Opinion
DOCKET NO. A-2786-13T3
04-22-2015
NINO'S RESTAURANT AND PIZZERIA, Plaintiff-Appellant, v. ALAN LANE, Defendant-Respondent.
Malcolm Blum, attorney for appellant. Lucianna & Lucianna, P.A., attorneys for respondent (Diane M. Lucianna, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-024685-12. Malcolm Blum, attorney for appellant. Lucianna & Lucianna, P.A., attorneys for respondent (Diane M. Lucianna, of counsel and on the brief). PER CURIAM
Plaintiff, Nino's Restaurant and Pizzeria (Nino's), filed a complaint against defendant, Alan Lane, alleging breach of contract and violation of the Consumer Fraud Act. After a bench trial, judgment was entered in favor of defendant, which plaintiff challenges in this appeal. We affirm for the reasons set forth in the well-reasoned, written decision of Judge Susan J. Steele, filed on January 17, 2014.
In 2012, the State notified the owners of Nino's that they owed $100,000 in tax obligations spanning a period of five years. Casina, the wife of one of the owners, spoke to a family friend, Frank, about the tax problem. Frank then referred Casina to defendant, Lane, whom he worked with as an EMT. Lane was not an accountant, but he told Casina that he knew a certified public accountant (CPA) in New York that was experienced in working with the State. Lane suggested that the accountant, Carol Rati (Rati), could review the records and assist Nino's.
Lane advised Casina that Rati required an advance of $5,000, and if Nino's wished to hire her, he would deliver the money and the business records. Nino's agreed, and Casina gave Lane a $5,000 check made out to cash. Lane testified that he endorsed the check, and gave it and the box of records to Rati.
At the trial, Rati testified as a witness for Lane. She confirmed that she is a CPA, and that she took the $5,000, representing her standard rate of $1000 per tax-year being audited. Regarding the $5,000 fee, Rati and Lane both testified that Lane was not given any of that compensation. Shortly after the referral, however, Rati gave Lane $1,000 as a reward for several referrals made to the accounting business.
Rati never met with the owners of Nino's, and it is disputed as to whether she spoke to anyone. There were no meetings, no reports sent to plaintiff, and Rati never contacted the State. Lane testified, however, that Casina called him numerous times asking what was being done, and that he called Rati on Nino's behalf. Lane continued that he was advised that because it was tax season it would take some time. Apparently, Lane conveyed to Casina that after tax season, Rati had a vacation scheduled, but would take care of the problem when she returned at the end of May.
In the meantime, a state auditor contacted the owners directly, and negotiated a reduction in the amount owed. The tax problem was resolved. Thereafter, Casina asked defendant to return the $5,000, since Nino's received no benefit from the payment. In response, Lane testified that he acted only as a conduit, and as a friend of a friend.
On those facts, plaintiff filed the complaint naming only Lane as a defendant. After the bench trial, Judge Steele ruled in favor of defendant, finding that he acted as a conduit only, and that it was understood by the parties that he was not providing the accounting services. The judge also found that defendant was not promised or given compensation by the plaintiff. Although he was given $1,000 by Rati, the judge found this money was given to him after, and separate from the transaction with the plaintiff. The money was to reward him for several clients he had referred to Rati. In addition, the evidence showed that although Lane endorsed the $5,000 check, the money paid by plaintiff went directly to the accountant. Same was consistent with what the owners of Nino's understood when the check was given to Lane to deliver to Rati.
Judge Steele did not make a finding as to the work that was done by Rati, or whether she had breached a contract or acted negligently. Rati was not a party to this litigation.
"Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review[.]" Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169 (2011). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Ibid. (citations and quotation marks omitted). The court's findings of fact are "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co, 65 N.J. 474, 484 (1974)).
In Rothermel v. International Paper Company, we recognized that sometimes, for unexplained reasons, parties choose not to enter into an enforceable contract. 163 N.J. Super. 235, 244 (App. Div. 1978). There, quoting our decision in Booth & Brother v. Burgess, we reiterated that:
[it] is the absolute right of all men to contract or refrain from contracting . . . . The motives which actuate a man in refraining from making a contract in relation to labor or merchandise or anything else are absolutely beyond all inquiry or challenge. Self-evident as it may be, the proposition . . . has often been lost sight of that the right to refrain from contracting is an absolute right, which every man can exercise justly or unjustly, for a good purpose or for a bad purpose, "maliciously," in the popular sense of the term, or benevolently.
[Rothermel, supra, 163 N.J. Super. at 244 (quoting Booth & Brother v. Burgess, 72 N.J. Eg. 181, 190 (Ch. 1906)).]
Here, Judge Steele found no evidence to support a claim of breach of contract against defendant. The entire transaction in this case was peculiar. It could be viewed as a friend of a friend simply helping someone in need, or there may have been some understanding by the parties that resulted in money being paid in cash to an intermediary for some unexplained purpose. However, the court can only judge a case by the evidence produced, and here, Judge Steele found there was no evidence of a contract between the parties. Judge Steele also found no evidence to support a claim of consumer fraud.
After reviewing the record in light of the contentions advanced on appeal, we affirm substantially for the reasons set forth in Judge Steele's written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION