SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0367- 22
SI RIA HERNANDEZ and FELIX PEREYRA, her husband, Plaintiffs-Appellants,

v. LA FORTALEZA, INC., 1 Defendant-Respondent, and JAMES ZANAKIS, GHI CORPORATION, and GHI INC., Defendants

.

_______________________________

Submitted November 14, 2023

– Decided January 5, 2024 Before Judges Mayer and Paganelli. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L- 2877 -19.

1 We note defendant-respondent is identified in the re cord as both La Fortaleza, I NC . and La Fortaleza Restaurant, INC. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0367

- 22 McHugh and Imbornone, PA, attorneys for appellants (Salvatore Imbornone, Jr., on the brief). Kenneth Lowell Rose, attorneys for respondent (Kenneth L. Rose, of counsel and on the brief ; Jeffrey M. Zajac, on the brief).
PER CURIAM Plaintiffs Siria Hernandez (Hernandez) and Felix P ereyra (Pereyra), her husband, appeal from a September 26, 2022 order dis missing with prejudice their complaint, and an October 17, 2022 order awar ding defendant La Fortaleza, Inc.'s attorney's fees and costs. We affirm. We glean the facts and procedural history from the trial and motion records

. Hernandez alleges that she "was caused to slip and fall on an uneven and raised defect [of] the walking surface" on defe ndant's property. The matter proceed ed to a virtual trial, with the issue of defendant's liab ility to be tried first. The trial began on July 26, 2022. In discussing s ome of the mechanics of the virtual trial, the attorneys and the trial judg e reviewed where witnesses could be seated and the presentation of exhibits. Hernan dez' attorney stated "she w[ould] be the first witness and [he] w[ould] not talk to her about her testimony at any time during the testimony, even if [they] br [oke] for lunch."3 A- 0367

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Hernandez was summoned as the first witness. The trial judge explained to her "you must be alone in the room from where yo u provide your testimony, except the co-plaintiff, your husband may also be i n the room." During Hernandez' direct testimony, her attorney show ed a photograph of the restaurant and "the area where the fall occurre d." The following exchange transpired : Attorney: Now, do you see the area where you fell?

Hernandez: Yes. On my way to the bench, on my way over there. Attorney: And where - - where did you fall in comparison to where the lady in red is standing? Hernandez: It was more or less on my way - - on my way to the bench, around there, right there. Attorney: Now, are you able, Ms. Hernandez, to use the cursor on your computer to point to the area wh ere you fell? Hernandez: Let me see. Like that, on my way there , I tripped on my way there and that's when I fell, on my way. At this point, the trial judge interjected:

Trial judge: Okay. No one can tell you anything i n your room. Is anybody speaking to you? Hernandez: Give me a second. My husband.4 A- 0367

- 22 . . . . Trial judge: Okay. I need your husband to stand b ehind you while you're doing this. Hernandez: Okay. Trial judge: And, Mr. Pereyra, you must remain qui et and not say anything or - - we need you to stand ba ck, sir. Okay. Somebody is talking in the room that's not visible on the screen. Nobody can be telling Ms. Hernandez what to do. Hernandez' attorney explained that Hernandez was ha ving trouble manipulating the cursor on the screen. Therefore, the court rec essed the trial for lunch. The trial judge instructed Hernandez' attorney to "stra ighten[] out" issues with the exhibits and the utilization of the cursor. Defense counsel raised an objection asserting "[o]n [the] critical issue of liability of this nature, no coaching is tolerable, zero coaching." The trial judge reiterated the point to plaintiffs' attorney:

Nobody else should be in the room but her husband. I made that clear. That was the oath. If anybody el se is in that room, they must leave. Her husband must be visible meaning behind her. He is not to open his mouth, do you understand that, until it is his opportunity to testify.5 A- 0367

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During the recess the following conversation betwe en Hernandez , Pereyra, and their attorney was recorded 2 :

[A ttorney]: This is the important part of the case. You show this picture, okay? Okay? and I'm going to s ay, I don't know if we got this far already but do you recognize this picture ? Yes. This side of the restaurant? Does it show

– does it fairly and accurately show the way the restaurant looked on the day that you fell? Yes. You must say that or the picture canno t be good. Okay? So, I want you

