HENRY MEAHAN v. MICHAEL ANTHONY SIGN DESIGN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

HENRY MEAHAN,

Plaintiff-Appellant,

v.

MICHAEL ANTHONY SIGN DESIGN,

Defendant-Respondent.

_____________________________

December 27, 2013

 

Argued December 17, 2013 - Decided

 

Before Judges Sabatino and Hayden.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3648-12.

 

Henry Meahan, appellant, argued the cause pro se.

 

Peter J. Vazquez, Jr., argued the cause for respondent (The Vazquez Law Firm, attorneys; Mr. Vazquez, on the brief.)

PER CURIAM

This appeal arises out of a determination, after a de novo trial in the Law Division, rejecting plaintiff Henry Meahan's claim that his former employer, defendant Michael Anthony Sign Design, failed to pay him wages and commissions in alleged violation of the Wage Collection Law, N.J.S.A. 34:11-57 to -67. Plaintiff contends that the trial court's decision was flawed in several respects and that the court misapplied its discretion in denying him a continuance of trial to call an additional witness. We affirm.

We derive the following factual and procedural background from the appellate record.

Plaintiff began working as a sales representative for defendant on April 4, 2011. As he described it, plaintiff "was responsible for the sale of signs and awnings to customers," most of whom were commercial. His job responsibilities included "going out in the field, doing site surveys, negotiating the terms of the deal with . . . the customers, . . . getting quotes done in-house and presenting . . . them to the customer."

Plaintiff accepted the sales position with defendant in response to an e-mail from defendant's Chief Executive Officer, Michael Bradley, dated March 14, 2011. With respect to plaintiff's initial terms of compensation, the e-mail read in pertinent part:

We offer the following compensation for your efforts: You will be partnered with an estimator that will perform take offs and prepare estimates while you['re] out shaking the tree. First year conservative sales projection from cold deals $800,000 plus we will throw $300,000 of inhouse business from existing contacts. Base salary to cover all expenses . . . . $500. week. plus 5% on gross sale.

 

If you are active that will be $81K first year. We will keep you at 5% on gross plus base for a second year and your potential will be min 150K plus. We can go for a third year with same terms and the potential is exponential. Please look at the big picture and the long term potential. Respond ASAP.

 

[(Emphasis added).]

 

It is undisputed that plaintiff agreed to these initial terms as offered in the e-mail.

About a month after plaintiff began working for the company, Bradley presented him with a written employment agreement. According to plaintiff's trial testimony, he refused to sign that agreement because he felt that several of its terms, including a non-compete clause1, were unfair. With respect to compensation, the unsigned May 2011 agreement stated as follows:

As compensation for the services rendered, Employee shall receive for the first full calendar year of days worked the following: Base Salary $26,000 and 5% commission on gross sales closed personally beginning on May 5, 2011.

. . . .

 

Employer shall pay to Employee a salary in addition to Employee due and payable commissions, amounting to the sum of $500.00 per week, as outlined above, less payroll taxes if applicable, to be paid bi-weekly in accord with Employer regular payroll cycle. Employer reserves the right to alter or suspend privileges as well as terminate Employee agreement at any time, without prior notice in the event outlined sales quotas are not met, or unacceptable workday absence, customer complaints or charge backs occur. Incentives to be paid on an as-earned basis.

 

The commission rates and time periods set forth in this paragraph shall commence as of the date of the first invoice on the contract; provided, however that no commission will be due and payable to the Employee until 10 days from the receipt of the payment of Employer from any Customer on the contract for any underlying invoice. . . . Any and all commission payable to Employer to Employee under this agreement shall terminate on the 28th day of the First Full month after termination of this Agreement and Employer shall then be discharged and released of any further obligation to pay commissions to Employee under this Agreement.

[(Emphasis added).]

Despite being displeased with the wording of the written agreement, plaintiff continued to work for defendant and receive biweekly paychecks for his services. It is undisputed that between plaintiff's start date in April 2011 and the end of May 2011, he was paid $500 per week, plus five percent commissions on any sales that he made. Plaintiff's paystubs, which were prepared by a third party payroll company for defendant, did not segregate out the amounts for salary or draws versus the amounts for commissions.

