley, 746 F.2d 412 (8th Cir. 10/11/1984)

(same); U.S. v. Adams, 785 F.2d 917 (11th Cir. 03/31/1986)

(same); Blank v. Dept. of the Army, 247 F.3d 1225 (Fed. Cir.

04/19/2001) ("only ex parte communications that introduce new

and material information to the deciding official will violate the

due process guarantee of notice."); Alexander v. Primerica

Holdings, Inc., 10 F.3d 155 (3d Cir. 1993) ("a judge will thus be

guarded from engaging in ex parte discussions with counsel or

aligning himself even temporarily with one side in pending

litigation").

The Petition for Certification was a Sham

The Supreme Court deprived petitioner of an appeal as of

right (Pa.B), and declined to reconsider that issue in the petition

for certification (Pa.S). It also disregarded petitioner’s arguments

for granting certification, making that hearing a sham. '°

The petition shows the judge admitted to an ex parte

communication (Pa.P) with plaintiffs attorney, raised a quantum

meruit claim for plaintiff as a result, decided the case in

plaintiff's favor based on the quantum meruit claim (Pa.P), and

allowed pre and post judgment interest (Pa.R) without a hearing.

Nor did plaintiffs attorney ever deny the ex parte

communication. Petitioner also showed the appellate division

refused to address the ex parte communication (Pa.T).

Therefore, the elimination of the appeal as of right and the

Supreme Court’s denial of the petition for certification appears to

be a denial of substantive due process, motivated by an

institutional “bias, bad faith or improper motive.” *

10 wThe hearing, moreover, must be a real one, not a sham or a

pretense." Palko v. Connecticut, 302 U.S. 319, 327.

'! wa] violation of substantive due process rights is proven: . . .

'if the government's actions in a particular case were in fact

motivated by bias, bad faith or improper motive. . .,"" id. (quoting

Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 683 (3d

Cir. 1991), cert. denied, 503 U.S. 984 (1992)), Homar points to

several facts that he argues demonstrate that his suspension and

The judge said he ruled as follows (Pa.P);

THE COURT: I found in your favor on that issue. I

said it was unlawful, and I said he couldn’t recover

under the contract. But I said he could recover on

quantum meruit. (2T16,10-13)

This shows the ex parte communication that resulted in the

quantum meruit claim ambushed the petitioner.’? It further shows

the judge allowed quantum meruit without rescinding the

contract, thus transcending his authority. '°

So, the Supreme Court’s refusal to grant certification based

on the foregoing is indicative of an institutional bias against

retrial.'*

demotion were motivated by bias, bad faith or improper motive."

Homar v. Gilbert, 89 F.3d 1009 (3d Cir. 07/18/1996).

2 “To permit last-minute changes in strategy would be "akin

to trial by ambush."”Humenik v. Gray, 350 N.J.Super. 5, (A.D.

04/10/2002).

'3 “Having pleaded an express contract, the plaintiff cannot

without showing a rescission, recover on quasi-contract.

Moser v. Milner Hotels Inc, 6 N.J. 278 (1951); C.B. Snyder

Realty Co. v. Nat., Inc., Banking Co. , 14.N.J. 146, 162-3 (1952).

'4 “The decisions in these cases reflect a recognition by the Court

of the institutional bias inherent in the judicial system against the

retrial of issues that have already been decided. The doctrines of

stare decisis, res judicata, the law of the case, and double

jeopardy all are based, at least in part, on that deep-seated bias .

. the same institutional pressure that supports them might

also subconsciously motivate a . . judicial response to a

defendant's exercise of his right to obtain a retrial of a

decided question. U.S. v. Goodwin, 457 U.S. 368 (1982).

Abdication of Jurisdiction and Structural Error

The judge aligned himself with the plaintiff '* by raising a

quantum meruit claim as the result of an ex parte communication

with the attorney. So, the trial judge transcended the power

1

conferred by law ** and displayed a bias that constitutes a

structural error, '’ causing a defect in jurisdiction, which can be

raised at any time.'®

'S Alexander v. Primerica Holdings, Inc., 10 F.3d 155 (3d Cir.

1993) (“A judge will thus be guarded from engaging in ex parte

discussions with counsel or aligning himself even temporarily

with one side in pending litigation”).

'© “Though the court may possess jurisdiction of a cause, of the

subject-matter, and of the parties, it is still limited in its modes of

procedure, and in the extent and character of its judgments. It

must act judicially in all things, and cannot then transcend

the power conferred by the law.” Standard Oil Co. of Ind. v.

Missouri, 224 U.S. 270, 281 (1912).

'7 "We have found an error to be "structural," and thus subject to

automatic reversal, only in a "very limited class of cases." . . .

Tumey v. Ohio, 273 U. S. 510 (1927) (biased trial Judge)."

Neder v. U.S., 527 U.S. 1, (1999).

'8 «It is well established that defects in subject matter jurisdiction

may be raised at anytime on direct appeal. Mitchell v. Maurer,

293 U.S. 237, 244, 79 L. Ed. 338, 55 S. Ct. 162 (1934); 13 C.

Wright, A. Miller & E. Cooper, Federal Practice & Procedure §

3522 (2d ed. 1984).” United Transportation Union and Robert

M. Bannon v. Union Pacific Railroad Co., 812 F.2d 630 (10th

Cir. 02/25/1987).

