MICHAEL J. MORTORANO VS. TODD SIEGMEISTERÂ (L-3737-13, PASSAIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0280-15T2
MICHAEL J. MORTORANO,
Plaintiff-Respondent,
v.
TODD SIEGMEISTER,
Defendant-Appellant,
and
RICHARD ALBA,
Defendant-Respondent.
_________________________________
Argued October 24, 2017 – Decided November 20, 2017
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
3737-13.
Todd Siegmeister, appellant, argued the cause
pro se.
Michael J. Mortorano, respondent, argued the
cause pro se.
Respondent Richard Alba has not filed a brief.
PER CURIAM
Defendant Todd Siegmeister appeals from an August 21, 2015
judgment entered against him in favor of plaintiff Michael J.
Mortorano for breach of contract following a bench trial. We
affirm.
I.
The following facts are taken from the record. Plaintiff was
involved in the logistics business for forty years, selling goods
abroad, including in Africa. In 2010, he was approached by
defendant Richard Alba to procure $30,000 worth of cellular
telephones to sell in Ghana. Plaintiff and Alba entered into an
agreement whereby plaintiff would obtain the telephones, ship them
to Alba's Ghanaian contact Cozi Alovor1, who would in turn sell
the telephones, and plaintiff would thereafter be paid. Alovor
was tasked with selling the telephones because he was licensed to
do business in Ghana. The testimony at trial established that
only a Ghanaian resident could conduct business in Ghana.
After plaintiff obtained the telephones, he received an email
from Alba dated November 2, 2010, stating "send the phones."2
1
The spelling of Alovor's name varies in the record. We utilize
the spelling used by the trial judge.
2
We have not been provided the trial evidence. We derive the
contents of the evidence from the trial court's recitation of it.
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Plaintiff prepared an invoice and sent it to Alba on November 24,
2010. Alba responded with an email on November 29, 2010, enclosing
plaintiff's invoice, which Alba had signed, stating "Here is the
signed invoice for the cell phones."
At trial, plaintiff also produced an invoice from "Sunday's
Seconds," which had sold him the telephones he intended to ship
to Alovor. When plaintiff received the telephones from Sunday's
Seconds, he forwarded them to the shipper for inspection.
Plaintiff adduced an air bill of lading, proving the shipment was
sent to Ghana in December 2010, and for plaintiff's payment of the
shipping costs.
Plaintiff was not paid. Beginning in February 2011, an email
exchange between plaintiff and Alba ensued regarding plaintiff's
payment for providing the telephones. In one email, Alba
represented "When [Alovor] sells the phones, I will give you the
money."
The email exchange continued through March 2011. In one
exchange Alba referenced Siegmeister was having difficulty
obtaining payment for a separate gold transaction in Africa that
had gone awry. Plaintiff's response was "I can't stay calm. I
don't like liens on my house and all of this pressure for phones
and money that everyone owes me."
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Based on the invoice evidence and the email correspondence,
the trial judge concluded plaintiff and Alba had contracted to
sell telephones in Ghana. The judge found plaintiff had procured
the telephones, demonstrated his payment for them and the shipping,
was asked by Alba to ship them, and an obligation to pay plaintiff
was acknowledged through the subsequent emails between Alba and
plaintiff.
Plaintiff adduced email correspondence dated April 2011,
between him and Alba. In it, plaintiff stated: "It now appears
that you have all the proof that [Siegmeister] had robbed from you
the money and/or the cellphones from you." Alba responded: "As
of an hour ago, someone is communicating on behalf of [Alovor] to
resolve this matter. I can't blame [Siegmeister] yet." The trial
judge concluded "That's the crucial words that really bring some
color into this case, because that's the first time that you could
really see that [] Siegmeister's name is related to these cell
phones."
Plaintiff also adduced an email from May 2011, from Alba.
These emails copied Siegmeister and another business associate,
Tony D'Onofrio. The emails explained that funds were frozen in
Ghana totaling $150,000, which Alba, Siegmeister, and D'Onofrio
were awaiting to be released by the Ghanaian court. These funds
were related to a criminal prosecution instituted by Siegmeister
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against Alovor. The trial judge found this correspondence further
confirmed acknowledgment of the contract and the funds owed to
plaintiff.
Plaintiff also adduced proof, by way of a corporate resolution
dated January 2010, from Crown Financial Solutions (Crown
Financial), naming Alba as a director of the corporation. The
resolution pre-dated the contract for the cellular telephones and
bore Siegmeister's signature as president of Crown Financial.
Based upon the totality of the evidence adduced, the trial
judge concluded Alba and Siegmeister were business partners. The
judge stated:
So Crown Financial [] was suing [] Alovor for
the money that he took. And that's also
confirmed in the emails where they're going
back and forth about the fact that they're
waiting to see what happens with the criminal
action so that they can recoup their money and
perhaps people can recover the monies that are
owed to the various people that are mentioned
in the emails.
The trial judge concluded:
[A]s I understand it from reading all of these
emails, there could only be one conclusion
that's credible based on all the testimony.
Is that [plaintiff] gave the phones to Alba
to sell. . . . [Alba] got [Alovor] and Crown
Financial to sell the phones because of their
contacts in Ghana. . . . [Alba] didn't have
a license [to do business in Ghana]. . . . So
Alba agreed with [plaintiff] to transport the
cell phones to [Alovor], but [Alovor] really
works for Crown Financial and [] Siegmeister.
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The judge further concluded Siegmeister, Alba, and Alovor were all
a part of Crown Financial and the telephones were "given to Crown
Financial, [] Siegmeister, and/or [Alovor] all as one organization
for sale."
The trial judge next reviewed a January 3, 2013 email from
plaintiff to Alba and D'Onofrio recounting a conversation
plaintiff had with Siegmeister. According to plaintiff,
Siegmeister represented Alovor had been sentenced to prison for
stealing money from the business venture and a civil litigation
had been instituted against him in Ghana. Siegmeister also stated
$210,000 would be collected by March 2013 as a result of the civil
litigation, from which plaintiff would receive $30,000. The judge
noted Siegmeister testified that he only promised to give plaintiff
$30,000, but he never had a contract to pay him $30,000.
Alba's reply email disputed the sums Siegmeister would pay
from the $210,000 because Alba claimed he was owed $378,000. In
regards to plaintiff's $30,000, Alba stated: "With regard to your
30k you are seeking for phones that you sent which never worked,
you and [Siegmeister] are planning to make millions [] building
hospitals and you're asking for [$]30,000 for phones that never
worked on an investment you made of [$]5,000." The judge found
Alba's email was further evidence that he contracted with plaintiff
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to sell the telephones. The judge concluded "There's no question
that [] Alba owes [plaintiff] the monies, based on everything that
I've just stated earlier."
The trial judge also found that Siegmeister was the author
of Alba's email to plaintiff. The judge noted she had viewed the
email on plaintiff's telephone and it was clear the email had been
forwarded to him from an email address that belonged to
Siegmeister.
Additionally, the trial judge heard testimony about a meeting
between plaintiff, Alba, and Siegmeister at a diner on January 7,
2013. Plaintiff adduced this testimony from Donald Alston, who
plaintiff brought to the meeting as a witness. Alston testified
that during the meeting Siegmeister acknowledged $30,000 was owed
to plaintiff. The judge credited Alston's testimony and the email
from Siegmeister, and concluded Siegmeister's testimony denying
the existence of a contract with plaintiff was not credible. The
trial judge found "Siegmeister made an agreement with [plaintiff]
to pay him $30,000."
The trial judge entered a judgment against Siegmeister for
$30,000. The judge denied plaintiff punitive damages and found
no evidence of fraud. Siegmeister now appeals from the judgment.
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II.
We begin with our standard of review. A trial court's
findings "should not be disturbed unless '[] they are so wholly
insupportable as to result in a denial of justice[.]'" Rova Farms
Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)
(quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App.
Div.), aff'd o.b., 33 N.J. 78 (1960)). When the trial court's
findings are "supported by adequate, substantial and credible
evidence," those findings should be upheld on appeal. Id. at 484
(citing N.J. Tpk. Auth. v. Sisselman, 106 N.J. Super. 358 (App.
Div.), certif. denied, 54 N.J. 565 (1969)).
"[O]ur appellate function is a limited one: we do not disturb
the factual findings and legal conclusions of the trial judge
unless we are 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. N. Bergen, 78 N.J. Super. 154, 155 (App. Div.),
certif. denied, 40 N.J. 221 (1963); see also Rova Farms, supra,65 N.J. at 484. The function of this court is to determine whether
there is "substantial evidence in support of the trial judge's
findings and conclusions." Weiss v. I. Zapinsky, Inc., 65 N.J.
Super. 351, 357 (App. Div. 1961).
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Furthermore,
When the credibility of witnesses is an
important factor, the trial court's
conclusions must be given great weight and
must be accepted by the appellate court unless
clearly lacking in reasonable support. "[T]he
trial court is better positioned [than we] to
evaluate [a] . . . witness' credibility,
qualifications, and the weight to be accorded
her testimony."
[N.J. Div. of Youth & Family Servs. v. F.M.,
375 N.J. Super. 235, 259 (App. Div. 2005)
(quoting In re Guardianship of DMH, 161 N.J.
365, 382, (1999)) (citation omitted).]
