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Berry v. Clementa

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 26, 2008

ADRIENNE BERRY, PLAINTIFF-APPELLANT,
v.
NORGIE CLEMENTA, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. DC-5295-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2007

Before Judges Collester and C.L. Miniman.

Plaintiff Adrienne Berry appeals from a decision of the Special Civil Part dismissing her complaint against defendant following a non-jury trial. We affirm.

Plaintiff was not present at trial and testified by telephone. She said that she and defendant were living together on April 7, 2001, when they both leased a 2001 Nissan Maxima.

Plaintiff said that defendant gave her $2,000, and $3,679 was paid on delivery with monthly payments of $438.38 for the total amount of $21,642.24 under the lease agreement. Plaintiff said that while the car was for defendant's work, she signed the lease and finance statement because defendant did not have sufficient credit.

The relationship between plaintiff and defendant ended in March 2002, and plaintiff testified that defendant called her in July and told her to pick up the car at the place of his employment. After she retrieved the car, plaintiff contacted the dealer to return it. But after being told that the return would be listed as a repossession and would be detrimental to her credit rating, she decided to keep the car. Accordingly, she continued payments until the end of the lease term when she bought it.

Defendant testified that he had no credit rating because he was on parole at the time the vehicle was leased. He paid plaintiff $2,500 as an upfront payment under the lease. He denied that he "abandoned" the car, stating that plaintiff called his parole officer demanding that the car be returned to her. Defendant said he did so in order to avoid any problems.

After hearing the testimony the trial judge held that by signing the lease and financing agreement, plaintiff made a gift to the defendant and dismissed the complaint.

Plaintiff argues that the factual findings of the trial judge were not based on credible evidence because he accepted false statements by defendant in his testimony. Our scope of review gives deference to the factual findings of a trial judge, and we will affirm when substantial credible evidence supports such findings. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); see also State v. Locurto, 157 N.J. 463, 470-74 (1999). After review of the trial record, we find no grounds to upset the findings of the trial judge.

Plaintiff next claims she received prejudicial treatment by the trial judge because her request for an adjournment due to illness was improperly denied, and she was forced to testify by telephone. However, the record discloses that plaintiff consented to this procedure and in fact thanked the trial judge for the opportunity to testify. Therefore, plaintiff's claim of prejudice lacks merit.

Finally, plaintiff contends that the decision of the trial judge was erroneous because he did not examine the lease, promissory note and security agreement. Although not part of the trial record, plaintiff has included these documents in her appendix. We will not ordinarily consider evidentiary material which is not in the record below. Rule 2:5-4(a). DYFS v. M.M., 189 N.J. 261, 278 (2007). Furthermore, we see nothing to indicate a proffer of the agreement by plaintiff or a denial of admission by the trial judge. Also plaintiff does not indicate how the agreement would alter the result reached by the trial judge. Nonetheless, since there is no dispute as to these documents and in light of the fact that both parties are pro se, we have elected to review the agreement in the interest of justice. See Rule 1:1-2; Jersey City v. Hague, 18 N.J. 584, 602 (1955).

We affirm for reasons other than those articulated by the Special Civil Part judge. By the terms of the lease, plaintiff and defendant were jointly liable for the lease payments. The trial judge found that defendant made the lease payments while he was using the car, and subsequently, plaintiff made the payments while she was, quite evidently, using the car. We conclude that no right to contribution should arise for the period of time plaintiff was using the car to the exclusion of the defendant.

Affirmed.

20080626

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