RUSSELL HALBACH v. CHRISTOPHER D. BOYMAN et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0663-05T20663-05T2

RUSSELL HALBACH,

Plaintiff-Appellant,

v.

CHRISTOPHER D. BOYMAN and

BOYMAN & ASSOCIATES, P.C.,

Defendants-Respondents.

_____________________________________

 

Argued September 27, 2006 - Decided November 1, 2006

Before Judges Wefing, Parker and C.S. Fisher.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

No. L-2041-01.

Robert A. Vort argued the cause for appellant.

Scott D. Samansky argued the cause for respondents

(Fishman & Callahan, attorneys; Mr. Samansky, on

the brief).

PER CURIAM

Plaintiff Russell Halbach appeals from a trial court order dismissing his complaint with prejudice. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff Russell Halbach was a minority shareholder in a close corporation, D.P.S. Corporation. Halbach owned twenty-five percent of the corporation's shares, and Larry Scalzo owned the remaining seventy-five percent. Defendant Boyman is a New Jersey attorney who represented the corporation. He also represented Scalzo and Halbach individually on several occasions.

Halbach and Scalzo had a falling out, and Scalzo terminated Halbach. The two men attempted to negotiate an agreement under which Scalzo would purchase Halbach's twenty-five percent interest in the corporation, but they had conflicting views as to the value of his shares. Defendant Boyman offered to act as an intermediary between the two in an attempt to facilitate their reaching an amicable resolution. Boyman did not act as attorney for either man in connection with these negotiations because of his prior representation of both of them. Halbach had his own attorney, Mary Thurber, Esq., to represent him during the negotiations.

Eventually Scalzo and Halbach came to an agreement, and Boyman was selected as scrivener to reduce that agreement to writing. Boyman produced a redemption agreement which he understood incorporated the parties' agreement. Thurber, Halbach's attorney, reviewed and commented on this agreement prior to a closing date being set and approved the final draft of the agreement. When the time came for closing, Halbach refused to close, asserting he was entitled not just to a certain price for his shares but also his proportional share in profits earned from the time of his termination through closing. When Halbach would not close, Scalzo initiated suit in the Chancery Division to enforce the redemption agreement.

Halbach, in turn, filed suit in the Law Division, contending that Boyman had improperly conveyed to Scalzo what Halbach had told Boyman was his bottom line figure for purposes of settlement. This, Halbach asserted, violated Boyman's duty to him. The two suits were consolidated, and eventually the Chancery litigation was resolved. The Law Division action continued, with Halbach contending that Boyman's actions resulted in his receiving a lesser amount for his shares than that to which he was entitled. He sought to recover the difference from Boyman.

This is the third time these parties have been before this court. In Halbach v. Boyman, 369 N.J. Super. 323 (App. Div. 2004), we reversed a trial court order permitting defendant to depose plaintiff's former counsel, Mary Thurber, Esq. In Halbach v. Boyman, 377 N.J. Super. 202 (App. Div. 2005), we reversed a trial court order permitting Halbach to question Boyman at deposition as to why he prepared certain documents in the manner he had. Such questioning, we held, improperly impinged upon Boyman's work product privilege.

The order presently under appeal was entered after an evidentiary ruling at trial that Halbach contended was erroneous and that he asserted made it impossible for him to prove his case. Halbach adopted this procedure in view of Kimball Int'l, Inc. v. Northfield Metal Prods., Inc., 334 N.J. Super. 596, 605-06 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001). We express no views in this opinion on such a procedural device.

At trial, Halbach was the first witness. During direct examination, Halbach's attorney sought to question him about a meeting that had taken place between Halbach and Scalzo to elicit what Scalzo had said to Halbach during the course of the meeting. The trial court sustained Boyman's objection to this testimony as inadmissible hearsay. At the conclusion of Halbach's testimony, plaintiff took the position that the trial court's ruling had prevented him from proving his case; he elected not to proceed, leading to the order of dismissal. On appeal, Halbach contends that his testimony does not fall within the definition and thus should not have been excluded.

Within his brief, Halbach makes no distinction between testimony that Scalzo had given him repeated assurances that he would share in the corporation's profits through the date of closing and testimony that Scalzo indicated an awareness of Halbach's bottom line figure of $275,000, an awareness, Halbach argued, that could only have come from Boyman.

Hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial . . . offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Halbach argues these statements do not qualify as hearsay because they were not offered to prove that they were true but to prove that Scalzo made the statements.

We do not find it necessary to parse the distinctions between so-called verbal acts, which are not hearsay, Ringwood Assoc's, Ltd. v. Jack's of Route 23, Inc., 166 N.J. Super. 36, 42 (App. Div. 1979), testimony not offered to prove the truth of the content and thus not hearsay, State v. Long, 173 N.J. 138, 152 (2002), and Halbach's testimony. As one commentator has noted, "the line between hearsay and non-hearsay is often difficult to discern." Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 801(c) (2006).

We have carefully reviewed the transcript of Halbach's testimony, and it is apparent that he, during the course of that testimony, presented to the jury the substance of what he now argues was improperly excluded. During direct examination, Halbach testified that Scalzo indicated he was aware of the bottom line number Halbach had given Boyman and that he, Halbach, had never communicated that figure to Scalzo. When asked how he had been damaged by Boyman, Halbach responded "He told my partner my bottom line. He caused this whole thing to go on." During cross-examination, the following exchange occurred:

Q. You knew -- is it fair to say, sir, you knew in your conversations with Mr. Scalzo that he had no intention whatsoever of every (sic) paying you profits?

A. No, he had full intention of paying me profits. The day that I signed the redemption agreement I went to his office and asked him. I just wanted to be sure that I was getting profits. I told him I signed the agreement. I want to be sure with you that it's your understand (sic) that I'm getting profits. And he said Russell, he says, absolutely, you're definitely getting profits. I'm not going to beat you out of profits.

Having reviewed this record, we can perceive no reversible error on the part of the trial court. The order under review is affirmed.

 

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A-0663-05T2

November 1, 2006