Siegmeister asserts "there is good cause to set aside the
August 21, 2015 order using both case law and Rule 4:50-1(a), (b),
(c), (d) and (f)." By "case law," it is apparent from defendant's
brief that he is relying upon our decision in Marder v. Realty
Constr. Co., 84 N.J. Super. 313, 318-19 (App. Div.), aff’d, 43
N.J. 508 (1964), which addressed the standard applied to vacate
default judgment.
Siegmeister's legal argument misconstrues the law. This is
a direct appeal from the judgment entered after trial. Rule 4:50-
1 addresses the grounds for collateral relief, not a direct appeal.
Also, our holding in Marder, supra, 84 N.J. Super. at 318-19,
addressed the basis on which to vacate a judgment entered in
default, not after a full trial in which both parties participated.
Because neither of these conditions exist here, the law Siegmeister
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cites is inapplicable. Moreover, Siegmeister cannot contest the
judgment on the grounds asserted under Rule 4:50-1, where those
grounds were not asserted before the trial court.
Our Supreme Court has stated:
It is a well-settled principle that 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)).]
For these reasons, we decline to address these arguments.
Siegmeister next argues plaintiff did not prove the existence
of a contract between them. Siegmeister asserts there was no
written contract between them and one was required under the
Uniform Commercial Code (UCC). Siegmeister argues even if there
was a contract, plaintiff failed to perform under it by delivering
the telephones to him. Siegmeister also argues he was unaware of
the agreement to ship the telephones to Alovor until after the
goods had been shipped, and Alovor was incarcerated.
These arguments lack merit. The trial court painstakingly
reviewed the documentary and testimonial evidence. The objective
evidence demonstrated Alba and Siegmeister were members of the
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same corporation, Crown Financial, and Alovor represented them in
Ghana. Plaintiff was instructed to procure and ship the telephones
to Alovor. Alba, on behalf of Siegmeister and Crown Financial,
acknowledged the shipment by endorsing the invoice furnished by
plaintiff.
The trial judge found other evidence of the contract within
the emails sent by Alba conceding an obligation to pay plaintiff.
The judge rejected Siegmeister's testimony that he was unaware of
the transaction by finding Siegmeister had acknowledged the debt
in an email, and crediting the testimony of Alston. The judge
concluded:
So I find that [] Siegmeister, he wasn't
credible when he testified. We have a notion
in the law which is called false in one, false
in all.
. . . .
[A]fter reviewing this email and realizing
that in fact, [] Siegmeister wrote the email,
I don't find his testimony credible at all.
And . . . that email, in conjunction with []
Alston's testimony that in fact, monies were
owed [plaintiff], I do find that []
Siegmeister made an agreement with [plaintiff]
to pay him the $30,000.
The trial judge's credibility findings are supported by the record
and we defer to them.
The trial judge also found the UCC applied, but did not serve
as a defense because plaintiff and Siegmeister were considered
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merchants, and the UCC does not mandate a written contract between
merchants. We agree.
The UCC provides:
(1) Except as otherwise provided in this
section a contract for the sale of goods for
the price of $500 or more is not enforceable
by way of action or defense unless there is
some writing sufficient to indicate that a
contract for sale has been made between the
parties and signed by the party against whom
enforcement is sought or by his authorized
agent or broker.
(2) Between merchants if within a reasonable
time a writing in confirmation of the contract
and sufficient against the sender is received
and the party receiving it has reason to know
its contents, it satisfies the requirements
of subsection (1) against such party unless
written notice of objection to its contents
is given within ten days after it is received.
(3) A contract which does not satisfy the
requirements of subsection (1) but which is
valid in other respects is enforceable.
. . . .
(c) with respect to goods for which
payment has been made and accepted
or which have been received and
accepted [].
[N.J.S.A. 12A:2-201.]
The evidence supports the trial judge's findings that the
parties had a binding contract under the UCC. A contract was
proven under N.J.S.A. 12A:2-201(1), because the invoices
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acknowledged and signed by Alba on behalf of Crown Financial meet
the definition of a writing under the UCC.
The evidence supports a finding under N.J.S.A. 12A:2-201(2)
because the judge found both plaintiff and Siegmeister to be
merchants. The judge also found that Siegmeister was aware of the
contract because Siegmeister was scrivener of the email
acknowledging the sums owed to plaintiff on account of receipt of
the telephones. Also, the judge found Siegmeister did not object
to the terms of the contract because he acknowledged the debt in
the meeting at the diner, and pursued Alovor for the funds to pay
plaintiff his $30,000.
Finally, the evidence also satisfies a finding under N.J.S.A.
12A:2-201(3)(c). Plaintiff established he procured the
telephones, was instructed to ship them to Ghana by Alba, and
Alovor accepted them on behalf of Alba and Siegmeister.
For these reasons, we are satisfied the adequate,
substantial, and credible evidence in the record supports the
trial judge's findings. The weight of the credible evidence
supports the entry of judgment in favor of plaintiff against
Siegmeister.
Affirmed.
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