NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4860-05T34860-05T3

ALLIANCE SHIPPERS, INC.,

Plaintiff-Appellant,

v.

MITSUI O.S.K. LINES a/k/a

MOL (AMERICA), INC. and

ECKERD CORPORATION,

Defendants-Respondents.

_______________________________________________

Argued December 19, 2007 - Decided

Before Judges Lisa, Lihotz and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4509-04.

Ronald Horowitz argued the cause for appellant.

Lawrence G. Tosi argued the cause for respondents (Warren & Tosi, P.C., attorneys; Mr. Tosi, of counsel and on the brief; Bryan D. Press, on the brief).

PER CURIAM

Plaintiff Alliance Shippers, Inc. (Alliance) appeals from a final judgment entered on May 16, 2006, following a bench trial on its complaint. Alliance sued for payment of $38,517.12 incurred for inland transportation services provided to defendant, Mitsui O.S.K. Lines (Mitsui) to ship products owned by defendant Eckerd Corporation (Eckerd). A disagreement arose, during the parties' relationship, as to the agreed per trip drayage rate payable to Alliance. The trial court determined the parties settled this dispute. Based on those settlement terms Mitsui owed Alliance $5,567.37.

Alliance argues the trial court erred by ignoring the parties' alleged initial agreement, which would have increased Alliance's recovery based on an increased per trip rate or alternatively, the trial court miscalculated the amount of damages due. Alliance also alleges the trial court failed to determine that Eckerd was primarily liable for payment as the consignee and erroneously excluded evidence that precluded Alliance's recovery of attorneys' fees. We affirm.

Eckerd contracted with Mitsui to provide ocean freight transportation services of its cargo from certain foreign ports to Eckerd's distribution centers in the United States. Alliance contacted Eckerd to provide inland transportation of its products, which entailed the pick up of loaded containers from a designated port and their transport to a designated Eckerd distribution center. Alliance proposed drayage rates for round trip service of $875 to Liverpool, New York and $1,175 to Pittsburgh, Pennsylvania. Eckerd instructed Mitsui to work out an arrangement with Alliance for the ground transportation. The rate Eckerd paid Mitsui already included the ground transportation costs so Mitsui would pay Alliance. Mitsui did not object to using Alliance as Eckerd's "preferred" inland carrier rather than its "house carrier."

Paul Higgins, Alliance's Sales Director, Luther Coipel, Eckerd's Director of Imports, and Jeffrey Bumgardner, Mitsui's Southeast Regional Sales Manager held a conference call on May 17, 2002. Alliance provided Bumgardner with its drayage rates. Bumgardner testified he explained the rates were set by the New Jersey operations group and advised Alliance to contact Paul DeLuca, Mitsui's Northeast Operations Manager. At the end of the conversation Higgins stated he asked Bumgardner whether "any issues [] stop us from going forward[?]" Bumgardner replied "good to go." Higgins testified he believed this conversation resulted in an agreement with Eckerd and Mitsui to pay Alliance's drayage rates as proposed.

Alliance transmitted a three-page credit application to Mitsui on July 11, 2002. The agreement required payment of Alliance's attorneys' fees in the event of litigation. Mitsui declined to complete the form advising that it "does not file credit applications with trucking companies or pay fuel surcharges." Alliance sent the same credit application to Eckerd. Eckerd completed and returned page one. Alliance also emailed Eckerd on July 16, 2002, "to make sure that we are clear on some of the major points as we begin this venture."

From July 12, 2002 to November 6, 2002, Eckerd sent notices to Alliance designating the port and the cargo to be transported. Alliance transported 155 container shipments of Eckerd's cargo from an entry port to a distribution center.

Mitsui provided Alliance with purchase order (PO) forms to submit its invoices for the transportation services provided. The per load rates listed on Mitsui's POs were one-way from Liverpool - $420 and $250 for return of the empty container (or $670 roundtrip); and $950 from Pittsburgh. Each PO included a statement of "payment procedures," which included:

3. PLEASE INSURE THAT THE UNIT NUMBERS & COSTS REFLECTED IN YOUR INVOICE IS [SIC] EXACT MATCH TO THOSE IN PURCHASE ORDER. IF THERE IS A DISCREPENCY, PLEASE CONTACT THE MITSUI REPRESENTATIVE PLACING THE ORDER TO RESOLVE PRIOR TO MAILING YOUR BILL.

Alliance billed Mitsui for the transportation services in accordance with Alliance's proposed drayage rate schedule, not the rate schedule listed on the POs. Mitsui's invoices contained the following statement:

IN THE EVENT OF NON-PAYMENT, THE COSTS OF COLLECTION INCLUDING REASONABLE ATTORNEYS' FEES SHALL BE ADDED TO THE INVOICE.

