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This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A- 6233-05T16233-05T1
ROBERT SCERBO,
Plaintiff-Respondent,
v.
MIDTOWN FARMERS MARKET, INC.
AND MARIO NAPOLITANO,
Defendants-Appellants.
Submitted September 10, 2007 - Decided September 20, 2007
Before Judges Cuff and Lihotz.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hudson
County, Docket No. DC-17939-05.
John T. Coyle, attorney for appellants.
Susan Ferraro, attorney for respondent.
PER CURIAM
Defendants Midtown Farmers Market, Inc. (Midtown) and Mario Napolitano appeal from the Law Division judgment
in favor of plaintiff, Robert Scerbo, filed after a two-day bench trial on April 18, 2006, and the order denying
defendants' motion for a new trial dated July 17, 2006. We affirm.
Scerbo and Napolitano were equal partners in Midtown, which operated a produce market. Initially, Scerbo
advanced $30,000, and Napolitano completed the construction to renovate the business premises. Napolitano then
performed the day-to-day business functions and Scerbo, who is an accountant, maintained the corporation's
books and records. After six months of operation, Napolitano agreed to acquire Scerbo's business interest for
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$50,000. On May 4, 1995, Napolitano paid Scerbo $14,000 from the business. He also executed two identical
promissory notes, individually and as Midtown's president, agreeing to pay Scerbo $36,000, in twenty-four monthly
installments. The agreement contained provisions for the payment of interest at the rate of nine percent and a five
percent late charge on any late monthly payment. Additionally, defendants pledged four motor vehicles as
collateral for the debt.
On October 11, 2005, Scerbo filed an action in the Special Civil Part as a result of defendants' failure to make the
required installment payments. At trial, Scerbo presented copies of receipts he gave Napolitano for the payments
he received. Each document included "the amount received, date of such receipt, and the signature of plaintiff
Scerbo." None of the receipts were executed or retained by Napolitano, however Napolitano acknowledged he had
received receipts from Scerbo.
Scerbo also prepared a summary sheet showing his computation of defendants' outstanding obligation. This
document tallied the applicable late charges, as no payment was timely made, and the unpaid principal and
interest. Scerbo's records reflected nine payments were made following the final due date set forth in the notes,
with the last payment of $150 paid on October 14, 1999. Scerbo testified he sent a memorandum to Napolitano on
June 15, 1997, which stated:
I have agreed to allow you to continue making payments on our executed promissory
note dated May 4, 1995[,] of the agreed amount subsequent to the final due date. I will
continue to accept payments . . . on the 10th day of each month thereafter until the
obligation is satisfied in full.
Napolitano denied receiving the memorandum and asserted he made no payments after August 17, 1997.
Defendants contended Scerbo's suit was barred by the statute of limitations, N.J.S.A. 2A:14-1, because it was filed
more than six years after defendants' final payment. In the alternative, defendants argued that the debt had been
discharged.
In a comprehensive bench decision, Judge O' Shaughnessy found Scerbo's testimony more credible than
Napolitano's, and determined that Scerbo's complaint was timely filed because defendants reaffirmed the debt after
the May 10, 1997 maturity date, tendering their last payment on October 14, 1999. The trial judge concluded
defendants owed Scerbo $18,306.17, representing principal, interest, and late charges after crediting defendants for
the value of the collateral liquidated by Scerbo. Judgment for plaintiff was entered for $15,000, pursuant to Rule
6:1-2(a)(1).
In their motion for a new trial, defendants challenged the trial court's denial of their application to admit as
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evidence a letter dated July 9, 1998, sent by Scerbo's former attorney Christopher Patella to Napolitano demanding
a balance due of $4,633.95, plus late fees. Defendants suggested the document, although hearsay, was an adoptive
admission, N.J.R.E. 803(b)(2), or a statement by plaintiff's authorized representative, N.J.R.E. 803(b)(3), and should
have been admitted to prove the total debt due. Defendants further maintained that the $4,633.95 debt was
satisfied after the liquidation of the collateral.
In reviewing the motion, the trial judge determined defendants failed to lay a foundation for admission of
the evidence because Patella was not produced as a witness. Further, he concluded plaintiff had not adopted the
Patella letter merely because it was provided in discovery as it had not been relied upon by plaintiff in order to
answer interrogatories or otherwise incorporated in a response to a factual inquiry. Skibinski v. Smith, 206 N.J.
Super. 349, 353-54 (App. Div. 1985). The trial judge made no specific ruling regarding the admissibility of the
documents under N.J.R.E. 803(b)(3) or (4).
On appeal, defendants challenge the trial judge's denial of their application to admit the Patella letter.
Generally, a trial court is afforded broad discretion regarding the admission of evidence and is to be reversed
only if the court abused its discretion. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). Under that standard, we
do not substitute our judgment for that of the trial court "unless it can be shown that the trial court palpably
abused its discretion, that is, that the trial court's ruling 'was so wide off the mark that a manifest denial of justice
resulted.'" Ibid. (quoting State v. Carter, 91 N.J. 86, 106 (1982)). An error will not be grounds for reversal unless it is
"clearly capable of producing an unjust result." R. 2:10-2
We conclude the trial judge did not abuse his discretion in denying admission of the Patella letter under N.J.R.E.
803(b)(2). This exception to the hearsay rule must be used with caution and only where the court is satisfied that all
of the conditions for its application have been established by the proponent. See Burbridge v. Paschal, 239 N.J.
Super. 139, 154-55 (App. Div.), certif. denied, 122 N.J. 360 (1990). The consequence of the trial court's failure to
discern whether the Patella letter was a formal admission by plaintiff's counsel of the amount due cannot be
considered reversible error because it did not produce an unjust result. We reject the contention that had the
Patella letter been admitted into evidence, plaintiff would not have been permitted to dispute the amount of the
debt due because plaintiff's former counsel allegedly conceded the issue. See Schirmer-Nat'l Co. v. Dir., Div. of
Taxation, 17 N.J. Tax 495, 502 (Tax 1998) (contention that taxpayer is not permitted to dispute the issue of taxability
because taxpayer's former counsel allegedly conceded the issue, rejected), aff'd, 19 N.J. Tax 47 (App. Div. 2000).
Plaintiff permissibly introduced documentation of all payments received and his calculation of the unpaid
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obligation, while defendants introduced no affirmative evidence of the amounts paid under the note. The weight
accorded the evidence, which included the trial judge's determination of credibility was sufficiently articulated in
the court's opinion. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The factual findings
underlying the trial court's decision are "supported by sufficient credible evidence in the record," which we will not
disturb on appeal. Ibid.
Affirmed.
(continued)
(continued)
6
A-6233-05T1
September 20, 2007
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