– and the answer has to be, yes, because if you say, no, we can't do it. B ut you will say the same thing, I'm going to ask you the s ame question later. Anyway, okay. Do you see

– do you see the bench that you were going to at the time you fell? You're going to answer, yes, right. And I will say to you, I'm goi ng to move the cursor

– and I will say I'm going to move the cursor. You tell me where is the bench? So, when I get up here, just, right there. Okay? The bench, right next to the lady. Okay? Okay. Now in this picture, do you see where you fell and I'm going to put it right where the

– where the bench

– from where the bench it, where did you fall? I will move the map. It's out of the (indiscernible ). So, after we identify the bench, I'm going to put the [ cursor] right here now and say, do you see the area where y ou fell? Yes. Okay. Now, how do I have to move the

– you

– because it has to be her voice. How do I move

2 The judge explained "Courtsmart . . . was not running . . . . [h]owever because judiciary staff was in the courtroom, the[] back-up recording system . . . [was] running . . . . [and] record[ed] the dialogue betwe en [p]laintiff[ s' ] . . . trial counsel . . . and [p]laintiffs."6 A- 0367

- 22 the cursor to find the place where you fell? So yo u should - - Pereyra: Back. [Attorney]: Okay. So, down, right, like that? [Attorney]: So, you say, move down. So, I'm going to move it, move it, move it. You have to tell me when to stop . Right there, right? Okay. How about this distance from the curb? Would it be right this way or further here? It would be in the middle? Pereyra: Yeah. [Attorney]: Okay. So, we're going to

– first we find the bench. That's the easy part. Then I'm going t o say, okay, I'm going to put the cursor right in front of the bench. Now, tell me how to move the cursor to show how you fell and what you would have to say, you ha ve to move

– you could either say down or to the camera, okay, which you prefer. (Plaintiffs speaking in Spanish). [Attorney]: Okay. So, you're saying down? So, I' ll say, okay, I'm going to start to move it down and t ell me when to stop. I'm going to go down, down, down, do wn, down. Hernandez: Stop. [Attorney]: Okay. How about this way now, from curb? (Plaintiffs speaking Spanish).7 A- 0367

- 22 [Attorney]: Well, here or further? Right in the m iddle? Okay. Good. Pereyra: You don't have to say exactly in the midd le. When we move it like this, you say, stop. Stop rig ht there like this here. It doesn't have to go exactl y in the middle

– [Attorney]: Okay. Pereyra:

-- because the middle, how come she (indiscernible) exactly in the middle. She don't k now After the recess, the trial judge reiterated her in structions that Pereyra "remain behind [Hernandez] in a chair" and "he should not b e opening his mouth to say anything." Defense counsel "continu [ed the ] objection about coaching." Further, defense counsel advised that plaintiffs' attorney's microphone was on during recess and he "listened to [plaintiff's attorney] c oaching the witness with the witness' husband." Defense counsel requested a mistrial. In response to the trial judge's question regarding whether "there was any additional coaching to the witness" "during the . . . break, " plaintiffs' attorney stated that he "did show the witness the scenario of moving t he cursor along the exhibit." The trial judge polled the jurors, to make certain they had not ov erheard the recess conversation. The judge concluded the " jury itself was not tainted."8 A- 0367

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The parties returned to virtual court the following day. Defense counsel renewed his request for a mistrial or, alternativel y, a dismissal of plaintiffs' complaint with prejudice. The trial judge, after l istening to the recording, found: (1) plaintiffs and their counsel had already been w arned against coaching; (2) she "had to direct plaintiffs not to offer each oth er advice or direct each other how to answer"; (3) she "had to direct th[e] litiga nts to sit together on screen so[] as to remove any resemblance of impropriety" ; and (4 ) plaintiff s' attorney "exacerbated the concerns of coaching by sharing hi s screen unmuted during a recess and revealing conversations . . . to be coaching t he witnesses, to direct as to where the slip and fall occurred in the liabilit y only portion o f a bifurcated trial ." The trial judge concluded that she was compelled t o declare a mistrial

. She determined a mistrial was necessary because Her nandez was in the middle of her testimony and there was a "possibility of ta int as to a critical issue in a liability only bifurcated trial

— where . . . Hernandez fell." Moreover, "[t]he prejudicial effect in this circumstance [wa]s far too great and balance weigh[ed]

to o heavy in [the] misadministration [of] justice, th at there [wa]s nothing that c[ould] be done other than to order a mistrial . . . ."9 A- 0367

