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Tillett v. Elefante


April 28, 2010


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-4660-07.

Per curiam.


Submitted April 12, 2010

Before Judges Reisner and Chambers.

Defendant Kathleen Elefante appeals from a jury verdict of $11,535 in favor of plaintiff Randy Tillett and from the trial court's order of November 21, 2008 denying her motion for judgment notwithstanding the verdict and a new trial. We affirm.


The parties had a dating relationship between May 2003 and December of 2006. Plaintiff testified that at various times during their relationship, defendant asked him to lend her money, which she promised to repay. He testified that at her request, he lent plaintiff $2261 to lease a car, deposited $3000 into her checking account to pay her mortgage, lent her another $1500 to pay bills, and lent her additional sums for home repairs. He also spent about $2000 to buy computers for her children. He testified that from time to time defendant would ask him how much she owed him and would "periodically tell me I swear to you I will pay you back every penny."

According to plaintiff, defendant told him that she intended to sell her house when her youngest daughter graduated from high school. In that context, she told plaintiff that "I'm selling the house, and when I sell the house I will pay you back your money." At that time, trusting defendant, plaintiff was willing to wait "figuring that in a couple of years I'll get my money back." He testified that during the relationship in 2004, defendant repaid him $1000 of her debt but she made no other payments.

According to plaintiff, at some point in 2005, he told defendant that he was beginning to have financial problems, and he asked her to take out a home equity loan to help pay his debts. He testified that he even offered to make the payments on the loan until she sold the house, but she declined. He testified that toward the end of the relationship in November or December 2006, they went out to a coffee shop and had a conversation about their relationship and about the debt. During that conversation, defendant stated that "I know I owe you money, and I'm going to pay you back, but there is no court in the State of New Jersey that can prove I owe you anything." According to plaintiff, there had been no conversation about a possible lawsuit before defendant made that statement. At that point, plaintiff concluded that he had been "taken" and that defendant had no intention of actually repaying the debt. Shortly after that conversation, defendant ended their relationship and plaintiff thereafter filed this lawsuit.

Defendant did not deny that plaintiff paid significant sums of money on her behalf, to repair her house and for other purposes. In fact she admitted the payments at her deposition, portions of which were read to the jury. However, she claimed that those expenditures were all gifts. In her deposition, she asserted that during the relationship, defendant never characterized the payments as loans and never asked her for repayment. She admitted giving plaintiff $1000, but contended it was not the repayment of a loan but rather was partial payment for her share of a vacation they took together. According to defendant's deposition testimony, the first intimation she had that plaintiff was going to demand repayment of any money he had given her was when she was served with the complaint. She admitted telling plaintiff, at an earlier time, that she would pay him $15,000 when she sold her house. However, she contended that was a spontaneous offer "[b]ecause I knew that he still paid all of this money."

In her direct trial testimony, defendant alleged that in October 2006, plaintiff asked her take out a $50,000 home equity line of credit on her house in order to pay both of their credit card bills. According to defendant, at some point in November 2006, when she told him that she had decided not to take out the equity loan, defendant "seemed mad" and said he couldn't believe that I wasn't going to do that after everything that he did, and then he said that he could sue me. . . .

That's when I said no court's going to say I owe you anything.

During cross-examination, defendant also testified that in the same November conversation in which she refused to take out the home equity loan, she told plaintiff that she would give him $15,000 when she sold her house. She did not assert that she made the statement after he threatened to sue her. Several pages later in the transcript, however, she asserted that she made the offer to pay the $15,000 in a different conversation a month later.

Defendant did not testify that she made the $15,000 offer in an attempt to settle a claim defendant was asserting. In fact she denied that plaintiff had ever asked her to "pay back some of the money that [she] owed to him." Instead she contended that she made the offer as she was breaking up with plaintiff, because she "was feeling bad" and "knew he'd spent a lot of money." She also testified that plaintiff refused her offer because he said "I owed him more money than that and he didn't want to wait until I sold my house." However, she insisted that defendant never actually asserted that he had loaned her money, prior to filing the lawsuit. Defense counsel did not object to any of the trial testimony about the offer to pay the $15,000.