CONCLUSIONS

The trial record shows the judge raised a quantum meruit

claim as the result of an ex parte communication with plaintiff's

attorney, and when questioned about it, the judge said; "I didn’t

raise it. It’s been raised beforehand." (1T35-22) With the

exception of the attorney blurting out the book number; "298"

(1T37-23) there is nothing in the record to show the attorney

raised this issue at trial, thus proving the phrase; "It’s been raised

beforehand" is an admission of an ex parte communication.

Therefore, the denial of the petition for certification

indicates a judicial bias against retrial which penalizes petitioner

for bringing the judge’s admission of an ex parte communication

that prejudiced petitioner’s rights to the Supreme Court’s

attention. The Court’s | refusal to grant the petition in order to

address this denial of due process '? is fundamentally unfair since

petitioner is only relaying that which appears in the record.

For all of the above stated reasons petitioner prays for this

Court’s consideration of this petition.

'9 "By this doctrine all other courts in this country are, in effect,

reduced largely to the role of automations, directed by us to

apply mechanistically all then-settled federal constitutional

concepts to every case before them." Mackey v. U.S., 401 U.S.

667 (1971).

10

A

K & J Construction, SUPREME COURT OF N.J.

Plaintiff-Respondent, | C-435 September Term 2002

Vv. 53,332

Nelson Fernandes, et al., On Petition for Certification

Defendants-Petitioners. Filed 12/12/02

To the Appellate Division, Superior Court:

A petition for certification of the judgment in A-3115-OO

having been submitted to this Court, and the Court having

considered the same;

It is ORDERED that the petition for certification is denied,

with costs.

WITNESS, the Honorable Deborah T. Poritz, Chief

Justice, at Trenton, this 10th day of December, 2002.

“S/Stephen Townsend”

Clerk of the Supreme Court

11

B

K & J Construction, SUPREME COURT OF N.J.

Plaintiff-Respondent, C-435 September Term 2002

v. 53,332

Nelson Fernandes, et al., ORDER

Defendants-Petitioners. Filed 9/19/02

This matter having been duly presented to the Court, and

the Court having determined that movant has no basis to

appeal as of right to this Court under Rule 2:2-1(a), it is

hereby

ORDERED that movant’s notice of appeal shall be

deemed a notice of petition for certification; and it is further

ORDERED that movant’s motion for leave to file the

notice of petition for certification as within time (M-164) is

granted; and it is further

ORDERED that movant shall serve and file his petition

for certification within 10 days of the date of this Order, or the

notice of petition will be dismissed for lack of prosecution.

WITNESS, the Honorable Deborah T. Poritz, Chief

Justice, at Trenton, this 19th day of September, 2002.

Clerk of the Supreme Court

12

C

K&J Construction SUPERIOR COURT OF N.J.

vs APPELLATE DIVISION

Nelson Fernandes DOCKET NO.A -003115-00T3

MOTION NO.M -003875-01

BEFORE PART: E

JUDGE(S): WEFING

LES EMANN

Filed June 4, 2002

MOTION FILED: APRIL 2, 2002 By: N. Fernandes

ANSWER(S) FILED:

SUBMITTED TO COURT: APRIL 4, 2002

RDER

THIS MATTER HAVING BEEN DULY PRESENTED TO

THE COURT, IT IS ON THIS 31 st. DAY of MAY, 2002,

HEREBY ORDERED AS FOLLOWS:

MOTION BY APPELLANT FOR RECONSIDERATION

DENIED

_ For the Court

“ R . WEFING J.A.D.”

13

D

K&J Construction SUPERIOR COURT OF N.J.

vs APPELLATE DIVISION

Nelson Fernandes DOCKET NO.A -003115-00T3

MOTION NO.M -003154-01

BEFOREPART: E

JUDGE(S): WEFING

LES EMANN

Filed March 18, 2002

MOTION FILED: FEBRUARY 15, 2002 By: N. Fernandes

ANSWER(S) FILED:

THIS MATTER HAVING BEEN DULY PRESENTED TO

THE COURT, IT IS ON THIS 14 th. Day of March, 2003,

HEREBY ORDERED AS FOLLOWS:

MOTION BY APPELLANT GRANTED

- FOR STAY

- TO EXTEND TIME TO FILE A MOTION FOR

RECONSIDERATION

SUPPLEMENTAL: a

The motion for an extension of time is granted apel lant

may file a motion for reconsideration no later than May 1, 2002.

For the Court

“S/DOROTHEA. WEFING J.A.D.”

14

E

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A—3115—00T3

K & J Construction,

Plaintiff-Respondent,

v.

Nelson Fernandes, et al., :

Defendants-Petitioners. Filed 2/04/02

Submitted January 8, 2002 - Decided FEB 4, 2002

Before Judges Wefing and Lesemann.

On appeal from Superior Court of New Jersey, Law Division,

Morris County, MRS-L-001821-98. Nelson A. Fernandes,

appellant pro se.

Advokat & Rosenberg, attorneys for respondent (Jeffrey M.

Advokat, on the brief).

PER CURIAN

This appeal arises from a contract between plaintiff and

defendant by which plaintiff undertook to install a new roof and

perform certain related work on defendant’s house. The written

contract called for a total price of $6,300. Plaintiff, however,

claimed that the parties orally agreed on some additional work

and that the total job price would thus be increased by $1,400, to

a total of $7,700. Defendant paid plaintiff $3,200 when the

contract was signed. Plaintiff undertook to perform the contract

and subsequently brought this suit, claiming that he had

completed the work and seeking recovery of the unpaid $4,500.

