HUI LIN WEI v. CAI FENG CHEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

HUI LIN WEI and JODY HE,

Plaintiffs-Appellants,

v.

CAI FENG CHEN,

Defendant-Respondent,

and

HUSBAND OF CAI FENG CHEN,

MASSAGE 130 THERAPY, INC.,

DEFENDANTS' OTHER BUSINESS

UNKNOWN TO PLAINTIFFS, and

BROTHER OF MS. CHEN'S HUSBAND,

Defendants.1

__________________________________

August 6, 2014

Submitted May 28, 2014 Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior of New Jersey, Law Division, Middlesex County, Docket No. L-3533-10.

Hui Lin Wei and Jody He, appellants pro se.

Norman Kline, attorney for respondent.

PER CURIAM

Plaintiffs Hui Lin Wei and her daughter, Jody He, appeal from trial court orders dated November 19, 2012, and March 8, 2013, following a bench trial on their complaint against defendants Cai Feng Chen and Massage 130 Therapy, Inc.2 After reviewing the entire record,3 we conclude that Judge Phillip Lewis Paley's decision was supported by sufficient credible evidence, and we affirm.

I

We begin by explaining the legal standards that govern our consideration of this appeal. When a trial judge has conducted a non-jury trial, our scope of review is quite narrow. We must defer to Judge Paley's factual findings as long as they are supported by sufficient credible evidence. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In that process, we owe special deference to Judge Paley's credibility determinations, because he had the opportunity to see and hear the witnesses testify and decide if their testimony was believable. See State v. Locurto, 157 N.J. 463, 470-71 (1999). We will not overturn a judge's decision to admit or exclude evidence unless that decision was an abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). However, we do not defer to a trial judge's legal interpretations. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Based on our review of the trial transcripts and the trial exhibits provided to us, we find that Judge Paley's decision is supported by the evidence, which was reviewed in detail in his November 7, 2012 written opinion. Hence, we will summarize the evidence rather than repeating it in the same level of detail.

The trial concerned a massage parlor or "health center" (the Center), owned by Wei. Defendant Chen, a massage therapist, worked for the Center as an independent contractor from October 2008 to June 25, 2009. Wei and Chen agreed that, for each massage Chen provided at the Center, she would keep forty-six percent of the fee and fifty-four percent would go to Wei. Plaintiff alleged that: Chen stole money from the Center by giving massages there but failing to split the income with Wei; Chen stole the Center's customer list; and Chen tried to lure away the Center's customers to her own newly-opened massage parlor.

Wei filed a criminal complaint against Chen. The criminal charges were resolved when Chen agreed to pay Wei over $12,000 in restitution, as a condition of admission to the pre-trial intervention program. That sum was based on surveillance videotapes made between April and June 2009, which plaintiff asserted showed defendant stealing money from the Center and soliciting its customers.

In a separate civil action against Chen, Wei sought hundreds of thousands of dollars in additional compensatory damages, plus punitive damages. Based on the surveillance videos, one customer's check that defendant cashed without paying Wei her share, and Wei's testimony that defendant admitted to her that she stole money, Judge Paley concluded that defendant stole some funds from Wei's business. He also found that defendant acted disloyally by soliciting customers for her own business while working for plaintiff, and her conduct warranted an award of punitive damages.

However, Judge Paley found that Wei's testimony concerning the amount of her economic damages was not believable. He concluded that her claimed losses were exaggerated and inconsistent with her federal tax returns.4 The judge also found that Wei's expert accounting witness, who testified that the Center suffered hundreds of thousands of dollars in losses due to defendant's wrongful conduct, was not credible. The accounting witness had no expertise in valuing massage parlors or other service businesses, and Wei had not even provided him with copies of tax returns showing the Center's income.

The judge also considered Wei's admissions, in her testimony, that she did not know how much money defendant had stolen from the Center. The judge inferred that if Chen were stealing as much as Wei claimed, the profits of the business would have dramatically decreased and Wei would have noticed the decrease long before April 2009, when she claimed she first became aware of the thefts. The judge found Wei's testimony not credible for a variety of reasons, including her evasive answers to questions. He also noted that she admitted surreptitiously rifling through Chen's purse in search of evidence, and she installed a hidden surveillance camera in one of the Center's massage rooms, in an attempt to show that Chen provided sexual services to some customers. The judge characterized the latter as an irrelevant "smear" tactic, and declined to view those tapes or admit them in evidence.

The judge rejected, as unreliable and improperly authenticated, the transcript of a series of audiotapes allegedly recording conversations between defendant and another Center employee.5 The issue arose in this context. At the trial, both sides were represented by counsel and had the assistance of Chinese interpreters. Prior to the trial, Chen's counsel sought to bar the introduction of certain audio recordings, arguing that if Wei secretly recorded her employees' conversations when Wei was not present, her conduct violated the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37. Wei's attorney agreed that Wei would not seek to introduce in evidence the surreptitiously recorded conversations, allegedly between Chen and a fellow employee named Lin, but would only use the evidence to impeach Chen if she testified.6 The judge held that such limited use would be permissible, subject to his resolution of an additional dispute over the translation of the conversations, which were in Chinese.

During the trial, Wei claimed, for the first time, that she did not make the recordings. Instead, she asserted that Lin made the recordings and offered them to her in exchange for a promise that Wei would not prosecute her for stealing from the Center. However, plaintiff did not present testimony from Lin to authenticate the tapes. Nor did plaintiff, during her testimony, play the tapes and specifically identify the voices of defendant and Lin.

