DMITRIY SAVCHENKO v. GREG RABIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DMITRIY SAVCHENKO,

Plaintiff-Respondent,

v.

GREG RABIN,

Defendant-Appellant.

July 14, 2016

Submitted July 5, 2016 Decided

Before Judges Carroll and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-105-14.

Fishbeyn & Briskin, LLC, attorneys for appellant (Alexander Fishbeyn, on the briefs).

David Treyster, attorney for respondent.

PER CURIAM

Plaintiff Dmitriy Savchenko filed suit in the Law Division alleging that defendant, Greg Rabin, breached a written agreement to sell plaintiff a 2 013 Mercedes Benz GL 550. Plaintiff sought $103,000 in damages, representing the purchase price plaintiff alleged he paid for the vehicle that defendant failed to deliver.

The case was tried without a jury. Plaintiff and defendant were the only witnesses, and both testified with the assistance of a court-approved Russian interpreter. Plaintiff, a Ukrainian citizen, testified that he first met defendant in 2006. Shortly thereafter, the parties initiated an ongoing business relationship, whereby plaintiff would wire funds to defendant and in turn defendant would procure specified luxury vehicles for ultimate delivery to plaintiff in the Ukraine. Plaintiff estimated that he and defendant verbally entered into approximately fifty such agreements between 2006 - 2008. Defendant, a United States citizen, purchased most of the vehicles from various Mercedes Benz dealerships in New Jersey and shipped them to Germany, where they were retrieved by plaintiff's agent for sale by plaintiff in the Ukraine.

Due to a downturn in the economy, the parties discontinued their business relationship in 2008. However, they remained friends, and defendant visited plaintiff and stayed at plaintiff's home in the Ukraine several times during the next several years.

In late 2012, plaintiff contacted defendant with respect to ordering a new model GL 550 Mercedes. Defendant responded by emailing the associated specifications to plaintiff for confirmation. Plaintiff requested additional options, and ultimately indicated his desire to procure a "loaded" GL 550 for $103,000. Plaintiff paid defendant a $3000 deposit for the vehicle in accordance with their prior course of dealing. Subsequently, defendant referenced his upcoming trip to the Ukraine, and requested that plaintiff pay the balance of the purchase price in cash.

Because the requested manner of payment differed from the parties' previous transactions, plaintiff enlisted the services of a notary to prepare a written contract memorializing the agreed-upon terms. According to plaintiff, on March 24, 2013, the parties went to the notary's office in Sumy where they both signed the agreement, which was written in Ukrainian. At trial, plaintiff presented the contract along with an English translation of the contract, which bore a seal and indicated the translation "was made by me, Anastasia Vasylieva, translator of Translation Bureau 'Raduga', Sumy." The contract referenced defendant's New Jersey address and his passport number, and contained defendant's confirmation that he "received from . . . [plaintiff] . . . 103,000 (one hundred and three thousand) USD . . . as of the date of signature of this Agreement." Among other terms, the two-page typed contract further provided

The above[-]mentioned sum of money the Seller is obliged to use for purchasing in the name of the Purchaser the car, its model Mercedes Benz GL 550, produced in 2013 with specific specifications which are attached to this Agreement by the 1 of May, 2013[,] and to transfer it on that date to the Purchaser according to the policy of delivery-acceptance.

The transfer of the above[-]mentioned car from the Seller to the Purchaser should take place at the borders of Ukraine where the Seller delivers the car by himself at his own risk and without any additional fees. All expenses connected with obligatory fees, duty and other necessary payments connected with [the] car's delivery and its transfer to the Purchaser are paid by the Seller.

Plaintiff testified that he signed the contract and personally observed defendant do so as well. Plaintiff consulted his attorney later that day about the contract, and was advised to add an additional sentence to the effect "[t]hat this contract is [] pursuant [to] . . . Ukrainian law." The parties then returned to the notary's office where they executed an amended contract containing this additional language.

After plaintiff made the $100,000 cash payment, defendant sent him two e-mails containing pictures of the subject vehicle, but failed to deliver it. Plaintiff thereafter repeatedly attempted to contact defendant, to no avail. Consequently, plaintiff filed a criminal complaint against defendant in the Ukraine, and initiated this action to recover the $103,000 paid to defendant plus interest at the rate specified in the contract.

Defendant testified that he procured approximately forty vehicles for plaintiff in the 2006 2008 period. He also confirmed that the two had remained friends during the recession that followed, and he had visited plaintiff's home in the Ukraine on several occasions during that time.

Defendant provided a different version of the 2 013 GL 550 transaction. He testified that although he sent pictures of the vehicle to plaintiff in April 2013, plaintiff never opted to proceed with the purchase. For his part, defendant denied going to the notary's office in March 2013, denied it was his signature on the purported contract, and denied that plaintiff paid him $100,000 cash. On cross-examination, defendant admitted that his address and passport number appeared in the purported contract.

Following the two-day bench trial, in a thorough oral opinion, Judge Robert C. Wilson found plaintiff "to be highly credible, a good recounter of the facts that occurred here and by judging his demeanor, I judged him to be completely honest." The judge concluded there was an enforceable contract "and that [] defendant simply and clearly kept [] plaintiff's money and did not provide the goods that he had promised pursuant to his contractual obligations." The judge awarded plaintiff $103,000 in damages, plus interest and costs of suit, and this appeal followed.

For the first time on appeal, defendant argues that the trial court erred by: (1) admitting into evidence a non-certified translation of the purported contract; (2) relying on "American law" rather than Ukrainian law to interpret the contract; and (3) relying on defendant's passport and answers to interrogatories that were not in evidence. Having considered these arguments in light of the record and applicable legal standards, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.

We apply the plain error standard here because defendant did not object to the admission of the written contract at trial. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). Moreover, the failure to object indicates that defendant's trial counsel did not perceive the contract to be unduly prejudicial, and denied the court the opportunity to take corrective action. Cf. Risko v. Thompson Muller Automotive Grp., Inc., 206 N.J. 506, 523 (2011). Here, defendant's dispute was not with the language of the purported contract; rather, he denied entering into the contract at all. Additionally, had defendant timely objected, perhaps the official interpreters who were present throughout the trial could have provided an accurate translation of the document. Further, the contract was produced in pretrial discovery, and defendant could have obtained his own certified translation if he disputed its content. For all these reasons, we find no plain error in the admission of the contract.

Defendant also argues that, even if the contract was properly admitted, it should have been interpreted in accordance with the laws of the Ukraine, as provided in the amendment. Defendant did not raise this argument at trial, and we decline to consider it on appeal. Generally, we "'will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available' unless the matter involves the trial court's jurisdiction or is of public importance[.]" Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); accord State v. Robinson, 200 N.J. 1, 20 (2009) (reiterating the principle of not considering an issue raised for the first time on appeal absent an exception). No exception applies here. Nor has defendant demonstrated how the application of Ukrainian law would have led to a different result in this case.

In the end, it suffices to say that our review of the findings made by the judge in a non-jury trial is limited.

Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review: "we do 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) (alteration in original) (quoting In re Trust Created By Agreement Dated December 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)).]

"[W]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). In general, the judge's factual "findings . . . should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div. 1960), aff'd o.b., 33 N.J. 78 (1960)).

In this case, Judge Wilson's factual findings are amply supported by the evidence at trial and, in particular, his assessment of the credibility of the witnesses. Based upon those factual findings, the judge concluded there was an enforceable contract, plaintiff performed and defendant did not, and, as a result, defendant breached the contract. We see no reason to disturb those conclusions.

Affirmed.