GREEN TREE PACKING, INC. VS. LAWRENCE S. BERGER (L-1882-16, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-3635-17T1
GREEN TREE PACKING, INC.,
Plaintiff-Respondent,
v.
LAWRENCE S. BERGER,
Defendant-Appellant.
_____________________________
Submitted December 17, 2018 – Decided January 30, 2019
Before Judges Haas and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-1882-16.
Berger & Bornstein, LLC attorneys for appellant
(Lawrence S. Berger and Robert A. Bornstein, on the
briefs).
Schiller, Pittenger & Galvin, PC, attorneys for
respondent (Robert B. Woodruff, of counsel; Jay B.
Bohn, on the brief).
PER CURIAM
Defendant Lawrence S. Berger appeals from a final judgment entered by
the Law Division, after a bench trial, awarding Plaintiff Green Tree Packing,
Inc. ("Green Tree") $24,337.83 and counsel fees. We affirm.
We recite the relevant facts from the record. Green Tree is a meat and
fish company that sells to businesses throughout the metropolitan New York
area. Green Tree supplied meats and seafood to Pazzo Pazzo, a restaurant
operated by defendant, through a corporation, for a number of years. Defendant
signed a personal guaranty of Pazzo Pazzo's obligations to Green Tree in July
2013.
By October 2013, Pazzo Pazzo owed approximately $345,000 to Green
Tree in unpaid invoices. As an inducement for a further line of credit, Princeton
Office Park, LP, another entity operated by defendant, issued a partial guaranty
of Pazzo Pazzo’s debt to Green Tree up to $350,000 in November 2013. This
guaranty was secured by a mortgage on real property owned by Princeton Office
Park, LP. In October 2014, the real property was sold and $350,000 was applied
to Pazzo Pazzo's debt to Green Tree.
The parties dispute the amount owed by Pazzo Pazzo after crediting the
$350,000 payment. On August 16, 2016, plaintiff filed a complaint alleging that
defendant owed $24,700.54 on the guaranty of Pazzo Pazzo's obligations after
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the $350,000 payment. Defendant filed an answer and counterclaim, but
withdrew the counterclaim prior to trial. Judge Maryann L. Nergaard, J.S.C.,
conducted a bench trial on January 22 and January 23, 2018. At trial, defendant
maintained that the total debt owed by Pazzo Pazzo to Green Tree was
$8,999.39.
At the close of the trial, Judge Nergaard rendered an oral decision. Judge
Nergaard found that plaintiff was entitled to $24,337.83 based on invoices and
bounced checks that had been admitted into evidence. On February 26, 2018,
Judge Nergaard entered a final judgment in the amount of $24,337.83 plus
6,084.45 in counsel fees. Defendant appealed the final judgment. 1
On appeal, defendant raises the following arguments:
POINT ONE
The Exhibits Offered by Defendant at Trial and Ruled
Inadmissible by the Trial Court as Hearsay Were
Summaries Properly Admissible under [N.J.R.E.] 1006.
POINT TWO
The Trial Court’s Factual Finding as to the Amount
Outstanding was Not Supported by Adequate and
Admissible Evidence in the Record.
1
Defendant does not appeal the award of counsel fees.
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Our review of a bench trial is limited. "Findings by the trial judge are
considered binding on appeal when supported by adequate, substantial and
credible evidence." Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484
(1974). "[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 reasonable credible evidence as
to offend the interests of justice." Seidman v. Clifton Sav. Bank, S.L.A., 205
N.J. 150, 169 (2011) (quotation omitted).
Additionally, our review of a trial judge's evidentiary rulings is
deferential. "[A] trial court's evidentiary rulings are 'entitled to deference absent
a showing of an abuse of discretion, i.e., there has been a clear error of
judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero,
148 N.J. 469, 484 (1997)). "Thus, we will reverse an evidentiary ruling only if
it 'was so wide off the mark that a manifest denial of justice resulted.'" Griffin
v. City of E. Orange, 225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins.
Co., 160 N.J. 480, 492 (1999)).
Guided by these standards of review, we first turn to defendant's argument
that the trial court improperly excluded exhibits as hearsay that should have been
admitted as summaries under New Jersey Rule of Evidence 1006. N.J.R.E.
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1006. At trial, defendant presented the testimony of Pazzo Pazzo's bookkeeper.
The bookkeeper had prepared three schedules of invoices that were intended to
show the balance of Pazzo Pazzo's debt to Green Tree. The bookkeeper prepared
these schedules the week before trial. The first schedule purported to show
invoices that were unpaid as a result of bounced checks. The second schedule
purported to show invoices that were paid with the $350,000 payment from
Princeton Office Park, LP, with the dates of invoices spanning from August
2012 to December 2013. The third schedule purported to show that defendant
had paid all invoices dated before August 2012.
At trial, plaintiff objected to the bookkeeper testifying to the amounts and
totals listed in each schedule. The trial court ruled that the schedules were
inadmissible hearsay and did not qualify as summaries under Rule 1006. The
trial court, however, allowed the bookkeeper to use the schedules to refresh her
recollection and testify that based on her review of the invoices, the amount of
debt owed to plaintiff was $2.062.18.
We reject defendant's contention that the trial court improperly excluded
these exhibits. Rule 1006 provides:
The contents of voluminous writings or photographs
which cannot conveniently be examined in court may
be presented by a qualified witness in the form of a
chart, summary, or calculation. The originals, or
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duplicates, shall be made available for examination or
copying, or both, by other parties at a reasonable time
and place. The judge may order that they be produced
in court.
[N.J.R.E. 1006.]
In this case, defendant did not provide the original copies of the invoices that
the bookkeeper reviewed in composing the schedules during discovery or at
trial. Thus, even if the schedules may have fallen under an exception to the
hearsay rule, they were inadmissible as summaries without the underlying
invoices having been made available for examination at a reasonable time. The
trial court, therefore, appropriately exercised its discretion in refusing to admit
the schedules into evidence.
We next address defendant's argument that the trial court's finding as to
the total amount due to plaintiff was not supported by adequate evidence in the
record. Based on our review of the review of the record, we find that the trial
court appropriately considered the witnesses' testimony, as well as the invoices
and bounced checks admitted into evidence, in determining the amount due to
plaintiff. Giving appropriate deference to the trial court's factual findings, we
reject defendant's contention that the amount of the judgment lacks adequate
support in the record.
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To the extent we have not specifically addressed any other arguments
raised by defendant, we find them without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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