KIMERLING & WISDOM, LLC VS. MARIA T. SCARIATI (L-3027-14, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4040-15T3
KIMERLING & WISDOM, LLC,
Plaintiff-Respondent,
v.
MARIA T. SCARIATI, LIGHT
SOLUTIONS, INC. and
EQUINOX ENTITIES, LTD.,
Defendants-Appellants.
_________________________________
Argued October 26, 2017 – Decided November 14, 2017
Before Judges Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
3027-14.
Markis M. Abraham argued the cause for
appellants (The Abraham Law Firm, LLC,
attorneys; Mr. Abraham, on the briefs).
Gerald D. Miller argued the cause for
respondent (Miller, Meyerson & Corbo,
attorneys; Mr. Miller and Paula Odysseos-
Panayiotou, on the brief).
PER CURIAM
Following a bench trial, defendants appeal from an April 25,
2016 judgment in favor of plaintiff after the trial judge found
that defendants failed to pay plaintiff for tax preparation,
accounting, and financial planning services plaintiff performed
for defendants from 2000 to 2011. We affirm in part, reverse in
part, and remand for further proceedings.
Plaintiff Kimerling & Wisdom, LLC is a tax and accounting
services firm. Ross Wisdom, a certified public accountant, and
Noah Kimerling, a financial planner, were the principals of the
company. Defendant Maria Scariati is a lighting engineer.
Scariati owns defendant Light Solutions, Inc., a company which
manufactures marine lights and other specialty lighting products.
Scariati also owns defendant Equinox Entities, Ltd., which is a
subsidiary of Light Solutions.
In 2000, plaintiff began performing tax preparation,
accounting, and financial planning services for Scariati and her
two companies. The parties did not have a written retainer
agreement stating the specific services plaintiff agreed to
provide or the fees defendants would pay for these services.
Instead, plaintiff sent invoices to defendants as the work was
performed.
Wisdom testified that Scariati stopped paying the bills in
full soon after the arrangement began. Wisdom stated that, in May
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2007, he and Kimerling had a conference call with Scariati about
defendants' overdue account balances. According to Wisdom,
Scariati "kept saying over and over again, I don't have it, all
right, all right? I will pay you when I have it, all right, all
right? You can't get blood from a stone, all right, all right?
I just don't have it."
Wisdom also testified that Scariati sent him an email on July
15, 2009 concerning the monies defendant owed to plaintiff. In
that email, Scariati asked Wisdom for assistance in responding to
a separate matter that was in litigation. At the end of the email,
Scariati wrote:
[O]nce this is out of the way & [I] am out
from under this 'black cloud of litigation',
[I] will be able to pick up with [M]ike
[K]ingsford/[S]ignature [B]ank & hopefully
get 328[1] financed to pull out some funds to
finally clear up your long overdue invoices.
. . .
[M]aria
Plaintiff did not file its complaint attempting to recover
the amounts allegedly due from defendants until July 8, 2014.
Although the allegations in the complaint were limited to
plaintiff's claim that defendants failed to make payments for
services plaintiff provided during the six-year period immediately
1
"328" is a reference to a building Scariati owned.
3 A-4040-15T3
prior to the filing of the complaint, at trial plaintiffs sought
to recover the amounts due on unpaid invoices dating back to 2000.
During her testimony, Scariati initially testified that she
was dissatisfied with plaintiff's services and claimed that after
Kimerling's son died in 2003, plaintiff only provided tax
preparation services to her and her two companies. Scariati stated
that plaintiff was never able to justify the amounts set forth in
its invoices and, therefore, she "stopped . . . remitting money
. . . somewhere in 2006 after they just went off the rails with
charges that couldn't be justified or dealt with."
However, Scariati later testified that she believed plaintiff
overcharged her in the past for its services and she then received
"a credit memo" that she relied upon to pay the invoices as she
received them. Scariati was not able to produce a copy of the
alleged credit memo.
