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Tiptop-Deals v. Kazemian Foods


November 8, 2010


On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. SC-4331-09.

Per curiam.


Submitted October 19, 2010

Before Judges Messano and Waugh.

Defendant Kazemian Foods (Kazemian) appeals from the judgment of the Special Civil Part finding it liable for the loss of goods belonging to plaintiff Tiptop-Deals Corp. (Tiptop) that were stolen while in Kazemian's custody. We affirm.


We discern the following facts and procedural history from the record.

In June 2009, Tiptop filed a complaint against Kazemian for the value of goods accepted by Kazemian as a favor to Tiptop and subsequently stolen while still in Kazemian's custody. Although the value of the missing goods was alleged to be $3,504, Tiptop sought judgment in the amount of $3,000, which is the jurisdictional limit for small claims actions in the Special Civil Part. R. 6:1-2(a)(2). The complaint was dismissed in September 2009 for failure to prosecute. A second complaint seeking identical relief was filed later in September.

Trial was scheduled for Monday, December 21, 2009. Kazemian did not retain counsel until Friday, December 18. Counsel appeared on the trial date and requested an adjournment because Kazemian's owner, whom counsel described as seventy-eight years old and "a bit frail," had been ill for the last week and could not attend. The civil presiding judge denied the application and assigned the case for trial.*fn1

Tiptop's owner, Nate Mashini, appeared without counsel and testified on behalf of Tiptop. Tiptop and Kazemian have adjacent facilities in South Hackensack. According to Mashini, on "many times" "over the years," Kazemian's owner or his son, Amir Kazemian, had agreed to accept deliveries for him on occasions when he was going to be unavailable to accept them himself.

On March 13, 2009, Mashini asked Amir Kazemian to accept a delivery of electronics and he agreed to do so. According to a police report that was admitted into evidence without objection, a Kazemian employee, Mohammad Reza Bahmanabasl, signed for the delivery when it arrived. He stored the five boxes in the Kazemian warehouse. Mashini testified that Bahmanabasl told him the same information.

When Mashini came to collect the shipment on March 17, three of the boxes were missing and had apparently been stolen. The theft was reported to the police, who took statements from Bahmanabasl and Mashini.

In response to defense counsel's argument that Bahmanabasl did not have authority from Kazemian to sign for deliveries, Mashini testified that Kazemian's hourly employees had signed for deliveries in the past, including Bahmanabasl, and that he had seen Kazemian's owner direct hourly employees to do so.

In an oral opinion at the end of the trial, the judge found that Bahmanabasl had "apparent authority" to accept the delivery, based upon the ongoing relationship between the parties. Although he found that the stolen items were worth more than $3,000, he entered judgment in that amount because of the jurisdictional limit for small claims. The judgment also reflects an award of $22 in court costs and $75 in attorney's fees, although the latter is not mentioned in the trial transcript. This appeal followed.


On appeal, Kazemian argues (1) that the presiding judge abused his discretion in denying the adjournment; (2) that the trial judge erred in finding that Bahmanabasl had authority to accept the delivery on behalf of Kazemian;*fn2 (3) that the trial judge showed impatience and frustration that "may have predisposed" him to rule in plaintiff's favor; and (4) that the trial judge erred in awarding counsel fees. Tiptop did not file a brief.


We turn first to the issue of the adjournment. In its brief, Kazemian concedes that its request for an adjournment was not timely under Rule 6:4-7(a), which requires that such requests be made "not less than 5 days" in advance of the scheduled date, absent "good cause." However, Kazemian argues that the rule should have been relaxed pursuant to Rule 1:1-2.

The grant or denial of an adjournment request rests within the discretion of the trial court. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995) (quoting Allegro v. Afton Vill. Corp., 9 N.J. 156, 161 (1952)). "Postponement requests must be considered, in part, in the light of preparation efforts. If they are not, parties will have no incentive to prepare." In re Segal, 130 N.J. 468, 482 (1992) (quoting State v. Perkins, 219 N.J. Super. 121, 127 (Law Div. 1987)). We do "not interfere unless it appears an injustice has been done." Allegro, supra, 9 N.J. at 161.

Our ability to review the presiding judge's exercise of discretion on this issue is hampered by the absence of a transcript. Presumably, the basis of the request was the inability of Kazemian's owner, who was in poor health, to attend the trial. It is evident from the colloquy at the trial that the owner's son, Amir Kazemian, was the person with whom Mashini had the conversation about accepting the delivery at issue, and that he would have been familiar with the alleged practice to which Mashini testified. There was no assertion that the owner was even privy to the critical conversation between Mashini and his son.

