JERRY WILEY v. GLORIA CAMERON-WALTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2891-08T2

JERRY WILEY,

Plaintiff-Appellant,

v.

GLORIA CAMERON-WALTON,

Defendant-Respondent,

______________________________________________

August 28, 2013

Submitted November 15, 2012 - Decided

Before Judges Fuentes and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. DC-13958-08.

Ronald Kurzeja, attorney for appellant.

Stanziale & Stanziale, P.C., attorneys for respondent (Benjamin A. Stanziale, Jr., of counsel and on the brief).

PER CURIAM

Plaintiff Jerry Wiley appeals from the October 3, 2008 Special Civil Part judgment ordering him to pay $15,000 to defendant Gloria Cameron-Walton and the January 23, 2009 order denying plaintiff's motion for reconsideration. For the reasons that follow, we affirm.

We glean the following facts from the record. Plaintiff and defendant knew each other for many years and had some business dealings together. In 2001, plaintiff loaned defendant $15,000. In return, she conveyed a partial interest in property she owned in Hillside to New Conception Enterprises, Inc. (New Conception), plaintiff's contracting company. On January 26, 2004, plaintiff filed for Chapter 7 bankruptcy and was discharged on April 30, 2004.

Plaintiff subsequently loaned defendant $5000 on September 12, 2005, to be used as a multi-marketing type of investment. Defendant never repaid this loan. On January 23, 2006, New Conception conveyed its interest in the Hillside property to defendant. Plaintiff executed the deed as president of New Conception.

Defendant then listed the Hillside property for sale with plaintiff acting as her broker. Prior to the closing, defendant discovered two liens recorded against the property that derived from judgments against plaintiff or his company. The first lien was due to a July 26, 2002 judgment against plaintiff and New Conception for $24,647 from a suit by Charles Miller. The other lien was a franchise tax lien of the State of New Jersey, Division of Taxation, against plaintiff and New Conception, totaling $4231. Defendant then conveyed the property to a third party on March 20, 2006. Plaintiff was paid a $10,000 commission on the sale. The closing papers showed that adjustments were made for the payoffs of the judgments out of defendant's share of the proceeds.

On April 30, 2008, plaintiff sued defendant for $5000 plus $712 interest based on nonpayment of the 2005 loan. Defendant answered the complaint and filed a counterclaim for recovery of the amount paid to satisfy plaintiff's judgments at closing.

At the October 3, 2008 trial, defendant and plaintiff testified. Defendant acknowledged that she had not paid back the 2005 loan but said she had asked plaintiff to credit that amount against the amount he owed her from paying off the liens. Defendant testified that, in return for her satisfaction of plaintiff's two liens, plaintiff agreed to repay defendant that amount. Plaintiff argued that he did not actually owe the judgments on the liens because the debts had been discharged in the bankruptcy.1 The judge found defendant's testimony credible that she paid the judgment and tax lien at the closing because plaintiff indicated that he would pay her back. The judge found as follows:

Because at the time Ms. Cameron sold the home, whether or not that debt had been discharged, it was still shown as a lien on the property, that something that had to be paid off by her in order for her to sell the property. Whether it was discharged in bankruptcy or not, it still showed as a lien and she had to pay it off and she had to pay it off on your account. Now she's out the money to pay your judgment.

The judge found that defendant was entitled to $22,2312 for payment of plaintiff's liens, and offset that amount by a judgment in favor of the plaintiff for $5000 for the 2005 loan. The net amount due defendant totaled $17,231, but, because of the jurisdictional limit of the Special Civil Part, Rule 6:1-1(c), the judge reduced the final judgment to $15,000.

On October 23, 2008, plaintiff moved for reconsideration, which was denied on January 23, 2009. This appeal followed.

On appeal, plaintiff argues that he does not owe defendant the money because he was not liable for the judgments as they were discharged in bankruptcy. He also argues that the franchise tax lien was not his debt but that of his corporation. He urges us to overturn the trial judge's findings and enter judgment on the 2005 loan. Defendant disagrees that plaintiff has demonstrated that the debts were discharged but argues that whether the liens represent discharged debts is not the issue. In defendant's view, by allowing defendant to pay the liens with the understanding he would repay defendant for clearing them, plaintiff created a new debt that was not discharged in bankruptcy.

The scope of our review of findings of fact made by a trial court sitting without a jury is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A trial court's findings "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

Moreover, deference to the trial court's findings is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). We will not reverse the trial court's findings 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." Ibid. (quoting Rova Farms, supra, 65 N.J. at 484).

We have carefully considered plaintiff's arguments and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following brief comments.

The basic elements of a contract consist of an offer, acceptance, and consideration. Smith v. SBC Commc'ns, Inc., 178 N.J. 265, 283 (2004). A gratuitous loan, when made, is consideration for the other party's promise to repay. Restatement (Second) of Contracts 71 comment c, illustration 8 (1981). "A loan may be established by a contract implied in fact as well as by an express promise." Leary v. Gledhill, 8 N.J. 260, 265 (1951).

We are satisfied that the trial court's findings of fact are amply supported by the evidence presented at trial. Defendant testified that plaintiff agreed to repay her for satisfaction of the liens on the property. The trial judge found this testimony to be credible. Defendant subsequently paid the amount of plaintiff's judgments. This payment constituted consideration for plaintiff's binding obligation to repay.

Affirmed.

1 Plaintiff did not explain why he did not cancel the judgment pursuant to N.J.S.A. 2A:16-49.1, which provides for judgments discharged in bankruptcy to be discharged as liens with proof of the discharge.

2 The Miller judgment lienholder agreed to take $1800 for the $24,647 judgment. The franchise tax lien for $4231 was paid in full.