GARY MATARAZZO, ETC. VS. JOSEPH J. TALAFOUS (L-4047-17, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2744-18T3
GARY MATARAZZO,
EXECUTOR OF THE ESTATE
OF MARIA D. MATARAZZO,
Deceased,
Plaintiff-Respondent,
v.
JOSEPH J. TALAFOUS, a/k/a
JOSEPH J. TALAFOUS, JR.,
Defendant-Appellant.
__________________________
Submitted April 29, 2020 – Decided June 29, 2020
Before Judges Koblitz and Whipple.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-4047-17.
Miller Meyerson & Corbo, attorneys for appellant
(Gerald D. Miller, of counsel and on the briefs).
Walsh & Walsh, LLC, attorneys for respondent (John
K. Walsh, Jr., of counsel and on the brief).
PER CURIAM
Defendant Joseph J. Talafous, Jr., appeals from the February 12, 2019
judgment entered after a bench trial in favor of plaintiff Gary Matarazzo,
executor of the estate of Maria D. Matarazzo (the estate).
We discern the following facts from record. Plaintiff became friendly
with defendant because defendant's father previously represented plaintiff in a
worker's compensation matter related to his company. On May 12, 2012, Maria
D. Matarazzo, a resident of New York and plaintiff's aunt, died testate. Plaintiff
engaged defendant to provide legal services to plaintiff in connection with the
administration of her four-million-dollar estate.
Maria's will identified plaintiff's deceased father as the estate's executor.
Defendant told plaintiff he would make him the executor and prepared papers to
that effect and secured the signatures of plaintiff's siblings. Defendant then went
to the Surrogate of Hudson County to make plaintiff the sole executor of Maria's
estate. Defendant was not licensed to practice law in New York, but, told
plaintiff "since [plaintiff is] a friend he would take care of [him] like no other
lawyer would . . . be able to." Although plaintiff testified as to certain acts
defendant undertook in connection with the estate, such as opening bank
accounts and creating a corporation, defendant never sent plaintiff any invoices
nor any statements indicating the nature of his services or an hourly rate.
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In May 2015, defendant told plaintiff he ran into some legal trouble and
that John K. Walsh, Jr. – plaintiff's counsel in the present matter – would handle
matters going forward, as he was licensed in New York and defendant had
planned to utilize him for the estate work because property, such as Maria's hair
salon business, was located in New York. Although defendant told plaintiff he
periodically paid Walsh, he never presented any bills to plaintiff. Defendant
was suspended from the practice of law on May 20, 2015 and disbarred on July
13, 2015. In re Talafous, 222 N.J. 127 (2015).
On May 16, 2016, a New Jersey Grand Jury issued a nineteen-count
superseding indictment charging defendant with theft by deception and the
misapplication of entrusted property. On January 10, 2018, a jury convicted
defendant on all but one of the nineteen counts. In November 2018, defendant
was sentenced to twenty-six years in prison. We affirmed his conviction in State
v. Talafous, A-3594-17 (App. Div. June 10, 2020).
By letter dated March 22, 2017, plaintiff requested fee arbitration, but the
Fee Arbitration Committee, which found the sum alleged was beyond its
jurisdiction, denied his request. On June 13, 2017, plaintiff filed a complaint
seeking reimbursement of the $353,362.46 in legal fees he paid defendant for
unknown services or "such amount representing the difference between the
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reasonable value[] of the services rendered and the amount paid by the Plaintiff."
Defendant answered, denying plaintiff was entitled to any refund.
In April 2018, plaintiff served interrogatories and document demands but
defendant never responded nor did he provide any documents he intended to
utilize at trial or a list of potential witnesses. On May 25, 2018, the trial court
entered an order authorizing defendant's deposition at South Woods State Prison,
where he was serving his sentence. However, defendant advised he would assert
his Fifth Amendment privilege against self-incrimination. On November 19,
2018, the trial court denied defendant's request for a stay until the completion
of his criminal appeal and ordered plaintiff to proceed with a proof hearing as
defendant lacked standing to testify on his own behalf and his appearance at trial
would be meaningless due to his assertion of the self-incrimination privilege.
