GREEN TREE PACKING, INC v. LAWRENCE S. BERGER

NOT FOR PUBLICATION WITHOUT THE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-3635-17T1

GREEN TREE PACKING, INC.,

          Plaintiff-Respondent,

v.

LAWRENCE S. BERGER,

     Defendant-Appellant.
_____________________________

                    Submitted December 17, 2018 – Decided January 30, 2019

                    Before Judges Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Docket No. L-1882-16.

                    Berger & Bornstein, LLC attorneys for appellant
                    (Lawrence S. Berger and Robert A. Bornstein, on the
                    briefs).

                    Schiller, Pittenger & Galvin, PC, attorneys for
                    respondent (Robert B. Woodruff, of counsel; Jay B.
                    Bohn, on the brief).

PER CURIAM
        Defendant Lawrence S. Berger appeals from a final judgment entered by

the Law Division, after a bench trial, awarding Plaintiff Green Tree Packing,

Inc. ("Green Tree") $24,337.83 and counsel fees. We affirm.

        We recite the relevant facts from the record. Green Tree is a meat and

fish company that sells to businesses throughout the metropolitan New York

area. Green Tree supplied meats and seafood to Pazzo Pazzo, a restaurant

operated by defendant, through a corporation, for a number of years. Defendant

signed a personal guaranty of Pazzo Pazzo's obligations to Green Tree in July

2013.

        By October 2013, Pazzo Pazzo owed approximately $345,000 to Green

Tree in unpaid invoices. As an inducement for a further line of credit, Princeton

Office Park, LP, another entity operated by defendant, issued a partial guaranty

of Pazzo Pazzo’s debt to Green Tree up to $350,000 in November 2013. This

guaranty was secured by a mortgage on real property owned by Princeton Office

Park, LP. In October 2014, the real property was sold and $350,000 was applied

to Pazzo Pazzo's debt to Green Tree.

        The parties dispute the amount owed by Pazzo Pazzo after crediting the

$350,000 payment. On August 16, 2016, plaintiff filed a complaint alleging that

defendant owed $24,700.54 on the guaranty of Pazzo Pazzo's obligations after


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the $350,000 payment.       Defendant filed an answer and counterclaim, but

withdrew the counterclaim prior to trial. Judge Maryann L. Nergaard, J.S.C.,

conducted a bench trial on January 22 and January 23, 2018. At trial, defendant

maintained that the total debt owed by Pazzo Pazzo to Green Tree was

$8,999.39.

       At the close of the trial, Judge Nergaard rendered an oral decision. Judge

Nergaard found that plaintiff was entitled to $24,337.83 based on invoices and

bounced checks that had been admitted into evidence. On February 26, 2018,

Judge Nergaard entered a final judgment in the amount of $24,337.83 plus

6,084.45 in counsel fees. Defendant appealed the final judgment. 1

       On appeal, defendant raises the following arguments:

             POINT ONE

             The Exhibits Offered by Defendant at Trial and Ruled
             Inadmissible by the Trial Court as Hearsay Were
             Summaries Properly Admissible under [N.J.R.E.] 1006.

             POINT TWO

             The Trial Court’s Factual Finding as to the Amount
             Outstanding was Not Supported by Adequate and
             Admissible Evidence in the Record.




1
    Defendant does not appeal the award of counsel fees.
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      Our review of a bench trial is limited. "Findings by the trial judge are

considered binding on appeal when supported by adequate, substantial and

credible evidence." Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,  65 N.J. 474, 484

(1974). "[W]e do not disturb the factual findings and legal conclusions of the

trial judge unless we are convinced that they are so manifestly unsupported by

or inconsistent with the competent, relevant and reasonable credible evidence as

to offend the interests of justice." Seidman v. Clifton Sav. Bank, S.L.A.,  205 N.J. 150, 169 (2011) (quotation omitted).

      Additionally, our review of a trial judge's evidentiary rulings is

deferential. "[A] trial court's evidentiary rulings are 'entitled to deference absent

a showing of an abuse of discretion, i.e., there has been a clear error of

judgment.'" State v. Brown,  170 N.J. 138, 147 (2001) (quoting State v. Marrero,

 148 N.J. 469, 484 (1997)). "Thus, we will reverse an evidentiary ruling only if

it 'was so wide off the mark that a manifest denial of justice resulted.'" Griffin

v. City of E. Orange,  225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins.

Co.,  160 N.J. 480, 492 (1999)).

      Guided by these standards of review, we first turn to defendant's argument

that the trial court improperly excluded exhibits as hearsay that should have been

admitted as summaries under New Jersey Rule of Evidence 1006. N.J.R.E.


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1006. At trial, defendant presented the testimony of Pazzo Pazzo's bookkeeper.

The bookkeeper had prepared three schedules of invoices that were intended to

show the balance of Pazzo Pazzo's debt to Green Tree. The bookkeeper prepared

these schedules the week before trial. The first schedule purported to show

invoices that were unpaid as a result of bounced checks. The second schedule

purported to show invoices that were paid with the $350,000 payment from

Princeton Office Park, LP, with the dates of invoices spanning from August

2012 to December 2013. The third schedule purported to show that defendant

had paid all invoices dated before August 2012.

      At trial, plaintiff objected to the bookkeeper testifying to the amounts and

totals listed in each schedule. The trial court ruled that the schedules were

inadmissible hearsay and did not qualify as summaries under Rule 1006. The

trial court, however, allowed the bookkeeper to use the schedules to refresh her

recollection and testify that based on her review of the invoices, the amount of

debt owed to plaintiff was $2.062.18.

      We reject defendant's contention that the trial court improperly excluded

these exhibits. Rule 1006 provides:

            The contents of voluminous writings or photographs
            which cannot conveniently be examined in court may
            be presented by a qualified witness in the form of a
            chart, summary, or calculation. The originals, or

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                                        5
            duplicates, shall be made available for examination or
            copying, or both, by other parties at a reasonable time
            and place. The judge may order that they be produced
            in court.

            [N.J.R.E. 1006.]

In this case, defendant did not provide the original copies of the invoices that

the bookkeeper reviewed in composing the schedules during discovery or at

trial. Thus, even if the schedules may have fallen under an exception to the

hearsay rule, they were inadmissible as summaries without the underlying

invoices having been made available for examination at a reasonable time. The

trial court, therefore, appropriately exercised its discretion in refusing to admit

the schedules into evidence.

      We next address defendant's argument that the trial court's finding as to

the total amount due to plaintiff was not supported by adequate evidence in the

record. Based on our review of the review of the record, we find that the trial

court appropriately considered the witnesses' testimony, as well as the invoices

and bounced checks admitted into evidence, in determining the amount due to

plaintiff. Giving appropriate deference to the trial court's factual findings, we

reject defendant's contention that the amount of the judgment lacks adequate

support in the record.



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      To the extent we have not specifically addressed any other arguments

raised by defendant, we find them without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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