On or about May 26, 2011, defendant began paying plaintiff an increased amount of $1000 per week instead of the originally-set $500 amount. Plaintiff contended at trial that defendant orally agreed at that time to increase his base weekly salary from $500 to $1000. Bradley, on the other hand, contended that defendant did not agree to increase plaintiff's weekly base pay. Instead, according to Bradley, the company agreed to advance plaintiff an additional $500 weekly at his request, with the proviso that the extra amounts would be applied as an offset against future commissions earned.

As of August 4, 2011, plaintiff's weekly compensation, apart from any paid commissions, was reduced back to $500. According to plaintiff, the company did this unilaterally without his assent. Defendant, meanwhile, maintains that it justifiably decided to stop paying plaintiff the extra weekly $500.

In particular, the company generated a new written employment agreement changing plaintiff's terms of compensation, effective August 5, 2011. According to the agreement, the $500 weekly amount was now to be treated as "a draw against [future] commissions," rather than as salary. In addition, the company decided to pay plaintiff an enhanced commission of eight percent, rather than five percent, on his sales.

Bradley testified that the company made this change in August 2011, because by that point it had allegedly advanced plaintiff "well over $6,000" in enhanced compensation since May. According to Bradley, those advances were substantially above the commissions that plaintiff was actually earning. Consequently, the company decided to alter the compensation package by treating plaintiff's $500 weekly payments as draws against future commissions rather than as salary, while simultaneously "bumping up" the commission's rate to eight percent.

Plaintiff disputed Bradley's characterization of what had occurred. He denied ever receiving a copy of the unsigned August 2011 revised agreement until after he had resigned and filed his wage claim. He testified that he would not have assented to a revised pay structure with such terms. In any event, as of and after August 2011, plaintiff received biweekly compensation from defendant at a rate of $500 weekly.

Plaintiff resigned on December 6, 2011. At that time, he confronted Bradley and asserted that he had been underpaid. Bradley rejected plaintiff's contention, taking the position that the company had paid plaintiff all of what he was owed, and even more.

Plaintiff then filed an administrative claim with the Department of Labor and Workforce Development ("the Department") pursuant to N.J.S.A. 34:11-59, contending that he had been underpaid by defendant in an amount exceeding $23,000. The dispute was presented at an administrative hearing on April 25, 2012 before a wage collection referee within the Department. Both plaintiff and Bradley, on behalf of the company, appeared at that hearing without legal representation.

On May 17, 2012, the wage collection referee issued a two-page written decision, concluding that no additional wages were due from defendant. Among other things, the referee factually determined that plaintiff "was notified properly about his rate of pay and any subsequent changes to the agreement." The referee also found that "[p]laintiff agreed to the terms and conditions of the employment agreement by continuing to work for the [d]efendant despite not signing the employment contracts." In addition, the referee was satisfied that defendant had proven that "[p]laintiff was overpaid on his draw versus commission[s]."

Plaintiff then filed the present action in the Law Division, seeking de novo review of the wage referee's denial of his claim. The court conducted the de novo trial on August 7, 2012, at which plaintiff represented himself and defendant appeared through its counsel. Plaintiff testified on his own behalf, and Bradley testified for defendant. In addition, the trial court was presented with a host of documentary exhibits, including the March 2011 e-mail, and various charts tabulating plaintiff's commissions and paychecks.2

After considering the proofs, Judge RichardS. Rebeckconcluded that plaintiff's claims for unpaid compensation had been insufficiently substantiated. In an oral decision issued on August 8, 2012, Judge Rebeck determined, like the wage referee, that plaintiff was not entitled to any additional sums. The judge essentially found defendant's proofs more credible than those of plaintiff concerning the nature of, and reasons for, the change in his original compensation structure. The judge also noted that plaintiff had forfeited some of his commissions due to the timing of his resignation, and also due to the fact that one of his larger accounts had reneged on its sales purchase. Based upon the judge's calculations, plaintiff, in fact, had been overpaid.3

Plaintiff now raises the following arguments on appeal for our consideration:

POINT I

 

JUDGE DETERMINED THAT A KEY WITNESS WOULD NOT BE RELEV[A]NT.