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The trial judge ordered "[p]laintiffs and/or their [c]ounsel . . . to reimburse the [c]ourt for the costs of the interpreter and co urt services, which is the transcription . . . ." Further, the judge permitted defendant to file a "m otion for dismissal with prejudice . . . . due to the issues of fundamental prejudice . . . ."
On September 23, 2023, the judge heard the parties' ar guments on defendant's motion for dismissal with prejudice. As part of her review, she noted that her court clerk and two bilingual paralegals from defense counsel's office heard the recess conversation. Therefore, in addit ion to the transcript of the conversation, she considered the that " th e court clerk confirmed that [plaintiffs' attorney] was attempting to facilitate a response to g enerate a factual possibility of liability." Moreover, she noted one of the paralegals certified that "Hernandez state[d] that she thought she tripped by the bench when shown a photo by [plaintiffs' attorney] pointing out where she f ell." Further, the other paraleg al certified that she "heard [Hernandez] state that it had been so long she didn't remember where she fell, which had not been interpreted by the court supplied interpreter." In considering plaintiffs' opposition to the motion to dismiss, the judge noted plaintiffs did not rebut the paralegals' stat ements. Further, plaintiffs' argument that "it was clear from [Hernandez'] depo si tion testimony and her10 A- 0367

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meeting with the expert that she was aware of the l ocation of her fall" was unavailing because Hernandez testified that she "di d not go to where the incident happened with the expert." On September 26, 2023, the judge entered an order dismissing plaintiffs' complaint with prejudice; accompanied by a thoughtful and well-reasoned written opinion. The judge explained:

The record before this court is unambiguous, and th is c ou rt finds cause to dismiss this action with prejudic e. The conduct of the attorney here to invite a client to st ate that an accident occurred in a particular place when she had no independent recollection to resolve the issues of liability where she was the only witness to the fall itself introduces prejudice too great to prese nt to the finder of fact. The well of information that could be presented to the jury has been forever poisoned. T here is no way to sufficiently determine that [p]laintif f can testify, especially considering that [p]laintiff ha d no recollection of her own fall and her attorney invite d her to perpetuate a falsity at his direction to create an issue of liability. Moreover, [p]laintiff and her counsel, as well as [p]laintiff's husband, had previously been correcte d to refrain from coaching this witness during testimony

. This court saw it appropriate at that juncture to provide a limiting instruction and then to direct [p]lainti ff and her counsel that further coaching would not be tolerated. The directive from her trial attorney w as clear: "this is where you fell." The directive wa s not for [p]laintiff to testify as to "where you know th at you fell or answer that you do not know." The directiv e was to create a falsity and commit fraud on this court. Suc h11 A- 0367

- 22 is not tolerable. The bell cannot be unrung; [p]laintiff[s'] testimony will be forever tainted b y the directive of [p]laintiff[s '] trial counsel. The judge required "[p]laintiff[s]' counsel to pay [defendant's] attorney's fees and costs associated with trial and th[e] motion of [d]efendant." The judge instructed defendant's attorney "to submit an affid avit of attorney's fees within [fourteen] days and permitted [p]laintiff[s]' trial counsel . . . to file an objection to the affidavit within [ten] days after its filing ." Defense counsel filed an affidavit in support of attorney's fees, which plai ntiffs did not oppose. Therefore, on October 17 , 2022, the judge ordered plaintiffs' attorney to p ay defense counsel the sum of $20,640 within thirty days. 3 Here, Hernandez argues the trial judge erred in the exercise of her discretion because: (1) there was no fraud on the court and (2) the sanction of dismissal is "too severe." We disagree. "Findings by [a] trial judge are considered binding on appeal when
suppo rted by adequate, substantial, and credible evidenc e." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) . Therefore,

our appellate function is a limited one: we do not dist urb the factual findings and legal conclusions of t he trial judge unless we are convinced that they are s o

3 On May 4, 2023, we ordered a stay of the payment of attorney's fees pending appeal. Plaintiff posted a supersedeas bond in acc ordance with Rule 2:9

