MARC MECCA VS. OFFICE OF THE PUBLIC DEFENDER (L-2444-17, CAMDEN COUNTY AND STATEWIDE) ( 2021 )


Menu:
  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5374-18T4
    MARC MECCA,
    Plaintiff-Appellant,
    v.
    OFFICE OF THE PUBLIC
    DEFENDER, and JAIME KAIGH,
    ESQUIRE,
    Defendants-Respondents,
    and
    JO-ANN SCIARRA, and
    CHRISTINA FESTEVOLE,
    Defendants.
    ______________________________
    Argued January 12, 2021 – Decided January 29, 2021
    Before Judges Fisher and Moynihan.
    On appeal from the Superior Court of New Jersey, Law
    Division, Camden County, Docket No. L-2444-17.
    J. Craig Currie argued the cause for appellant.
    John Regina, Deputy Attorney General, argued the
    cause for respondents (Gurbir S. Grewal, Attorney
    General, attorney; Jane C. Schuster, Assistant Attorney
    General, of counsel; John Regina, on the brief).
    PER CURIAM
    Plaintiff Marc Mecca is an accountant who, in 2016, was charged with
    theft by deception. The Office of the Public Defender (OPD) undertook his
    defense and assigned defendant Jaime Kaigh, a pool attorney, to represent
    plaintiff in the criminal proceedings. Plaintiff was released on bail but later
    arrested – and spent fifty-two days in jail – for failing to appear for a February
    29, 2016 court proceeding.
    Plaintiff commenced this action against OPD and Kaigh in January 2017,1
    seeking damages for, among other things, the income he claims to have lost
    during his fifty-two-day incarceration.     He argues that OPD and Kaigh's
    negligence proximately caused his fifty-two-day period of incarceration.
    Specifically, plaintiff asserted that he was treated at a hospital emergency room
    a few days prior to the February 29 proceeding, telephoned defendants' office
    about his medical condition, and assumed from his communications that he was
    not required to appear.
    1
    Kaigh died after the commencement of this action but before he could be
    deposed.
    A-5374-18T4
    2
    The trial judge entered summary judgment in defendants' favor, and
    plaintiff appeals.   He argues that the judge mistakenly made "credibility
    determinations" against him and based dismissal on "inadequate proofs of
    economic harm."
    We find no merit in plaintiff's arguments; the judge did not make
    credibility determinations and he did not base his decision on the inadequacy of
    plaintiff's claim of economic harm. The judge based his decision on what
    plaintiff asserted about his communications with defendants prior to the
    February 29 proceeding and what the medical documentation revealed about
    plaintiff's physical condition at that time. Our review is de novo; like the motion
    judge, we are obligated to assume the truth of plaintiff's factual allegations and
    view those facts in the light most favorable to plaintiff. Brill v. Guardian Life
    Ins. Co. of Am., 
    142 N.J. 520
    , 540 (1995). In closely examining plaintiff's
    deposition testimony, we agree he failed to present a prima facie case of
    negligence on defendants' part.
    We start with the undisputed facts.        Plaintiff acknowledged at his
    deposition that one of the conditions of his remaining out on bail was that he
    "had to appear at every court hearing that [he] was scheduled for." He also
    A-5374-18T4
    3
    testified at his deposition that the court gave him written notice of the February
    29 court proceeding ten days in advance.
    Plaintiff asserted that he developed a case of bronchial pneumonia and
    went to the emergency room of a local hospital on February 24, 2016. According
    to plaintiff, he telephoned OPD's office while in the hospital waiting room and
    stated he would be unable to attend the February 29 hearing. He did not speak
    to an attorney; he spoke to a secretary who said she would pass along the
    message to defendant Kaigh. The hospital records submitted to the motion judge
    reveal plaintiff remained in the hospital for only four-and-one-half hours. He
    left at his own request shortly after midnight. Plaintiff called OPD's office later
    that day to ask defendant Kaigh if an adjournment had been granted but Kaigh
    was unavailable; plaintiff left a message with a secretary.
    Plaintiff never called defendants again prior to the February 29
    proceeding. And he never received a message from either the court or from
    defendants that the conference had been adjourned, as he readily acknowledged
    at his deposition:
    Q. Okay. After that second call did you ever receive a
    call back from Mr. Kaigh's office prior to the February
    29, 2016 pretrial conference?
    A. Never.
    A-5374-18T4
    4
    Q. Did you ever receive a letter from Mr. Kaigh's office
    between that second call and the February 29, 2016
    conference?
    A. No.
    Q. Did you ever receive a letter from the court prior to
    the February 29, 2016 conference advising you that it
    had been adjourned or continued?
    A. No.
    Q. Did you ever receive a phone message from the
    court advising you that the February 29, 2016 court
    appearance had been adjourned or continued?
    A. No.
    Q. Did you ever receive any phone message from [the
    judge or her] chambers that the February 29, 2016 court
    hearing had been adjourned or continued?
