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Maita v. Lofaro

September 8, 2008

URSULA MAITA AND ROBERT MAITA, PLAINTIFFS-RESPONDENTS,
v.
VINCENZO LOFARO A/K/A VINCENT LOFARO AND COLLEEN LOFARO, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-631-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 20, 2008

Before Judges Miniman and Lihotz.

Defendant*fn1 Vincenzo Lofaro appeals from a judgment entered in favor of plaintiff*fn2 Ursula Maita following a bench trial on November 30, 2007. Additionally, defendant appeals from an order that dismissed his counterclaim. Defendant maintains the trial court failed to make findings of fact to support the entry of judgment or the dismissal of the counterclaim, and erred in denying his motion to dismiss. We affirm the trial court's determination that defendant owed plaintiff an obligation to repay certain monies, obviating the necessity of a new trial. However, the trial judge failed to engage in the requisite factfinding when fixing the amount of the indebtedness due. Accordingly, we reverse and remand for additional factfinding on that issue. Finally, we affirm the dismissal of the counterclaims.

Defendant and Robert Maita (Maita) owned and operated adjacent livestock farms in Somerset County. In 2001, plaintiff and defendant commenced an extramarital relationship. During their time together, plaintiff spent in excess of $300,000 to purchase various farm equipment, supplies, and vehicles for defendant's farm operation or his personal use. Plaintiff testified defendant promised to reimburse the funds. However, each time she requested repayment, defendant offered excuses, was "crying the blues" or suggested he would pay her in the near future.

On June 3, 2006, following the termination of their affair, and while the Maitas were engaged in a divorce proceeding, plaintiff sent defendant an itemization of his debt and a letter demanding repayment of $300,125.18. At trial, plaintiff produced that list, which had been modified by her handwritten notations and stated the total expended for defendant's benefit was $302,858.74. Additionally, plaintiff presented receipts, credit card statements and cancelled checks evincing the purchased items, including pick-up trucks, a dump truck, tractors, a Volvo, livestock, animal medications, an all-terrain vehicle (ATV), guns, wagons, a motorcycle, and a laptop computer. The compilation acknowledged defendant gave plaintiff a $5,000 down payment for a truck, $900 for the ATV, and $800 in cash.

After reviewing plaintiff's list, defendant agreed plaintiff had advanced monies or allowed him to use her credit cards for purchases totaling $270,000. Defendant explained he repaid the $270,000 by making weekly cash payments obtained from the sale of his livestock. Defendant asserted he gave plaintiff money whenever she asked, and always paid in cash. Defendant had no receipts or other documentary support, but for a handwritten list of payments he stated he made on the Ford F-450 red pick-up truck (Ford).

Additionally, defendant argued many items on plaintiff's list were gifts to him and his family. These included the ATV, the computer, an MP3 player, a television, medical bills, I-PODS, and mattresses. Also, defendant asserted, and plaintiff agreed, that the title to the Ford, for which plaintiff expended $50,988.80, and the Volvo automobile, for which she expended $18,000, were transferred to defendant with the notation "gift" written on the title. Plaintiff responded that she used the notation to avoid defendant's payment of sales tax on the transfer. Finally, defendant explained plaintiff reclaimed the Mahindra tractor*fn3 and, he presumed, took the ATV from his farm.

Alternatively, defendant argued plaintiff never expected repayment. Her demand came when Maita sought $150,000 as his equitable distribution share of the dissipated funds during the matrimonial matter. In support of his counterclaim for unjust enrichment, conversion and breach of contract, defendant testified he provided feed, livestock, and farming services to Maita but was not paid. Maita denied these claims.

Finally, Colleen Lofaro (Lofaro) offered testimony to support her counterclaim against plaintiff for intentional infliction of emotional distress. Lofaro stated plaintiff sent her a letter and she received several other letters anonymously. The crude correspondence discussed defendant's alleged extramarital affairs with several women. Lofaro asserted that her receipt of these letters caused back and neck pain, and sleep loss. She provided no evidence of medical treatment.

The trial judge credited plaintiff's testimony and found defendant was not truthful. He determined $50,000 of the items plaintiff listed were gifts to defendant and entered judgment for the balance in the amount of $252,858.74, together with costs of suit and interest. The trial judge dismissed the counterclaims.

On appeal, defendant argues the trial court's decision failed to include supportable findings for its conclusion, and further, that the judge erred in denying defendant's motion to dismiss (1) for failing to state a cause of action, and (2) based on the entire controversy doctrine.

Our scope of review of the findings of fact made in a non-jury matter is limited. Berberian v. Lynn, 355 N.J. Super. 210, 216 (App. Div. 2002), aff'd as modified, 179 N.J. 290 (2004). We defer to factual findings "when the evidence is largely testimonial and involves questions of credibility," Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)), as credibility is always for the factfinder to determine. Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956). However, the factual findings by a trial judge, including credibility determinations, ...


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