LEAH A. JOACHIM v. MATTHEW A. JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LEAH A. JOACHIM,

Plaintiff-Respondent,

v.

MATTHEW A. JACKSON,

Defendant-Appellant.

__________________________________

September 25, 2014

Submitted May 19, 2014 Decided

Before Judges Yannotti and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6584-11.

Matthew A. Jackson, appellant pro se.

Leah A. Joachim, respondent pro se.

PER CURIAM

Defendant Matthew A. Jackson appeals from an order of the Civil Part, finding him in breach of contract and entering a judgment in favor of plaintiff Leah A. Joachim. Defendant argues the trial court erred in admitting certain documents into evidence over hearsay objections. He also contends plaintiff must prove her case by clear and convincing evidence. We affirm.

I.

Plaintiff and defendant lived together in an apartment from August 2006 through September 2008. In September 2011, plaintiff filed a complaint alleging that the parties agreed to share expenses, that defendant owed her money, that he had subsequently agreed to repay her $550 per month for five years, and that he had breached that agreement.

At the bench trial, plaintiff testified as follows. Plaintiff and defendant began cohabitating in 2006, under a verbal agreement to split their living expenses evenly. When defendant fell behind on his half of the expenses, she often advanced the entirety of the rent, which he did not repay in full. He borrowed additional monies from plaintiff for his hobbies, saying he would repay her. In total, she advanced or loaned him around $51,000, and he repaid about $27,000, leaving a balance of approximately $24,000.

When the relationship between plaintiff and defendant ended in September 2008, and plaintiff moved out, she requested that he sign a schedule of loan transactions documenting the monies he owed her, but he refused. When she later asked for repayment, he requested a delay until August 2009, when he moved into a less expensive residence.

In August 2009, plaintiff sent defendant a demand letter, itemizing the outstanding debt. He emailed her, and they began corresponding about the outstanding debts solely using email and online "chats." He conceded that he owed her the debt, but disagreed about the timing of repayment.

Plaintiff testified that during online chats in December 2009, defendant offered to pay $500 per month for five years. Plaintiff countered with $550 per month for five years, and he responded that he would pay $550.1 He made twelve monthly payments of $550, totaling $6600. His December 2010 payment was returned for insufficient funds and his January 2011 payment was the last she received.

Defendant testified as follows. During the relationship, plaintiff gave him monetary gifts, and there was no agreement for or expectation of repayment. After the relationship ended, he paid her the $6600 because she threatened suit. He said "I'll do $550" without really agreeing to pay her for any particular time period, and he stopped because he felt he had paid enough.

The trial court found defendant had agreed to pay $550 a month for sixty months. The court found that plaintiff had given defendant as gifts a PlayStation, a computer, and a television, and deducted their value from plaintiff's demand of $22,882.12. The court entered judgment in the amount of $16,435.22 plus $200 in costs.

II.

Defendant argues that the trial court erred in admitting evidence. "[T]he decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). "We review the trial court's evidentiary ruling under a deferential standard; it should be upheld absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment" which is "so wide of the mark that a manifest denial of justice resulted." State v. J.A.C., 210 N.J. 281, 295 (2012) (quotation marks omitted). We must hew to that standard of review.

A.

Defendant first claims that the trial court erred in admitting plaintiff's spreadsheets. In her complaint, plaintiff attached a "Schedule of Loan Transactions" (summary spreadsheet), listing each loan to, advance to, and repayments by defendant. She also attached two credit card interest spreadsheets showing the interest she paid on the moneys loaned and advanced to defendant.

Just before the bench trial, defense counsel objected to the admission of the spreadsheets, arguing that they had not been prepared in the ordinary course of business and constituted inadmissible hearsay. Alternatively, he requested that the spreadsheets be used only to refresh plaintiff's recollection. The court declined to rule before trial on the admissibility of the spreadsheets, and stated that their admissibility would depend on how they were prepared, and whether they were summaries designed to help speed the trial.

During her testimony, plaintiff, an accountant, stated that she kept records of the money she loaned or advanced to defendant, and that she needed her records "to refresh her memory as far as the exact amounts and items that she made loans for or advanced payments for." She testified that she maintained contemporaneous spreadsheets of all her expenses, including those monies advanced to defendant. She explained that from those original spreadsheets, she culled those transactions relevant to defendant, and his payments, into the summary spreadsheet. She completed the summary spreadsheet during the course of the litigation.

