SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6982-99T3F
RICHARD S. PANITCH,
Plaintiff-Appellant,
v.
LISA M. PANITCH,
Defendant-Respondent.
___________________________________
G.R. WHOLESALERS, INC.,
Plaintiff-Appellant,
v.
PHILIP N. SOBEL, SOBEL AND BROWN, P.C.
Defendants,
and
LISA M. PANITCH,
Defendant-Respondent.
___________________________________
Submitted February 20, 2001 - Decided April
5, 2001
Before Judges Petrella, Newman, and
Braithwaite
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris
County, FM-14-576-98.
Perrotta, Fraser & Forrester, attorneys for
appellant G. R. Wholesalers, Inc. (Donald B.
Fraser, Jr., on the brief).
Morris, Downing & Sherred, attorneys for
appellant Richard S. Panitch (Peter J.
Laemers, on the brief).
Sobel and Brown, attorneys for respondent
Lisa M. Pantich (Philip N. Sobel, on the
brief).
The opinion of the court was delivered by
PETRELLA, P.J.A.D.
Plaintiffs Richard S. Panitch and G.R. Wholesalers, Inc.
(GRW)See footnote 11 appeal on leave granted from the denial of their motion to
recuse the trial judge. Plaintiffs argue that the Family Part
Judge, who presided over pretrial motions and case management
proceedings in the contested matrimonial litigation between
Panitch and his wife, Lisa M. Panitch, made improper remarks and
took certain actions that are indicative of bias and prejudgment
of certain issues, thereby warranting recusal. Specifically,
plaintiffs allege that several comments made by the judge
violated the Code of Judicial Conduct.
After hearing argument, the judge denied the recusal motion.
The judge stated that he was not prejudiced in the case and that
anything he said was a "blast of frustration" directed toward the
fact that Richard Panitch, who is a lawyer with a large law firm
in this State, was continually delaying the discovery process by
failing to cooperate with the court-appointed mediator and
accountant, who was to appraise motel property owned by Richard
Panitch. Lisa Panitch requested the judge to make a
determination as to the source and use of the income from the
motel for the purpose of calculating alimony.
A judge should be patient, dignified, and
courteous to litigants, jurors, witnesses,
lawyers, and others with whom the judge deals
in an official capacity, and should not
permit lawyers, court officials, and others
subject to the judge's direction and control
to display impatience or discourtesy or to
detract from the dignity of the court.
Specifically, plaintiffs assert that the judge used
inappropriate language during a case management conference call
in which counsel for both plaintiffs as well defendant
participated. Plaintiffs claim the judge told counsel (referring
to Richard Panitch) "I'll put the [expletive deleted] guy in
jail." Plaintiffs further claim that during the call, the judge
ordered plaintiffs to "produce the [expletive deleted]
documentation" and threatened to call the senior partner of the
law firm where Richard Panitch was employed. The Family Part
Judge did not dispute that he may have used inappropriate
language during the conference call. However, he said that the
comments were not directed at Richard Panitch, but rather were an
expression of his frustration over the numerous court proceedings
and plaintiff's delay of discovery for almost a year.
Although the judge's comments were inappropriate and may
have been cause for recusal as well as contrary to the Code of
Judicial Conduct, inappropriate comments do not, by themselves,
necessarily equate to bias. See State v. Leverette,
64 N.J. 569
(1974) (trial judge not disqualified by having expressed
displeasure with defense counsel who failed to appear for five
successive calendar calls). It is significant that the judge did
not impose any sanctions upon plaintiff, who as a lawyer had
perhaps an even greater obligation to comply with court orders,
although it was certainly within his discretion to do so as
Panitch appears not to have cooperated with the court-ordered
mediation or with the accountant who was appointed to conduct the
appraisal. See Cavallaro v. Jamco Property Mgt.,
334 N.J. Super. 557, 570-571 (App. Div. 2000) (Trial courts have discretionary
authority to impose sanctions for violations of discovery rules).
Plaintiffs rely upon James v. City of East Orange,
246 N.J.
Super. 554, 563-564 (App. Div. 1991), where we directed that the
matter, on remand, be presided over by a different judge because
of the trial judge's castigation and belittling treatment of
plaintiff's attorney in the jury's presence. However, James is
distinguishable because the language was used during trial and in
the presence of the jury. Further, the appeal did not concern
the denial of a motion for recusal. Rather, we reversed and
remanded the case on other grounds and stated that it was
"unnecessary to the disposition of [the] appeal to reach a
judgment as to whether the judge exhibited bias." Id. at 564.
Plaintiffs also argue that recusal is warranted because the
judge made inaccurate and incomplete references to the record in
his supplemental August 8, 2000 letter. Specifically, in
response to the judge's statement that plaintiffs refused to
participate in mediation and comply with discovery orders,
plaintiffs claim they were never offered mediation and are
unaware of any discovery orders that they violated. Finally,
plaintiffs claim there is no support for the judge's assertion
that they were acting in bad faith.
In his oral opinion denying the motion for recusal, the
judge stated that almost one year ago he appointed an economic
mediator, pursuant to R. 1:40-4(a), but that the plaintiffs
refused to cooperate with the mediator. The judge also stated
that, pursuant to R. 5:3-3(b), he appointed an accountant to
appraise the value of the motel property owned by Richard Panitch
for the purpose of calculating the amount of alimony owed by
Panitch. However, plaintiff did not provide any financial
information to the accountant. Thus, plaintiffs failed to comply
with the discovery orders and the assertion that recusal is
warranted because the judge made inaccurate and incomplete
references to the record, is without merit.
In his August 8, 2000 supplemental, written decision, the
judge noted that:
since the inception of the case in October
1997, there have been over thirty (30) court
proceedings, and to this date there has been
little or no discovery. The plaintiff has
violated the orders for the production of
documents; to cooperate with the accountant
for an evaluation of the motel; to cooperate
with the mediator appointed by the Court to
assist the Special Master in being able to
approve the potential sale of the motel.
The judge also observed:
The incident complained of occurred
during a telephone conference call where the
Court and all counsel were present except for
the attorney for the corporation. It was at
that time, the Court was advised that the
plaintiff had rejected what the Court thought
was an agreement of counsel to have a real
estate appraisal made of a motel located in
South Brunswick, which had been acquired by
the plaintiff, one-half by gift from his
father and the remaining half by a bequest
under his father's Last Will and Testament.
It is not contested that the motel business
or the real estate on which it is located is
exempt from equitable distribution.
Ever since the matter was transferred
from Judge Friend, now retired, to me, the
amount of cash flow from the business has
been an issue. This information is necessary
to determine the amount to be awarded for
alimony and child support in this matrimonial
action.
Footnote: 1 1 Panitch is a 50% shareholder in GRW. After defendant Lisa M. Panitch filed a lis pendens against GRW's property, it instituted suit against defendant and her attorneys alleging that defendant fraudulently created a new case caption, which included GRW as a party defendant. GRW sought damages for fraud, slander of title and abuse of process. This action was consolidated with the Panitch matrimonial litigation. Footnote: 2 2 Sheridan v. Sheridan, 247 N.J. Super. 552 (Ch. Div. 1990).