Rina v. Vinod Country

NOT FOR PUBLICATION WITHOUT THE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-0

Rina Patel,

Plaintiff-Appellant,

v.

Vinod Patel andAshvi, LLC t/a

Country Farms,

Defendants-Respondents.

____________________________________

November 22, 2016

Submitted October 31, 2016 Decided

Before Judges Sabatino and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-5715-14.

Rina Patel, appellant pro se.

Michael Pocchio, Jr., attorney for respondents.

PER CURIAM

Plaintiff Rina Patel appeals from a December 9, 2014 judgment denying her wage claim. Following the parties' presentation of proofs at a non-jury trial de novo, the trial court entered judgment for defendants Vinod Patel and Ashvi, LLC, determining plaintiff had failed to sustain her burden of proving defendants had not paid her for working for eight months at their convenience store.

Applying the terms of the pertinent statute, we conclude a trial de novo following an appeal of a wage collection referee's decision must be on the administrative record, as supplemented by any additional proofs the parties present at the de novo trial, rather than a plenary proceeding, as occurred here. We further conclude the trial court in this case erred by declining to consider an independent witness's testimony that had been given at the administrative hearing corroborating plaintiff's contentions of her status as an employee. Accordingly, we vacate the judgment and remand for a new trial.

This action's procedural history began when plaintiff filed a wage claim in March 2014 with the New Jersey Department of Labor & Workforce Development, Division of Wage and Hour Compliance ("the Department"), alleging defendants had not paid her wages for working at their convenience store from February through September 2011.1 Defendants denied she had worked at the store. Following a hearing at which the Patels and a witness for plaintiff testified, a Wage Collection Referee found against defendants, awarded plaintiff $6690, and assessed an administrative fee of $696 and a summons cost of $25.

Defendants appealed, demanding a trial de novo in the Law Division. After receiving the notice of appeal, the Department mailed the referee's decision to the Atlantic County Superior Court Civil Division Manager. Thereafter, the trial court conducted a plenary hearing and determined plaintiff had not proved her claim by a preponderance of the credible evidence. The court entered the December 9, 2014 judgment for defendants from which plaintiff now appeals.

When the trial de novo in the Law Division began, the court directed plaintiff to call her first witness. Her attorney responded, "[j]ust for the record, it is the defendant's appeal . . . [b]ut we're ready to proceed first."2 The court noted that because defendants were the appellants, they should proceed first. Defendants presented the testimony of Vinod Patel and then plaintiff testified on her own behalf. No other witnesses testified.

According to defendant, he owned Ashvi, LLC t/a Country Farms, a convenience store located in Egg Harbor Township. From February 2011 through September 2011, the store was open for business Monday through Saturday from 8:00 a.m. to 9:00 p.m. and Sunday from 9:00 a.m. to 9:00 p.m. Defendant worked at the store with his wife and occasionally his brother, Pragnesh Patel. Defendant did not maintain time records documenting who worked at the store. Defendant rented an apartment across the street from the store where his brother, Pragnesh, who was married to plaintiff, lived with her and their children. Defendant did not pay his brother a salary.

Defendant denied plaintiff ever worked at the store. He acknowledged adding plaintiff as a signatory to Ashvi, LLC's bank account and giving her an Ashvi, LLC check card in late September 2011, but claimed he did so because he and his wife were planning to go to India, his brother, Pragnesh, did not have the identification required by the bank to add him as a signatory to the account, and plaintiff lived across the street from the store. Defendant also acknowledged that plaintiff had a Sam's Club credit card in the name of Ashvi, LLC, but claimed she used it only for personal purchases. Defendant denied the complaint's allegations that plaintiff's duties at the store included cleaning, operating the cash register, and following defendant's orders.3

Plaintiff testified to a quite different version of events. According to plaintiff, defendant is her ex-husband's cousin's brother. In February 2011, plaintiff was working in upstate New York. Defendant, who had just opened a new store in Egg Harbor Township, telephoned her and hired her and her husband to work there. Plaintiff testified she worked at the store in February; did not work in March (the month she gave birth to her second child); and worked each month from April through September, while her parents cared for her children. According to plaintiff, her duties included working the cash register, taking care of customers, cleaning, ordering food and supplies for the store, making bank runs, and depositing checks.

