Opinion
DOCKET NO. A-1936-10T3
11-07-2011
DASON LIGHTING, INC., Plaintiff-Respondent, v. SAJID ALI KHAN, Defendant, and SHEBA ANTIQUES, INC., Defendant-Appellant.
John P. Monaghan, attorney for appellant. Levy, Ehrlich & Petriello, P.C., attorneys for respondent (Erin R. Ehrlich, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-12755-10.
John P. Monaghan, attorney for appellant.
Levy, Ehrlich & Petriello, P.C., attorneys for respondent (Erin R. Ehrlich, on the brief). PER CURIAM
Defendant Sheba Antiques, Inc. appeals from a Special Civil Part judgment ordering it to pay plaintiff Dason Lighting, Inc. $8033, representing the outstanding sum due for the purchase of two statues, plus costs of suit. Following a bench trial, Judge Estela M. De La Cruz issued an oral opinion finding the parties entered into an agreement, evinced by a purchase order, for defendant's acquisition of two statues for $4000 a piece. The court rejected as incredible defendant's assertions it repudiated the purchase upon inspection because the items were not as represented and the parties orally agreed to allow defendant to take the statues on consignment. We affirm.
The complaint against Sajid Ali Khan was dismissed prior to trial.
The parties are antique dealers with a twenty-year business relationship. On June 29, 2007, defendant remitted two $4000 checks to plaintiff after reviewing documentation from an auction house and a trade publication regarding certain statues. The parties then went to plaintiff's warehouse "to actually look at . . . and retrieve the items." Defendant asserted he repudiated the purchase upon inspection, but later took possession of the statues on consignment, consistent with the parties' past dealings. Plaintiff refuted this assertion, maintaining throughout their twenty-year relationship the parties had never engaged in a consignment transaction.
At defendant's request, plaintiff agreed to hold defendant's two $4000 checks for thirty days before depositing them. Plaintiff also acceded to defendant's subsequent requests to extend the agreed thirty-day period, as it was "a very typical way of doing business with [defendant]." Ultimately, defendant stopped payment on its checks and refused plaintiff's written demands for remittance.
Trial testimony was offered by Alfred D'Atri, the principal owner of plaintiff, and Sajid Ali Khan on behalf of defendant. The court found Khan's testimony "erratic," "inconsistent," "not logical," "self-serving" and "not credible." On the other hand, the court determined D'Atri's testimony was "plausible and consistent" with "all of the other paper evidence that the parties entered into an agreement[.]"
On appeal, defendant argues the court's findings were contrary to the weight of the evidence and the judge misapplied her discretion in denying the proffer presenting its owner, Khan, as an expert regarding the valuation of the items purchased. For the first time on appeal, defendant argues the trial court erroneously failed to dismiss plaintiff's complaint for lack of personal jurisdiction.
Following our review, we conclude these arguments are without merit. R. 2:11-3(e)(1)(E). Deferring to the trial judge's credibility determinations, RAB Performance Recoveries, L.L.C. v. George, 419 N.J. Super. 81, 86 (App. Div. 2011), we determine the court's factual findings, including that "there was no evidence of any situation or exception to this agreement, meaning there was no fraud, there was no uncertainty, and there was no ambiguity, it's simply a sale of these two items . . . for $8,000" are "supported by adequate, substantial and credible evidence" in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
Also, the trial court's evidentiary ruling declining to qualify Khan as an expert on the valuation of the statues did not represent an abuse of discretion. Carey v. Lovett, 132 N.J. 44, 64 (1993). Kahn admitted he only had "sold a few, one or two, three, [or] four" items similar to the ones at issue, defeating any claim of expertise. See Kuehn v. Pub Zone, 364 N.J. Super. 301, 319-20 (App. Div. 2003) (finding a witness may qualify as an expert based upon sufficient occupational experience), certif. denied, 178 N.J. 454 (2004).
Accordingly, based on the reasons cited by Judge De La Cruz in her November 16, 2010 bench opinion, we need not disturb the judgment. R. 2:11-3(e)(1)(A).
Finally, defendant "was required to raise the defense of lack of [personal] jurisdiction . . . in his answer and then by motion within 90 days after service of the answer." Rosa v. Araujo, 260 N.J. Super. 458, 464 (App. Div. 1992) (citing R. 4:6-2; R. 4:6-3), certif. denied, 133 N.J. 434 (1993). Although defendant raised the defense in its answer, it failed to press the position by moving to dismiss, resulting in a waiver of any such objection, precluding appellate review. Ibid.; R. 4:6-7.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
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CLERK OF THE APPELLATE DIVISION