At trial, much of the evidence dealt with the $1,400

represented by the alleged oral modification of the parties’

written agreement and claims by defendant that plaintiff had not

properly performed the work. The trial was by the court without

15

a jury. At the conclusion thereof, the court rendered its decision

for plaintiff in the sum of $3,100, rejecting plaintiff's claim for

the additional $1,400 under the alleged oral modification to the

contract. The court also awarded plaintiff pre-judgment interest

of $454, and entered judgment accordingly in favor of plaintiff.

With one exception, we are satisfied that the trial court’s

findings and the judgment based thereon are adequately

supported by the evidence and there is no warrant for our

intervention. Rova Farms Resort, Inc. v. Investors Ins. Co. of

Am., 65 N.J. 477, 484 (1974). Nor is there any need for us to

discuss that point any further in this opinion. R. 2:11—

3(e)(1)(A).

The exception to that conclusion relates to defendant's

claim that plaintiff failed to take necessary precautionary

measures to protect the brick work on the house while the old

roof shingles were being removed. Defendant testified that

plaintiff was “suppose to put protection around the house for the

brick work” but, although he did take protective measures

concerning the plants around the house, he did not do so with

respect to the bricks. As a result, defendant claimed,

when they were tearing off the shingles the

house got completely marked up from tar from the

shingles that were coming down. And I tried to

remove it by hand with a couple different chemicals

but I was unsuccessful. And I brought it to Kevin’s

(plaintiff's) attention and he went like, yeah, so

what? And he begged off of any responsibility for the

damage that was done to the house. So ultimately, we

had to have the exterior of the house steam cleaned

in order to have those marks removed.

Defendant said he spent $424 for that steam cleaning, and

he introduced a bill for that amount into evidence.

At trial, other than a general statement that plaintiff

properly performed its contract obligations, plaintiff made no

reference to defendant’s claim concerning the need to clean the

16

brick on his house. In its decision, the court rejected the

allegation, saying this:

First of all, if somebody wanted to have

protection for the bricks it should have been in the

contract. It wasn’t in the contract. Now another oral

agreement. Well, there’s no proof of an oral

agreement. And so I’m not going to award anything

for the steam cleaning after all the entire house was

steam cleaned for, from what I can see, a couple

minor areas of concern where bricks may have been

discolored with tar.

We disagree with that conclusion. We can see no need for a

contract provision specifically providing for reasonable

protection for the brick on defendant’s house. Rather, the basic

necessity for careful performance of the work and avoidance of

any resulting damage to the remainder of the house would

certainly include an obligation to avoid smearing the brick siding

with tar from the roof shingles. Nor do we see any basis for the

court's conclusion that there were only “a couple minor areas of

concern.” Defendant described a much more extensive area of

damage and, as noted, plaintiff said nothing on the subject. The

bill presented for the cleaning referred to “tar removal from

brick,” and nothing was presented to question the bona f ides of

the bill, the necessity for the work, or the actual performance of

the work.

We are satisfied that the judgment in plaintiff's favor

should be reduced by the $424 representing the cost of removing

the tar from the brick siding, which would also require an

appropriate modification in the prejudgment interest awarded to

plaintiff. With those changes, the remainder of the award is

appropriate and, accordingly, the matter is remanded to the trial

court for entry of a modified judgment consistent with this

opinion.

“é ”

Clerk of the Appellate Court

17

Nelson Fernandes — Pro Se

9 Fox Run

Denville, N.J. 07834

K & J Construction, Superior Court of N.J.

Plaintiff, Law Division — Morris County

v. DKT NO: MRS-L-001821-98

Mr. & Mrs. Wilson Fernandes; ORDER

Defendants. Filed Feb. 5, 2001

THIS MATTER having come before the Court for a hearing

held on January 3, 2000 on the motion of defendant requesting an

order for various relief. This matter having been fully submitted

and heard, and for good cause shown;

IT IS on this 2 nd. Day of February, 2001

1.0RDERED that defendant’s motion for new trial is

hereby denied;

2.ORDERED that defendant’s motion to amend the

judgment is denied;

3.ORDERED defendant’s motion for amended findings

and conclusions of law is denied;

4.ORDERED that defendant’s motion for treble damages is

denied in the amount of $ 3,445.00;

5.ORDERED that defendant’s motion for recusal is hereby

denied.

Judge Cramp

18

G

ADVOKAT & ROSENBERG, ESQS,

Attorneys at Law

22 North Park Place

Morristown, New Jersey 07960

(973) 993-1923

Attorneys for Plaintiff

K & J Construction, Superior Court of N.J.

Plaintiff, Law Division — Morris County

v. DKT NO: MRS-L-001821-98

Civil Action

Mr. & Mrs. Wilson Fernandes; JUDGMENT

Defendants. Filed Dec. 18, 2000

THIS MATTER, having been brought before the Court on

November 27, 2000, in the presence of ADVOKAT &

ROSENBERG, ESQS. counsel for the plaintiff, K & J

Construction, (Jeffrey M. Advokat, Esq. appearing) and with the

defendants representing themselves, and after full trial, and for

good cause having been shown;

IT IS on this 17 day of December 2000

ORDERED AND ADJUDGED, that Judgment be entered

in favor of K & S Construction, in the amount of Three

Thousand, one hundred dollars ($3,100.00) plus prejudgment

interest in the amount of Four Hundred, fifty-four dollars $

454.00 as well as post judgment interest until the date of

satisfaction.

ae

“ee > ”

Hon. David S. Cramp J.S.C.

