Goldfarb v. Solimine
| Decision Date | 26 June 2019 |
| Docket Number | DOCKET NO. A-3740-16T2 |
| Citation | 460 N.J.Super. 22,213 A.3d 200 |
| Parties | Jed GOLDFARB, Plaintiff-Appellant/Cross-Respondent, v. David SOLIMINE, Defendant-Respondent/Cross-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Andrew M. Moskowitz argued the cause for appellant/cross-respondent (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, Jersey City, attorneys; Andrew M. Moskowitz, of counsel and on the briefs).
Carmine A. Iannaccone, Newark, argued the cause for respondent/cross-appellant (Epstein Becker & Green, PC, attorneys; Carmine A. Iannaccone, of counsel and on the brief; Michael D. Thompson, Newark, on the brief).
Before Judges Koblitz, Ostrer and Mayer.
The opinion of the court was delivered by
OSTRER, J.A.D.
This appeal arises out of defendant's broken promise to hire plaintiff to manage a portion of defendant's assets and those of his brother and father. Defendant and plaintiff agreed that plaintiff would receive a salary plus a percentage of investment gains. In reliance on that promise, but before receiving a confirming writing, plaintiff quit his job with an investment firm. Then, defendant reneged. After several months, plaintiff found another job. For the first year at his new employment, he earned less than the $ 250,000 annual base salary at the promised job, and he continued to earn less than the $ 400,000 average yearly compensation he alleged he earned at his prior job.
Proceeding solely on a theory of promissory estoppel, plaintiff sought reliance damages consisting of the difference between what he would have earned had he not quit his job, and what he ultimately earned after securing substitute employment. He appeals from the judgment, after a jury trial, of $ 237,000 minus applicable taxes. Plaintiff contends the trial court (1) improperly barred his damages expert, who opined on what plaintiff would have earned had he not quit his job; and (2) erred in limiting his damages to the difference between the promised $ 250,000 base salary and his actual earnings for seventeen months (after which they exceeded $ 250,000).
Defendant cross-appeals, contending that plaintiff's claim was legally and equitably barred by regulations under the New Jersey Securities Law that require a written contract to provide services as an investment adviser; Financial Industry Regulatory Authority (FINRA) rules limiting registered persons from providing services outside their current employment with a member firm; and the unclean hands doctrine.
Before reaching these issues, we address plaintiff's argument that the trial judge should have recused herself upon plaintiff's pre-trial motion. Plaintiff moved for the judge's recusal after learning that a defense attorney, in an ex parte communication, sought the judge's assignment to the case, and the judge responded by specifically requesting the assignment from the presiding judge. We conclude this "judge-shopping" created an appearance of impropriety. On that basis, we vacate the trial judge's challenged rulings, but affirm the jury finding of liability. We decide de novo or as a matter of original jurisdiction that plaintiff was entitled to present evidence of his reliance damages; his expert should have been permitted to testify; and his claims were not barred by law or equity. We remand for a new trial on damages before a different judge. We turn first to the recusal motion.
The judge disclosed the ex parte communication in chambers, and confirmed it on the record. In summary, one of the judge's former law clerks, who was an associate at the defense firm, contacted the judge by text to inquire if she was available to preside over the trial. The judge apparently had no prior connection to the case, which involved significant pre-trial motion practice. The former clerk identified the senior attorney at her firm who would try the case. The judge understood that the attorney liked to appear before her. The judge then spoke to the presiding judge and, relying on her seniority, secured assignment of the case.1
When plaintiff's counsel learned that the judge's assignment of the case resulted from an ex parte contact with defense counsel, he sought the judge's recusal. At the outset of the colloquy, the judge reproached plaintiff's counsel for relying on statements made in chambers:
The judge then summarized what she had disclosed in chambers about the assignment request:
[Defense counsel's] firm had hired a prior law clerk of mine ... I think that was five years ago ... I told both counsel that [she] had texted me this morning saying that [defense counsel] was waiting around for a judge and I said well I'll be in and I'd love to take the case.