At the conclusion of the trial, the judge rendered an oral
decision in favor of plaintiff. After reviewing the testimony,
the judge found that Wisdom's account of the amounts due from each
defendant for the period between 2000 and 2011 was credible and
accurate. On the other hand, the judge found that Scariati's
testimony was "not credible[,]" "didn't quite make sense[,]" and
was "somewhat evasive and vague[.]" The judge determined there
was no evidence of any overpayment by defendants and, therefore,
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the judge stated he did not believe Scariati's claim that she used
a credit memo to pay the outstanding invoices.
The judge also rejected defendants' assertion that
plaintiff's demand for payment for services performed prior to
July 8, 2008 was barred by the six-year statute of limitations,
N.J.S.A. 2A:14-1. The judge held that Scariati "acknowledged the
debt that was owed to" plaintiff in her July 15, 2009 email to
Wisdom. Therefore, the judge ruled that the statute of limitations
did not apply.
Using the information contained in plaintiff's invoices, the
judge entered a judgment against Scariati in the amount of $4075;
against Light Solutions in the amount of $10,000;2 and against
Equinox Entities in the amount of $17,850. As stated above, this
judgment included payments for services plaintiff performed prior
to July 8, 2008. This appeal followed.
On appeal, defendants argue that the evidence presented at
trial was insufficient to support the trial judge's conclusion
2
After plaintiff filed its complaint, Scariati filed an answer,
but her two companies did not. Plaintiff obtained a $33,462.08
default judgment against Light Solutions and filed a writ of
execution with the county sheriff to collect it. Pursuant to that
writ, a Light Solutions client, who owed money to that company in
connection with a separate matter, paid plaintiff $22,000.
Plaintiff then subtracted this amount from the amount Light
Solutions owed it. The court subsequently vacated the defaults
entered against Light Solutions and Equinox Entities.
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that plaintiff provided services to defendants and they failed to
pay the amounts due. We disagree.
Our review of a trial court's fact-finding in a non-jury case
is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150,
169 (2011). "The general rule is that findings by the trial court
are binding on appeal when supported by adequate, substantial,
credible evidence. Deference is especially appropriate when the
evidence is largely testimonial and involves questions of
credibility." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-
12 (1998)). We "should 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. (internal quotation marks
omitted). However, we owe no deference to a trial court's
interpretation of the law, and review issues of law de novo.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995). We also review mixed questions of law and fact de
novo. In re Malone, 381 N.J. Super. 344, 349 (App. Div. 2005).
Applying these standards, the record fully supports the trial
judge's findings concerning the accuracy of the billing statements
plaintiff submitted in evidence. Wisdom identified each of the
statements, and testified that the billings were for work performed
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by plaintiff for defendants. Wisdom also identified the amounts
defendants had not paid for the period between 2000 and 2011. The
judge, who had the opportunity to view and hear Wisdom as he
testified, found that Wisdom's testimony was credible and we defer
to that determination.
On the other hand, the judge found that Scariati's conflicting
statements concerning the amounts due were not worthy of belief.
After initially claiming that no payments were owed because
plaintiff failed to perform the work, she later asserted she relied
upon a credit memo to pay each invoice. Under these circumstances,
we discern no basis for disturbing the judge's calculation of the
amounts each defendant owed plaintiff for work performed between
2000 and 2011.
Defendants next argue that the judge erred by permitting
plaintiff to collect amounts between 2000 and July 8, 2008, which
were outside the six-year statute of limitations period prior to
the filing of plaintiff's complaint on July 8, 2014. We agree.
A six-year statute of limitations period applied to
plaintiffs claim. N.J.S.A. 2A:14-1. However, in apparent reliance
upon N.J.S.A. 2A:14-24,3 the judge concluded as a matter of law
that when Scariati sent the July 15, 2009 email to Wisdom, she
3
The judge did not cite N.J.S.A. 2A:14-24 in his oral decision.
