MICHAEL DEPIETRO VS. ALLSTATE INSURANCE COMPANY (L-3089-11, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3064-15T1
MICHAEL DEPIETRO,
Plaintiff-Appellant,
v.
ALLSTATE INSURANCE CO., a/s/o
W2L, INC., MARK WERTHER COMPANY,
Defendants,
and
AVIVA WERTHER,
Defendant-Respondent.
___________________________________
Argued September 20, 2017 – Decided October 25, 2017
Before Judges Fuentes, Koblitz and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County, Docket
No. L-3089-11.
Michael DePietro, appellant, argued the cause
pro se.
John C. Prindiville argued the cause for
respondent.
PER CURIAM
Plaintiff Michael DePietro was involved in an automobile
accident with defendant Aviva Werther on July 13, 2009. Plaintiff
filed a pro se complaint in 2011 and the matter first came to
trial before a jury in 2014. Plaintiff represented himself at
this trial. The jury returned a verdict on liability finding that
plaintiff was twenty-five percent responsible for the accident and
defendant seventy-five percent responsible. The trial judge
granted defendant's motion for a new trial, finding the evidence
did not support the jury's liability assessment. Plaintiff
appealed and we affirmed the trial court's ruling. DePietro v.
Allstate, Allstate a/s/o W2L, Inc., Mark Werther Company, and
Aviva Werther, Docket No. A-1423-14 (App. Div. Oct. 26, 2015).
The case came for trial a second time on January 4, 2016.
Judge Paul A. Kapalko presided over the three-day jury trial in
which plaintiff was represented by counsel. After deliberating
for one hour, the jury returned a verdict finding that plaintiff
did not prove, by a preponderance of the evidence, that defendant
was negligent in the manner that she drove her car at the time of
the accident.
Pursuant to Rule 4:49-1(a), plaintiff's counsel filed a
motion for a new trial, arguing that Judge Kapalko erred when he
denied plaintiff's motion for a mistrial. Plaintiff's counsel
claimed defense counsel improperly attempted to undermine the
2 A-3064-15T1
jury's impartiality by questioning plaintiff about injuries he
claimed to have sustained in an unrelated subsequent accident.
According to plaintiff, defendant's counsel intentionally
introduced this extraneous information during the trial to
prejudice plaintiff in the eyes of the jurors, and to cast him as
an overly litigious individual. In rejecting this argument, Judge
Kapalko explained:
Plaintiff argues that defense counsel's
argument after the subsequent lawsuit was
mentioned that [he] . . . did nothing improper
as there is nothing prohibiting . . .
mention[ing] . . . a subsequent lawsuit[,]
proves that defense counsel mentioned the
subsequent lawsuit purposely. The [c]ourt in
its decision denying the mistrial never meant
to suggest that defense counsel didn't
knowingly speak the words that he did. Its
point was to emphasize that counsel did not
intend his colloquy with plaintiff to secure
testimony about the filing of a subsequent
lawsuit.
It arose in a heated exchange between counsel
and plaintiff to secure admission of a
subsequent accident and injury, the denial of
which by plaintiff was surprising to the
[c]ourt, and given the evasiveness for the
questions on cross-examination, to defense
counsel as well.
. . . .
[T]he [c]ourt concludes that defense counsel's
contention in this respect as it relates to
whether it was proper to mention the lawsuit
was incorrect. But it was limited to an
attempt to argue that a mistrial . . . need
not be declared in the present case, not to
3 A-3064-15T1
reinforce that it was proper for [him to]
mention . . . the lawsuit in his questions.
And that's an important distinction.
Ultimately, Judge Kapalko found that defendant's counsel's
reference to the subsequent lawsuit was merely a fleeting event
in the context of the trial and legally "insufficient to warrant
a mistrial in this matter." After applying the relevant legal
standards, Judge Kapalko denied plaintiff's motion for a new trial.
In this appeal, plaintiff submitted a pro se brief that failed
to comply, in every respect, with the format required by Rule 2:6-
2. The only thing we are able to discern from this document is
that plaintiff does not agree with Judge Kapalko's legal ruling.
Mere disagreement with the trial judge's ruling does not constitute
grounds for appeal. An appellant must identify the legal errors
upon which the appeal is based "under appropriate point
headings[.]" R. 2:6-2(a)(6).
This court has made clear that self-represented litigants are
not entitled to greater rights than litigants who are represented
by counsel. Ridge at Back Brook, L.L.C. v. Klenert, 437 N.J.
Super. 90, 99 (App. Div. 2014) (citing Rubin v. Rubin, 188 N.J.
Super. 155, 159 (App. Div. 1982)). Pursuant to Rule 4:49-1(a),
"[t]he trial judge shall grant the motion if, having given due
regard to the opportunity of the jury to pass upon the credibility
of the witnesses, it clearly and convincingly appears that there
4 A-3064-15T1
was a miscarriage of justice under the law." The trial court's
ruling denying a motion for a new trial will not be disturbed
absent a showing of abuse of discretion. Dolan v. Sea Transfer
Corp., 398 N.J. Super. 313, 330 (App. Div.), certif. denied, 195
N.J. 520 (2008).
Judge Kapalko's decision to deny plaintiff's motion tracks
the relevant legal standard and is well-supported by the record
developed before the jury. We discern no legal grounds to disturb
it. The narrative presentation in plaintiff's brief does not
comport with the rules of appellate practice and does not warrant
further discussion in a written opinion. R. 2:11-3(e)(1)(E). We
affirm substantially for the reasons expressed by Judge Kapalko
in his oral opinion delivered from the bench on March 4, 2016.
Affirmed.
5 A-3064-15T1