SAEILO MACHINERY (USA), INC. v. ANTY TRUCKING, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6749-03T16749-03T1

SAEILO MACHINERY (USA), INC.,

Plaintiff-Respondent,

v.

ANTY TRUCKING, INC.,

Defendant-Appellant,

and

TEKNICS INDUSTRIES, INC.,

Defendant.

___________________________________

 

Argued October 18, 2005 - Decided

Before Judges Skillman and Levy.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1478-03.

Michael A. Casale argued the cause for appellant.

John E. Kawczynski argued the cause for respondent (Field Womack & Kawczynski, attorneys, Mr. Kawczynski, on the brief).

PER CURIAM

Defendant Anty Trucking, Inc. appeals from a judgment for $86,440 plus $2,660.46 in pretrial interest entered in favor of plaintiff Saeilo Machinery (USA), Inc. based on the evidence presented at a three-day bench trial. After entry of the judgment, defendant filed a motion for a new trial or for the trial court to amend its findings of fact and conclusions of law, which the court denied.

Plaintiff is engaged in the business of importing and selling machine tools and metal-cutting machinery. Defendant is a trucking company. The parties had an ongoing business relationship under which defendant would pick up items imported by plaintiff at the dock, bring them to its premises and hold them until they were shipping to the ultimate purchasers. Defendant ordinarily held such items for brief periods of time before shipping them to the purchasers but on occasion held them for longer periods. Defendant did not charge plaintiff storage fees for keeping items at its facility during the period between the time they were picked up at the dock and shipped to the purchasers.

On July 22, 1998, defendant picked up a machine, called a Mach 8, for plaintiff at a dock and brought the machine to its facility, as was the parties ordinary practice. However, the prospective purchaser of the Mach 8 lost its financing and was unable to complete the purchase. After plaintiff was unable to find another purchaser, the machine remained at defendant's facility for a substantial period of time. Plaintiff refused to pay defendant any storage fee for the extended period the machine remained on defendant's premises, and after the parties unsuccessfully attempted to negotiate a settlement, plaintiff undertook to sell the Mach 8 at auction.

After receiving notice of the proposed auction sale, plaintiff brought this action in the Chancery Division to enjoin the sale and recover possession of the Mach 8. The court denied plaintiff's motion for a preliminary injunction, thus allowing the sale to proceed, and transferred the case to the Law Division. Defendant sold the Mach 8 to a third party for $33,000 at the auction.

At trial, the primary factual issue was whether defendant had issued plaintiff a warehouse receipt for the Mach 8 in October 1998. The alleged issuance of the warehouse receipt was significant because, under Article 7 of the Uniform Commercial Code, N.J.S.A. 12A:7-101 to -603, a warehouse receipt would have given defendant a security interest in the Mach 8 that would have provided the requisite authorization for defendant to sell the machine. See N.J.S.A. 12A:7-209.

The trial court found that the purported warehouse receipt had been altered and that defendant failed to show that it had been issued to plaintiff. In making this finding, the court stated:

After considering the testimony of all the witnesses and having the chance to observe the manner in which they testified and reviewing the documentary evidence in this matter, the court is of the opinion that D3, the warehouse receipt, has been altered. Upon visual inspection, it appears clear to this court that originally it was dated 10/6/02. It appears obvious that superimposed over the '02 is '98 so that the date, although difficult to tell, appears to be 10/6/98 but it is clearly altered from 10/6/02. This conclusion is buttressed by the ample evidence presented in this matter. The court finds unbelievable Mr. Antonucci's assertion that although they had handled other machines on behalf of the plaintiff, it was only this machine for which a warehouse receipt was issued. The court also finds credible Mr. Konn's testimony that a warehouse receipt was never issued because [defendant] was not considered to be a storage option. As testified by both Mr. Konn and Mr. Antonucci, [plaintiff] had had machines stored at [defendant's facility] at various times for various periods in the past and never received a warehouse receipt on any of these particular machines. Additionally, no storage was ever charged to [plaintiff] even though, according to Mr. Konn, one machine had been there approximately 20 months. This leads the court to the conclusion that the intention was that this machine would be at [defendant's facility] for a short time and that it would then be shipped via [defendant] to the ultimate purchaser. Unfortunately, a purchaser was not forthcoming immediately and it appears that both the plaintiff and defendant lost track of this machine and it was not until [defendant] was moving its facility that this matter came to light.

Having come to this conclusion, this court finds that an illegal conversion took place in the selling of this machine and that defendant is therefore liable to the plaintiff for the value of this particular machine. N.J.S.A. [12A:7-210(9)].

On appeal, defendant presents the following arguments:

I. THE TRIAL COURT ERRED IN DETERMINING AFTER THE CLOSE OF TESTIMONY THAT THE WAREHOUSE RECEIPT WAS ALTERED AND THUS NOT AUTHENTIC.

II. THE COURTS DETERMINATION THAT THE WAREHOUSE RECEIPT WAS ALTERED WAS AGAINST THE WEIGHT OF THE EVIDENCE.

III. THE TRIAL COURT ERRED IN FAILING TO FIND THAT SAEILO BREACHED ITS DUTY TO MITIGATE DAMAGES.

These arguments are clearly without merit and only require brief discussion. R. 2:11-3(e)(1)(E).

Defendant argues that because the trial court ruled that defendant provided sufficient authentication of the purported warehouse receipt to warrant its admission into evidence, the court was foreclosed from finding at the conclusion of the trial that this document had been altered and was not in fact issued to defendant in October 1998. To justify admission of a document into evidence, "[t]he proponent of the evidence is only required to make a prima facie showing of authenticity." State v. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162 N.J. 132 (1999). "Once a prima facie showing is made, the writing or statement is admissible, and the ultimate question of authenticity of the evidence is left to the jury[,]" ibid., or in a bench trial, the trial judge acting in the capacity of trier of fact. Therefore, the trial judge's ruling that the testimony of defendant's Vice-President, Dominic Antonucci, provided sufficient authentication of the purported warehouse receipt to warrant its admission into evidence did not foreclose the judge from finding based on all the evidence presented at trial that the document had been altered and was not issued to plaintiff in October 1998.

We reject defendant's argument that the court's finding that the warehouse receipt had been altered was against the weight of the evidence substantially for the reasons set forth in Judge Brogan's comprehensive written opinion. We also note that even if the evidence did not support a finding that the date on the receipt was altered, the court still could have found that defendant failed to carry its burden of showing that the purported receipt was issued to plaintiff. Defendant did not present testimony by either the person who allegedly prepared the receipt or the person who allegedly sent it to plaintiff. On the other hand, plaintiff's employee who would have received such a document testified that he had not received it, and the trial judge found his testimony credible.

Defendant argues under Point III of its brief that plaintiff breached its duty to mitigate damages because it failed to bid for the Mach 8 at the auction sale. Defendant also suggests that to prevent the sale from going forward, plaintiff had an obligation to pay the full disputed amount of storage costs and then pursue a claim for recovery of that money. Defendant does not cite any authority for the existence of such a duty on the part of a party asserting a claim for conversion.

 
Plaintiff attempted to negotiate with defendant to hold the Mach 8 while plaintiff attempted to find another buyer. Moreover, plaintiff objected to the proposed auction sale and applied for a preliminary injunction to prevent consummation of the sale. Plaintiff did not have a duty to appear at the auction and bid for the machine or take any other steps to prevent the sale as a prerequisite to pursuing its damages claim against defendant.

Affirmed.

(continued)

(continued)

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A-6749-03T1

October 31, 2005