- 5.12 A- 0367

- 22 manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidenc e as to offend the interests of justice, and the appe llate court therefore ponders whether, on the contrary, t here is substantial evidence in support of the trial jud ge's findings and conclusions. [Ibid. (internal citations omitted).] The concept of fraud on the court applies to "a sch eme to interfere with the judicial machinery performing the task of impar tial adjudication, as by prevent ing the opposing party from fairly presenting his [or her] case or defense." Hyland v. Kirkman, 204 N.J. Super. 345, 374 (Ch. Div. 1985) (quoting Pfizer, Inc. v. International Rectifier Co rp., 538 F.2d 180, 195 (8th Cir. 1976) ). "A finding of fraud on the court is justified o nly by the most egregious misconduct directed to the court itself, such as . . . fabrication of evidence by counsel . . . ." Ibid. In Triffin v. Automatic Data Processing, Inc. , 394 N.J. Super. 237, 251 (App. Div. 2007), we held:

[a] fraud on the court occurs "where it can be demonstrated, clearly and convincingly, that a part y has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defen se." Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989) ; Perna Elec. Data Sys. Corp., 916 F.Supp. 388, 397 (D.N.J. 1995). Unlike common law fraud on a party, fraud on a court does not require reliance

.13 A- 0367

- 22 Separate and distinct from court rules and statutes , courts possess an inherent power to sanction an individual for committing fraud on the court. See e.g. Chambers v. Nasco, Inc. , 501 U.S. 32 (1991); Perna , 916 F.Supp. at 388. We conclude there is "adequate, substantial, and c redible evidence" to support the judge's finding that plaintiffs and the ir attorney committed a fraud on the court. Rova, 65 N.J. at 484. Initially, Pe rey ra failed to comply with the judge's instruction on coaching Hernandez. Ultimat ely, the judge required Pereyra to stay in screen view by stand ing behind Hernandez. The judge admonished plaintiffs' attorney that Pereyra "shoul d not be opening his mouth to say anything." Moreover, plaintiffs' attorney, after indicating h e would "not talk to [Hernandez] about her testimony at any time during the testimony, even if we break for lunch," proceeded " to perpetuate a falsity" by inviting, indeed directing, Hernandez to create an issue of liabilit y by "stat[ing] that an accident occurred in a particular place when she had no inde pendent recollection ." This conduct "set in motion [an] unconscionable sc heme calculated to interfere with the judicial system's ability impart ially to adjudicate a matter by improperly influencing the trier or unfairly hamper ing the presentation of the opposing party's claim or defense. " Aoude, 892 F.2d at 1118.14 A- 0367

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A dismissal with prejudice is a drastic remedy, to be employed "only sparing ly ." Zaccardi v. Becker, 88 N.J. 245, 253 ( 1982) . In determining whether a trial court has abused its discretion 4 in dismissing an action with prejudice, we are guided by the manner in which the trial court has balanced the following factors:

(1) the degree of the wrongdoer's culpability; (2) the extent of the client's blameworthiness if the wrong ful conduct is committed by its attorney, recognizing t hat we seldom dismiss claims against blameless clients; (3) the prejudice to the judicial process and the administration of justice; (4) the prejudice to the victim; (5) the availability of other sanctions to rectify the wrong by punishing culpable persons, compensating harmed persons, and deterring similar conduct in the future; and (6) the public interest. [United States v. Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir. 1993) 5 ] In employing this standard, we find no abuse of dis cretion in the judge's decision to dismiss plaintiffs' complaint with prejudice.

4 Abtrax Pharms. v. Elkins-Sinn, 139 N.J. 499, 517 (1 995) ("[T]he standard of review for dismissal of a complaint with prejudice . . . is whether the trial court abused its discretion, a standard that cautions app ellate courts not to interfere unless an injustice appears to have been done.")

5 The factors identified in Shaffer were relied upon in Pe r na which we cited with approval in Triffin, and thus serve as a usefu l guide here.15 A- 0367