19

H

K&J Construction SUPERIOR COURT OF N.J.

vs APPELLATE DIVISION

Nelson Fernandes DOCKET NO.AM -000057-00T3

MOTION NO.M -000404-00

BEFORE PART: H

JUDGE(S): Rodriguez

Fall

Filed November 6, 2000

Motion Filed Sept, 21,2000 By; Nelson Fernandes

Answer(s) filed

Submitted to the Court Nov. 1, 2000

RDER

THIS MATTER HAVING BEEN DULY PRESENTED TO

THE COURT, IT IS ON THIS 2 day of Nov., 2000, HEREBY

ORDERED AS FOLLOWS:

MOTION BY APPELLANT DENIED

- For Leave to Appeal

- For Stay

- To Vacate Order

- For Remand

- For Oral argument on motion

- Further Relief

“S/Ariel Rodgriguez”

Ariel A. Rodriguez J.A.D.

20

Nelson Fernandes — Pro Se

9 Fox Run

Denville, N.J. 07834

K & J Construction, Superior Court of N.J.

Plaintiff, Law Division — Morris County

Vv. DKT NO: MRS-L-001821-98

Mr. & Mrs. Wilson Fernandes; ORDER

Defendants. Filed Sept. 8, 2000

THIS MATTER having come before the Court for a

hearing on September 8, 2000 on the motion of Defendant

requesting an order to vacate the award of the arbitrator and

ftirther requesting a dismissal of plaintiff's case This matter

having been ftilly submitted and heard and for good cause

shown;

IT IS on this 8 th. day of September, 2000;

ORDERED that Defendant’s motion requesting the

Arbitrator’s award be vacated on the grounds that (handwriting is

not legible)

ORDERED that defendant’s motion for involuntary

dismissal is denied.

1. All discovery must be completed by Oct. 1, 2000 by

both sides.

2. Trial date Nov. 20, 2000.

“S/Bernard F. Conway”

21

Nelson Fernandes — Pro Se

9 Fox Run

Denville, N.J. 07834

K & J Construction, Superior Court of N.J.

Plaintiff, Chancery Division —

Morris County _

v. DKT NO: DC 2677 98

MRS C88 98

Mr. & Mrs. Wilson Fernandes; ORDER

Defendants. Filed May 15, 1998

This matter comes to the attention of this court by way of

motion. The court having considered the papers;

1. It is hereby ordered that defendant’s answer and counterclaim,

which inadvertently uses the term cross claim nn a subsequent

page is hereby amended and is to be considered a counterclaim in

keeping with the original designation on the first page.

2. It is further order that defendant’s counterclaim is deemed to

be requesting a declaratory judgment.

3. That this case is transferred to the Law Division because the

amount of damages exceeds the statutory limit for Special Civil

Part.

““S/_ Kenneth C. McKenzie”

Kenneth C. McKenzie

22

K

Nelson Fernandes — Pro Se

9 Fox Run

Denville, N.J. 07834

(973) 627-2138

~ + SUPREME CT. OF N.J.

Mr. & Mrs. Nelson Fernandes

Appellant, : DKT. #: MRS L 001821 - 98

vs. : DKT. #:A — 003115 — 00T3

K&J Construction, :

Respondent. : NOTICE OF APPEAL

PLEASE TAKE NOTICE that the appellant, Nelson

Fernandes, is hereby filing a Notice of Appeal in the Supreme

Court of New Jersey from the Appellate Court decision dated

Feb. 4, 2002 and the denial of reconsideration dated June 4,

2002. Appellant appeals “as of Right” pursuant to R. 2:2-1(a)(1)

and (4).

June 30, 2002 “S/Nelson Fernandes”

23

L

Nelson Fernandes — Pro Se

9 Fox Run

Denville, N.J. 07834

(973) 627-2138

: SUPREME CT. OF N.J.

Mr. & Mrs. Nelson Fernandes

Appellant, : DKT. #: MRS L 001821 - 98

vs. : DKT. #:A — 003115 — 00T3

K&J Construction, :

Respondent. : NOTICE OF MOTION

Leave to File a Notice of

Appeal as Within Time

Please Take Notice that appellant is hereby moving

before the Supreme Court for an order granting leave to file a

notice of appeal as within time.

Appellant will rely on his certification and brief.

June 30, 2002 ““S/Nelson Fernandes”

24

M

Nelson Fernandes — Pro Se

9 Fox Run

Denville, N.J. 07834

(973) 627-2138

: SUPREME CT. OF N.J.

Mr. & Mrs. Nelson Fernandes

Appellant, : DKT. #: MRS L 001821 - 98

vs. : DKT. #:A — 003115 — 00T3

K&J Construction, : Brief in Support ofa

Respondent. : Motion for Leave to File

a Notice of Appeal as

Within Time

I - An Extension of Time Pursuant to R. 2:4-4(a) and R. 1:1-2

Appellant moves before this Court for an extension of

time pursuant to R. 2:4-4(a) and R. 1:1-2. Appellant relies upon

his certification and the case law in note 1,' which makes the

following clear. First, R. 2:4-1 can be relaxed by R. 1:1-2.

' “It appears that petitioner's notice of appeal to this court was

filed well beyond the time limited therefor by R. 2:4-1(b). By

letter of March 27, 1978 to petitioner's then attorneys, with copy

thereof to petitioner, the Chief of the Police and Fire Bureau of

the Board gave notice of the Board's final administrative

determination in the matter. It was not until December 6, 1978

that petitioner's notice of appeal was filed with the clerk of this

court by his present attorney. No application for extension of

time to file had been made under R. 2:4-4(a). We disapprove of

this disregard of the pertinent rules of court. We note, however,

that respondent, although mentioning the late filing, does not

challenge the timeliness of the appeal. In the circumstances, and

since we perceive substantial merit in the appeal, we proceed as

if the appeal had been timely filed. R. 1:1-2.” Toma v. State, 172

N.J.Super. 76, fn.1 (App.Div. 01/10/1980).

25

Second, that appellant filed a motion for an extension of time

while dealing with a major illness out of respect for the rules,

instead of disregarding R. 2:4-4(a). And is again doing so for the

very same reason, instead of failing to observe the rules. (Exh.

A). Moreover, appellant makes no effort to prove his case has

substantial merit at this point, since he is complying with the

rules for good cause. Whereas, this Court only overlooks the

violation of the above rules when it “perceived substantial merit

in the appeal.” And lastly, respondent did not challenge

appellant’s motion before the Appellate Court. ,

= e Notice of

tension

The Appellate Court granted an extension of the time that

begins to run from its entry of the judgment, which is the same

date used to toll the time for filing a notice of appeal in this

Court. That extension allowed appellant to file a motion for

reconsideration up to May 1, 2002. Appellant filed that motion

on April 2, 2002, which leaves 30 days. Reconsideration was

denied on June 4, 2002. Therefore, appellant moves to have this

Court apply those 30 days to appellant’s notice of appeal in this

court based on its tolling rule. Appellant relies on the case law in

footnote 2 in support of this argument.’ Appellant respectfully

? We undertake circumspectly our review of the District Court's

exercise of its equitable authority to excuse the late filings, as

the District Court's application of those powers is only

reviewable by this Court for an abuse of discretion. See In re

Cendant Corp. Prides Litig., 233 F.3d 188, 192 (3d Cir. 2000)

(hereinafter "Cendant Prides I"); In re: Gypsum Antitrust Cases,

565 F.2d at 1128; cf. Dominic v. Hess Oil V.I. Corp., 841 F.2d

513, 516 (3d Cir. 1988) (employing an abuse of discretion

standard to the review of a grant of extension of time to serve

process). We refrain from substituting our judgment for that

of the District Court insofar as its holding is reasonable and

supported by the evidence. "The test is not what this court

would have done under the same circumstances; that is not

26

ee ee———————————————————————aeaaaaaeeeeeee———vneVn_5—eee

submits that if this Court were to deny this motion, it will

effectively be “substituting” its judgment for that of the appellate

court on the validity of the merits. Filing two motions in different

court’s for an extension based on the same illness as it applies to

the time that runs from the entry date of the judgment with

different results would be fundamentally unfair and arbitrary.

June 30, 2002 “S/Nelson Fernandes”

enough. The court must feel that only one order could have

been entered on the facts." Gypsum Antitrust, 565 F .2d at

1128; see also Rode v. Dellarciprete, 892 F .2d 1177, 1182 (3d

Cir. 1990) (finding an abuse of discretion "when no reasonable

person would adopt the district court's view"). "We will

therefore not disturb an exercise of discretion’ unless there is

a “definite and firm conviction that the court below

committed a clear error of judgment in the conclusion it

reached upon a weighing of the relevant factors." Hanover

Potato Prods., Inc. v. Shalala, 989 F .2d 123, 127 (3d Cir. 1993)

(citing Ferrero, U.S.A., Inc. v. Ozak Trading, Inc., 952 F.2d 44,

48 (3d Cir. 1991) (citation omitted)). "An appellate court may

find an abuse of discretion where the ‘district court's decision

rests upon a clearly erroneous finding of fact, an errant

conclusion of law or an improper application of law to fact.' "

In re Orthopedic Bone Screw Prod. Lia. Lit., 246 F.3d 315 (3d

Cir. 2001).

N

SUPERIOR COURT OF NEW JERSEY

Chambers of David S. Cramp, J.S.C.

P.O. Box 910

Morristown, N.J. 07963-0910

(973) 285-6434

Jeffrey Advokat, Esq

Advokat & Rosenberg

20 Park Place

Morristown, NJ 07960 Dec. 18, 2000

Re: K &J Construction v. Fernandes

Docket No. MRS—L—1821—98

Dear Mr. Advokat:

You will find enclosed a copy of a Judgment in this

matter. By copy of this letter, I am advising Mr. Fernandes that

the award of prejudgment interest is routinely made in these

cases in accordance with Rule 4:42-11. Mr. Fernandes is also

advised that although the Rule refers specifically to tort actions,

there are a number of cases that have held that the Court may

award prejudgment interest in contract actions, and the Courts

routinely award prejudgment interest in contract actions.

Very truly yours,

David S. Cramp, J.S.C.

DSC: Jc encl.

cc: Mr. Nelson Fernandes

28

Nelson Fernandes

9 Fox Run

Denville, N.J. 07834

Hon. David S. Cramp, J.S.C.

