Opinion
DOCKET NO. A-3371-12T4
10-21-2014
ANTHONY POSTIGLIONE, JR., Plaintiff-Respondent, v. VALENTINA NICOLETTI LIMA, Defendant-Appellant.
Lora B. Glick, attorney for respondent. David A. Amadio, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Leone. On appeal from Superior Court of New Jersey, Law Division, Morris County Docket No. L-1052-10. Lora B. Glick, attorney for respondent. David A. Amadio, attorney for respondent. PER CURIAM
Defendant Valentina Nicoletti Lima appeals from an order of the Civil Part, finding her in breach of contract and entering a judgment in favor of plaintiff Anthony Postiglione, Jr. in the amount of $147,874.60, with costs. Defendant argues that the trial court erred in denying a second motion for continuance and that the judgment was against the weight of the evidence. We affirm.
I.
Defendant failed to appear at trial. Thus, the following is an account of plaintiff's testimony. The parties have known one another for approximately forty years. The parents of the parties became engaged to be married in the 1970s. At some point, the plaintiff and defendant lived in their parents' house as stepbrother and stepsister, though their parents never formally married. Their parents also co-owned and operated a construction business for approximately twenty years.
In addition to the familial relationship between the parties, defendant and plaintiff engaged in different business transactions together over the years, including the co-ownership of an income-producing property in New York City. Defendant eventually sold her interest in that property to plaintiff.
In March 2004, defendant contacted plaintiff to request a loan in the amount of $64,500.00. Defendant requested to be paid the loan proceeds in cash, in order to purchase a house in New Jersey. Plaintiff had this amount of cash on hand because the business he owns and operates is largely a "cash business."
Plaintiff received a promissory note signed by defendant, during a meeting in New Jersey at the time of the transaction. The promissory note, dated March 12, 2004, recorded defendant's promise to repay $64,500.00 on or before March 30, 2004, at an interest rate of zero percent. The promissory note further provided that if payment was not received in full on or before March 30, 2004, defendant would be in default, and plaintiff could demand the entire balance due, costs of collection, and interest at ten percent per annum. The promissory note bore a signature in the name of defendant, and matched her signature on an unrelated check that she wrote to plaintiff later that year.
Approximately one month after the loan transaction, plaintiff began demanding repayment. Five or six months later, defendant contacted plaintiff stating that she was going to pay him back. However, none of the monies loaned in the March 2004 transaction have been repaid to plaintiff.
On March 29, 2010, plaintiff filed a complaint, alleging that defendant borrowed $64,500.00 in cash, as set forth in the promissory note, but had breached that agreement by failing to repay him. Defendant failed to file a timely answer, but in May 2012 the court granted her motion to vacate the default. The matter was arbitrated on July 26, 2012, but defendant failed to appear, claiming that she had undergone surgery. On August 14, 2012, defendant filed for trial de novo. The case was scheduled for a bench trial on December 10, 2012.
On December 10, defendant failed to appear for trial. Defendant's counsel reported that defendant said she was on her way, and that defendant did not object to the trial commencing in her absence. That morning, plaintiff testified and was cross-examined by defense counsel. After redirect of plaintiff concluded and plaintiff rested, defendant still had not appeared. The court inquired further.
Counsel for defendant stated that she had spoken "extensively" with defendant regarding the importance of appearing, and had told her on Friday it was "imperative" that she be in court at 9:00 a.m. on Monday for trial. Counsel spoke with defendant at 5:00 a.m. Monday morning to wake her for trial. Counsel offered to pick defendant up at her home in Brooklyn, but defendant said she would take public transportation. At 9:00 a.m. that morning, defendant informed counsel that "the subways were not running" from Brooklyn to the Port Authority Terminal and she would be one hour late. At approximately 10:15 a.m., defendant informed counsel that she had reached Port Authority Terminal and would arrive around 12:15 p.m. The court granted an adjournment until 1:30 p.m.
