EDWARD ANGERAME v. RICHARD BAILEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3804-04T13804-04T1

EDWARD ANGERAME,

Plaintiff-Respondent,

v.

RICHARD BAILEY,

Defendant-Appellant.

_______________________________

 

Submitted: October 25, 2005 - Decided:

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hunterdon County, SC-163-04.

Richard Bailey, appellant pro se.

Edward Angerame, respondent pro se.

PER CURIAM

Defendant Richard Bailey appeals from a $2020 judgment entered against him for farrier services (horseshoeing) performed by plaintiff following a trial in the Special Civil Part. We discern no procedural or substantive error by the trial court and affirm the judgment.

Defendant asserts error by Judge Mahon in sua sponte vacating the dismissal and reinstating the complaint when it was dismissed because plaintiff arrived late for trial on May l9, 2004. Defendant claims he was denied the right to object that he would have had if a formal motion had been required. It is unfortunate that defendant's son, a key witness, came to court to testify that day and was tragically killed in an accident the next day. Regardless, the judge's decision to summarily reinstate plaintiff's complaint was within his discretion and was reasonable, particularly where, as he noted, plaintiff did not fail to appear for trial but merely arrived about an hour late because he had gotten lost. See Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied, 144 N.J. 174 (1996) (The appellate scope of review of discretionary decisions is limited; "[t]he question is only whether the trial judge pursues a manifestly unjust course.'" (quoting Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968))).

Nor do we discern any abuse of discretion in the grant of plaintiff's subsequent motion to reinstate his complaint. The next trial date was adjourned at defendant's request, and when plaintiff failed to appear on July 28, 2004, the case was again dismissed for lack of prosecution. The judge considered the procedural history of the case, plaintiff's explanation that he had not received the trial card, and defendant's opposition to plaintiff having a second "bite of the apple." The Special Civil Part judge was satisfied that plaintiff was entitled to his day in court, and we discern no reason to second-guess that decision.

We also reject defendant's substantive challenge, and find the substantial credible evidence on the record was sufficient to support the judgment in plaintiff's favor. Plaintiff presented an invoice containing charges of $123 and $225 for Kosher Dill on February l0 and l4, 2004, respectively, an unidentified charge of $348 on February l4, and a $1672 balance. Plaintiff testified the bill was for services to three horses owned by defendant, one of which was Kosher Dill. According to plaintiff, he billed about $1400 for farrier services to the same three horses from November 22, 2003 to December 30, 2003, and was paid in full by defendant. He explained the balance on the subject bill was for shoeing Kosher Dill on January 3, 2004, and for putting a "rebuilt" on the outside of its hoof on January 9, 2004. Plaintiff testified he had followed the shoeing instructions given by defendant's son, the apparent trainer, on January 3 and l4, even though they were contrary to plaintiff's express recommendations. Plaintiff claimed the only time he shooed Kosher Dill the way he wanted was on January 9, and the horse won the race.

Defendant testified he only owned two horses and Kosher Dill had belonged to his late son, so he was not responsible for those charges. Alternatively, he claimed the work done on Kosher Dill, with the exception of January 9, 2004, was "inferior and caused problems with his racing."

The judge found plaintiff was credible, sufficiently explained the charges, and had acted reasonably in following the instructions of plaintiff's son. He concluded that even if defendant's son owned Kosher Dill, defendant's prior payment for services rendered to that horse on his son's behalf gave his son the apparent authority to bind defendant to pay for the challenged charges.

The scope of our review of a judgment in a non-jury case is extremely limited. "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). An appellate court should not disturb factual findings and legal conclusions unless "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. From our review of the record, we are satisfied the Special Civil Part judge carefully assessed the testimony and evidence in making his factual findings and legal conclusions, and that such findings and conclusions are amply supported by the record. Accordingly, we will not disturb them on appeal.

 
Affirmed.

It also appears a portion of the balance due and the unidentified charge was for shoeing the two other horses, which defendant does not dispute.

(continued)

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A-3804-04T1

November 4, 2005