Plaintiff presented testimony from a Chinese translator who had produced a purported English-language translation of a portion of the audiotapes. However, he admitted that, at Wei's direction, instead of directly translating the tapes themselves, he based his translation on a Chinese-language transcription that Wei had produced from the tapes. The translator testified that he "spot-checked" the Chinese transcript against the audiotapes to be sure the transcript was accurate. However, he also admitted that the Chinese transcript was interspersed with plaintiff's own editorial comments about what was on the tapes, and admitted that she never provided him with all of the tapes. In his written opinion, Judge Paley found that the English language transcript the translator produced was inadmissible, because it was unreliable and the underlying audiotapes were not properly authenticated.

Based on the admissible and credible evidence, the judge found that Wei was not entitled to the enormous amount of damages that she claimed, but rather was only entitled to $6527 in additional damages, plus $6500 in punitive damages.7 Judge Paley also denied injunctive relief, noting that four years had passed since defendant opened her massage parlor, giving her ample time to develop her own customer base.

The judge also found that an "agreement" which plaintiff presented to defendant and insisted that she immediately sign, two days before Chen left her employ, was invalid. In the agreement, defendant represented that she had not stolen money or customers from the Center in the past, and would not do so in the future, and promised that if those representations were false, she would pay plaintiff's counsel fees and give her the title to any massage business defendant opened. In addition to lack of consideration, the judge found no proof that plaintiff relied on the agreement, and no proof that defendant stole money or diverted customers after signing the agreement. Plaintiff testified that she did not believe any of the representations defendant made in the agreement, and had already decided to fire her at the time the agreement was signed.

Defendant did not appeal from the judgment. Wei appealed, claiming the verdict was inadequate.

II

In her appellate brief and reply brief, Wei argues, in multiple points and sub-points, that Judge Paley erred in excluding the transcript of the audio recordings and overlooked other evidence establishing plaintiff's damages; the trial court should have shifted the burden of proof to defendant after she invoked her Fifth Amendment right and declined to testify; the agreement was valid; the award of punitive damages was inadequate; plaintiff was entitled to a restraining order; the trial court's factual findings were "wide of the mark"; defense counsel unfairly opposed the admission in evidence of the audiotape transcript; and the trial judge should have granted plaintiff's post-trial motion for reconsideration.

We have considered all of plaintiff's appellate contentions and, based on our review of the record, we find that her arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

To a very great extent, plaintiff's appellate arguments are based on the transcript of the audiotapes, which Judge Paley excluded from evidence. We find no abuse of discretion in his evidentiary ruling. See Hisenaj, supra, 194 N.J. at 12. We agree that the audiotapes were not properly authenticated, N.J.R.E. 901, and the transcript was unreliable. Lin, the allegedly thieving employee who made the recordings, did not testify. Plaintiff's testimony about what Lin told her, concerning the creation of the recordings, was inadmissible hearsay. See N.J.R.E. 801(c); N.J.R.E. 802. The judge reasonably declined "to accept as reliable statements made, or recorded, by a confessed thief not available to testify at trial." Further, we agree with Judge Paley that the way plaintiff spoon fed her version of what was on the tapes to the translator, requiring him to translate her transcription rather than asking him to translate directly from the tapes, rendered the translation unreliable.

We also find no error in the judge's calculation of damages or his denial of injunctive relief. Plaintiff obviously had records of who her customers were, in part because some of them paid by check or credit card. Yet she produced no testimony concerning which, if any, of her customers ceased patronizing her massage parlor after defendant stopped working there. Hence, there was no proof that defendant actually diverted any of plaintiff's customers, although she apparently attempted to do so.

We agree with Judge Paley that the testimony of plaintiff's accounting expert was unconvincing. The expert admitted on cross-examination that he relied heavily on the audiotape transcript for his assumptions as to the amounts of money defendant stole from the business. Further, plaintiff asked him to calculate her business losses without even providing him with the relevant tax returns.

Affirmed.

1 The trial court granted defendant Cai Feng Chen's motion to remove the generic names "Husband of Cai Feng Chen and brother of Ms. Chen's husband" from the case. The court also granted defendants' motion to strike "Defendant's other business unknown to plaintiffs" from the caption. Because Massage 130 therapy was not a corporation, the trial court struck the term "Inc." from the caption. However, for purposes of consistency, the original caption is maintained here.

2 Jody He did not participate in the litigation, and the trial court dismissed all of her claims after the trial. He's interest in this appeal is unclear, since Wei testified that she (Wei) was the "100 percent owner" of the business at issue, a massage parlor. Defendant Chen opened a competing massage parlor under the business name Massage 130 Therapy, which was also named as a defendant. In this opinion, we will refer to Wei as "plaintiff" and Chen as "defendant."

3 Defendant requested oral argument of this appeal, but on May 28, 2014, both parties agreed to waive argument. In a letter to the court dated May 28, 2014 plaintiff stated that in waiving oral argument she anticipated that the court would consider her appellate reply brief. We assure both parties that we have considered all of the briefs filed on this appeal, including plaintiff's reply brief.

4 Because the Center was a sole proprietorship, Wei included the Center's income on her personal tax returns.

5 During the trial, the judge reserved decision on the admissibility of the transcript, stating that he would address the issue in his written decision.

6 Defendant did not testify at the trial.

7 Judge Paley found that $6527 was the difference between the amount Chen agreed to pay as restitution for the period April to June 2009, and the amount she probably actually stole during that time frame.