CAROLCASSELLI v. THOMAS OECHSNER, a/k/a TOMMY X. TAYLOR a/k/a TOMMY TAYLOR a/k/a THOMAS X. TAYLOR a/k/a THOMAS TAYLOR

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3917-16T2


CAROL CASSELLI,

        Plaintiff-Respondent,

v.

THOMAS OECHSNER, a/k/a TOMMY
X. TAYLOR a/k/a TOMMY TAYLOR
a/k/a THOMAS X. TAYLOR a/k/a
THOMAS TAYLOR,

        Defendant-Appellant.


              Argued May 23, 2018 — Decided June 26, 2018

              Before Judges Koblitz, Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-9604-15.

              Steven A. Varano argued the cause for
              appellant (Law Offices of Steven A. Varano,
              P.C., attorneys; Steven A. Varano, Joseph P.
              Slawinski, Ilya Kraminsky and Albert Seibert,
              on the brief).

              Craig   Weinstein   argued   the  cause   for
              respondent   (The   Law   Offices  of   Craig
              Weinstein, attorneys; Craig Weinstein and
              Katherine Moore, on the brief).

PER CURIAM
     Defendant Thomas Oechsner appeals from an April 4, 2017

judgment for $85,000 plus interest, entered after a three-day non-

jury trial.    Deferring to the court's credibility findings as we

must, we affirm.

     In    2011,    plaintiff   Carol    Casselli    met    defendant   at    the

Player's    Club,    a   gentlemen's    club   in   South   Hackensack      where

plaintiff was the manager. In June or July of that year, defendant

began borrowing money from plaintiff in cash.              As security for the

loans, defendant provided plaintiff with post-dated checks.

     Towards the end of 2011, defendant borrowed a significant

cash lump sum from plaintiff.           Defendant testified he borrowed

$50,000 from plaintiff and agreed to pay back $100,000 within two

years, while plaintiff testified she loaned defendant $128,250.

Defendant   provided      plaintiff    with    post-dated    checks   for    this

transaction also.        In January 2012, plaintiff's attorney drafted

a $128,250 promissory note, which defendant signed in April 2012.

     Defendant testified he made cash payments until the $100,000

he agreed to pay was repaid in full in December 2013.                 Plaintiff

testified   defendant      stopped    making   payments     in   January    2014,

although the debt was not repaid.                In March 2014, plaintiff

deposited the post-dated checks plaintiff had given her, which

were returned for lack of funds.


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      On   May    12,    2014,    plaintiff    presented    defendant     with     a

handwritten letter stating he owed $85,000 on the promissory note,

which he signed two days later.               Defendant added a note saying

that no criminal charges could be filed against him.

      Plaintiff did not receive any further payments from defendant

after this letter was signed.            She filed criminal charges and,

although defendant was arrested and indicted for eighteen counts

of   issuing     bad    checks,   
N.J.S.A.    2C:21-5,     the    indictment     was

subsequently dismissed.

      After      the    non-jury     trial,     the    trial      court   gave     a

comprehensive, well-reasoned oral decision finding the testimony

of both parties         improbable and incredible.               The court found

defendant's signature on the promissory note proved the existence

of a loan and agreement between the parties.               Based on the signed

handwritten letter, the court found the parties acknowledged the

amount due on the earlier note as $85,000.                 The court rejected

defendant's fraud in the inducement, usury, and duress defenses

and entered judgment in favor of plaintiff.

      In a non-jury trial, the trial court's factual findings

"should not be disturbed unless they are so wholly insupportable

as to result in a denial of justice."                 Jecker v. Hidden Valley,

Inc., 
422 N.J. Super. 155, 163 (App. Div. 2011) (quoting Rova

Farms Resort, Inc. v. Inv'rs Ins. Co., 
65 N.J. 474, 483-84 (1974)).

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"We defer to the credibility determinations made by the trial

court because the trial judge 'hears the case, sees and observes

the witnesses, and hears them testify,' affording it 'a better

perspective than a reviewing court in evaluating the veracity of

a witness.'"        Gnall v. Gnall, 
222 N.J. 414, 428 (2015) (quoting

Cesare v. Cesare, 
154 N.J. 394, 412 (1998)).           "Only when the trial

court's conclusions are so 'clearly mistaken' or 'wide of the

mark'" should an appellate court "interfere to 'ensure that there

is not a denial of justice.'"           Ibid. (quoting N.J. Div. of Youth

& Family Servs. v. E.P., 
196 N.J. 88, 104 (2008)).

     "A trial court's interpretation of the law and the legal

consequences that flow from established fact are not entitled to

any special deference."           The Palisades At Fort Lee Condo. Ass'n,

Inc. v. 100 Old Palisade, LLC, 
230 N.J. 427, 442 (2017) (quoting

Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 
140 N.J. 366, 378 (1995)).

