On appeal from the Superior Court of New Jersey, Law Division, Union County, L-2855-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Seltzer.
Plaintiff appeals from a September 27, 2006, judgment, entered after a bench trial, determining that it had failed to prove by a preponderance of the evidence that defendant was obligated to pay $500,000 to its decedent. We affirm.
Plaintiff's complaint alleged that defendant was obligated by an agreement to pay plaintiff's decedent, Seymour Lieberman, the sum of $500,000 plus interest. Judge Kathryn A. Brock authored a fourteen page written opinion in which she considered the evidence presented during the two-day bench trial. She explained that she had denied defendant's motion to dismiss the complaint at the conclusion of the plaintiff's case because:
this [c]court found that, giving the plaintiff all of the favorable inferences, there was sufficient evidence for a finder of fact to return a verdict that Seymour invested a total of $500,000 with [defendant,] Carol [Gronczewski], based on a consolidation agreement made in late 1991, that the monthly payments on the investment were initially $4,073.33, and then they were $4,100 from 1993 until February of 1999, when the last payment was made.
The same evidence, the judge explained, required a denial of a motion to dismiss at the conclusion of the entire case.
The judge then evaluated the evidence without indulging in a need to provide favorable inferences to one party or the other. She found from the evidence that, although no document evidencing a debt was produced and no witness had an independent recollection of the provisions of such a document, Seymour Lieberman and Gronczewski had executed a document on December 2, 1991 "which listed all of the investments which Seymour Lieberman had with Carol Gronczewski and the terms of the investment."
Judge Brock, however, also found from testimony given by Seymour Lieberman in unrelated litigation, "that some of the money for the investments came from him personally, and some came from Wave Electronics [a corporation owned or controlled by Seymour], but that all of the payments were made to him personally . . . ." Judge Brock identified this as "the critical issue in the case" and elaborated on the problems that conclusion raised:
The difficulty with enforcing the terms of the agreement reached between the parties in late 1991, is that it is not clear to whom the money is owed. Seymour himself at his deposition stated that he could not recall how much of the money which had been invested with Carol had come from him personally and how much had come from the family owned corporation of Wave Electronics. He was specifically asked whether more than half the money had come from Wave Electronics, and he could not recall. He was then asked if the vast majority, more than $700,000 of the total of $750,000 invested with Carol, including funds turned over to establish a trust for the benefit of his son, Doug, were actually from Wave Electronics, and Seymour could not recall. Finally, Seymour was asked this question, "If I were to tell you that Ms. Gronczewski does not have a single check from you, but all the checks she got were from Wave Electronics, would you have a factual basis to dispute that contention?", and Seymour's answer was, "No, I don't have."
The judge then concluded that "Seymour did treat at least some of the investments of Wave Electronics as his own."
Without the written agreement of late 1991 to establish precisely which investments were included in the $500,000 total, and whether assignments had been made of any investments by Wave Electronics to Seymour which would account for the monthly payments being made payable directly to ...