On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4579-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2010 - Decided Before Judges Lisa and Sabatino.
Pursuant to a jury verdict, judgment was entered on January 25, 2010
in favor of plaintiffs against defendant, Gerard Schuhmann*fn1
(defendant) for $158,000 plus prejudgment interest. The claim
against defendant was based on a civil conspiracy. It arose out of a
course of events over several years during which defendant's
then-wife, Theresa Schuhmann (Theresa), embezzled nearly $223,000 from
plaintiffs, by whom she was employed. Theresa was criminally
prosecuted, pled guilty to theft charges, and was sentenced to a
probationary term conditioned upon serving 364 days in the county jail
and paying restitution for the full amount she embezzled. In
conjunction with that criminal proceeding, a judgment was entered
against Theresa in favor of plaintiff Brendan McElduff for the full
amount. In the succeeding years, Theresa paid nearly $65,000 in
restitution, leaving an undisputed balance due of $158,000. Plaintiffs
brought this action against defendant and others allegedly involved in
the conspiracy for recovery of the balance due.
Defendant argues on appeal that: (1) his motion to dismiss should have been granted because plaintiffs failed to present sufficient evidence to establish the elements of civil conspiracy; (2) the trial court erred in admitting in evidence, under the business records exception to the hearsay rule, a computerized sales record bearing defendant's name and address;
(3) the court committed plain error by allowing the case to go to the jury with a verdict sheet designating only "Brendan McElduff" as the plaintiff, rather than requiring an allocation of damages in favor of each plaintiff; and (4) the court committed plain error by entering a judgment in favor of all plaintiffs, which was inconsistent with the jury's verdict in favor of only Brendan McElduff. We reject these arguments and affirm.
The individual plaintiff, Brendan McElduff, was the sole shareholder and proprietor of several small businesses. These included the other named plaintiffs, namely, his sole proprietorship known as 168 Realty, and two corporate entities, Ulster Construction, Inc., a construction company, and 170 Realty Corp., which administered the buildings in which McElduff conducted his business activities. McElduff hired Theresa in March 1997 as an administrative assistant for Ulster Construction, Inc. She also performed some clerical work related to McElduff's realty business. Her salary was paid solely by Ulster Construction, Inc. Her responsibilities included collecting and depositing rent checks, and some bookkeeping functions, including providing financial information to the companies' accountant. She drafted checks for McElduff's review and approval. She was not authorized to sign McElduff's name to any checks, open credit accounts in his name, or utilize a signature stamp that was in her desk.
In May 2002, McElduff discovered that Theresa had been stealing from him. He reviewed his records and determined that she had opened several credit accounts in his name without his knowledge and used the accounts to make personal purchases, with the bills being paid from McElduff's business accounts.
McElduff reported this information to law enforcement authorities, and, at their direction, he engaged the services of a forensic accountant, who conducted a thorough examination of the business records and issued a detailed report. The accountant determined that Theresa opened three credit accounts with cards bearing her name and that of McElduff. Total charges of $143,783.97 were incurred using these cards. Further, Theresa forged checks from McElduff's personal checking account and various business accounts in the total amount of $79,168.91.
Based upon this report, Theresa was indicted for theft. Pursuant to a negotiated plea agreement, the second-degree theft charge against Theresa was downgraded to third degree.*fn2 She pled guilty and was sentenced in the manner we have previously set forth.
Throughout the time period of the thefts, defendant and Theresa were married and lived together. Defendant deposited the vast majority of Theresa's legitimate paychecks into his checking account, leaving her during this two-year period with only about $4350 of legitimately earned income for personal use. During some stretches of time, Theresa gave all of her legitimate income to defendant, but still had funds available to make large purchases of groceries and other household items. Further, Theresa's spending increased dramatically while the couple's legitimate income decreased by almost fifteen percent.
The couple had little by way of cash reserves. Nevertheless, despite a general lack of available funds obtained through legitimate income, defendant professed ignorance of Theresa's spending the entirety of the nearly $223,000 she stole from plaintiffs. Most of this was spent on personal items, items for the couple's use, and household improvements.
Examples of purchases included a $260 box of cigars as a gift for defendant and the rental of an expensive Lincoln automobile costing $1870 for approximately eight weeks. Defendant was aware that Theresa rented the car, notwithstanding that at the time she was giving him all of her legitimate salary. Theresa never drove the car to work.
On December 15, 2001, one of the fraudulent credit cards was used to make a $201 purchase at Men's Wearhouse, a men's clothing retailer. Consistent with store policy, the sales clerk obtained the purchaser's name, address and telephone number. The recorded information matched defendant's name, address and telephone number. Further, defendant personally endorsed four fraudulent checks that were made payable to Theresa. Two were on McElduff's personal account; one was on the account of Ulster Construction, Inc.; one was on another of McElduff's wholly owned ...