AMERICAN DREAM CONSTRUCTION VS. MIRVA RIVERA (DC-013225-18, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4131-18T3
AMERICAN DREAM
CONSTRUCTION,
Plaintiff-Appellant,
v.
MIRVA RIVERA,
Defendant-Respondent.
_________________________
Submitted October 14, 2020 – Decided October 29, 2020
Before Judges Moynihan and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. DC-013225-18.
Bastarrika, Soto, Gonzalez & Somohano, LLP,
attorneys for appellant (Franklin G. Soto, on the brief).
Mirva Rivera, respondent pro se.
PER CURIAM
In this breach-of-contract case, plaintiff American Dream Construction
appeals from a judgment in favor of defendant Mirva Rivera issued after a bench
trial. Plaintiff argues that the trial judge erred in failing to give any
consideration to a purported exemplar of defendant's signature and in refusing
to permit plaintiff's counsel to cross-examine defendant. Because the judge
acted within his discretion in weighing the evidence before him and because
plaintiff's counsel never asked to cross-examine defendant, we affirm.
In the complaint, plaintiff alleged that it had an agreement with defendant
to replace the roof of defendant's house for $14,000. According to plaintiff, the
work was completed, and a remaining payment of $7000 was due. In her answer,
defendant stated that she had agreed to a payment of $11,000 and denied that
the parties had signed a contract, plaintiff had completed properly the work, and
she owed plaintiff any money.
During this Special Civil Part bench trial, plaintiff presented only one
witness, plaintiff's owner. He testified that: he was hired to work on defendant's
roof, he had a contract, plaintiff had completed the work in accordance with the
contract, and defendant owed plaintiff $7000. Through that witness, plaintiff's
counsel submitted to the judge a copy of the contract on which plaintiff bases
its case. The judge described the contract as stating, "owner, Mirva. That's what
. . . it says and . . . it's not written in cursive. It's almost like it's printed out." 1
1
Plaintiff did not include a copy of the contract in its appellate submissions.
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Defendant, who was self-represented, cross-examined plaintiff's witness.
He conceded that he had never met defendant and had not witnessed the
execution of the contract. He initially testified that he had given the contract to
a friend. He also stated that a co-worker had provided the contract to defendant's
sister. He later testified that his friend had given the contract to defendant, he
believed she had signed it, and he received the signed contract with a check. He
ultimately acknowledged that he did not know who had signed the contract.
Plaintiff did not call the co-worker, his friend, or defendant's sister to testify at
trial and did not attempt to introduce the check into evidence.
When defendant finished her cross-examination, she stated that she had
not signed the contract and had not seen it previously. After that statement, the
judge asked plaintiff's counsel: "Do you have any other questions? Do you have
any other witnesses?" Plaintiff's counsel answered, "[n]o."
The judge then asked defendant if she wanted to testify. Defendant again
stated that she had not met plaintiff's witness, had not entered into a contract
with him, and had not executed the contract produced by him. She denied that
the signature on the contract was her signature. She indicated that the contract
signature was printed. She stated that she does not print her signature, but signs
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it. When defendant indicated that she had completed her testimony, plaintiff's
counsel did not ask to cross-examine her.
The judge then asked plaintiff's witness about the check he had received.
The witness, who had not brought a copy of the check with him, instead handed
to the judge an Open Public Records Act (OPRA) request form obtained by
plaintiff's counsel and purportedly signed by defendant. Plaintiff's counsel
asked the judge to compare the signature on that document with the signature on
the contract. The judge looked at the document, noted that the signature on the
contract was printed, and had the OPRA request form marked.
In his decision, the judge correctly held that plaintiff had the burden of
proving its case by a preponderance of the evidence. See Globe Motor Co. v.
Igdalev, 225 N.J. 469, 482 (2016). He stated his factual findings, including that
plaintiff's sole witness was not present when the contract was signed and was
not present when the check was submitted. He pointed out that plaintiff had not
produced the check and had not called as a witness the friend who had received
the check. He noted that defendant had denied signing the contract or entering
into a contract with plaintiff's witness. The judge concluded that "at best . . .
the evidence is [in] equipoise, would be equal." He held that plaintiff had not
established that defendant had signed the contract or made the down payment.