     Defendant contends his testimony was credible and argues the

trial court's findings of fact are not supported by the credible

evidence present in the record.          "[F]indings by a trial court are

binding   on   appeal      when    supported   by   adequate,   substantial,

credible evidence."        Gnall, 
222 N.J. at 428.     "A trier of fact 'is

free to weigh the evidence and to reject the testimony of a

witness'"      if     it    "contains       inherent   improbabilities      or

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contradictions   which   alone   or     in   connection   with      other

circumstances in evidence excite suspicion as to its truth."           CPC

Int'l, Inc. v. Hartford Accident & Indem. Co., 
316 N.J. Super.
 351, 375 (App. Div. 1998) (quoting In re. Estate of Perrone, 
5 N.J. 514, 521-22 (1950)).

     The trial court found defendant's signature on the promissory

note proved the loan and was subject only to defendant's defenses.

Defendant's testimony was insufficient to sustain his affirmative

defenses of fraudulent inducement or usury.

     The only testimony at trial came from the parties.     The trial

court was free to reject the parties' testimony and rely instead

on the documentary evidence. The court found defendant's testimony

that the underlying transaction was a loan of $50,000 to be repaid

by $100,000 within two years improbable, incredible, and not

supported by the evidence in the record.          Although defendant

submitted evidence of post-dated checks as allegedly corroborating

his testimony, the checks did not speak to the issue that the

original loan amount was $50,000 and required repayment of double

that amount within two years.         The court found that the only

competent believable evidence of an agreement between the parties

were the promissory note and the handwritten letter, both of which

were signed by both parties.



                                 5                               A-3917-16T2
     Similarly, the court found defendant's testimony that he

repaid the full $100,000 not credible.            Defendant claimed he paid

plaintiff in cash and did not ask for or receive receipts for

those payments.    The only evidence in the record of payments from

defendant to plaintiff was $7000 in money order payments from

March to April 2012.

     Well-settled     contract    law       provides   that   "courts   enforce

contracts 'based on the intent of the parties, the express terms

of the contract, surrounding circumstances and the underlying

purpose of the contract.'"       In re. Cty. of Atlantic, 
230 N.J. 237,

254 (2017) (quoting Manahawkin Convalescent v. O'Neill, 
217 N.J.
 99, 118 (2014)).      "A reviewing court must consider contractual

language 'in the context of the circumstances' at the time of

drafting and . . . apply 'a rational meaning in keeping with the

expressed   general   purpose.'"        Ibid.     (alteration    in   original)

(quoting Sachau v. Sachau, 
206 N.J. 1, 5-6 (2011)).              "The primary

standard governing the interpretation of an integrated agreement

is to use 'the meaning that would be ascribed to it by a reasonably

intelligent person who was acquainted with all the operative usages

and circumstances surrounding the making of the writing."                       YA

Global Invs., L.P. v. Cliff, 
419 N.J. Super. 1, 11 (App. Div.

2011) (quoting Deerhurst Estates v. Meadow Homes, Inc., 
64 N.J.

Super. 134, 149 (App. Div. 1960)).

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     "'[I]f the contract into which the parties have entered is

clear, then it must be enforced' as written."                 In re. Cty. of

Atlantic, 
230 N.J. at 254 (alteration in original) (quoting Maglies

v. Estate of Guy, 
193 N.J. 108, 143 (2007)).

     Defendant argues the trial court erred in applying the parol

evidence rule because parol evidence is admissible to show the

existence of or lack of consideration to support a contract.

Defendant highlights plaintiff's inconsistencies between her grand

jury testimony and her trial testimony regarding the manner in

which the $128,250 was allegedly loaned to defendant.

     "In     general,     the   parol       evidence   rule    prohibits     the

introduction of evidence that tends to alter an integrated written

document."    Chance v. McCann, 
405 N.J. Super. 547, 563 (App. Div.

2009) (quoting Conway v. 287 Corp. Ctr. Assocs., 
187 N.J. 259, 268

(2006)).     "[T]here is a 'distinction between the use of evidence

of extrinsic circumstances to illuminate the meaning of a written

contract, which is proper, and the forbidden use of parol evidence

to vary or contradict the acknowledged terms of an integrated

contract.'" YA Global Invs., 
419 N.J. Super. at 12 (quoting Garden

State Plaza Corp. v. S.S. Kresge Co., 
78 N.J. Super. 485, 497

(App. Div. 1963)).

     The     promissory    note   does       not   provide    the   amount    of

consideration received by defendant, but merely recites "[i]n

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return for value received."     Defendant claims he was only loaned

$50,000, while plaintiff claims she loaned defendant $128,250.