The court indicated that the summary spreadsheet was "not in evidence" but marked it for identification. When plaintiff testified that she had to look at it to get exact figures, the court allowed her to "refresh[] her recollection." When defense counsel cross-examined her extensively with the summary spreadsheet and the interest spreadsheets, the court confirmed they were marked for identification and were "still for refreshing recollection."

The trial court's ruling was proper. Defendant concedes that plaintiff's memory was impaired. If a witness has prior knowledge of a subject, and her memory of that subject is impaired, the "witness may examine any document to refresh [her] memory." State v. Carter, 91 N.J. 86, 122 (1982); Lautek Corp. v. Image Business Systems Corp., 276 N.J. Super. 531, 545 & n.5 (App. Div. 1994); State v. Williams, 226 N.J. Super. 94, 103 (App. Div. 1988); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 612 (2014). "[T]he 'admissible evidence is the [refreshed] recollection of the witness, and not the extrinsic paper.'" Lautek, supra, 276 N.J. Super. at 545 (quoting Carter, supra, 91 N.J. at 123).

Defendant contends that the spreadsheets were nonetheless admitted, citing the court's comment during defendant's testimony. Defense counsel used the summary spreadsheet to examine him. Defense counsel then "briefly noted for the record my standing objection to the admissibility of that," pointing out that the court had restricted its use to refreshing recollection. The court commented that once defendant used the summary spreadsheet affirmatively in his own case, it "comes in," and the restriction "disappears."

We need not decide whether, "under the doctrines of 'opening the door,' 'curative admissibility' and 'completeness,' defendant would have been precluded 'from successfully excluding from [plaintiff's] case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing [plaintiff] to place the evidence in its proper context.'" State v. Brown, 170 N.J. 138, 153 (2001) (quoting State v. James, 144 N.J. 538, 554 (1996)). Here, despite its comment, the court continued to refer to the summary spreadsheet as marked "for identification" only. As plaintiff points out, the court never formally admitted any of the spreadsheets. Further, defendant has not identified the use at trial of any information from the spreadsheets that was not testified to by the parties.

For the same reasons, we need not resolve whether the spreadsheets would have been admissible as recorded recollection under N.J.R.E. 803(c)(5). In any event, it is undisputed that plaintiff had "insufficient present recollection." Ibid. Plaintiff testified that she "made" the statements in the original spreadsheets "at a time when the fact recorded actually occurred or was fresh in [her] memory," and that "the statement concerns a matter of which [she] had knowledge when it was made." Ibid. Defendant stresses that plaintiff extracted the information pertaining to defendant from the original spreadsheets, and compiled it into the summary spreadsheet for use in this litigation. However, copying statements from the larger document into a summary document for use in litigation does not necessarily "indicate that the statement is not trustworthy." See ibid.

Indeed, the contents of voluminous writings may be presented in court in the form of a "summary" prepared for the litigation, even if the original writings are not admitted or even presented in court. N.J.R.E. 1006. Here, the inclusion in the summary schedule of only those transactions allegedly related to defendant facilitated reference during testimony and culled irrelevant transactions before the addition of the amounts. Defense counsel took full advantage of his opportunity to cross-examine plaintiff at length on the accuracy of the spreadsheet, to scrutinize numerous line items, to elicit defendant's testimony on those items, and to explore the document s trustworthiness before the court.

For all these reasons, defendant cannot show any error in the utilization of the schedules that was "clearly capable of producing an unjust result." R. 2:10-2.

B.

Defendant also asserts that the court improperly relied upon plaintiff s credit card statements. Using the summary spreadsheet, defense counsel cross-examined plaintiff about one entry, a December 15, 2007 payment of $4515.18 to Guitar Center, which she explained was for the equipment that defendant used as a disc jockey. When defense counsel examined defendant about the same entry, he said they had "never spent 4,500 at Guitar Center that I'm aware of." The court asked plaintiff if she had proof, and she said she had the credit card statement with her. The court gave defense counsel the opportunity to examine the statement, which had been produced in discovery. The court queried plaintiff, who said the statement did say "Guitar Center," and then checked with her counsel, who represented that the statement said there was a December 15, 2007 payment of $4515.18 to Guitar Center.

