JONATHAN WHITMAN VS. PAYPAL, INC. (SC-0905-15, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2970-15T2
JONATHAN WHITMAN,
Plaintiff-Appellant,
v.
PAYPAL, INC.,
Defendant-Respondent.
__________________________________
Submitted May 8, 2018 – Decided June 18, 2018
Before Judges Reisner, Gilson, and Mitterhoff.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Ocean
County, Docket No. SC-0905-15.
Jonathan Whitman, appellant pro se.
Holland & Knight, LLP, attorneys for
respondent (Duvol M. Thompson, on the brief).
PER CURIAM
This appeal arises out of a Special Civil Part claim for
$3000. Plaintiff Jonathan Whitman appeals from a January 6, 2016
order denying his motion for reconsideration of a June 25, 2015
judgment entered after trial and dismissing plaintiff's complaint
for failure to establish a breach of contract. We affirm because
the trial court's findings are supported by substantial credible
evidence, and we discern no abuse of discretion in the denial of
plaintiff's motion for reconsideration.
I.
The trial and motion records established the following facts.
In March 2015, plaintiff arranged with a third-party seller
(Seller) to purchase materials on how to become a private
investigator. The arrangements were made by using the internet
and telephone. Plaintiff and the Seller agreed that plaintiff
would purchase three items: photographs, videos, and a book. The
total price of the items was $4000. Plaintiff asked, and the
Seller agreed, to make three separate payments for the three items
using PayPal, an online payment service.
Plaintiff and the Seller also agreed that the items would be
shipped together after all payments were made. Those arrangements
were confirmed in an email from the Seller to plaintiff:
The entire cost for the research material you
requested is $4,000. I can break down the
payments into three installments as follows:
Upon payment of $1,500, you will receive a
series of research photographs. Upon payment
of the second $1,500, you will receive a
series of research videotapes. Upon payment
of the final $1,000, you will receive a
research report book plus bonus material.
Everything will ship to your New Jersey
address once all payments are made.
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Plaintiff also requested and received an invoice that listed
the three items and the total payment:
Research Photographs [$] 1,500.00
Research Videotapes [$] 1,500.00
Research Report Book [$] 1,000.00
TOTAL $4,000.00
Items will be shipped by Fedex Express on the
date of final payment.
Thereafter, plaintiff made three payments to the Seller using
PayPal: on March 9, 2015, he paid $1500; on March 10, 2015, he
paid $1500; and on March 18, 2015, he paid $1000. Unfortunately,
plaintiff never received any of the items after making the
payments.
On March 31, 2015, plaintiff filed a claim with PayPal for
reimbursement under PayPal's buyer protection plan. PayPal is an
online service provider that helps buyers and sellers make and
accept payments. To use PayPal services, users are asked to agree
to the terms and conditions of the PayPal User Agreement (User
Agreement).
Section 13 of the User Agreement provides protection for
users (referred to as both purchasers or buyers) who pay for items
using PayPal, but do not receive the item or receive an item that
is significantly different than described. To be covered by the
buyer protection plan, the buyer must meet several eligibility
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requirements. Buyer protection does not cover intangible items,
such as services. Buyer protection also requires the user to make
one payment per transaction. In that regard, Section 13.2 of the
User Agreement provides in relevant part:
Eligibility requirements.
a. To be eligible for PayPal Purchase
Protection, you must meet all of the following
requirements:
 Pay for the eligible item from your
[PayPal] Account.
 Pay for the full amount of the item with
one payment. Items purchased with
multiple payments – like a deposit
followed by a final payment – are not
eligible.
In response to plaintiff's claim, PayPal declined the
reimbursement for two reasons. First, it took the position that
plaintiff had purchased intangible items. Second, it contended
that plaintiff made multiple payments for the items instead of a
single payment, as required by Section 13.2 of the User Agreement.
In April 2015, plaintiff filed a complaint against PayPal in
the Special Civil Part, Small Claims Section. Plaintiff sought
$3000 in damages to cover two of the three items that he had
purchased. $3000 is the maximum amount of damages allowable in
the Small Claims Section. See R. 6:1-2(a)(2). Plaintiff alleged
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that PayPal breached the terms of its User Agreement by failing
to honor the buyer protection plan.
The court conducted a one-day bench trial on April 29, 2015.
The two issues presented to the court were: (1) whether plaintiff
purchased tangible or intangible items; and (2) whether plaintiff
purchased three separate items in three separate transactions or
whether he made multiple installment payments for the items.
The evidence at trial consisted of plaintiff's testimony, the
emails and invoice from the Seller, a copy of the User Agreement,
and testimony from a PayPal legal representative. The PayPal
witness testified via telephone.
After hearing the evidence, the trial court allowed the
parties to submit post-trial briefs. On June 25, 2015, the court
issued a written opinion finding that plaintiff contracted for
tangible goods, but that he used installment payments that were
not covered under the User Agreement. Accordingly, the court
dismissed plaintiff's complaint with prejudice.
In July 2015, plaintiff filed a motion for reconsideration.