At 12:12 p.m., defendant's counsel informed the court that defendant would not be appearing that day. Defendant left counsel a voicemail indicating that "she is very distraught, she is very upset, she's having heart palpitations, she needs to go to the hospital and she cannot appear today." Defendant moved for a second adjournment. Plaintiff objected, noting that defendant had failed to appear at the arbitration, and predicting she would likely fail to appear again if the trial were rescheduled.
The court denied another adjournment, expressing doubt about the accuracy of defendant's excuse, particularly as she did not identify a specific hospital. The court added, "[i]f in fact [defendant] went to a hospital and if in fact there is substance to what's going on, then you can make a motion within the 20 days or whatever it is for relief and I'll consider that motion at that time." However, the court stated, "[i]f she was in fact in a hospital or in a doctor's office, then I would expect to see copies of the records. And if in fact she was unable to come, there should be a statement with respect to that from a physician."
At that time, parties made closing arguments. The court rendered an oral opinion stating that defendant owed plaintiff $64,500.00 plus ten percent interest. Despite the court's invitation, defendant did not file a motion to reconsider. On January 2, 2013, the court entered final judgment awarding plaintiff $147,874.60 plus costs.
Defendant failed to file a timely appeal, but we granted her motion to file a belated appeal.
II.
Defendant argues the trial court erred in denying defense counsel's second motion to adjourn the trial, that the failure to hear her testimony was a violation of her due process rights, and that she had advanced evidence of her legitimate medical reasons for failing to appear.
"[A]bsent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error." State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965). "A motion for an adjournment implicates a trial court's authority to control its own calendar and is reviewed under a deferential standard." State v. Miller, 216 N.J. 40, 65 (2013), cert. denied, ____ U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). "'[B]road discretion must be granted trial courts on matters of continuances.'" Ibid. (quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 1616, 75 L. Ed. 2d 610, 620 (1983)). Indeed, "New Jersey long has embraced the notion that a motion for an adjournment is addressed to the discretion of the court, and its denial will not lead to reversal unless it appears from the record that the defendant suffered manifest wrong or injury." State v. Hayes, 205 N.J. 522, 537 (2011) (citations omitted). "It is peculiarly within the sound discretion of the trial court to deal with problems of this sort, and an appellate court should not interfere unless it appears an injustice has been done." Allegro v. Afton Vill. Corp., 9 N.J. 156, 161 (1952). We must hew to the standard of review.
The court rules further provide that "[r]equests for adjournments should be made as soon as the need is known, but in no event, absent exceptional circumstances, shall such request be made later than the close of business on the Wednesday preceding the Monday of the Trial Week." R. 4:36-3(b).
We find no such exceptional circumstances, abuse of discretion, or injustice here. In fact, the court permitted defendant's counsel to proceed and cross-examine plaintiff despite defendant's failure to appear for trial, granted an adjournment to accommodate defendant's purported transportation woes, and prescribed a clear avenue for relief in the event defendant could prove she was in fact hospitalized and unable to appear, as she alleged.
The trial court made it explicitly clear that, if defendant could produce proof of her alleged hospitalization within twenty days, defendant could submit such evidence with an appropriate motion. Defendant submitted neither the motion nor the proof to the trial court.
Instead, as an exhibit to her motion to this court seeking to file an untimely appeal, defendant submitted a very general letter from a psychiatrist addressed to a New York attorney. The February 28, 2013, letter stated:
This is to advise you that I have been treating [defendant] for symptoms of depression, anxiety, and panic.The letter did not indicate that defendant suffered a panic attack or any of her purported symptoms on December 10, 2012, rendering her unable to attend the trial. The letter did not even indicate that the signing physician, or any hospital, provided treatment to defendant on the trial date. Nor did the letter comport with defendant's day-of-trial representations that her lateness had been caused by subway delays, or that she had traveled successfully from Brooklyn to the Port Authority Terminal in Manhattan. The letter would have been entirely insufficient even if she had timely submitted it to the court.