    A. No.
    Q. Did you ever receive a letter from [the judge] or her
    chambers saying it had been adjourned?
    A. No.
    ....
    Q. So, it's correct that you were assuming that you
    didn't have to appear in court?
    A. Correct.
    Q. Even though you knew it was scheduled?
    A-5374-18T4
    5
    A. Yes.
    Q. Okay. And why did you assume that the hearing
    had been continued or adjourned or that you didn't have
    to appear in court?
    A. My two requests into his office asking or telling of
    my situation that I wouldn't be able to be there unless it
    was extraordinary circumstances.
    Despite these circumstances, plaintiff claims that defendants were negligent,
    apparently for failing to disabuse plaintiff of his misconceptions about his need
    to be in court on February 29. The record is clear and undisputed that defendants
    never told plaintiff that he was not required to attend the February 29
    conference. The record – viewed in a light favorable to plaintiff – suggests only
    that plaintiff decided for himself that he was not required to attend.
    The record also provides no evidence that plaintiff was unable to attend
    the February 29 proceeding. He was not then hospitalized; he left the hospital,
    on his own accord, five days earlier. The hospital records contained in the record
    before the motion judge describe plaintiff as "stable for discharge" without
    restrictions. The motion judge correctly observed that "nothing in the record"
    indicated plaintiff "was unable to . . . attend" court on February 29.
    We agree with the motion judge that defendants did not breach any
    standard of care regarding plaintiff's desire to avoid attending the February 29
    A-5374-18T4
    6
    conference. Plaintiff was physically able to attend and defendants never told
    him he was excused from attending.
    There is also nothing in the record to demonstrate that defendants departed
    from the standard of care in handling the situation on February 29. At that time,
    Kaigh appeared on plaintiff's behalf. The judge was already familiar with
    plaintiff's attempt to avoid appearing and, in response to Kaigh's argument,
    allowed plaintiff until the end of that day to provide medical records or
    documentation that would demonstrate his inability to attend:
    THE COURT: Okay. The time is 10:45. Mr. Mecca
    was marked as bench – as a warrant. He didn't answer
    to the call of the list. Mr. Jamie Kaigh, you wanted to
    place something on the record?
    MR. KAIGH: Yes. Your staff has informed me that Mr.
    Mecca called them and said he was hospitalized over
    the weekend, had a fever, was told by his doctor not to
    come in today.[2] My office reports to me that he called
    them and said he was hospitalized. I had the Public
    Defender call him back and tell him he needs to get his
    medical records to the [c]ourt ASAP or to the Public
    Defender ASAP and – otherwise a warrant would issue.
    2
    February 29, 2016 was a Monday. If Kaigh's in-court representation of what
    he was told by the judge's staff was accurate – and the judge did not contradict
    what Kaigh said – plaintiff misrepresented to the court the circumstances he
    believed excused his appearance. He was not hospitalized over the weekend
    preceding the Monday proceeding and, if he was told by a doctor not to go to
    court on Monday, plaintiff offered no sworn statement or evidence that would
    support such a contention.
    A-5374-18T4
    7
    THE COURT: Okay. The Court will give this to the
    end of the day. There's no medical documentation that
    was brought to the [c]ourt's attention that Mr. Mecca is
    in fact sick. But, of course, if in fact that is the case,
    the warrant will not be issued if the [c]ourt is provided
    with that information. So if he gets it to the [c]ourt by
    the end of the day, I will hold off on the warrant.
    Plaintiff presented nothing to suggest that Kaigh did not take the steps he
    represented to the judge he had already taken. 3
    In short, defendants did not breach the standard of care they owed plaintiff
    in February 2016. They did not tell him or suggest to him that he was not
    required to appear on February 29, 2016. To the contrary, the record reveals
    that plaintiff knew he was required to appear, that he lacked a valid reason for
    failing to appear, and that the only reason he failed to appear was because he
    unwisely assumed his four-and-one-half-hour stop at a hospital emergency room
    five days earlier constituted a sufficient excuse. Viewing the record in the light
    most favorable to plaintiff, we agree with the motion judge that plaintiff failed
    to present sufficient evidence upon which a factfinder could rule in his favor.
    Affirmed.
    3
    Plaintiff argues in this court that defendants were also negligent be cause they
    did not reach out to plaintiff after the brief proceeding before the judge on
    February 29. Plaintiff never said such a thing in his lengthy deposition, and he
    did not file a certification or affidavit to that effect when opposing defendants'
    summary judgment motion.
    A-5374-18T4
    8
    

Document Info

Docket Number: A-5374-18T4

Filed Date: 1/29/2021

Precedential Status: Non-Precedential

Modified Date: 1/29/2021