 

POINT II

 

JUDGE CONTRADICTED HIS OWN STATEMENT ON VALIDITY OF UNSIGNED DOCUMENTS.

 

POINT III

 

DESPITE PROOF OF COMPENSATION COURT RELIED ON UNVERIFIABLE TESTIMONY AND UNSIGNED DOCUMENTS.

 

POINT IV

 

COMPENSATION RULING INACCURATE BASED ON DOCUMENTS SUBMITTED BY DEFENDANT.

 

REPLY POINT I

 

DEFENDANT WAS UNABLE TO PROVIDE ADEQUATE, SUBSTANTIAL OR CREDIBLE EVIDENCE TO SUPPORT CLAIMS OF RESTRUCTURED COMPENSATION.

 

REPLY POINT II

 

JUDGE[']S RULING WAS BASED ON PERSONAL OPINION IN LIEU OF DOCUMENTED EVIDENCE.

 

 

REPLY POINT III

 

[THE JUDGE] RULED THAT A KEY WITNESS WOULD NOT BE RELEV[A]NT.

 

REPLY POINT IV

 

COMPENSATION RULING FLAWED.

 

Having fully considered these points and the well-presented oral arguments, we affirm the trial court's decision, substantially for the reasons expressed by both Judge Rebeck in his oral opinion, and also by the wage referee in his written administrative decision.

Pursuant to the Wage Collection Law, the Superior Court may consider, de novo, the Department's administrative decision pertaining to a wage dispute. Marr v. ABM Carpet Serv., Inc., 286 N.J. Super. 500, 504-05 (Law Div. 1995); see also N.J.S.A. 34:11-63. As part of such de novo consideration, the trial court may consider the testimony of witnesses and documentary evidence, even if they had not been offered or admitted at the administrative hearing, so long as such proof is "otherwise legal and competent[.]" N.J.S.A. 34:11-65.

Once a trial judge has considered the wage claim evidence de novo, and has made corresponding findings of fact and conclusions of law, our usual standards of appellate review apply. In particular, 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[.]'" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting In re Trust Created by Agreement Dated December 20, 1961, ex rel Johnson, 194 N.J. 276, 284 (2008)); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J 474, 484 (1974).

Applying this well-established deferential scope of review, we discern no basis to set aside Judge Rebeck's decision and, in particular, his key finding that defendant's version of the facts was more credible than that of plaintiff. We briefly address several of plaintiff's arguments.

First, the court did not abuse its discretion in denying plaintiff's extemporaneous request to adjourn the trial in order to allow him to present another former employee of the company as an additional witness. Plaintiff concedes that he did not subpoena the witness pursuant to Rule 1:9-1, or otherwise secure her presence4 on the listed date for trial. Nor is there any indication in the record that plaintiff moved to adjourn the trial in advance of the scheduled trial date.

The Supreme Court has held that a decision of whether to grant or deny an adjournment rests within the sound discretion of the trial court. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995) (citing Allegro v. Afton Vill. Corp., 9 N.J. 156, 161 (1952)). Plaintiff has failed to demonstrate that the court abused its discretion here. Although plaintiff contends that the absent witness would have contradicted defendant's proofs, he furnished no statement or other written proffer from her to substantiate that contention. The defense was obviously ready to try and complete the case on the scheduled trial date. The judge acted within his discretion to complete the trial that same day, based upon the evidence that was presented.