Morris County Courthouse

P.O. Box 910

Morristown, New Jersey 07963-0910

Re: K & J Construction v. Fernandes MRS-L- 001821-98

Dear Judge Cramp;

I received Mr. Advokat’s proposed judgment dated Nov.

28, 2000 on Nov. 30, 2000. I am responding to say that it is

incorrect since your honor made no award of prejudgment

interest. Therefore, he should prepare a revised proposed form of

judgment that reflects that fact.

Respectfully;

“S/Nelson Fernandes”

29

P

I —Ex Part t was P d to th nistr.

The record shows an ex parte communication occurred

First, the judge said ’a more recent Appellate Division decision.”

Mr. Advokat shouted “298.” (1T37- 23) (Exh. E). The judge then

said “298 N.J. Super. 491” and raised a quantum meruit claim for

him. Mr. Advokat’s excited utterance '° is a confessory pleading

'! since he knew the book the judge would cite before he spoke,

proving an ex parte contact immediately before trial. That ex

parte contact produced a quantum meruit claim that is not in the

complaint, nor did Mr. Advokat file a brief on that issue, nor was

there a pretrial conference and order. R.4:9-2. Nor did he deny

the ex parte communication in a certification. When, appellant

objected, the judge responded; “I_didn’t raise it. It’s been

raised beforehand.” (1T35-22). However, there is no evidence

of Mr. Advokat raising this issue “beforehand” in any manner,

much less provide notice. His excited utterance and the judge’s

calculated statement proves an ex parte contact took place that is

prejudicial to the administration of justice.’

'° “An excited utterance is "a statement relating to a startling event or

condition made while the declarant was under the stress of excitement

caused by the event or condition and without opportunity to

deliberate or fabricate". N.J.R.E. 803(c)(2).” Truchan v. Sayreville

Bar and Restaurant, No. A-2996-97T3 (A.D. 07/09/1999).

'' “An express waiver made in court or preparatory to trial by the party

or his attorney conceding for the purposes of the trial that the truth of

some alleged fact, has the effect of a confessory pleading, in that the

fact is thereafter to be taken for granted; so that the one party need

offer no evidence to prove it and the other is not allowed to disprove

it." Saltsman v. Corazo, 317 N.J.Super. 237 (App.Div. 12/29/1998).

'2 Canon | requires a Judge to uphold the integrity and independence

of the judiciary; Canon 2 requires a Judge to avoid any impropriety or

even an appearance of impropriety; . . . Canon 3A(6) prohibits a

Judge from either initiating or considering ex parte or other

30

During appellant’s post trial motion, the judge admitted

that he allowed the ex parte communication on quantum

meruit to affect his decision, thus denying due process,'*

though he lacked jurisdiction to raise and rule on quantum

meruit since the contract was not rescinded.

THE COURT: I found in your favor on that issue.

I said it was unlawful, and I said he couldn’t

recover under the contract. But I said he could

recover on quantum meruit. (emphasis added)

(2T16,10-13), (Exh. C1)

versation provi legal basis for

relief, '* It also constitutes an extra-judicial source,'* which

shows that claim was not based on “what the judge learned

communications concerning a pending or impending proceeding. We

find that respondent has violated Canons 1, 2, and 3, and has engaged

in "conduct prejudicial to the administration of Justice that brings the

judicial office into disrepute." R. 2:15-8(a)(6). Matter of Carton, 140

N.J. 330 (1995).

'*"(in) the absence of any showing that the (ex parte

communication) infected the fact-finder's determination of the

issues at trial, ... the challenged practice (does) not violate ... due

process of law." Grieco, supra, 533 F.2d at 719. Simer v. Rios, 661

F.2d 655 (7th Cir. 1981); U.S. v. Madrid, 842 F.2d 1090 (9th Cir.

1988) (same); U.S. v. Deleo, 422 F.2d 487 (1st Cir. 1970) (same);

Alexander v. Primerica Holdings, Inc., 10 F.3d 155 (3d Cir. 1993) (“A

judge will thus be guarded from engaging in ex parte discussions with

counsel or aligning himself even temporarily with one side in pending

litigation”).

‘* “An ex parte conversation, which by definition deprives a defendant

of the right to be heard, is also an independent legal basis for relief

from a judgment. State v. Pruitt, No. 204, 2001 (Del. Sup. Ct.

03/28/2001).

'* “An ex parte communication, as an extra-judicial source . .

reasonably raised a question about the Judge's impartiality.” Lamonts

Apparel Inc. v. Si-Lloyd Assoc. 956 P.2d 1024 (Or.App.1998).

from his participation in the case” thus proving a disqualifying

bias.'® So, his bias renders this trial a structural error, which

requires reversal. 3.A.(6). Neder v. U.S., 527 U.S. 1 (US.

1999)(biased judge).

‘The alleged bias and prejudice to be disqualifying must stem from

an extra-judicial source and result in an opinion on the merits on some

basis other than what the judge learned from his participation in the

case. Berger v. United States, 255 U.S. 22, 31. Any adverse attitudes

that Judge Wyzanski evinced toward the defendants were based on his

study of the depositions and briefs which the parties had requested him

to make. U..S._v. Grinnell Corp. et al., 384 U.S. 563 (06/13/66).