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"acknowledged the debt that was owed to" plaintiff and re-started
the statute of limitations period. By so ruling, we conclude the
judge mistakenly applied this statute.
In pertinent part, N.J.S.A. 2A:14-24 states:
In actions at law grounded on any simple
contract, no acknowledgment or promise by
words only shall be deemed sufficient evidence
of a new or continuing contract, so as to take
any case out of the operation of [the
applicable statute of limitations], or to
deprive any person of the benefit thereof,
unless such acknowledgment or promise shall
be made or continued by or in some writing to
be signed by the party chargeable thereby.
"In addition to the requirement of a writing[,][4] it is also
necessary that the acknowledgment relied upon be such as in its
entirety fairly supports an implication of a promise to pay the
debt immediately or on demand." Denville Amusement Co. v.
Fogelson, 84 N.J. Super. 164, 170 (App. Div. 1964) (citing
Bassett v. Christensen, 127 N.J.L. 259, 261 (E. & A. 1941). Thus,
in order "[t]o constitute a promise to pay sufficient to remove
the bar of the statute of limitations the promise [also] must be
unconditional and unqualified." Evers v. Jacobsen, 129 N.J.L. 89,
91 (E. & A. 1942) (emphasis added).
4
Because they were not in writing, Scariati's statements to Wisdom
and Kimerling during the May 2007 conference call obviously did
not fall under N.J.S.A. 2A:14-24.
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In Evers, the Court of Errors and Appeals applied these
principles to a fact situation that is remarkably similar to the
facts presented here. In that case, the plaintiff was the holder
of notes made by the defendant. Id. at 90. The notes were not
paid and no action was taken by the plaintiff during the statute
of limitations period. Ibid. Nine years after the notes matured,
the defendant sent a payment to the defendant with a letter
stating, "I am going to send you more when I can." Id. at 91. In
her action on the notes, the plaintiff claimed that the defendant's
payment and letter, nine years after the notes matured, "took the
debt out of the statute of limitations and gave it new life because
of this new contract." Ibid. The Court disagreed, and held:
To constitute a promise to pay sufficient
to remove the bar of the statute of
limitations[,] the promise must be
unconditional and unqualified. . . . Tested
by this well settled rule[,] we find no proofs
of any unqualified promise to pay. The only
definite proof is found in the defendant's
letter . . . , in which he promised "to send
you more as and when I can." This clearly is
not an unconditional promise to pay."
[Ibid. (internal citations omitted).]
Here, Scariati's July 15, 2009 email was not unconditional
and unqualified, and it did not state that she was going to make
payment immediately or on demand. Instead, she merely wrote that
if a pending litigation matter was completed at some date in the
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future, she would try to finance a property "to pull out some
funds to finally clear up your long overdue invoices." The email
did not specify the particular invoices she described as being
"overdue," and Scariati did not even make clear whether she was
speaking only for herself or on behalf of one or both of her
companies.
Therefore, plaintiff was barred from recovering any funds for
work performed before July 8, 2008, which was the first day of the
six-year statute of limitations period, and the judge erred by
applying N.J.S.A. 2A:14-24 to the facts of this case. Accordingly,
we remand this matter to the trial court to recalculate the amounts
due plaintiff for the period between July 8, 2008 and July 8,
2014, and for the entry of an amended judgment.
Finally, defendants argue for the first time on appeal that
plaintiff "illegally collected" money from one of Light Solutions'
clients and improperly applied it to that company's debt. 5
Ordinarily, we will decline consideration of an issue not properly
raised before the trial court, unless the jurisdiction of the
court is implicated or the matter concerns an issue of great public
importance. Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citing
5
At trial, defendants' attorney merely noted at the end of his
oral argument that plaintiff allegedly did not report the
collection of these funds until the trial.
10 A-4040-15T3
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Neither
situation exists here and, therefore, we need not consider
defendants' contention on this point. Nevertheless, we have
reviewed defendant's argument and conclude that is without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed in part; reversed in part; and remanded for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
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