We also reject plaintiff's contention that once he agreed to the compensation terms set forth in the March 2011 e-mail, he was inalterably entitled to receive a salary, rather than have his biweekly payments deemed to be a draw against future commissions, because he never signed the ensuing written agreements drafted by his employer. Plaintiff is apparently under the mistaken belief that the terms and conditions of employment must always be in a mutually signed writing in order to be legally effective. That is not so. Employment contracts need not be in writing to satisfy the Statute of Frauds in New Jersey. See N.J.S.A. 25:1-5. See also Shiddell v. Electro Rust-Proofing Corp., 34 N.J. Super. 278, 290 (App. Div. 1954), certif. denied, 17 N.J. 408 (1955) (recognizing the enforceability of an oral contract of employment).

"To determine the type of contract the parties intended, a court must closely examine the terms of the contract and the surrounding circumstances." Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276, 287 (1988). Where, as here, an existing oral contract that does not fall under the Statute of Frauds is modified, the second contract is "enforceable, and at once discharges the prior contract." Restatement (Second) of Contracts 149, comment a, illustration 1 (1981). Those principles were correctly applied here.

We recognize that, at one point during the trial, Judge Rebeck did state to the parties that he was not going to rely on "unsigned documents." Even if, for the sake of discussion, the court ignores the two unsigned employment agreements presented by defendant, Bradley's testimony was ample to provide a credible basis for the judge to reject plaintiff's version of the events. Credibility is generally entrusted to the trial judge, who has a unique opportunity to see and hear the witnesses and assess their demeanor. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The judge did not necessarily have to rely on the unsigned contracts to reach the decision that he reached.

In fact, plaintiff's course of conduct in continuing to work for defendant and receive the proceeds of his biweekly checks after his payments were adjusted in August 2011 is consistent with a legal conclusion that he impliedly agreed to the adjusted terms of his compensation arrangement as described in Bradley's testimony. See Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, 302 (1985) (analogously holding that terms stated within a company's employment manual can contractually bind an employer and employee, even though no signed employment contract exists between them, because implied acceptance of the manual's provisions can be inferred from the "continued work" from the employees, "when they have no obligation to continue" working for the company).

We also find no error in the judge's consideration of an exhibit containing what Bradley attested were his contemporaneous "folder notes," which he said he prepared in August 2011 when plaintiff's compensation terms were changed. Plaintiff contends that the folder notes were contrived and backdated by defendant and, therefore, not what they purported to be. However, the authenticity of evidence is a matter largely within a fact-finder's assessment and sound discretion. See N.J.R.E. 901 (stating that the requirement of authentication is satisfied merely "by evidence sufficient to support a finding that the matter is what the proponent claims"); see also Konop v. Rosen, 425 N.J. Super. 391, 418-19 (App. Div. 2012) (noting the fact-finder's pivotal role in assessing the actual source of a written entry); In re Blau's Estate, 4 N.J. Super. 343, 351 (App. Div. 1949) (noting the fact-finder's role in assessing authenticity). As the comment to N.J.R.E. 901 explains,

The most direct and persuasive way to demonstrate the genuineness of an offered writing, to establish that it is in fact what it purports to be and/or was in fact executed by the person by whom it purports to have been executed, is to produce testimony of the signatory of the writing or the person responsible for its preparation.

 

[Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 901 (2013) (emphasis added) (citing 2 McCormick on Evidence 219 at 38-39 (4th ed. 1992)).]

 

Judge Rebeck acted properly in considering the testimony of Bradley, "the person responsible for [the document's] preparation," in admitting the folder notes. Moreover, even if the folder notes are ignored, there remains a sufficient basis in the record to uphold the judge's ultimate findings concerning the operative terms of plaintiff's compensation.

The balance of plaintiff's arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

The trial court's judgment is consequently affirmed.

 

1 The non-compete clause is not germane to the wage dispute in this case.

2 The judge apparently was not provided with a transcript of the hearing before the wage referee, but he did have the referee's written decision. Evidently, no transcript of the administrative hearing was ever ordered or prepared, although the statute does not specify that the court must be supplied with such a transcript. In any event, neither of the parties has identified any material proofs that were presented to the referee but not presented to the court.

3

We note there was no counterclaim filed by defendant, nor has defendant filed a cross-appeal seeking any affirmative recovery.

4 According to plaintiff, the witness could not get out of work that day.