32

Q

= e t iction

The complaint did not plead quantum meruit in the

alternative,” so Mr. Advokat contacted the judge ex parte to

raise that claim. But, he never rescinded the express contract,”* as

evinced by the judge’s admitted ruling; “I said he couldn’t

recover under the contract. But I said he could recover on

quantum meruit.” (2T16, 10-13). Without rescission, his ruling is

plain error. State in Interest of D.A.M., 132 NJ.S. 192

(A.D.1975). Without rescission, the judge lacked jurisdiction.”

Appellant was also prejudiced in other ways. First, after 2 years

_ & 9 months Mr. Advokat raises quantum meruit ex parte, thus

ambushing ** and surprising 7’ appellant at trial with a claim that

> “Even though one cannot prevail on both a contract claim and a

quantum meruit (implied contract) claim covering the same services,

our liberal approaches to pleading practice permit a party to seek relief

on alternative grounds.” Realty v. Bibbo, 329 N.J.Super. 528, (A.D.

2000).

* “Having pleaded an express contract, the plaintiff cannot without

showing a rescission, recover on quasi-contract. Moser v. Milner

Hotels Inc, 6 N.J. 278 (1951); C.B. Snyder Realty Co. v. Nat., Inc.,

Banking Co. , 14 N.J. 146, 162-3 (1952); Shapiro v. Solomon, 42

N.J.Super. 377, 385 (App.Div. 11/09/1956).

> "Though the court may possess jurisdiction of a cause, of the

subject-matter, and of the parties, it is still limited in its modes of

procedure, and in the extent and character of its judginents. It must act

judicially in all things, and cannot then transcend the power

conferred by the law.” Standard Oil Co. of Ind. v. Missouri, 224 U.S.

270, 281 (1912).

*° “To permit last-minute changes in strategy would be "akin to

trial by ambush."”Humenik v. Gray, 350 N.J.Super. 5, (A.D.

04/10/2002).

” Band’s Refuse v. Bor. of Fair Lawn, 62 N.J.S. 522, 553

(“Surprise . . issues were injected into the case without

notice or warning.”)

33

requires rescission, which appellant may have uncovered had he

provided notice and the opportunity to “prepare”.“ Second,

raising the equitable remedy of quantum meruit without

rescinding the contract 7” and contacting the judge ex parte *°

violates due process. So, respondent’s hands are unclean and

should not have been granted relief as a wrongdoer,’ who

disrespects the law.” Third, the judge misled appellant when he

objected (R. 4:9-2, R. Wilson P. & H., 246 N.J.Super. 615, 618

(A.D.1991)) by stating; “I didn’t raise it. It’s been raised

beforehand.” (1T35-22), making it appear that appellant was

provided notice and the opportunity to prepare beforehand.

Fourth, quantum meruit was not raised to conform to the

evidence, since an express contract was being tried. (R. 4:9-2).

Fifth, appellant was denied notice of the quantum meruit claim in

advance of the trial date.*® These injustices would require a new

78 "To comport with due process, a judicial hearing requires notice

defining the issues and an adequate opportunity to prepare and

respond" McKeown-Brand v. Trump Castle H& C, 132 N.J. 546 (N.J.

1993).

? “Any contractual claim for equitable relief, for instance, quantum

meruit” Crowe v. De Gioia, 179 N.J.S. 36 (A.D. 1981).

*° “An ex parte conversation, which by definition deprives a defendant

of the right to be heard, is also an independent legal basis for relief

from a judgment. State v. Pruitt, No. 204, 2001 (Del. Sup. Ct.

03/28/2001).

>! “The doctrine of unclean hands . . "The essence of that doctrine . . .

is that '[a] suitor in equity must come into court with clean hands and

he must keep them clean after his entry and throughout the

proceedings.” Kingsdorf_v.__Kingsdorf, 351 NJS. 144

(A.D.05/20/2002).

*2 “Equity will never condone disrespect for the law.” Switz v.

Township of Middletown, 130 A.2d 15, 23 NJ. 580, 632 (NJ.

03/11/1957).

3 “Cannot justify denial of a party's fundamental right to

notice in advance of the date set for a hearing of a

contested matter on the merits. This is elementary due

34

trial,’ but for the fact that the judge ruled “he couldn’t recover

under the contract”, which respondent did not cross-petition.

Liberty Title and Trust Co. v. Plews, 6 N.J. 28 (N.J. 1950).

process. Matter of Estate of Ernest Meyer, 63 N.J.Super. 336,

344 (A.D. 1960), aff., 35 N.J. 160 (N.J. 06/06/1961).

* “Once the trial court determines that a "manifest denial of

justice” has occurred .. a new trial is warranted.” Fertile v. St.

Michael's, No. A-49 Sept Term 2000 (N.J. 2001).

35

R

VI - Violations of Due Process on Prejudgment Interest

Though the Appellate Division removed post judgment

interest, its failure to remove prejudgment interest remains a

manifest injustice,“” which requires a departure from the law of

the case ** for the reasons that follow. To begin with, appellant

objected in writing to Mr. Advokat adding interest to the

proposed order since it was not part of the court’s disposition.

(Exh. G) Otherwise, it would be plain error.“

Appellant Was Denied Due Process because he signed

the order without notice and the opportunity to be heard “* before

taking his property interest in the money to be paid as interest.

* A reviewing court should not disturb an exercise of discretion

involving an award of prejudgment interest unless it represents a

manifest denial of Justice. Coastal Grp v. Dryvit Sys. Inc., 274 N.J.S.

