On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-010534-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2012 -
Before Judges Alvarez and Skillman.
Defendants Mieczyslaw Klecha (Klecha) and Klechas Kriss Pines, LLC, appeal a June 24, 2011 Special Civil Part judgment in favor of plaintiff Glen Rock Building Supply, Inc., for $11,922.54. After consideration of the record and the legal arguments raised, we affirm.
At trial, Klecha acknowledged that he ordered six custom windows from plaintiff in the summer of 2008. The parties stipulated that Klecha paid a $4000 deposit by check towards the purchase price of the goods. Michael Tancredi, plaintiff's salesman, testified that even though the goods were designated cash on delivery (COD), they were delivered to plaintiff before he paid in full the balance due of $11,922.54.
Robert Marotta, plaintiff's Vice-President of Operations, also testified. He said when he first spoke to Klecha about the balance due, Klecha told him he had paid the $11,922.54 to Tancredi, and that he had a receipt. Klecha said he would return with the receipt, but never did so. Marotta made several fruitless phone calls to Klecha and when he next saw him, Klecha said he had paid the balance by check and would bring in the canceled check to prove payment. He never did that either, more fruitless phone calls followed, and plaintiff eventually filed suit.
When Klecha testified, he said he paid the balance due in full, partially by a check for $4992.96, and the rest in cash. He alleged he paid the money to a secretary, a "Chinese woman[,]" who worked in plaintiff's office. On cross-examination, Klecha claimed he could not remember if he had previously ordered materials from plaintiff. When plaintiff's counsel attempted to cross-examine Klecha about his certification, which conflicted with his trial testimony, Klecha responded that he could not answer questions about it because he was not wearing his glasses.
Tancredi was actually called as the court's witness. The judge explained he did so to avoid any negative inferences regarding the failure to call the witness by one side or the other, or as he put it, to avoid an O'Neil v. Bilotta problem. See O'Neil v. Bilotta, 18 N.J. Super. 82, 86 (App. Div.), certif. denied, 10 N.J. 308 (1952) (holding that a negative inference may be made when a party fails to produce a witness, "when it would be natural for the party to produce the witness if facts known by him had been favorable").
Tancredi said that the cancelled check for $4992.96 which Klecha had produced was in fact payment for a separate order Klecha placed and paid for after the windows were delivered. Plaintiff's paid order slip, for an amount which on its face corresponded to the cancelled check, was introduced into evidence. Tancredi also confirmed that once in 2008 when Klecha came in to discuss the balance of the windows payment, he entered the accounts receivable office. Tancredi did not know what was said at that meeting.
The trial judge characterized Klecha's statement that he paid the balance due in cash a factual allegation constituting the affirmative defense of accord and satisfaction. In his view, however, Klecha "has to show more than [the] naked assertion that [he] paid in cash." The judge did not find Klecha to be a credible witness, not only because some of his statements were not corroborated, but because it strained credulity that Klecha would not have obtained a receipt for such a substantial payment. Klecha's proffered failure to obtain a receipt for the $11,922.54 payment did not benefit him in any fashion; there was no logical explanation for his failure to obtain a receipt. The judge observed that Klecha unsuccessfully attempted to shift the blame for the missing payment to the secretary in the office at the time, even though both Marotta and Tancredi denied that anyone in plaintiff's employ had been discharged for theft-type offenses. The judge also noted that Klecha's other payments to plaintiff were made by check, and that the canceled check he produced for $4992.96 "matched up" to an unrelated paid invoice. He therefore entered judgment for plaintiff in the amount of $11,922.54.
Defendants' contention of error is as follows:
THE LOWER COURT ABUSED ITS DISCRETION BY OVERLOOKING THE PLAINTIFF'S WITNESS' TESTIMONY AND EVIDENCE ADDUCED AT TRIAL AND IMPERMISSIBLY INFERRED MATTERS ...