Civil Procedure

Bands Refuse v. Fair Lawn

CHAPTER ONE: Choosing a System of Procedure; p. 1-14
NAME:

FACTS:

Bands Refuse Removal v. Borough of Fair Lawn, 163 A.2d 465 (1960), Superior
Court of New Jersey, Appellate Division
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PROCEDURE:

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ISSUE:

(Bands Refuse) v. (Fair Lawn), (borough officials), (Capassos join

later)
Feb. to Aug. 1957 (Fair Lawn) advertises for bids to collect garbage in
town, gives contract to Capassos at $18,260/month, signed May; FL
passes ordinance 688 req. permit (w/ contract) to collect garbage; (Bands
Refuse) denied despite contract with Western Electric in town
Nov. 1957 files complaint re: 688 as arbitrary, discriminatory,
unconstitutional, and without authority; ask court to declare ordinance void
and order FL to renew permit or issue new one
Motion: Capassos intervene as addl alleging action was proper because
contract was awarded through competitive bidding; counterclaim: no permit
to during term of Capassos contract, declare ordinance valid and contract
valid
May 15, 1958 amend complaint add 3C (third count) re: fraud in bid
process (after grand jury investigation); pretrial limit fraud contentions, held
688 valid and had no standing to sue because did not bid and was not
resident of FL; Capasso ask reversal due to trial proceedings
May 20 request info of witnesses to the facts alleged in 3C; answer
contained 7, unrevised even when judge later calls 27/32 witnesses, 24
names not supplied in answer to interrogatories
June 13 (-6) court session where counsel not present, judge ask
subpoena of addl witnesses; deems 3C unnecessary to raise in this trial
and proceed w/ illegality of 688; phone convo mentioned where judge stated
would declare Western Electric contract void if 3C removed
June 19 (+1) judge appoints amicus curaie; motion that judge prejudged
the issues
Sept. 10 (+11) judge motions to add five issues alleging noncompliance
with bidding process
Sept. 11 (+12) FL new counsel file second amended complaint alleging
fraud and invalidity of contract and cross-claim seeking recovery against
Capassos; no addl discovery time was granted
Capasso appealing judgment that declared illegal and void (from the
beginning): all payments under contract, FL 688, and damages of
$303,052.62

Procedural Issue(s) Was the procedural conduct of the trial a denial of due
process?
1. Was the conduct of the trial judge beyond the primary function of
impartiality?
a. Can the court admit surprise witnesses when the witnesses have
not been named?
b. Can the court add new issues?
Substantive Issue(s)

Civil Procedure
2. Is a shift in cause of action in this pleading permissible?
HOLDING:

REASONING:

1. Yes, overstepped bounds of judicial inquiry and thereby denied due process.
1a/b. No. 2. Yes.
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Courts must not only be impartial; they must give appearance of

impartiality

Rule: The penalty for failure to name a witness in answer to interrogatories is

the exclusion of the testimony of that witness at the trial. (R.R. 4:23-12)
o Trial court committed prejudicial error by producing large number of
witnesses and admitting testimony in their evidence w/o notice; rule applies
to opposing party so should apply to court
o Court disregarded issues defined by the parties, injected issues into case
without notice; judge cannot expand a case during trial without giving
affected parties time to meet issues
Rule: (Grobart) litigants shall not shift their position in successive pleadings
shifting causes of action in successive pleading will completely block the
purpose of all pleading
o Paramount to public interest to allow for amended answer; (Capasso)
should be given reasonable time for discovery and investigation due to the
change in position
DISPOSITION:

NOTES:

Verdict in favor of reversed and remanded for full trial re: validity of contract

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Ab initio: from the beginning

Ultra vires: beyond the powers, invalid, without authority
Amicus curaie: friend of the court, not a party to a case and offers
information that bears on the case
Presentment: formal presentation of information to a court, e.g. sworn jury
about an offense
Colloquy: conversation
Mandamus petition: compel judicial or government officer to perform a duty
owed to the petitioner
Inter alia: among other things

The function of a trial judge is to serve litigants by determining their disputes

and the issues implicated therein in accordance with applicable rules and law
he may not expand a case before him by adding new issues (p. 9-10)
Fed.R.Civ.P. 8(a) complaint filed by plaintiff
Fed.R.Civ.P. 8(b)-(c) answer filed by defendant, containing 5 separate defenses
Fed.R.Civ.P. 24 motion to intervene as defendants
Fed.R.Civ.P. 8; 13 answer and counterclaims filed by defendants
Fed.R.Civ.P. 15 plaintiff permitted to file amended complaint (after Grand Jury
issued indictments)
15(b)(1): Based on objection at trial pertains to when FL officials
changed sides
Fed.R.Civ.P. 26, 33 - discovery conducted by parties, interrogatories requesting
witness identities
Fed.R.Civ.P. 16 judge held pre-trial hearing

Civil Procedure
(2) Matters for Consideration (M): For convenience, to avoid prejudice, or
to expedite and economize, the court may order a separate trial of one or
more separate issues, claims, crossclaims, counterclaims, or third-party
claims. When ordering a separate trial, the court must preserve any
federal right to a jury trial. 42(b)
Fed.R.Civ.P. 53 appointing amicus curaie to present evidence,
subpoena/examine, submit briefs
Fed.R.Civ.P. 38-52 trial held
Fed.R.Civ.P. 54(a); 58 judgment entered
Fed.R.App.P. 3; 4 appeal taken
From Grobart v. Society for Establishing Useful Manufactures: Alternative and
hypothetical claims can be attacked in a single answer or motion; inconsistent
affirmative defenses may be dealt with in a single reply or motion, but shifting
causes of action in successive pleading will completely block the purpose of all
pleading, i.e. getting to an issue or issues where one party asserts the
affirmative and the other the negative on a question or questions of law or of
fact. plaintiffs are permitted to litigate only the matters asserted in their
proof of claim.
Questions: Is the Grobart rule an issue of law or a procedural issue? Isnt
Supreme Court of NJ > Superior Court of NJ so why did Superior Court in this
case essentially ignore the issue? What better way to bring up the fraud in
bidding issue? (Pretrial hearing?)