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In determining culpability, the judge described the evidence as "unambiguous." She found plaintiffs' attorney prov ided a directive to Hernandez, regarding the location of the accident despite Hernandez having "no independent recollection" of where she fell. Moreo ver, the attorney's actions followed the judge's warnings and corrective instru ction involving Pereyra's coaching Hernandez on this same subject. Plaintiff s' and their attorney 's culpability are firmly established. Further, plaintiffs share the blame in the fraud. Pereyra, despite instructions from the judge, coached Hernandez duri ng trial and recess regarding the purported location of her fall. In addition, n either Pereyra nor Hernandez resisted their attorney's coaching. Instead, they were willing participants in a scheme to provide false testimony in an ongoing trial.
Moreover , plaintiffs' and their attorney's actions "prejudice [d] . . . the judicial process and the administration of justice. " Ibid. Prejudice is selfevident when an attorney directs a client to testif y to the location of an accident when the client has no independent recollection. F rom that point forward, Hernandez ' ev ery utterance wa s suspect and her case, the "judicial process," and "the administration of justice" were "poisoned" and "tainted" as a result.16 A- 0367

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Similarly, defendant wa s prejudiced by the coaching and "falsified" testimony. From it s opening statement, defendant asserted that Hernan dez ' testimony was "very inconsistent" and she " did not know where she fell." Therefore, defendant suffered prejudice as a result of adverse counsel coaching Hernandez and directing her testimony as to the loc ation of the fall in a liability only trial when Hernandez had "no independent recol lection." Under these circumstances, plaintiffs ' and their attorney's actions compelled the judge to impose the ultimate sanction of a dismissal with prejudice. As the judge explained, "the bell canno t be unrung; [p]laintiff's testimony will be forever tainted by the directive of [p]l aintiff[s]' trial counsel." We find no monetary sanction or further co rrective instructions could remove the "taint," permeating throughout plaintiffs' clai m. Plaintiffs' suggestion the "[t]rial [c]ourt could h ave imposed lesser sanctions such as barring [Hernandez] from further testifying at trial and allowing her case to proceed with the testimony of [Pereyra] and [the] expert to prove liability," is unavailing. Pereyra was alrea dy implicated in the fraud, as
h e coached Hernandez during trial and during the reces s. Also, his testimony

wa s similarly tainted by his attorney's "directive." F urther, Hernandez testified17 A- 0367

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that she "did not go to where the incident happened with the expert," so the expert's testimony is similarly untrustworthy. Lastly, the public interest is served by a dismissa l with prejudice. "A misrepresentation to a tribunal 'is a most serious breach of ethics because it affects directly the administration of justice.'" In re Forrest , 158 N.J. 428, 437 (1999) (quoting In re Johnson , 102 N.J. 504, 510 (1986)). Therefore, dismissal warns plaintiffs and their attorney that their beha vior will not be tolerated and that their conduct was so egregious as to cause the m to suffer a "drastic remedy"

— the loss of their cause of action

. Moreover, it informs other litigants that they risk dismissal if they commit a fraud on the court. Finally, it confirms for the public 's benefit that the judicial system, while adversar ial , requires truthfulness and candor above all else. See RPC 3. 3 (Candor Toward the Tribunal). The public is served by nothing less. Plaintiffs argue the judge abused her discretion in ordering them to pay defendant's attorney's fees and costs. We note pla intiffs did not oppose the fee application and raised the issue for the first time on appeal. "[A]ppellate courts will decline to consider questions or issues not pr operly presented to the trial court when an opportunity for such a presentation i s available . . . ." J.K. v. N.J.18 A- 0367

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State Parole Bd., 247 N.J. 120, 138 n.6 (2021) (quo ting State v. Robinson, 200 N.J. 1, 20 (2009))

. Nonetheless, Rule 2:10 -2 provides: Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justic e, notice plain error not brought to the attention of the trial or appellate court. "Relief under the plain error rule, R[ ul e] 2:10 -2, at least in civil cases, is discretionary and 'should be sparingly employed.'" Baker v. Nat'l State Bank , 161 N.J. 220, 226 (1999) (quoting Ford v. Reichert, 23 N.J. 429, 435 (1957)). Further, the rule sets "a 'high bar,' requiring rev ersal only where the possibility of an injustice is 'real' and 'sufficient . . . .'" State v. Alessi, 240 N.J. 501, 527 (2020) (first quoting State v. Santamaria, 236 N.J. 390, 404 (2019); and then quoting State v. Macon, 57 N.J. 325, 326 (1971)). Since plaintiffs failed to oppose the application b efore the trial judge and failed, here, to address "plain error, " we decline to consider their arguments on the award of defendant's attorney's fees and costs. Affirmed. We hereby vacate our order of May 4, 2023 staying t he payment of the attorney's and costs.