She gets frequent panic attacks, which prevent her from traveling outside of her immediate neighborhood. These attacks occur in an unpredictable manner. She is receiving several medications . . . for the treatment of this condition.
Further, the letter is dated February 28, 2013, nearly eighty days after the date of the hearing, and sixty days beyond the date set by the trial court. Further, defendant failed to submit the letter to any court until March 22, 2013.
Most importantly, defendant failed to submit the letter to the trial court. New Jersey "'appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Moreover, "appellate courts will not ordinarily consider evidentiary material that is not in the record below." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007) (citing R. 2:5-4). Finally, defendant did not seek he necessary permission to include the letter in her appellate appendix. Id. at 452-53 (citing R. 2:5-5).
We see no reason to waive those strictures here. Defendant has not shown that, at or soon after the time of trial, she did not know of the information she now seeks to include. Ibid. The information is not "likely to affect the outcome," ibid., and does not implicate our jurisdiction or the public interest. Robinson, supra, 200 N.J. at 20. Accordingly, we will not grant relief based on a letter "not presented to the trial judge." Board of Educ. of City of Clifton v. Zoning Bd. of Adjustment of City of Clifton, 409 N.J. Super. 389, 443 (App. Div. 2009).
Defendant failed to appear despite notice and the strenuous efforts of her counsel, the grant of an initial adjournment by the court, and the opportunity to justify her non-appearance by filing a post-trial motion. In these circumstances, there is no merit to her claim that she was denied a due process right to be present at trial. See Morton Bldgs. v. Rezultz, Inc., 127 N.J. 227, 233 (1992); se also In re J.W., 410 N.J. Super. 125, 133 (App. Div. 2009).
III.
Defendant incorrectly asserts that the court's ruling was against the weight of the evidence, and rises to the level of "plain error" pursuant to Rule 2:10-2. However, "[t]he weight of the evidence argument only applies to jury trials." State in Interest of R.V., 280 N.J. Super. 118, 121 (App. Div. 1995) (citing Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989)). "[T]he argument that the verdict was against the weight of the evidence is not the proper standard in a non-jury case. The standard is whether there is sufficient credible evidence in the record to support the judge's determination." Id. at 120-21.
When an appellate court is asked to review the findings of fact made at a bench trial, it may only decide whether the findings could reasonably have been reached on "sufficient credible evidence present in the record," considering the proof as a whole. State v. Locurto, 157 N.J. 463, 471 (1999). When considering the sufficiency of the evidence, we must give "due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
Here, there was plainly sufficient credible evidence to make out breach of contract. "To establish a breach of contract claim, a plaintiff has the burden to show that the parties entered into a valid contract, that the defendant failed to perform his obligations under the contract and that the plaintiff sustained damages as a result." Murphy v. Implicito, 392 N.J. Super. 245, 265 (App. Div. 2007). As the trial court found, plaintiff's loan to defendant of $64,500, and defendant's promise to repay that loan, with ten percent interest in the event of default, were evidenced by the promissory note and plaintiff's testimony. Plaintiff also testified that defendant failed to repay that loan despite renewed promises to do so, damaging plaintiff and triggering the interest obligation.
Defendant asserts there is no evidence that the cash actually exchanged hands, but the trial court credited plaintiff's testimony that it did. "Since matters of credibility are within the domain of the fact finder rather than a reviewing court, we may not fairly interfere with such determinations made by a trial judge in evaluating the weight of the evidence in a bench trial." Rieder Cmtys. v. N. Brunswick, 227 N.J. Super. 214, 224 (App. Div. 1988). Defendant also suggests her signature on the promissory note was forged, but the court relied on plaintiff's testimony and its own comparison with the signature on the unrelated check. See State v. Carroll, 256 N.J. Super. 575, 594 (App. Div. 1992) (the fact finder may compare signatures without expert testimony).
"'Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review.'" D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013). "[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. (quotation marks omitted); accord Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We see no basis to disturb the result here.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION