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Borbone v. Wong


October 26, 2007


On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Small Claims Section, Mercer County, Docket No. SC-138006.

Per curiam.


Submitted October 15, 2007

Before Judges S.L. Reisner and Baxter.

Defendants Valerie Wong and Wong, Wong & Associates, P.C. appeal from a December 22, 2006 judgment in favor of plaintiffs in the amount of $518 in the Small Claims Section of the Special Civil Part. Plaintiffs Beth Borbone and Communication Essentials, a company owned by Borbone, instituted suit against defendant law firm and Wong to recover the balance of payments due to plaintiffs for the installation of telephone systems in the law firm's Princeton and New York offices. Plaintiffs charged defendants for eight hours of labor to install a customer-provided telephone system and voicemail in the Princeton office and for two hours of labor in the New York office. Plaintiffs programmed and "cross-connected" a total of ten telephones, and also installed the "main unit" for the phone system. Defendants objected to being charged for eight hours of labor in the Princeton office because the technician "actually did three hours of work. The remaining time [he] was waiting for the Verizon guy to show up to test the phone line." In her testimony, Wong also objected to being charged for parts and materials because plaintiffs had not supplied her with an underlying invoice for those items.

At trial, Wong also testified that because plaintiffs had cashed a $600 check issued by defendants in full satisfaction of the $1138 invoice, defendants should not be required to pay any additional sums as the cashing of that check constituted an accord and satisfaction. In particular, Wong produced the law firm's November 6, 2006 check payable to Communication Essentials that bore the notation "Final Full Payment on Inv. #11845 for NJ & NY offices." That notation was contained in the Memo section on the lower left-hand corner of the face of the check. At the conclusion of the testimony, the court found that plaintiffs had performed all of the work set forth on the invoice; had accomplished the work at the hourly rate established in the proposal originally submitted to defendants; and had completed the work in a number of hours that was "minimal[]" in light of the actual work performed. The judge also determined that plaintiffs need not have produced purchase invoices to verify the purchase of $140 of materials because the installation could not have been accomplished without jumper cables, blocks and brackets. Finally, the judge rejected defendants' claim that by cashing the $600 check, plaintiffs had agreed to accept that amount in full payment of the invoice. The judge held that "[plaintiffs] never agreed to accept that in full payment. That statement that you put on there is self-serving and I'm not accepting it." The judge then entered judgment in favor of plaintiffs in the amount of $556, inclusive of costs.

On appeal, defendants argue that the judgment in plaintiffs' favor should be reversed because the trial court erred by admitting hearsay statements of John Borbone, the technician who had actually performed the work; and by rejecting defendants' contention that the notation on the check barred plaintiffs from instituting suit. We disagree with both contentions and affirm.

As to the hearsay claim, our scope of review is a narrow one. Decisions to admit or exclude evidence are evaluated under an abuse of discretion standard. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). We afford substantial deference to a trial judge's evidentiary decision. Ibid. Here, we discern no abuse of that discretion. The rules barring admission of hearsay evidence in the Small Claims Section of the Special Civil Part, may be relaxed "to admit relevant and trustworthy evidence in the interest of justice." N.J.R.E. 101(a)(2)(A). Here, the testimony from Beth Borbone describing her husband John's discussions with Wong about the scope of services to be provided was unquestionably relevant. That testimony was also trustworthy because defendants did not dispute the accuracy of the majority of Beth Borbone's testimony. Instead, defendants simply objected because the testimony came from Beth Borbone rather than from John Borbone. Under the circumstances, we discern no mistaken exercise of the judge's discretion in admitting the hearsay testimony.

As to defendants' claim that the notation on the check bars plaintiffs from instituting suit to recover any balance due, we conclude that the notation on the check was not "a clear manifestation that the . . . creditor intend[s] the payment to be in full satisfaction of the entire indebtedness." Zeller v. Markson Rosenthal & Co., 299 N.J. Super. 461, 463 (App. Div. 1997). It is a question of fact whether the person to whom the money is owed knew or should have known that the check was being tendered by the obligor in full satisfaction of the original claim. Ibid. Here, the judge concluded that the evidence was insufficient to demonstrate that plaintiffs agreed to accept defendants' check as full payment. The evidence in the record supports that finding. Where findings by the trial judge are supported by adequate, substantial and credible evidence, they are binding on appeal, and we will not disturb them. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).



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