On January 28, 2019, the parties appeared for a bench trial on the matter.
The trial judge first addressed defendant's request to call Walsh as a witness.
Defendant argued that Walsh already testified in the criminal trial concerning
the payments he received from defendant in connection with the estate and his
current representation presented an issue under the Rules of Professional
Conduct (RPC) 3.7. Defendant intended to call Walsh as a witness in order to
elicit testimony regarding the services rendered by defendant. Plaintiff argued
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defendant's failure to respond to any discovery requests and the assertion of his
self-incrimination privilege barred him from calling any witnesses. Plaintiff
further argued Walsh's testimony in the criminal trial concerned Walsh's own
efforts in administering the estate and that, should the trial court allow the
testimony, the RPC 3.7 issue could be resolved by having another attorney from
his office testify concerning interactions with defendant.
After reviewing the pre-trial history, the judge stated
So the point being that it was Judge Polifroni's opinion
that the defense had no standing to testify, and that the
participation of the defense would be to challenge the
proofs . . . presented, in that the defendant would not
have standing to testify. So even if this court views this
as a motion in limine to bar the defendant from calling
witnesses . . . or testifying, [t]he [c]ourt would grant
that motion in that the defendant, having failed to
participate in discovery, should not, in essence, be
permitted to do, in essence, the same thing by calling
Mr. Walsh as a witness, as part, I guess, of a challenge
to the proofs.
The trial judge further noted Walsh's previous testimony "would be of record,
and whatever that testimony was there would have been a transcript of it
available . . . ."
The court denied defendant's application to call Walsh as a witness
"having made the determination that the defendant is not permitted to either
testify in his own behalf or call witnesses on his own behalf." The court al so
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declined to rule "on RPC 3.7 . . . because [t]he [c]ourt [did] not have enough
information before it absent a full hearing on the in limine application . . . ." At
the close of plaintiff's case, the court allowed defendant to put a proffer on the
record concerning Walsh's testimony because defense counsel planned to
question him regarding his various interactions with defendant. Namely, the
administration of the estate as the information was relevant to any services
rendered by defendant to the estate.
In a letter opinion dated January 29, 2019, the court found the facts
demonstrated defendant received nineteen checks totaling $353,262.46 from the
estate and Walsh received three checks from defendant totaling $7,951.85. The
court found plaintiff established a prima facie case that it was entitled to
$345,310.61, the difference between the money paid to defendant and the money
paid to Walsh. The court then shifted "the burden . . . to defendant to prove the
sum is less, or as set forth in defendant's answer to the complaint, that plaintiff
is owed nothing." The judge noted her disagreement with defendant's proffer
stating the proffer failed
to set forth how an attorney, handling other aspects of
the . . . [e]state, would be able to competently testify
regarding services performed, the retainer agreement,
amounts paid by [defendant] to other attorneys who are
alleged to have performed work on the [e]state, or
credits to which [defendant] is allegedly entitled for
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work done by accountants or other professionals in
connection to the [e]state.
The court found plaintiff was a credible witness and concluded it was clear that
he trusted defendant and never saw any documentation related to services
rendered on the estate's behalf. The court also found testimony concerning the
eligibility of other family members as executors of the estate, and the work
performed regarding plaintiff's father's prior estate, were not germane to its
determination of what defendant owed plaintiff.
On February 12, 2019, the court entered a judgment awarding plaintiff
$345,310.61 plus interest. On March 18, 2019, the trial court entered an
additional order directing defendant to pay attorney's fees to plaintiff in the
amount of $27,408.95. This appeal followed.
On appeal, defendant argues the trial court erred by not permitting him to
produce evidence relating to the services rendered. Defendant also argues the
court failed to give him credit for the services he provided. He contends that
plaintiff acknowledged services had been rendered by him and the court should
have required plaintiff to provide proof as to the reasonable value of the services
or allowed defendant to present proof of the services rendered.
