MSB MOVING & STORAGE VS. FIVE STAR INSTALLATION,ET AL.(L-5145-12, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-2336-14T2
MSB MOVING & STORAGE,
JEFF BREWER and ROBIN
CITTONE,
Plaintiffs-Respondents/
Cross-Appellants,
v.
FIVE STAR INSTALLATION,
PATRIOT SHIPPING CORP.,
BRIAN MULLIGAN, DAN NITTI
and JOE CASERTA,
Defendants-Appellants/1
Cross-Respondents.
_________________________________
Submitted September 27, 2016 – Decided June 6, 2017
Before Judges Reisner and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-5145-12.
The Beekman Law Firm, attorneys for appellant/
cross-respondent (Christopher Beekman, on the
brief).
1
According to the record, MSB Moving & Storage is an L.L.C. and
Five Star Installation is incorporated, but neither was pled as
such nor was the caption corrected.
Fusco & Macaluso, L.L.C., attorneys for
respondent/cross-appellant (Alfred V. Gellene,
on the brief).
PER CURIAM
Defendants Five Star Installation and Patriot Shipping Corp.
(collectively "Five Star"),2 and, its principals Brian Mulligan,
Daniel Nitti, and Joseph Caserta appeal from a December 5, 2014
amended order of final judgment awarding plaintiff MSB Moving &
Storage (MSB) and its chief executive officer, Jeffery Brewer,
$56,706 in damages after a bench trial. Plaintiff cross-appeals.
For the following reasons, we affirm except as to the amount of
$7,977.20, which the parties agree should be subtracted from the
judgment. We remand for the limited purpose of entering an amended
judgment reflecting that reduction.
I.
MSB, managed by Brewer, provides moving and storage services
for commercial and non-commercial clients.3 Similarly, Five Star
is in the business of providing moving, warehousing, storage,
2
The trial court found that Five Star Installation and Patriot
Shipping Corp. are a single business entity because the companies
are closely related, shared warehouses, and comingled operations.
3
Plaintiff Robin Cittone is married to Brewer and is the legal
owner of MSB, but did not participate in its operation. From the
record it appears that she is not on the final judgment awarding
damages as opposed to Brewer, who was specifically awarded damages
for health insurance that are not the subject of appeal.
2 A-2336-14T2
relocation, and installation services primarily for commercial
clients. Sometime in 2009, MSB and Five Star began a business
relationship in which MSB provided moving services (labor and
equipment) for Five Star's clients. Under their arrangement, the
clients would pay Five Star, who would then make weekly payments
to MSB for the services it billed Five Star. Approximately a year
later, Five Star fell behind in making its payments to MSB due to
a downturn in business, and an extended payment schedule that Five
Star allowed its clients to make, which resulted in Caserta
promising to make partial payments to MSB. Although Five Star's
indebtedness to MSB grew, MSB continued to accept work from Five
Star.
Eventually in 2012, MSB sued Five Star alleging breach of
contract and claiming $250,017 in damages. Following a bench
trial on August 18 and 19, 2014, the parties submitted written
summations disputing the amount owed, in which Five Star requested
to offset potential damages. On October 8, an order for judgment
and a written decision was issued awarding MSB $47,178 plus costs.
On October 16, after considering MSB's letter noting mathematical
errors in the initial order, the court issued an amended order for
judgement awarding MSB $60,706 plus costs. Five Star subsequently
filed a timely Rule 4:49-2 motion for reconsideration, and after
argument, the court entered an order on December 5, reducing MSB's
3 A-2336-14T2
judgment to $56,706 plus costs. A written decision was issued on
December 8, setting forth the court's reasons for the amended
judgment.
The ensuing appeal involves the following three trial issues.
Factored Outstanding Invoices
MSB contended that it became financially strained due to Five
Star's payment delays, and as a result MSB sold $119,747 of its
outstanding invoices to a commercial factor, Quantam Corporate
Funding Ltd. In return, MSB was paid $96,770, or approximately
seventy-five to eighty-five percent of the factored Five Star
invoices. MSB's Brewer testified that Five Star cooperated with
the factoring transaction by confirming to Quantam that the
invoices were legitimate, and promised to pay MSB the invoices'
balance of $22,977.29 that Quantam did not pay. Testimony by Five
Star's principals was inconsistent as Mulligan and Nitti stated
no such promise was made, however, Caserta acknowledged "it was
possible that such promise had been made[.]"
The trial court determined that Brewer's testimony was more
credible. It found that the commercial factor was obtained with
"full knowledge and consent" of Five Star and, as a result, the
court awarded MSB $22,975 for the invoices' balance that was not
paid through the factor. In doing so, the court rejected Five
Star's argument that the Statute of Frauds, N.J.S.A. 25:1-15,
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required a written guaranty to pay the non-factored deficit because
"the promise to pay the factoring expense was made after [Five
Star's] obligation to MSB already existed."
In its motion for reconsideration, Five Star sought to remove
a debtor identified as "New York," from the factor invoices because
Five Star claimed it had no involvement with the debtor. The
court denied the motion, determining the request was untimely
because Five Star failed to object to this invoice during the
trial or in its post-trial submission.
Mount Sinai Project
For this 2012 project, MSB's accepted bid to Danker, Sellew
& Douglas (DS&D) was submitted on Five Star's documents because
MSB needed to use Five Star's facilities and labor. Five Star
sought a $24,000 credit as a set-off because it claimed that MSB
was paid for work Five Star had done on the project. Jason Schatz,
an employee of DS&D, testified that Five Star and MSB were both
contracted to complete the job, but at some point DS&D stopped
making payments to MSB and, instead made payments to Five Star.
MSB, however, claimed that it was solely awarded the contract.
In its October 8 written decision, the court found the
parties' respective testimony concerning compensation arrangements
were full of inconsistencies, and thereby denied Five Star's setoff
request because it was not supported by documentary evidence. The
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court stated that the "[c]redit [m]emo [number] 1981 shows the
work done by [Five Star], although nothing shows any agreement
between the parties imposing responsibility for this work on MSB."
Further, the court found that Schatz's testimony was not credible
because he testified verbatim from notes he prepared while in the
courtroom.
In its reconsideration motion, Five Star contended that
invoice numbers 1946 for $9530 and 3064 for $24,130 should be set-
off against the judgment award because it was not involved in the
project and was not responsible for MSB's compensation. Five
Star's office manager, Jessica Perez, who handles billing records,
testified that she believed that MSB was billing Five Star and
DS&D for the same invoices. The court disagreed. It found
credible Brewer's testimony that Five Star completed work on the
project even though it did not bid on the project. The court,
however, denied Five Star credit for both invoices because there
was no agreement establishing MSB's responsibility for payment.
Moreover, the court concluded that Five Star was not entitled to
a credit for invoice number 3064 because it did not seek it at
trial.
After this appeal was filed, Five Star moved before the trial
court to supplement the record to include new evidence of a check
made payable from DS&D to MSB for $7,977.20 on invoice 1946 for
6 A-2336-14T2
the Mt. Sinai project. On May 8, 2015, the court granted the
motion. On this appeal, MSB concedes that Five Star is entitled
to a $7,977.20 reduction from MSB's $56,706 judgment.
Johnson and Johnson
In 2012, Johnson and Johnson Consumer Products (J&J) accepted
MSB's bid and paid MSB $154,860 to move and store its products.
However, Five Star contended that it performed all the work, and
designated MSB as the bidder because MSB was on J&J's "preferred
vendor" list. Although Brewer conceded that MSB did not perform
any work on the job, he testified that MSB kept $20,000 from the
J&J payment because Five Star owed MSB money. The trial court
credited Brewer's testimony about that debt.
In its October 8 decision, the court found that after
deducting payments and credits to Five Star in the amount of
$76,950, Five Star owed a balance of $77,910 to MSB for the
project. In response to Five Star's reconsideration motion, the
court amended the order of judgment on December 5, to reduce MSB's
award by $4000 due to a miscalculation of a credit to Five Star.
II.
Before us, Five Star contends that the trial court's
calculations regarding the Mt. Sinai Project are inconsistent with
its findings of fact because it is illogical to award MSB damages
for the project, despite the trial court's finding that defendants
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were not parties to the project. Five Star also argues that
invoice number 1946 was incorrectly added to the plaintiff’s award
because the invoice was issued to a different party.
With respect to the J&J project, Five Star argues that the
trial court's findings of fact reflect a miscalculation, because
the $20,000 MSB retained should have been deducted from the final
judgment awarded to MSB. Five Star argues the court awarded MSB
$20,000 twice, because Brewer retained $20,000 but the trial court
also allegedly deducted $20,000 from Five Star's set off amount.
On its challenge to the factoring issue, Five Star contends
it is not obligated to pay the factor pursuant to N.J.S.A. 25:1-
15, because a personal guarantee to answer for the debt of another
needs to be in a signed writing in order to be enforceable.
Finally, it argues that the trial court erred in denying its motion
to amend the judgment because Five Star allegedly never
acknowledged the debt from a "New York" invoice for $11,285 and
the burden of proof rests with the plaintiff.
On cross appeal, MSB contends that the trial court erred in
disallowing seventy-five percent of its invoices to Five Star for
lacking back up. It argues that no evidence was ever submitted
by Five Star as to the inaccuracy of the invoices, and that the
trial court allowed other invoices without backup, thus it should
logically allow the other invoices without backup.
8 A-2336-14T2
Our standard of review of the trial court's determinations
following a non-jury trial is a limited one. Petrozzi v. City of
Ocean City, 433 N.J. Super. 290, 316 (App. Div. 2013), certif.
denied, 217 N.J. 623 (2014). Accordingly, an appellate court must
"give deference to the trial court that heard the witnesses, sifted
the competing evidence, and made reasoned conclusions."
Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015) (citing
Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84
(1974)). Reviewing courts "should 'not disturb the factual
findings and legal conclusions of the trial judge' unless convinced
that those findings and conclusions were 'so manifestly
unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of
justice.'" Ibid. (quoting Rova Farms, supra, 65 N.J. at 484).
Review on appeal "does not consist of weighing evidence anew and
making independent factual findings; rather, our function is to
determine whether there is adequate evidence to support the
judgment rendered at trial." Cannuscio v. Claridge Hotel & Casino,
319 N.J. Super. 342, 347 (App. Div. 1999) (citing State v. Johnson,
42 N.J. 146, 161 (1964)).
We, however, owe no deference to the "trial court's
interpretation of the law and the legal consequences that flow
from established facts." Manalapan Realty, L.P. v. Twp. Comm. of
9 A-2336-14T2
Manalapan, 140 N.J. 366, 378 (1995) (citations omitted). We review
such decisions de novo. 30 River Court E. Urban Renewal Co. v.
Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova
Farms, supra, 65 N.J. at 483-84; Manalapan Realty, supra, 140 N.J.
at 378).
A plaintiff has the burden of proving his or her damages.
Caldwell v. Haynes, 136 N.J. 422, 436 (1994). In doing so, "[i]t
is well-settled that the 'law abhors damages based on mere
speculation.'" Mosley v. Femina Fashions, Inc., 356 N.J. Super.
118, 128 (App. Div. 2002) (quoting Caldwell, supra, 136 N.J. at
422), certif. denied, 176 N.J. 279 (2003). Nevertheless, the
absence of evidence as to one measure of damages should not
preclude an award based on an alternative and reliable measure of
damages. Cf. St. Louis, LLC v. Final Touch Glass & Mirror, Inc.,
386 N.J. Super. 177, 188 (App. Div. 2006) (considering alternative
forms of calculating damages in construction cases). "Proof of
damages need not be done with exactitude . . . . It is . . .
sufficient that the plaintiff prove damages with such certainty
as the nature of the case may permit, laying a foundation which
will enable the trier of the facts to make a fair and reasonable
estimate." Lane v. Oil Delivery, 216 N.J. Super. 413, 420 (App.
Div. 1987); see also Totaro, Duffy, Cannova and Co., L.L.C. v.
Lane, Middleton & Co., L.L.C., 191 N.J. 1, 14 (2007). In fact,
10 A-2336-14T2
"courts will fashion a remedy even though the proof on damages is
inexact." Kozlowski v. Kozlowski, 80 N.J. 378, 388 (1979)
(citations omitted).
As for a trial court's denial of a motion for reconsideration,
we have determined that
[r]econsideration itself is a matter within
the sound discretion of the [c]ourt, to be
exercised in the interest of justice[.] It
is not appropriate merely because a litigant
is dissatisfied with a decision of the court
or wishes to reargue a motion, but should be
utilized only for those cases which fall into
that narrow corridor in which either 1) the
[c]ourt has expressed its decision based upon
a palpably incorrect or irrational basis, or
2) it is obvious that the [c]ourt either did
not consider, or failed to appreciate the
significance of probative, competent
evidence.
[Palombi v. Palombi, 414 N.J. Super. 274, 288
(App. Div. 2010) (citation omitted).]
Therefore, we will not disturb a judge's denial of a motion for
reconsideration absent an abuse of discretion. See id. at 289.
Applying these standards, with the exception of MSB's
concession that the judgment should be reduced by $7,977.20 to
reflect payment it received for invoice 1946 on the Mt. Sinai
project, we affirm substantially for the reasons the trial court
expressed in its written decisions. We defer to the court's
factual determinations, regarding the claims and credits sought
by both parties, which are supported in the record thorough
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testimony as well as the presentation and absence of credible
documentary evidence.
We also decline to disturb the court's determination that
Five Star's promise to pay MSB's invoices, which were not fully
covered by the factor, did not need to be in writing pursuant to
N.J.S.A. 25:1-15. The statute does not apply when the promisor's
primary object is to serve the promisor's own interest or purpose.
Walder, Sondak, Berkeley & Brogan v. Lipari, 300 N.J. Super. 67,
76 (App. Div.) (citing Schoor Assoc. v. Holmdel Heights Constr.
Co., 68 N.J. 95, 102 (1975)), certif. denied, 151 N.J. 77 (1997).
Here, Five Star's promise was to protect its own underlying
obligation to MSB.
As noted, damages need not be exact. Lane, supra, 216 N.J.
Super. at 420. Thus, we conclude that the trial court's final
amended order judgement was a fair and reasonable calculation of
damages given the parties' practice of doing business in which it
was not clear who was providing the services to the customer.
Affirmed in part, modified in part, and remanded to reduce
the final judgment by the amount of $7,977.20.
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