On this appeal, defendant contends that the court should have barred plaintiff from introducing evidence that she offered to pay him $15,000 when she sold her house. We disagree. We review the trial judge's evidentiary rulings for "palpable abuse of discretion," Brenman v. Demello, 191 N.J. 18, 31 (2007), although we engage in de novo review of the judge's interpretation of the law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)

The question here is whether the judge clearly abused his discretion in construing defendant's statement as an acknowledgement of a debt as opposed to a settlement offer. In a pre-trial application, defendant sought to bar plaintiff from reading deposition testimony in which she admitted making the statement. Defendant argued that the statement was a settlement offer, which under N.J.R.E. 408 could not be introduced in evidence to prove that she was liable for the debt. Plaintiff contended that the statement was an acknowledgement of the debt, made at a time when there was no litigation. Defendant did not request a pre-trial N.J.R.E. 104 hearing on the issue. Instead, both sides relied on the judge's reading of defendant's deposition. Since defendant did not provide us with that deposition transcript as part of the record on this appeal, we can only consider the portions read into the record at the trial and referenced in the trial judge's decision.

After reading the deposition transcript, the judge held that

[T]his was not, in fact, an offer of settlement. It was more of a spontaneous utterance . . . and it references something that was said years before . . . so there wasn't even litigation at that time.

The judge reaffirmed that finding in his oral opinion of November 21, 2008 denying defendant's motion for a new trial. He concluded that defendant was acknowledging the debt rather than attempting to settle litigation. Based on the record before the judge at the time he decided the in limine motion (to the extent it has been provided to us), we find nothing palpably incorrect in his determination that defendant's statement was not an offer to settle litigation or anticipated litigation.

Arguably, defendant did not preserve this issue for appeal, beyond the decision on the in limine motion, because her counsel did not object to his client's trial testimony concerning the statement, as opposed to plaintiff's counsel's reading of her deposition testimony. See R. 1:7-2. However, even if we consider her trial testimony, her appellate contentions are without merit. Defendant did not testify that she anticipated litigation when she made the offer to pay the $15,000; she claimed that she made the statement spontaneously because she felt bad about breaking up with plaintiff and realized he had treated her generously during the relationship.*fn1 Likewise, plaintiff did not testify that defendant's statement was an attempt to settle litigation or compromise a claim; he contended it was defendant's acknowledgement that he had lent her $15,000 and she was obligated to repay it.

Defendant further contends that the trial court should have granted her motion to dismiss at the conclusion of plaintiff's case. We disagree. Plaintiff presented ample evidence to support his breach of contract claim; it was for the jury to decide whether to believe his testimony or defendant's testimony. See Dolson v. Anastasia, 55 N.J. 2, 7 (1969). We cannot agree with defendant's contention that if plaintiff accepted her offer to pay him $15,000 when she sold her house, there was an "accord and satisfaction." Her reliance on Loizeaux Builders Supply v. Donald B. Ludwig Co., 144 N.J. Super. 556, 564-65 (Law Div. 1976), for that proposition is misplaced, because defendant did not tender payment of the $15,000.

Defendant further contends that the trial court abused its discretion in letting plaintiff read late-produced deposition readings to the jury, and in denying her application to require production of plaintiff's income tax returns. We find no abuse of discretion in the court's decision to allow the deposition readings, where counsel provided the specific transcript references before the testimonial portion of the trial commenced. We agree with Judge Miller's written opinion of June 20, 2008, concluding that under Ullmann v. Hartford Fire Ins. Co., 87 N.J. Super. 409, 415 (App. Div. 1965), defendant did not show a "strong need" for the production of plaintiff's tax returns. See Campione v. Soden, 150 N.J. 163, 189-90 (1997).

Defendant also contends the trial judge should have instructed the jury that due to the parties' romantic relationship the monies were presumed gifts and plaintiff had the burden of proving otherwise. We disagree. The parties in this case were not married, did not believe themselves to be married, acknowledged that they had no intention of marrying, and were not cohabiting. The cases defendant cites do not stand for the proposition that, as between two people in such a dating relationship, there is a presumption that payments made by one to, or on behalf of, the other are gifts. See Weisberg v. Koprowski, 17 N.J. 362 (1955); Flammia v. Maller, 66 N.J. Super. 440 (App. Div. 1961).


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