In the course of the on-the-record colloquy, the judge later added that she requested the assignment from the presiding judge:
I'll go further. I stopped in this morning and said, "You got a case around here, because I'm a senior Judge, I don't like doing car accident cases." So in some ways I get my pick. ... Because that's what 25 years on the bench will get you.
Once informed of the trial attorney's name, the judge said she understood he preferred to try the case before her.
Plaintiff's counsel argued that the ex parte contact amounted to "judge shopping, because they like you and they want you to hear the case."
The judge rejected the argument, stating that it was common practice for attorneys to inquire about a judge's availability to take their case.
Counsel ... do you have any idea how many lawyers stop in my chambers on a weekly basis and say, Judge where you at, are you open? No, not today. Well when will you be open? Probably by Wednesday if you can get [the presiding judge] to wait that long.
The judge added that her former law clerks The judge concluded, "There is nothing untoward about a judge telling a lawyer, I'm going to be open ... bring your case my way." The judge stated that she believed attorneys sought her assignment because of her experience and her reputation, and she challenged plaintiff's counsel to cite instances of bias or favoritism.
At trial, plaintiff contended that defendant promised him a base salary of $ 250,000 to $ 275,000, plus a fifteen- to twenty-percent share of gains generated on a portfolio of $ 75-100 million. Mid-trial, the judge barred plaintiff's damages expert. The judge also limited plaintiff's form of damages. As a result, plaintiff was prevented from claiming damages equal to the difference between what he would have earned had he not quit his job in reliance on defendant's promise, and his actual earnings after defendant reneged.2 The court utilized the low end of the base salary for its instruction on damages.
The jury found that defendant made a sufficiently clear and definite promise of employment, such that a reasonable person would rely on it; defendant expected plaintiff to rely on the promise; and plaintiff quit his job in reliance on the promise of employment. It awarded damages based on the difference between his actual earnings and the base $ 250,000 salary defendant promised.
On appeal, plaintiff contends the court erred in denying his recusal motion. Plaintiff does not expressly ask us to reverse the judgment on the basis of this error, but he asks us to consider it in reviewing the court's challenged rulings on expert testimony and damages. In his reply brief, plaintiff further contends that the court's actions reflected actual partiality toward defendant. Defendant responds that the judge did not err in denying the recusal motion, and that the former law clerk's ex parte contact was a permissible inquiry about scheduling.
In addressing the recusal issue, we are guided by several fundamental principles. Generally, recusal motions are "entrusted to the sound discretion of the judge and are subject to review for abuse of discretion." State v. McCabe, 201 N.J. 34, 45, 987 A.2d 567 (2010). However, we review de novo whether the judge applied the proper legal standard. Ibid.
A judge must act in a way that "promotes public confidence in the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety." Code of Judicial Conduct Rule 2.1 ; see also In re Reddin, 221 N.J. 221, 227, 111 A.3d 74 (2015) (); In re Advisory Letter No. 7-11 of Supreme Court Advisory Comm. on Extrajudicial Activities, 213 N.J. 63, 75, 61 A.3d 136 (2013) ().
"[A]n appearance of impropriety is created when a reasonable, fully informed person observing the judge's conduct would have doubts about the judge's impartiality." Code of Judicial Conduct, cmt. 3 on Rule 2.1 (2016); DeNike, 196 N.J. at 517, 958 A.2d 446 (enunciating the standard).3 Judges must step aside from "proceedings in which their impartiality or the...
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Goldfarb v. Solimine
...Division's published opinion in this matter dealt comprehensively with the recusal error that occurred here. Goldfarb v. Solimine, 460 N.J. Super. 22, 213 A.3d 200 (App. Div. 2019). That plays no part in our present review.1 Our focus centers on defendant's arguments concerning the promisso......
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