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V & S Investments, LLC, D/B/A American Grocery & Beverage Company v. Two B's Bev.

March 2, 2012

V & S INVESTMENTS, LLC, D/B/A AMERICAN GROCERY & BEVERAGE COMPANY, PLAINTIFF-APPELLANT,
v.
TWO B'S BEV., INC., A/K/A TWO B'S BEVERAGE, INC. AND TWO B'S BEVERAGE, INC., AND WILLIAM K. MILLER, DEFENDANTS,
AND MICHAEL MILLER AND WALTER MILLER. DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8949-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 17, 2012 -

Before Judges Alvarez and Skillman.

Plaintiff V & S Investments filed suit against defendants Two B's Beverage, Inc. (Two B's) and the Miller brothers, William, Michael, and Walter,*fn1 to recover approximately $160,000 due on a book account for beverages plaintiff delivered to Two B's. Plaintiff appeals from the June 25, 2010 order which dismissed its claims against Michael and Walter Miller, and the August 6, 2010 denial of reconsideration of that order.*fn2 For the reasons that follow, we affirm.

Plaintiff's theory of recovery against Michael and William is that they knew, when the goods were delivered, that the checks Two B's issued in payment would not be honored, and that they therefore knowingly and wrongfully "converted" the goods to their benefit. Plaintiff's sole contention of error on appeal is that "the trial court erred when it ruled that respondents are not liable for conversion because they acted within their scope of employment."

That ruling was initially made on Michael and Walter's motion to dismiss the complaint for failure to state a claim against them. They alleged in their supporting affidavits that they were neither corporate officers nor principals of Two B's, were not authorized signatories on Two B's corporate checks, and were only employees of the corporation.

The Law Division judge, believing the motion to be unopposed, found that Michael and Walter were merely "performing their duties as employees of the defendant corporation [by] accepting goods." Accordingly, she concluded that because plaintiff did not provide "sufficient allegations with regard to the tort of conversion and the defendants couldn't be found liable to the plaintiffs for conversion," the complaint should be dismissed as to them.

Unfortunately, the court's assumption that the application was unopposed was the result of a scheduling error of unknown origin. The return date on the motion was July 23, 2010, but it was heard a month earlier, on June 25, 2010, before plaintiff filed opposition. Thereafter, plaintiff filed an application for reconsideration of the prior order, based in part on the scheduling mistake. Plaintiff's brief in support of reconsideration asserted as separate grounds for relief that the motion was decided one month prior to the return date. The judge did not mention this fact in her August 6, 2010 decision.

In further support of the application for reconsideration, plaintiff submitted a certification by Vijay Ganpat, "a member of [p]laintiff V & S Investments, LLC ("American Grocery"), and . . . its duly authorized agent for the purpose of making this certification." In the certification, Ganpat stated that "Michael Miller ordered beverages . . . and arranged to have the products picked up from American Grocery's . . . warehouse." Ganpat also averred that Walter "and possibly defendant William Miller, signed checks that were presented to American Grocery when some of the products were picked up." None of the checks attached as an exhibit to the certification, however, appear to be signed by Walter. They were signed only by William.

Ganpat's certification goes on to state: "When confronted,

[d]efendant Michael Miller admitted that he and [d]efendants William Miller and Walter Miller were aware that there were insufficient funds in Two B's bank account to pay for the product ordered when the checks were written and presented." No details are provided as to when, under what circumstances, or to whom, these statements were made.

Moreover, Ganpat does not say that the allegations made in his certification were based on his personal knowledge, as required by Rule 1:6-6. Personal knowledge is the benchmark missing from Ganpat's certification. The rule states:

If a motion is based on facts not appearing of record . . . , the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to ...


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