JOSEPH R. VOLPE v. THE TRAF GROUP, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4445-04T54445-04T5

JOSEPH R. VOLPE,

Plaintiff-Appellant,

v.

THE TRAF GROUP, INC., d/b/a

A-1 COLLECTION SERVICE,

Defendant-Respondent.

_____________________________________________________________

 

Submitted May 9, 2006 - Decided June 1, 2006

Before Judges Coburn, Collester and Lisa.

On appeal from the Superior Court of New Jersey,

Law Division, Mercer County, L-1039-03.

Matthew S. Wolf, attorneys for appellant

(Matthew S. Wolf, of counsel and on the brief).

Pepper Hamilton, attorneys for respondent

(Angelo A. Stio, III, of counsel and on the

brief; Melissa A. Chuderewicz and Heather N.

Oehlmann, on the brief).

PER CURIAM

Plaintiff, Joseph Volpe, sued defendant, The TRAF Group, Inc., alleging breach of an employment contract. A jury found no cause for action, and Volpe appeals. He contends that the trial judge erred in (1) denying leave to amend the complaint; (2) refusing to admit certain documents plaintiff offered in evidence; and (3) not allowing plaintiff to call a rebuttal witness. After carefully considering the record and briefs, we are satisfied that all of Volpe's arguments are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E). Nonetheless, we add the following comments.

Volpe filed his motion to amend his complaint to add a claim for fraud in the inducement after the extended time for discovery had expired and three weeks before the date set for trial. The motion judge denied the motion, finding that there was no excuse for its late filing. On appeal, and without citing any supporting authority, the only proof of prejudice offered by Volpe is that the judge had permitted defendant to amend its pleadings after discovery to also allege fraud in the inducement. Since the jury found no such fraud by Volpe, and Volpe's brief fails to disclose any facts in support of his desire to assert that cause of action against defendant, we do not perceive any prejudice to Volpe, who, it might be noted, concedes in his brief that the judge's action "may appear reasonable on its face."

Apart from Volpe's failure to cite any rule or case law in support of his position, we note that defendant argues the issue is not even properly before us because the notice of appeal does not say that Volpe is appealing from this ruling. Defendant is correct. See R. 2:5-1(f)(3)(i); Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461 n.1 (App. Div.), certif. denied, 174 N.J. 544 (2002). Furthermore, "[t]he decision whether to grant leave to amend pleadings is committed to the sound discretion of the trial court . . . ." Morales v. N.J. Acad. of Aquatic Scis., 302 N.J. Super. 50, 56 (App. Div. 1997). The only abuse suggested by Volpe is that the judge had allowed defendant to assert the same claim after discovery had expired. But defendant filed its motion immediately after discovering the alleged facts giving rise to the proposed claim and within the discovery period, whereas Volpe withheld his motion for approximately four months after the depositions supposedly providing a factual basis for the claim, and after the arbitration date and trial date had been set. We cannot say that the judge weighed the relevant factors inappropriately or that he abused his discretion in these circumstances. See, e.g., Bonczek v. Carter-Wallance, Inc., 304 N.J. Super. 593, 602 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998); Globe Motor Car Co. v. First Fid. Bank, N.A., 291 N.J. Super. 428, 429 (App. Div.) certif. denied, 147 N.J. 263 (1996).

Volpe argues that the trial judge erred in granting defendant's motion in limine preventing him from using eight exhibits at trial. He concedes that he did not deliver the documents to defendant during the discovery period. Although he contends the documents were merely summaries, he did not show that he had provided the underlying information to defendant. Nor has he provided any explanation of how he was prejudiced by the judge's ruling.

When a trial court rejects evidence, a reviewing court may only disturb that exercise of discretion when it "is so wholly unsupportable as to result in a denial of justice." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied, 144 N.J. 174 (1996). Here the judge's ruling is fully supported by the law. See, e.g., Fiorino v. Sears Roebuck & Co., 309 N.J. Super. 556, 569-70 (App. Div. 1998); Fried v. Aftec, Inc., 246 N.J. Super. 245, 251 n.3 (App. Div. 1991); Assoc. Metals & Minerals Corp. v. Dixon Chem. & Research, Inc., 82 N.J. Super. 281, 309-10 (App. Div. 1963), certif. denied, 42 N.J. 501 (1964); Heinzerling v. Goldfarb, 359 N.J. Super. 1, 8 (Law Div. 2002).

Volpe offered W. Michael Cook as a rebuttal witness to testify about how the computer system worked and as to Volpe's character. But Volpe's character was not an element of a claim or a defense, see N.J.R.E. 404(c), and no defense witness testified negatively about his character. And since Cook stopped working for Volpe two years before defendant purchased Volpe's corporation's assets and never worked for defendant, he had no personal knowledge about Volpe's conduct as defendant's employee or about the condition of the computer system at the relevant point of time. There is simply no basis for overturning the judge's discretionary evidence rulings with respect to the proposed testimony of Cook.

Affirmed.

 

(continued)

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A-4445-04T5

June 1, 2006