Plaintiff introduced into evidence a spreadsheet detailing the time she worked at the store. She claimed she was owed $22,004

in unpaid wages.4 She testified defendant told her he would pay her eight dollars per hour but could not pay her and her husband until the store started making money. He paid her nothing.

Plaintiff supported her testimony with documentary evidence that included photographs of her at various locations in the store.5 She testified her husband took the photographs while she was working. She also introduced into evidence an Ashvi, LLC Sam's Club credit card and explained she used it two or three times each week to purchase stock for the convenience store. She also introduced into evidence an Ashvi, LLC business check card and explained she used it to make deposits, write checks, and get change. She was required to do those things because defendant, who worked at another job in the morning, and his wife, who worked at a casino, were not always in the store.

In its oral opinion determining plaintiff had not sustained her burden of proof, the court commented that two witnesses had testified, plaintiff and defendant, and "[t]here [was] no independent witness."6 The court "note[d] inferentially that when this matter was before the hearing officer there was an independent witness that testified, but I can't take that into account [be]cause this is a trial de novo."

The court entered judgment for defendants. Plaintiff appealed.

Our review of the trial court's decision is guided by well-settled principles of review. When evaluating the basis for a court's decision at a bench trial, "we will defer to a trial court's factual findings, particularly those influenced by the court's opportunity to assess witness testimony firsthand . . . ." Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 253 (2013). We owe no such deference, however, to a trial court's conclusions of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J 366, 378 (1995).

Plaintiffs argue on appeal the trial court committed numerous procedural errors, including directing defendants to present their case before plaintiff presented hers; admitting into evidence the letter demanding defendant repay an alleged loan from plaintiff; failing to give due deference to all plaintiff's evidence, including the conclusions drawn by the original tribunal; and failing to make adequate findings of fact. Defendants respond the trial court's verdict must stand because it is supported by competent, relevant, and reasonably credible evidence and does not offend the interests of justice.

We reject as a matter of law the trial court's conclusion it could not consider the favorable testimony an independent witness had given for plaintiff at the administrative hearing. In fairness to the trial court, we acknowledge that the statutory scheme authorizing de novo appeals of wage claims is not entirely clear and has not been consistently applied. There appears to be some confusion in the trial courts about whether the trial de novo is on the administrative hearing record as supplemented by additional proofs, or requires a plenary hearing. We thus begin our analysis with a review of the statutory scheme.

N.J.S.A. 34:11-59 authorizes "[a]n employee [to] file a written claim for wages against an employer in the wage collection division of the department which shall be entered in a book to be called the wage collection docket." "The commissioner shall have power to administer oaths, hear testimony and take or cause to be taken depositions of witnesses residing within or without the state." N.J.S.A. 34:11-61. Appeals from judgments are authorized by N.J.S.A. 34:11-63, which states

From any judgment which may be obtained in the wage collection division, except such as shall be given by confession, either party may, upon filing a notice of appeal with the wage collection division within twenty days after judgment shall be given, appeal to the Superior Court. The appellant shall give a bond in every case, except where the judgment appealed from is partially in his favor and no set-off against his demand has been allowed by the division, or where the court otherwise orders. The bond shall be secured by one sufficient surety, either a freeholder in the county or a surety company authorized to do business in New Jersey, and shall be in double the amount of such judgment or of any off-set allowed by the division, conditioned that the appellant shall prosecute his appeal in the Superior Court, stand to and abide the judgment of the court, and pay such costs as shall be taxed against him if the judgment be affirmed. The wage collection division shall then prepare a transcript of the record to be filed in the Superior Court. (Emphasis added).

The procedure on appeal is addressed in N.J.S.A. 34:11-65, which provides that "[u]pon the trial of any appeal either party may produce any witness not produced or sworn in the court below, or any documentary evidence not offered or admitted in the court below, if otherwise legal and competent, without notice to the opposite party." (Emphasis added).

