SHARON YANG v. BIAO XUE

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5295-18T1

SHARON YANG,

          Plaintiff-Appellant,

v.

BIAO XUE,

     Defendant-Respondent.
_________________________

                   Submitted November 2, 2020 – Decided November 18, 2020

                   Before Judges Fasciale and Rothstadt.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Docket No. SC-000741-
                   19.

                   Sharon Yang, appellant pro se.

                   Respondent has not filed a brief.

PER CURIAM

          In this breach of contract case, plaintiff appeals from a July 16, 2019

judgment of no cause of action entered in favor of defendant after a small claims
trial. Judge Gary K. Wolinetz conducted the bench trial, took testimony from

the parties, and rendered an oral decision. He concluded that plaintiff failed to

sustain her burden of proof, which is self-evident from her arguments on appeal.

Accordingly, we affirm.

      The parties are divorced. Their dispute occurred after their adult daughter

incurred expenses for eye surgery. To cover part of the doctor's bill, defendant's

insurance company allegedly mailed plaintiff a check payable to defendant for

$1,185.12. Plaintiff asserted she sent the check to defendant and asked him to

endorse it and pay the doctor. She then filed a breach of contract complaint

against defendant alleging he "pocketed th[e] money and refused to pay the

doctor." In her complaint, she sought $1,185.12 in damages because—as she

alleged in her complaint—"the doctor is chasing after [p]laintiff for this

payment."

      Plaintiff testified that defendant wrote the doctor notifying him that the

daughter did not live with him and that he asked that the doctor stop sending

him bills for the balance due. She also stated that three people from defendant's

insurance company told her defendant had cashed the check. Plaintiff conceded,

however, that she did not have proof that he cashed the check or that he had




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deposited the check into his bank account. At trial, plaintiff offered to "go and

find [the] proof."

      Defendant testified that he had been estranged from his daughter for years,

who he said was of "full age [and] with full responsibility of her own course."

He said they were "totally strangers." Defendant stated that no one consulted

him about paying for the eye procedure before it was performed. He also

asserted that plaintiff lacked standing to sue him, as any unpaid balance is

between the daughter and doctor. Defendant explained that he never received

an insurance payment with directions to pay the doctor, and—contrary to

plaintiff's testimony at trial—he did not tell anyone that the money was his own

or that he could do with it what he wanted.         He testified that he had no

recollection of receiving the insurance check.

      The judge found that plaintiff failed to prove by a preponderance of the

evidence that defendant received the check. The judge asked plaintiff for any

specific relevant evidence which would corroborate her trial testimony, such as

a letter from the insurance company, defendant, anyone else, or for "any

evidence whatsoever?" He asked her to "show me any evidence . . . that states

that a check was mailed to [defendant] in that amount of money." Responding

to those questions, plaintiff said "I'm sorry, . . . all the conversations with the


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                                        3
insurance company [were] on the phone.         I wasn't expecting to get any

evidence."

      Before the judge rendered his decision, he gave the parties the

"opportunity just to present whatever other evidence or any other statements

[they would] like to make." Plaintiff responded by explaining that her daughter

overheard the conversations she had with representatives at the defendant's

insurance company, and that she could produce her daughter, who could testify

to what she overheard. Plaintiff also offered to look for any notes that she may

have made while communicating with insurance representatives. The judge

explained, however, that the time to produce evidence was at the trial, not at

some time in the future.

      The judge then rendered his findings of fact and conclusions of law. In

finding that plaintiff failed to meet her burden of proof, the judge rejected

plaintiff's testimony about what insurance representatives may have told her on

the phone because those individuals did not present certifications or testify at

the trial.   The judge found that there were no corroborating documents

confirming conversations with those representatives and no proof that defendant

received or cashed the check.

      On appeal, plaintiff raises the following arguments:


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                                       4
            [POINT I]

            THE [JUDGE] ERRED IN DENYING PLAINTIFF'S
            REQUEST FOR RESCHEDULING ANOTHER
            COURT HEARING SO SHE COULD BRING
            EVIDENCE TO PROVE DEFENDANT HAD
            RECEIVED THE PAYMENT OF $1[,]185.12
            INTENDED FOR HIS DAUGHTER'S EYE
            SURGERY. A JUDGMENT BASED ON LIES IS NOT
            A FAIR AND JUST ONE.

            [POINT II]

            THE JUDGMENT IS BASED ON THE FALSE
            ASSUMPTION THAT DEFENDANT DID NOT
            RECEIVE THE CHECK OF $1[,]185.12, BUT HE
            DID.

      We afford a deferential standard of review to the factual findings of the

trial court on appeal from a bench trial. Rova Farms Resort, Inc. v. Inv'rs Ins.

Co. of Am.,  65 N.J. 474, 483-84 (1974). These findings will not be disturbed

unless they are "so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend the interests

of justice." Id. at 484 (internal quotation mark omitted) (quoting Fagliarone v.

Twp. of N. Bergen,  78 N.J. Super. 154, 155 (App. Div. 1963)). However, our

review of a trial court's legal determinations is plenary.       D'Agostino v.

Maldonado,  216 N.J. 168, 182 (2013) (citing Manalapan Realty, L.P. v. Twp.

Comm.,  140 N.J. 366, 378 (1995)).


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      There is no basis to re-open the trial or set aside the judge's factual

findings. He had the opportunity to observe the parties' testimony and found

that plaintiff failed to sustain her burden of proof. At trial, plaintiff did not

establish that defendant received an insurance check earmarked for his estranged

daughter's eye surgery expense, or that he cashed such a check and deposited it

into his own account, or that he was contractually obligated to give plaintiff that

money. And from plaintiff's contentions on appeal, she does not explicitly argue

otherwise.

      Rather, plaintiff maintains—like she did at trial—that she did not produce

evidence at trial because defendant "misled [her] on purpose" into believing that

he would admit receiving and cashing the check. She infers this because before

appearing for trial, defendant purportedly never disputed having done so. She

therefore believed he would admit these things.         Instead, she asserts that

defendant lied to the judge, which then "caught [her] by surprise [,]" leading to

her appearing at trial unprepared to prove her case. Under these circumstances,

there was no reason to re-schedule the trial.

      Defendant testified he had no recollection of receiving the check or

cashing it. The judge could have found defendant was not credible, but he

accepted that testimony knowing that the parties had a contentious relationship.


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We cannot second guess the judge's assessment of the parties' testimony, since

plaintiff conceded she lacked sufficient proof to establish her breach of contract

claim.

      Affirmed.




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