171 (A.D. 1994).

? “(jnder law of the case doctrine . . it is not improper for a court to

depart from a prior holding if convinced that it is clearly erroneous and

would work a manifest injustice.” Az. v. Ca., 460 U.S. 605, fn.8

(1983).

“ “Plain error, that is, the legal impropriety of the trial judge's finding

prejudicially affected the substantial rights of defendant and was

sufficient grievous to justify notice by us and to convince us that of

itself the error possessed a clear capacity to bring about an unjust

result. R. 2:10-2. State in Interest of D.A.M., 132 N.J.Super. 192 (A.D.

1975).

‘S “The most fundamental tenet of our legal system is that no man can

be deprived of life, liberty or property without due process of law. .

there can be no doubt that at a minimum it mandates that deprivations

of liberty or property be preceded by an opportunity to be heard.”

Mullane v. Central Hanover, 339 U.S. 306. In re Farber, 78 N.J. 259

(N.J. 1978).

36

“6 The court abused its discretion since prejudgment interest is

not a matter of right.*”

The Judge Lacked Jurisdiction to grant interest since R.

4:42-1 limits the court to signing orders that memorialize its

disposition. So, signing that order transcends the jurisdiction

provided by that rule. Standard Oil Co. of Ind. v. Missouri, 224

U.S. 270, 281 (1912).

““ “A property interest in the money vested in Middletown on the

death of Mrs. Radford. State v. Roberts, 21 N.J. 552 (N.J. 05/21/1956).

* “Prejudgment interest is not a matter of right, it is allowable as

within the broad discretion of a trial judge to accomplish justice in

accordance with equitable principles.” Ellmex Con. Co. v. Republic

Ins. Co., 202 N.J.Super. 195, 209 (A.D. 1985) -

37

S

Reasons for Reconsidering this Court’s Order

This argument is directed to this Court’s order converting

appellant’s notice of appeal as of right, to a notice of petition for

certification. Appellant filed for an appeal as of right because the

trial record shows the judge denied appellant his right to make an

opening statement. R. 2:2-1(a)(1)&(4). He also allowed an ex

parte communication that affected the outcome of the trial. These

issues reveal a substantial question arising under state and federal

constitutions. R. ~2:2-1(a)(1)&(4)* By allowing an ex parte

contact, the judge violated Canon 3A(6) and engaged in

"conduct prejudicial to the administration of Justice”’. This

error is sufficiently blatant to prove bias,’ and a denial of due

process,” which renders the trial a structural error that requires

“automatic reversal”. Neder v. U.S., 527 U.S. 1 (U.S. 1999)

(biased trial judge).

? “We have long held that an appeal as of right is maintainable only

where the record reveals a substantial rather than merely a

colorable question arising under the federal or state constitutions

that has not been the subject of a conclusive judicial determination.”

Essex County v. Hindenlang, 24 N.J. 517 (1957); Klotz v. Lee, 21 N.J.

148 (1956); Colacurcio Cont. Corp. v. Weiss, 20 N.J. 258 (1955); State

v. De Meo, 20 N.J. 1 (1955). In re East Windsor Mun. Util. Auth., 57

N.J. 168, 170 (N.J. 11/09/1970).

> Canon 3A(6) prohibits a Judge from either initiating or considering

ex parte or other communications concerning a pending or impending

proceeding. We find that respondent has violated Canons 1, 2, and 3,

and has engaged in "conduct prejudicial to the administration of Justice

that brings the judicial office into disrepute." R. 2:15-8(a)(6). Matter of

Carton, 140 N.J. 330 (1995).

* State v. Marshall, 148 N.J. 89 (N.J. 03/05/1997) (“An error might be

sufficiently blatant, and so lacking in an alternative, good faith

explanation that the error would support a charge of bias.”)

* “We have held that the Due Process Clause requires an impartial

judge.” Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d

114 (U.S. 01/24/1994).

38

T

Reasons Why Certification Should be Allowed

The interest of justice requires a grant since the ex parte

contact affected the outcome of the trial and the judge’s rulings

on other issues. Moreover, the judge lacked jurisdiction to rule

on quantum meruit and interest,’ which raises a question of

general public importance that has not been settled by this Court.

The failure to allow opening statements was a manifest injustice.

The judge’s actions also violated prior Supreme Court rulings.

Comments on the Appellate Division’s

Opinion

The Appellate Division abdicated its constitutional duty

by not ruling on appellant’s structural error argument and

by avoiding the ex parte issue though it was presented in

appellant’s opening brief to that court. Nor, did the Appellate

Division address appellant’s argument on opening statements,

which appeared in that same brief. These issues prompted

appellant to file a Notice of Appeal as of right pursuant to R. 2:2-

1(a)(1) & (4), only to have this Court prematurely order that it be

treated as a petition for certification. The Appellate Division did

not refer to these issues in its opinion, thus concealing material

facts. It also erred on other issues, which will be addressed in

appellant’s arguments.

Certification of Good Faith

I hereby certify that this petition presents a substantial

question and is filed in good faith and not for the purposes of

delay.

' “Reversed on grounds of lack of jurisdiction in Hanson v. Denckla ,

357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2 d 1283 (1958). Matter of of

Estate_of Joseph Damato, 86 N.J.Super. 107, 114 (App.Div.

01/05/1965).