When interpreting these statutory provisions, as when interpreting any statute, "words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language." N.J.S.A. 1:1-1. "Words, phrases, and clauses cannot be viewed in isolation; all the parts of a statute must be read to give meaning to the whole of the statute." Nicholas v. Mynster, 213 N.J. 463, 480 (2013) (citing Burnett v. Cnty. of Bergen, 198 N.J. 408, 421 (2009)). Moreover, courts "'should try to give effect to every word of the statute, and should not assume that the Legislature used meaningless language. Nor should we construe the statute to render part of it superfluous.'" Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 598 (1992) (quoting Medical Soc'y of New Jersey v. New Jersey Dep't of Law and Pub. Safety, 120 N.J. 18, 26-27 (1990)).

The statutory scheme involved here, concerning appeals from administrative judgments, mandates that the wage collection division file a transcript of the record in the Superior Court. N.J.S.A. 34:11-63. This unambiguous provision would be superfluous, and the requirement meaningless, if the trial de novo is not on the record developed at the administrative hearing. We will not assume the Legislature used meaningless language. Green, supra, 127 N.J. at 598.

In addition, principles of statutory construction require us to construe this provision concerning the transcript together with all the parts of the statute to give meaning to the whole of the statute. Nicholas, supra, 213 N.J. at 480. Construing this provision concerning the transcript together with the provision in N.J.S.A. 34:11-65 permitting parties to "produce any witness not produced or sworn in the court below, or any documentary evidence not offered or admitted in the court below" (emphasis added) leads to the conclusion that the testimony and evidence developed at the administrative hearing comes before the de novo trial court by way of the administrative hearing transcript.

We again note there is no indication in the trial court proceedings, nor in the appellate briefs or appendices, that a transcript of the administrative hearings was ever furnished to the trial court. The party appealing the referee's decision should, in the first instance, assure the administrative hearing transcript has been filed with the trial court in compliance with the statutory mandate.

We realize that plaintiff neither raised this issue to the trial court nor objected when the trial court commented it could not consider the testimony the independent witness gave at the administrative hearing. Nonetheless, considering the only testimony at the trial de novo was the contradictory testimony of the two individual parties, the court's failure to consider the transcribed testimony of an independent witness was clearly capable of producing an unjust result and was thus plain error. R. 2:10-2.

For these legal reasons, the December 9, 2014 judgment is vacated and the matter is remanded for a new trial. We need not decide plaintiff's remaining arguments, and we do not retain jurisdiction.

1 For ease of reference, we use the term "defendant" to refer to Vinod Patel, and the term "defendants" to refer collectively to Vinod Patel and Ashvi, LLC.

2 Plaintiff is self-represented on this appeal.

3 Defendants also introduced over plaintiff's objection a December 8, 2013 letter a New York attorney sent to defendant demanding repayment of a loan plaintiff had allegedly made to him. Defendant denied plaintiff had loaned him money.

4 Plaintiff had asserted a claim for $17,500 at the administrative hearing. The referee found that "the presence of the [d]efendant, the [p]laintiff, and the [p]laintiff's former husband to perform work at the store calls into question the accuracy of the hours claimed by the [p]laintiff" and awarded her $6690. During cross-examination at the trial de novo about the discrepancy between the amount of the claims she made at the two hearings, plaintiff explained she had not included overtime when she filed her wage claim with the Department, but had included overtime in the claim she asserted at the trial de novo.

5 The photographs, which are reproduced in plaintiff's appendix, are consistent with her sworn assertions that she worked behind the counter at the store and did not just simply visit the premises to make personal use of the Internet wifi access, as defendant claimed.

6 There is no indication in the trial court proceedings, nor in the appellate briefs or appendices, that a transcript of the administrative hearings was ever furnished to the trial court. Notably, the court's oral decision makes no reference to such a transcript and, in fact, expressly treats the independent witness's account as irrelevant because he did not testify at the de novo trial.