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Because plaintiff had not met its burden of proof, the judge found in favor of
defendant.
Plaintiff asserts without citation to the record that the judge "ignored" and
"refused to consider" the OPRA request form. That assertion is not supported
by the record. In fact, the record demonstrates that the judge took the form from
plaintiff's witness, looked at it, and had it marked. Plaintiff contends that the
judge refused to compare the signature on the contract with the signature on the
request form. In fact, after plaintiff's witness handed the judge the request form,
the judge looked specifically at the purported signature on the contract and
stated that defendant's name was "not written in cursive" and was "almost like
it's printed out." The signature on the request form is in cursive. 2
Our review of a trial court's findings in a non-jury case is limited. We
will 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." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super.
154, 155 (App. Div. 1963); see also Seidman v. Clifton Savs. Bank, S.L.A., 205
2
We know the signature on the OPRA request form is in cursive because, unlike
the contract, plaintiff included a copy of the OPRA request form in its appellate
submissions.
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N.J. 150, 169 (2011). Factual findings by a judge in a non-jury case "are binding
on appeal when supported by adequate, substantial, credible evidence." Gnall
v. Gnall, 222 N.J. 414, 428 (2015). Plaintiff introduced the OPRA request form
in an attempt to support plaintiff's contention that defendant had signed the
contract. Given that the "signature" on the contract is printed and the signature
on the OPRA form is in cursive, the judge understandably may have given little
or no weight to the OPRA request form. That determination was within his
discretion.
Plaintiff asserts without citation to the record that the judge refused to
permit plaintiff's counsel to cross-examine defendant. In fact, plaintiff's counsel
never asked to cross-examine defendant and, thus, the judge never refused a
cross-examination request from plaintiff's counsel. At the conclusion of
defendant's testimony, the judge asked plaintiff's witness a question about the
down-payment check. Plaintiff's counsel did not then ask to cross-examine
defendant and did not object to the judge's question. Instead, plaintiff's counsel
seemed to present plaintiff's witness in rebuttal to defendant's testimony that she
had not signed the contract. On rebuttal, plaintiff's witness raised for the first
time the OPRA request form, a document plaintiff had not presented during its
witness's initial testimony. Because plaintiff's counsel did not ask to cross-
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examine defendant and did not object when the court proceeded to plaintiff's
rebuttal case, we find no merit in plaintiff's argument. See Vartenissian v. Food
Haulers, Inc., 193 N.J. Super. 603, 610 (App. Div. 1984) (finding that without
an "objection, from which the trial judge would have had an opportunity to cure
the defect, we will not consider the deficiency on appeal").
We are mindful that our case law has recognized the potential importance
of cross-examination in "ascertaining the truth of a matter." Jamgochian v. N.J.
State Parole Bd., 394 N.J. Super. 517, 536 (App. Div. 2007), aff'd as modified,
196 N.J. 222 (2008). Perhaps the better course would have been for the judge
to ask plaintiff's counsel if she wanted to cross-examine defendant, even though
she had not requested it. If that omission to ask in the face of plaintiff's counsel's
failure to request cross-examination was error, it was invited error. Trial errors
that were "induced" or "acquiesced in" by counsel "are not a basis for reversal
on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div. 1974); see also
State v. Corsaro, 107 N.J. 339, 345 (1987).
We would not invoke the doctrine of invited error if doing so would "cause
a fundamental miscarriage of justice." Brett v. Great Am. Recreation, 144 N.J.
479, 508 (1996). Here, we see no miscarriage of justice. In order to prevail,
plaintiff had a burden to prove by a preponderance of the evidence that the
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parties had entered into a contract that contained the terms alleged by plaintiff.
See Globe Motor, 225 N.J. at 482. At trial, plaintiff did not call as a witness
someone who had met with defendant and had seen her sign the contract at issue.
Instead, plaintiff presented a witness who had never met defendant and
submitted to the judge a signature exemplar that was in cursive even though the
signature on the contract was printed. The judge reasonably found that plaintiff
had failed to meet its burden of proof.
Affirmed.
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