The trial court rejected both parties' testimony as not credible.

Turning to the other evidence in the record, the court found the

promissory note to be the only competent evidence that showed an

agreement between the parties, and defendant's signature on the

note proved defendant's obligation on the loan.

    The promissory note's "Borrowers' Promise to Pay" provision

states that "[i]n return for value received," defendant promises

to pay $128,250.00 plus interest to plaintiff.      The "Interest"

provision of the note states:

         Interest shall be charged on the principal
         amount of ONE HUNDRED TWENTY EIGHT THOUSAND
         TWO HUNDRED FIFTY AND 00/100 ($128,250.00)
         DOLLARS, at the annual rate of three (3%)
         percent for the life of said loan, which
         principal and interest shall be payable
         weekly, beginning on March 1, 2012, on the
         Monday of each and every week for a period of
         two and one-half (2.5) years until paid in
         full.

         [Emphasis added.]

The "Payments" provision of the note states the repayment terms

somewhat differently:

         [Defendant] will pay principal and interest
         by making payments each and every week.
         [Defendant] will make the weekly payments on
         the Monday of every week beginning March 1,
         2012.   [Defendant] will make these payments
         every week until all of the principal,

                                  8                        A-3917-16T2
            interest and any other charges described
            herein that may be owed under this Note are
            paid in full.    If on September 24, 2012,
            [defendant] still owes amounts under this
            Note, [defendant] will pay these amounts in
            full on that date, which is called the
            "Maturity date" unless otherwise agreed to in
            writing by the parties.

            [Emphasis added.]

The trial court stated that in spite of this discrepancy, there

was "an absence of ambiguity in the contract."

       The interpretation of a contract is subject to de novo review.

In re. Cty. of Atlantic, 
230 N.J. at 254.             The promissory note's

"Borrowers' Promise to Pay" provision clearly states defendant's

obligation to pay the amount in the note plus interest in exchange

for value received.        Because those terms are clear, they should

be    enforced   as    written.    Ibid.      The    contradictions   in    the

"Interest" and "Payments" provisions, as the trial court pointed

out, are not material to the issue of whether defendant obligated

himself under the terms of the note.

       Both parties signed a handwritten May 12, 2014 "To Whom it

May Concern" letter stating the amount due on the promissory note.

The   letter     states   in   part:    "This   is   an   agreement   between

[defendant]      and   [plaintiff]     that   the    balance   owed   on    the

[p]romissory [n]ote date[d] Feb. 1, 2012 is $85,000 plus the

interest as stated on the note. . . ."          Before signing the letter,


                                       9                              A-3917-16T2
defendant told plaintiff he would have to have his attorney look

at the letter.   Defendant signed the letter two days later, adding

a note next to his signature stating that plaintiff could not

pursue criminal charges against defendant regarding bad checks.

     The trial court based its determination of damages on the

handwritten letter.   Defendant argues the handwritten letter was

inadmissible under N.J.R.E. 408 for purposes of proving a disputed

claim because it was an offer of settlement.

     In determining the amount defendant owed plaintiff, the trial

court, having rejected both parties' conflicting testimony, relied

on   the   handwritten     letter     "as   reflecting   their     mutual

acknowledgement that that was the amount due under the note at

that time."   The court did not, however, "find [the letter] to be

a binding agreement based on [d]efendant having altered it after

[p]laintiff   presented    it   and      [p]laintiff's   lawyer    having

characterized it as a settlement proposal that was rejected and

[thereafter] withdrawn."    Although N.J.R.E. 408 bars introduction

of evidence of a settlement to prove the amount of a disputed

claim, it allows such evidence when, as here, it is offered for a

different purpose.

     Defendant argues that he signed the handwritten letter under

duress because he was concerned about criminal prosecution and

potential imprisonment.     Duress is "that degree of constraint or

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danger, either actually inflicted or threatened and impending,

sufficient in severity or in apprehension to overcome the mind or

will of a person of ordinary firmness . . . ."         Smith v. Estate

of Kelly, 
343 N.J. Super. 480, 499 (App. Div. 2001) (quoting

Rubenstein v. Rubenstein, 
20 N.J. 359, 365 (1956)).

     A party seeking to be relieved of his or her contractual

obligation must provide "clear and convincing proof" of duress.

Nolan v. Lee Ho, 
120 N.J. 465, 472 (1990).        The trial court found

it illogical that defendant would sign the letter and then not

make payments if he feared criminal prosecution because "it would

only have been his payment, not his signature, that would've

secured the forbearance."

     The   trial   court's   factual   findings    were   not   "clearly

mistaken" or so "wide of the mark" that we need "interfere" to

prevent "a denial of justice."    Gnall, 
222 N.J. at 428.

     Affirmed.




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