It was at this point defense counsel "briefly noted for the record my standing objection to the admissibility of that." As discussed above, the court understood, and counsel confirmed, counsel's comment to be an objection to the summary spreadsheet being admitted, rather than to the reading of the entry from the credit card statement. Defense counsel then "noted for the record that plaintiff has not established that the 4,500 is unpaid." The court responded that plaintiff "just established that she's got a credit card [statement] which says so," but invited counsel to look at it and to cross-examine.

Defendant never specifically objected to the reading of the credit card statement entry into the record. A party must "make known to the court specifically . . . the party's objection to the action taken and the grounds therefore." R. 1:7-2. "Since the claimed point of error was not articulated to the trial judge, reversal would be appropriate only if the plain error standard has been satisfied." State v. Nelson, 318 N.J. Super. 242, 250 (App. Div. 1999).

Defendant has not shown plain error. Had he specifically objected, the credit card statement may have been admissible. Credit card "account statements are the types of documents our courts have long accepted as business records excepted from the hearsay rule under N.J.R.E. 803(c)(6)." New Century Fin. Servs. v. Oughla, ____ N.J. Super. ____, ____ (App. Div. 2014) (slip op. at 36), certif. denied, __ N.J. __ (July 28, 2014). Under that rule, "documents may properly be admitted as business records even though they are the records of a business entity other than one of the parties, and even though the foundation for their receipt is laid by a witness who is not an employee of the entity that owns and prepared them." Ibid. (quotation marks omitted).

Moreover, plaintiff already testified that she had made such a payment. The credit card statement was available for inspection, and defendant does not contest it said what an officer of the court represented it said. Thus, defendant has not shown error "clearly capable of producing an unjust result." R. 2:10-2.

C.

Defendant next challenges the admission of "chat logs," which are transcripts of Gmail chats, Google's live electronic instant messaging feature. This feature allowed the parties to engage in typed conversations in real time over the internet. The chat logs automatically recorded the parties' typed conversations. Just before trial, defendant objected to the admission of "any transcripts of internet chats or communications," arguing that they were made "in the context of settlement negotiations" and thus barred under N.J.R.E. 408. The court did not rule at that time.

During plaintiff's testimony about the online chats, she could not remember some details. The court allowed the chat logs to be used to refresh her recollection, and marked the chat logs for identification, without "saying that the actual transcript gets in[]." Defendant "introduced" other chat logs, which he used to cross-examine plaintiff, and the court noted that "[a]nything referred to by the defense attorney are in."2 At the conclusion of trial, the court ruled that though N.J.R.E. 408 "provides that offers of settlement are not evidential," "here we do have a clear contract with an offer of settlement and an agreement."

Although the record is unclear, we will assume that the trial court ultimately admitted the chat logs into evidence. We hold the court properly rejected defendant's objection based on N.J.R.E. 408, which provides in pertinent part

When a claim is disputed as to validity or amount, evidence of statements or conduct by parties or their attorneys in settlement negotiations, with or without a mediator present, including offers of compromise or any payment in settlement of a related claim, shall not be admissible to prove liability for, or invalidity of, or amount of the disputed claim. Such evidence shall not be excluded when offered for another purpose[.]

"Such other purposes include, for example, proof of an accord and satisfaction, [and] proof of a debtor's promise to pay all or a portion of a preexisting debt." Ibid. (1991 Committee Comment) (citations omitted); see Burlington County Country Club v. Midlantic Nat. Bank South, 223 N.J. Super. 227, 237 (Ch. Div. 1987).

Another proper purpose is proof of the existence of an agreement and enforcement of that agreement. The pertinent chat logs evidenced the existence and terms of a repayment agreement between plaintiff and defendant. Defendant partially performed the agreement, paying twelve monthly installments over more than a year. When defendant breached that agreement by discontinuing his installment payments, plaintiff could properly seek to enforce that agreement, and to introduce the chat logs to prove the agreement's existence and terms.

"A settlement agreement between parties to a lawsuit is a contract." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). The parties and the courts "'should honor and enforce [a settlement agreement] as it does other contracts.'" Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008). Accordingly, evidence of the negotiation and the terms of that contract is admissible to prove the existence and breach of that contract.