"[W]e apply an abuse of discretion standard to decisions made by [the]
trial court[] relating to matters of discovery." Pomerantz Paper Corp. v. New
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Cmty. Corp., 207 N.J. 344, 371 (2011). However, a trial court's interpretation
of the law is not entitled to any special deference. State v. Pomianek, 221 N.J.
66, 80 (2015) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
Rule 4:23-1 provides that a party may apply for an order to compel
discovery. In circumstances "where a party to civil litigation refuses to submit
to discovery because of the assertion of the privilege against self-incrimination,
it is clear that the party asserting the privilege legitimately cannot be held in
contempt . . . ." Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1. on R.
4:23-1. Nevertheless, it is appropriate "to permit the party asserting the
privilege to testify at trial and direct[] that party to furnish a list of all trial
witnesses intended to be called for pretrial deposition purposes." Pressler &
Verniero, cmt. 2.1. on R. 4:23-1. "It would not, however, be appropriate to
permit the plaintiff to recover judgment against the party asserting the privilege
without requiring the plaintiff to introduce proofs and having his witness cross-
examined." Pressler & Verniero, cmt. 2.1. on R. 4:23-1.
Before trial defendant refused to answer interrogatories, produce
documents, identify witnesses and be deposed by asserting, in good faith, his
privilege against self-incrimination. When we consider defendant's refusal to
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provide discovery, we are fully cognizant his invocation of the privilege against
self-incrimination during a civil proceeding places him in a difficult posture. In
Mahne v. Mahne, 66 N.J. 53, 58 (1974), the Court observed that "[i]n civil
proceedings the courts have, in the interests of truth and justice, displayed
understandable readiness to impose noncriminal sanctions for refusal to submit
to pretrial discovery on the basis of the privilege . . . ." See also Woodward-
Clyde Consultants v. Chem & Pollution Scis., Inc., 105 N.J. 464, 475 (1987)
(noting that when a defendant invokes the privilege against self-incrimination,
a "trial court [may] . . . impose[] alternative sanctions such as staying discovery
or precluding defendant from offering affirmative proof at trial."). There, the
Court differentiated plaintiffs who invoke the right against self-incrimination to
avoid pretrial discovery to avoid dismissal from defendants, like Talafous, who
invoke the same right because he is in court involuntarily. Mahne, 66 N.J. at
59. The Court explained, "courts have generally declined to strike [a
defendant's] answer and thus permit a default judgment . . . although they have,
in seeking proper balance, been willing to impose lesser sanctions." Ibid.In Whippany Paper Bd. Co. v. Alfano, 176 N.J. Super. 363, 374-75 (App.
Div. 1980), we observed that it is an appropriate remedy, in the face of a
defendant's claim of the privilege against self-incrimination, to preclude the
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party claiming the privilege from testifying at trial. In that case, we also
explained that if a plaintiff convinces a trial court that he or she is unable to
"proceed without discovery from defendants," the "judge may well be justified
in striking the answer of a defendant claiming the privilege against self-
incrimination and entering judgment against him without proof of the claim or
perhaps on the basis of less persuasive evidence that might otherwise be
required." Id. at 375.
In this case, plaintiff provided defendant nineteen separate checks in
connection with the administration of the estate. In return, defendant never
provided plaintiff any statement, invoice, or correspondence as to the value or
nature of the services provided. Upon hearing plaintiff's testimony and
assessing his credibility, the trial judge determined she "[could not] speculate
what services were performed by [defendant] or what the value of those services
might be." The judge reasonably determined that plaintiff had no knowledge of
the value of any services provided by defendant nor did defendant explain what
work he provided.
After establishing plaintiff proved a prima facie case that the estate was
entitled to $345,310.61, it became defendant's burden to prove the sum was less.
Defendant provided limited insight as to the value of work he provided in
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connection with the limited interactions about which plaintiff testified. We
discern no abuse of the court's discretion.
Affirmed.
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