In connection with that motion, plaintiff submitted a series of
emails that he exchanged with representatives of PayPal after the
trial. In those emails, plaintiff described hypothetical
transactions, and he contended that PayPal's representatives
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confirmed his position that the purchases should have been covered
by the buyer protection plan.
The court heard oral argument on the motion for
reconsideration and, on January 6, 2016, the court entered an
order denying the motion. The trial court did not expressly rule
on whether the post-trial emails were admissible. Instead, the
court found that those emails did not qualify as new evidence and
did not constitute grounds for reconsideration.
II.
On appeal, plaintiff makes eleven arguments, which relate to
four alleged errors by the trial court. Plaintiff contends the
trial court erred in: (1) allowing the witness for PayPal to
testify via telephone; (2) not finding PayPal's witness
incredible; (3) not admitting his post-trial emails with PayPal
representatives into evidence on the motion for reconsideration;
and (4) not construing the buyer protection plan against PayPal.
We will start by analyzing the key issue on this appeal:
whether there was substantial credible evidence in the record to
support the trial court's finding that plaintiff made installment
payments, which were not covered by the buyer protection plan.
Because we hold that there was sufficient evidence in the record
to support that finding, we reject defendant's arguments and
affirm.
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Our review of a judgment entered by a trial court in a
non-jury case is limited. Cumberland Farms, Inc. v. N.J. Dep't
of Envtl. Prot., 447 N.J. Super. 423, 437 (App. Div. 2016). The
trial judge's findings "are considered binding on appeal when
supported by adequate, substantial and credible evidence." Rova
Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
Moreover, a trial court's rulings on evidentiary issues are
reviewed for abuse of discretion. Estate of Hanges v. Metro.
Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). We review legal
issues, however, de novo. J.G. Ries & Sons, Inc. v. Spectraserv,
Inc., 384 N.J. Super. 216, 221-22 (App. Div. 2006).
The User Agreement clearly states that for buyer protection
to apply, items must be purchased with "one payment." It also
states that "[i]tems purchased with multiple payments – like a
deposit followed by a final payment – are not eligible." The
trial court correctly determined that the User Agreement excluded
items purchased with installment payments. Based on the evidence
presented at trial, the trial court then found that plaintiff
purchased three items for a total of $4000, but made the payments
in three installments. That finding is supported by substantial
credible evidence in the record, and we discern no basis to disturb
that factual finding.
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Plaintiff argues that it was an error for the trial court to
allow PayPal's only witness to testify via telephone. Initially,
we note that plaintiff did not preserve that objection for appeal.
Although he initially objected at trial, he ultimately stated that
he would leave the decision to the trial court.
Trial courts can allow witnesses to testify telephonically
provided the court makes two determinations. State v. Santos, 210
N.J. 129, 141 (2012). "First, the court must determine whether
the opposing party has consented to the testimony or whether there
is a 'special circumstance,' . . . 'compelling the taking of
telephone testimony.'" Ibid. (quoting Aqua Marine Prod., Inc. v.
Pathe Comput. Control Sys. Corp., 229 N.J. Super. 264, 275 (App.
Div. 1988)). "Second, the court must be satisfied that 'the
witness' identity and credentials are known quantities' and that
there is some 'circumstantial voucher of the integrity of the
testimony.'" Ibid.Here, there were special circumstances that justified
telephonic testimony, because the witness was located in
California and the trial was a small claims matter. More
importantly, there is nothing in the record to indicate that the
witness' identity and credentials were not known quantities and
the circumstances vouched for the integrity of the witness'
testimony.
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We also discern no abuse of discretion in the trial court's
decision not to admit and consider the emails that plaintiff
exchanged with representatives of PayPal after the trial. As
previously stated, the trial court did not expressly rule on the
admissibility of the post-trial emails. The trial court noted,
however, that those emails were exchanged without a full disclosure
of the purpose of the emails. Just as importantly, the trial
court found that the emails did not constitute new evidence that
would form the basis for reconsideration.
Plaintiff's remaining arguments lack sufficient merit to
warrant a discussion in a written opinion. See R. 2:11-3(e)(1)(E).
We do, however, make the following comment.
Plaintiff filed an over-length brief and made repetitive
arguments about a relatively simple case. In that regard,
plaintiff asserted that his due process and equal protection rights
were somehow violated, and he focused on three specific
contentions. First, that the court erred by allowing PayPal's
witness to testify via telephone. Second, that the court erred
by not accepting the post-trial emails. Finally, that the trial
court erred by not construing the User Agreement against PayPal
under the doctrine of "contra proferentem."
The record establishes that plaintiff was given a fair and
impartial trial. Plaintiff's arguments lose sight of the fact
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that he arranged the transaction with the Seller and the trial
court's findings against him, which were based on evidence
presented at trial, do not constitute a deprivation of due process
or an infringement on equal protection. Instead, a reasoned
analysis establishes that plaintiff may not be happy with the
result, but he was afforded a fair and impartial trial.
Affirmed.
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