HUDSON COUNTY FLORIST v. NEW YORK PLANT SHED, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2156-08T3

HUDSON COUNTY FLORIST,

Plaintiff-Appellant,

v.

NEW YORK PLANT SHED, INC. d/b/a

THE PLANT SHED d/b/a PLANT SHED,

d/b/a NEW YORK FLOWERS, d/b/a

PLANT EXCHANGE d/b/a AMERALIS LTD.,

Defendant-Respondent.

December 8, 2009

Submitted October 5, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5298-06.

Phillips Nizer, attorneys for appellant (Robert M. Adams, on the brief).

Faugno & Associates, attorneys for respondent (Paul Faugno, on the brief).

PER CURIAM

Plaintiff Hudson County Florist appeals from a judgment entered after a bench trial awarding $2280.10 payable by defendant New York Plant Shed, Inc., doing business as The Plant Shed, doing business as Plant Shed, doing business as New York Flowers, doing business as Plant Exchange, doing business as Ameralis Ltd. For the reasons that follow, we affirm.

Plaintiff sued defendant for $32,280.10 on account of a standing order for wholesale flowers delivered weekly over the course of approximately a year. Defendant claims that no invoices were supplied with the weekly shipments. Adding to the confusion, defendant may have been selling back flowers to several retail stores owned by plaintiff. The principals of both plaintiff and defendant are related.

According to defendant's bookkeeper, plaintiff first provided defendant with the total balance due by service of the complaint. Defendant does not dispute ordering and receiving the flowers; the sole issue in controversy is whether a $30,000 cash payment made by defendant to Marcos Ameralis (Marc), who owns the plaintiff business entity, should be credited towards the balance due.

As the trial judge stated it, the initial question was whether there was "a breach of contract, did the defendant order flowers and fail to pay for them to the tune of $32,000 and change." The next issue to be decided was whether the $30,000 cash payment should be credited to defendant's account, leaving a balance owed of $2280.10. The judge noted that the proofs in the case were "hazy," and plaintiff's recordkeeping provided the court with "very little to go on." The court heard unequivocal testimony from the parties that Marc was then out of the country, that the flowers were delivered weekly, and that the standing order was modified seasonally.

Although Anthony Ameralis (Anthony), plaintiff's manager, testified that invoices were forwarded weekly, no documentation that such invoices were sent to defendant was supplied. No copies of any statements demanding payment were presented to the court.

Anthony acknowledged being aware of the $30,000 cash payment made to Marc, but claimed the payment was intended to be credited towards other, separate family transactions. He also claimed he had documentation verifying this, but that documentation was never supplied either.

Defendant's bookkeeper testified that she was instructed to prepare a cash payment of $30,000 in hundred dollar bills to be delivered to Marc. She placed the money in an envelope and gave it to Juan Casiano, defendant's former chief operating officer. Casiano testified that he delivered the $30,000 payment to Marc because Marc called and told him that he needed money on account of the flower order. The payment was made in November 2004.

Our standard of review is highly deferential. All that is required is that the facts as found by the judge be supported by adequate competent evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). So long as the trial judge's findings are "supported by adequate, substantial and credible evidence," they will be affirmed. Id. at 484. Our appellate function is limited. Therefore, "'we do not disturb the factual findings and legal conclusions . . . 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.'" Ibid. (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).

We accord particular deference to findings of credibility. Even when a trial judge does not expand upon credibility determinations, those determinations are entitled to deference if supportable by the record. Credibility findings are often influenced by circumstances such as observations of the character and demeanor of witnesses, and common human experience, which are not transmitted by the record. State v. Locurto, 157 N.J. 463, 474 (1999) (citation omitted).

We find in this case that the trial judge made her credibility assessments appropriately. Plaintiff's sole witness did not dispute the fact a $30,000 payment was made, he only disputed to which debt the payment was to be applied. He had no proof establishing that it should not be credited against this debt, and his undocumented assertion did not seem logical. That no copies of invoices allegedly supplied to the buyer were kept by the seller certainly did not bolster the credibility of plaintiff's witness or the strength of his position. The two witnesses presented by defendant provided uncontradicted testimony that plaintiff's principal, unavailable for trial, demanded and received payment of $30,000 in cash for the flowers. The mere fact the payment was made in cash was itself unusual. Under these circumstances, the judge's conclusions were eminently reasonable. As she said:

You know, you make your bed and you lie in it when . . . you deal with family and you don't deal conventionally and you don't have the paperwork to support the positions that you take. Both sides are guilty of it and . . . I have to look to the testimony of the people who made themselves available at the trial . . . . I can't be left to speculate as to what Mr. [Marc] Ameralis might have said because he wasn't here. But no one disputes the original contract, no one disputes the $30,000 was paid, but what is in dispute is whether or not it was paid on account for this deal or it was part of some other arrangement. I choose to believe that it was in satisfaction in part of the running bill here, so I find in favor of the plaintiff for . . . $2,280.10 which is the difference between the amount claimed and the $30,000 credit I see fit to apply to the balance due.

We agree.