The total amount Alliance billed was $161,274.75. Mitsui rejected the invoices and notified Alliance that the rate billed did not correspond to its PO rate. When Alliance's bills were not paid, Alliance ceased providing services.

Alliance's attempt to negotiate payment failed as DeLuca steadfastly adhered to Mitsui's PO rate schedule. Also, before Mitsui would pay the roundtrip rate, it required proof that the containers were returned to Liverpool. In an effort to resolve the dispute, Eckerd agreed to add an additional $100 per invoice for future services provided by Alliance to be credited toward the Liverpool invoices. Essentially, Alliance would be paid $770 per Liverpool roundtrip and $950 per Pittsburgh roundtrip.

Alliance resubmitted its invoices. If proof of the Liverpool return trip was not provided, Mitsui only paid the $420 one-way drayage rate. From February 13, 2003 to December 30, 2003, Mitsui made payments to Alliance totaling $99,775 and Eckerd made payments of $22,982.63. Alliance's complaint sought the difference in the amount it originally billed less the total payments received.

In a written opinion, the trial judge determined "[t]here was no mutual assent relating to the drayage rate prior to commencement of inland transportation service by Alliance[.]" And, "because of the inartful way in which these negotiations were conducted, both parties performed under a mistaken understanding as to the drayage rate to be paid." The judge found the parties settled the dispute whereby Mitsui would pay its stated drayage rate and Eckerd would contribute the additional sums. The judge rejected Alliance's argument that Mitsui breached the settlement agreement. However, Mitsui was required to pay the agreed amount of $670 regardless of whether Alliance submitted roundtrip documents. Mitsui was ordered to pay $5,567.37 and all claims against Eckerd were dismissed.

On appeal, Alliance maintains the legal relationship between the parties was governed by the doctrine of accord and satisfaction, as the parties intended to resolve Alliance's disputed claim. Thus, Mitsui's breach allows Alliance to enforce its original agreement. Further, the trial judge's conclusion that there was no initial agreement was incorrect.

Appellate review of a judgment entered in a non-jury case is that "the findings on which it is based should not be disturbed unless '. . . they are so wholly insupportable as to result in a denial of justice,' and that the appellate court should exercise its original fact finding jurisdiction sparingly . . . ." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). The court should not "disturb the factual findings and legal conclusions of the trial judge unless [it is] 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." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). Credibility determinations are included within the trial court's deferential factfinding authority. Ferdinand v. Agric. Ins. Co. of Watertown, 22 N.J. 482, 492 (1956).

Alliance's claim that it had an agreement accepting its proposed drayage rates is based on the May 17, 2002 conference call. Higgins' recollection of that conversation differed significantly from Bumgardner's recollection. Judge Hurley concluded the facts as presented failed to support mutual assent of the parties. Thus, no agreement was reached. Further, the judge found a subsequent agreement whereby Alliance would accept Mitsui's roundtrip rates for Liverpool and Pittsburgh and Eckerd would add $100 for each Liverpool delivery. Judge Hurley's damage computation was based upon the evidence, as presented at trial.

Our review of the record satisfies us that the judge's factual findings are amply supported by adequate, substantial, and credible evidence and we have no occasion to disturb them. Rova Farms, supra, 65 N.J. at 484.

We reject plaintiff's claim of accord and satisfaction for two reasons. First, the doctrine serves as an affirmative defense, not a cause of action. R. 4:5-4. Second, application of accord and satisfaction was not raised below by any party, precluding our review. "Our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)); R. 2:6-2. Similarly, Alliance presented no evidence on its claim, now raised on appeal, that Mitsui has not paid $4,011.12 for deliveries to Charlotte and Newnan. Trial testimony focused on the rates for the Liverpool and Pittsburgh deliveries. We may not consider claims outside the record. Ibid.; R. 2:5-4.

After review, we find plaintiff's arguments asserting unjust enrichment, quantum meruit, and waiver are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Finally, we reject Alliance's challenge to the trial court's discretionary denial of admission of a portion of a three-page document. Alliance sought admission of page one of the document when the entire document had not been provided. Judge Hurley stated, "Isn't there a continuing obligation here that if you're going to provide a document, you're going to provide the complete document, you don't provide a part of the document and then come to trial and say by the way, here is the rest of it." This ruling accords the requisites of N.J.R.E. 106. We discern no abuse of discretion in the evidentiary ruling. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).

Affirmed.

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A-4860-05T3

March 6, 2008