Defense counsel's only explanation for the son's absence was that, because he had not been retained until the Friday before the Monday trial date, he was not able to arrange for the son's appearance on such short notice. There was no explanation of why the owner could not contact his son and arrange for him to testify at the trial.

It is evident that Kazemian's preparation for trial did not begin until the business day prior to the trial date. Consequently, we find no abuse of discretion by the presiding judge in declining to find "good cause" and in denying the adjournment request.


In this appeal, we review a decision reached by the trial judge following a bench trial. "The general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings of the trial court unless we are convinced that "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484); see also Beck v. Beck, 86 N.J. 480, 496 (1981).

However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Our review of the judge's legal conclusions are plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Because there were no witnesses on behalf of Kazemian, Mashini's testimony was not refuted. It was, to a certain extent, confirmed by the factual statements set forth in the police report, as to which there was no objection at trial. The real issue on appeal is whether Bahmanabasl had authority to accept the delivery on behalf of his employer.

Finding an agency relationship requires a fact-sensitive analysis. The law provides:

An agency relationship is created when one party consents to have another act on its behalf, with the principal controlling and directing the acts of the agent. Arcell v. Ashland Chem. Co., 152 N.J. Super. 471, 494-95 (Law Div. 1977); Restatement (Second) of Agency § 1 (1958). There need not be an agreement between parties specifying an agency relationship; rather, "the law will look at their conduct and not to their intent or their words as between themselves but to their factual relation." Henningsen v. Bloomfield Motors, 32 N.J. 358 (1960).... "Implied authority may be inferred from the nature or extent of the function to be performed, the general course of conducting the business, or from particular circumstances in the case." Carlson v. Hannah, 6 N.J. 202, 212 (1951). Even if a person is not an "actual agent," he or she may be an agent by virtue of apparent authority [to act for a] principal. See C.B. Snyder Realty Co. v. Nat'l Newark Banking Co., 14 N.J. 146, 154 (1953); Restatement (Second) of Agency § 8 (1958).

Of particular importance is whether a third party has relied on the agent's apparent authority to act for a principal. N. Rothenberg & Son v. Nako, 49 N.J. Super. 372, 382-83 (App. Div. 1958). Moreover, direct control of principal over agent is not absolutely necessary; a court must examine the totality of the circumstances to determine whether an agency relationship existed.... [Sears Mortg. Corp. v. Rose, 134 N.J. 326, 337-38 (1993) (citation omitted).]

Mashini testified that Amir Kazemian agreed to accept the delivery for Tiptop. He also testified that he had seen hourly employees, including Bahmanabasl, sign for deliveries at Kazemian. It is undisputed that Bahmanabasl did, in fact, sign for the delivery at issue. Based upon those facts and the history of prior similar arrangements between the parties, together with the reasonable inferences that can be drawn from them, we agree with the trial judge that there was sufficient proof of apparent authority to warrant judgment in Tiptop's favor.

As the Supreme Court held in Henningsen v. Bloomfield Motors, 32 N.J. 358, 374 (1960), in ascertaining whether authority exists, "the law will look at their conduct and not to their intent or their words as between themselves but to their factual relation." See also Carlson v. Hannah, 6 N.J. 202, 212 (1951) ("Implied authority may be inferred from the nature or extent of the function to be performed, the general course of conducting the business, or from particular circumstances in the case.").

That Mashini always asked Kazemian's owner or his son when he wanted deliveries to be accepted at Kazemian does not undercut his position, as Kazemian argues on appeal. This is not a case in which Mashini dealt directly with Bahmanabasl in arranging for acceptance of the delivery. He specifically sought and received Amir Kazemian's agreement to have the delivery accepted at the Kazemian warehouse. There is no dispute that Amir Kazemian had the authority to agree to such an arrangement. The delivery was then accepted by an employee of Kazemian, whom Mashini testified he had seen accept deliveries on behalf of his employer in the past.

The trial judge's determination of liability in favor of Tiptop is supported by the facts in the record and the applicable law concerning agency. However, we agree with Kazemian that there was no basis in fact or law for an award of attorney's fees to a pro se party. Consequently, we modify the judgment to exclude the award of attorney's fees, and affirm the judgment as modified.


We find no merit in Kazemian's argument that the trial judge was improperly disposed against it. Our review of the record reveals no support for such an assertion, which does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).


In summary, we affirm the judgment on appeal, except for the award of attorney's fees. We find no abuse of discretion with respect to the denial of the adjournment request and no merit in Kazemian's assertion that the trial judge was improperly disposed against it.

Modified in part, affirmed as modified, and remanded to the Law Division for entry of a revised judgment consistent with this opinion.

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