In reaching this result, we note that our Rule 408 "generally follows Fed. R. Evid. 408." N.J.R.E. 408 (1991 Committee Comment). Federal cases recognize that, in a suit to enforce a settlement agreement, evidence of the terms of the agreement itself, and evidence of its negotiation used to establish the intent of the parties, "does not fall within the ambit of Rule 408." Catullo v. Metzner, 834 F.2d 1075, 1079 (1st Cir. 1987). "Obviously a settlement agreement is admissible to prove the parties' undertakings in the agreement, should it be argued that a party broke the agreement." Cates v. Morgan Portable Bldg. Corp., 780 F.2d 683, 691 (7th Cir. 1985). Further, "settlement negotiation evidence would be admissible where the settlement itself or its interpretation is at issue." In re MSTG, Inc., 675 F.3d 1337, 1345 (Fed. Cir. 2012); Basha v. Mitsubishi Motor Credit of Am., Inc., 336 F.3d 451, 454 n.4 (5th Cir. 2003.

We recognize that "confidentiality is a 'fundamental ingredient of the settlement process,'" because "'[i]f settlement offers were to be treated as admissions of liability, many of them might never be made.'" State v. Williams, 184 N.J. 432, 446 (2005). "[O]ur courts have long encouraged the settlement of litigation because it permits litigants to resolve disputes on mutually acceptable terms[.]" DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 259 (2009). For that goal to be obtained, however, the terms of the agreements resolving such disputes must be ascertained and enforced. The admission of evidence of the terms and intent of settlement agreements "would in no manner contravene the public policy favoring compromise. Rather such admission is crucial to a judicious enforcement of the agreement." Catullo, supra, 834 F.2d at 1079.

Accordingly, the trial court properly admitted the chat logs to prove the terms and intent of the parties' agreement. Defendant cannot breach that agreement and then invoke N.J.R.E. 408 to bar the chat log evidence of the existence and terms of that agreement.

On appeal, defendant also argues that a proper foundation was not laid for the admission of the chat logs. At trial, however, his "only objection" was that admission of the chat logs would violate N.J.R.E. 408. Defendant fails to show plain error. Both plaintiff and defendant testified at length concerning the chat logs, verifying their authenticity and undisputed accuracy. "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901. Indeed, defendant himself introduced many chat logs. Defendant "may not now object to evidence that he himself submitted at trial. United States v. Gurr, 471 F.3d 144, 153 (D.C. Cir. 2006).

In any event, the parties testified that they had made the statements which the chat logs evidenced. This testimony was itself sufficient proof of the agreement, and was corroborated by defendant's many monthly payments pursuant to the agreement. Thus, the admission of the confirmatory chat logs was not "clearly capable of producing an unjust result." R. 2:10-2.

III.

Finally, defendant argues that without admission of the documents discussed above, plaintiff cannot meet her burden of proof. However, we have found no abuse of discretion in the admission of the chat logs or the use of the spreadsheets to refresh recollection, and no prejudicial error regarding any of the documents. Moreover, the testimony itself was sufficient to establish the agreement, defendant's initial payments pursuant to it, and his subsequent breach, by a preponderance of the evidence.

Moreover, defendant is mistaken in his contention that, in civil matters, the plaintiff bears the burden to prove the case by clear and convincing evidence. "As a general rule, the preponderance of the evidence standard applies in civil actions. Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 168-69 (2006). Civil actions to establish and enforce a contract such as this are governed by the preponderance standard. E.g., Zaman v. Felton, ____ N.J. ____, ____ (2014) (slip op. at 24).

Defendant cites a case involving oral conveyances of land, Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 158-62 (App. Div. 1960) for which the Statute of Frauds requires clear and convincing evidence, N.J.S.A. 25:1-13(b). However, the Statute of Frauds does not require clear and convincing evidence, or a writing, for a contract to lend or repay the sums of money at issue here. N.J.S.A. 25:1-5(f), (g). Defendant's remaining arguments, including his belated request to suppress plaintiff's brief, are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 In the "chat logs," defendant said his "last offer is 500 X 60"; plaintiff responded that she was "willing to agree to $550 a month for 60 months"; he replied "I'll do 550 with you."

2 See N.J.R.E. 612 ("The adverse party shall also be entitled to introduce in evidence those portions [of the writings used to refresh recollection] that relate to the testimony of the witness but only for the purpose of impeaching the witness.")