KIMERLING & WISDOM, LLC VS. MARIA T. SCARIATI (L-3027-14, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4040-15T3

KIMERLING & WISDOM, LLC,

Plaintiff-Respondent,

v.

MARIA T. SCARIATI, LIGHT
SOLUTIONS, INC. and
EQUINOX ENTITIES, LTD.,

Defendants-Appellants.
_________________________________

Argued October 26, 2017 – Decided November 14, 2017

Before Judges Haas and Rothstadt.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
3027-14.

Markis M. Abraham argued the cause for
appellants (The Abraham Law Firm, LLC,
attorneys; Mr. Abraham, on the briefs).

Gerald D. Miller argued the cause for
respondent (Miller, Meyerson & Corbo,
attorneys; Mr. Miller and Paula Odysseos-
Panayiotou, on the brief).

PER CURIAM
 Following a bench trial, defendants appeal from an April 25,

2016 judgment in favor of plaintiff after the trial judge found

that defendants failed to pay plaintiff for tax preparation,

accounting, and financial planning services plaintiff performed

for defendants from 2000 to 2011. We affirm in part, reverse in

part, and remand for further proceedings.

Plaintiff Kimerling & Wisdom, LLC is a tax and accounting

services firm. Ross Wisdom, a certified public accountant, and

Noah Kimerling, a financial planner, were the principals of the

company. Defendant Maria Scariati is a lighting engineer.

Scariati owns defendant Light Solutions, Inc., a company which

manufactures marine lights and other specialty lighting products.

Scariati also owns defendant Equinox Entities, Ltd., which is a

subsidiary of Light Solutions.

In 2000, plaintiff began performing tax preparation,

accounting, and financial planning services for Scariati and her

two companies. The parties did not have a written retainer

agreement stating the specific services plaintiff agreed to

provide or the fees defendants would pay for these services.

Instead, plaintiff sent invoices to defendants as the work was

performed.

Wisdom testified that Scariati stopped paying the bills in

full soon after the arrangement began. Wisdom stated that, in May

2 A-4040-15T3
2007, he and Kimerling had a conference call with Scariati about

defendants' overdue account balances. According to Wisdom,

Scariati "kept saying over and over again, I don't have it, all

right, all right? I will pay you when I have it, all right, all

right? You can't get blood from a stone, all right, all right?

I just don't have it."

Wisdom also testified that Scariati sent him an email on July

15, 2009 concerning the monies defendant owed to plaintiff. In

that email, Scariati asked Wisdom for assistance in responding to

a separate matter that was in litigation. At the end of the email,

Scariati wrote:

[O]nce this is out of the way & [I] am out
from under this 'black cloud of litigation',
[I] will be able to pick up with [M]ike
[K]ingsford/[S]ignature [B]ank & hopefully
get 328[1] financed to pull out some funds to
finally clear up your long overdue invoices.

. . .

[M]aria

Plaintiff did not file its complaint attempting to recover

the amounts allegedly due from defendants until July 8, 2014.

Although the allegations in the complaint were limited to

plaintiff's claim that defendants failed to make payments for

services plaintiff provided during the six-year period immediately

1
"328" is a reference to a building Scariati owned.

3 A-4040-15T3
prior to the filing of the complaint, at trial plaintiffs sought

to recover the amounts due on unpaid invoices dating back to 2000.

During her testimony, Scariati initially testified that she

was dissatisfied with plaintiff's services and claimed that after

Kimerling's son died in 2003, plaintiff only provided tax

preparation services to her and her two companies. Scariati stated

that plaintiff was never able to justify the amounts set forth in

its invoices and, therefore, she "stopped . . . remitting money

. . . somewhere in 2006 after they just went off the rails with

charges that couldn't be justified or dealt with."

However, Scariati later testified that she believed plaintiff

overcharged her in the past for its services and she then received

"a credit memo" that she relied upon to pay the invoices as she

received them. Scariati was not able to produce a copy of the

alleged credit memo.

At the conclusion of the trial, the judge rendered an oral

decision in favor of plaintiff. After reviewing the testimony,

the judge found that Wisdom's account of the amounts due from each

defendant for the period between 2000 and 2011 was credible and

accurate. On the other hand, the judge found that Scariati's

testimony was "not credible[,]" "didn't quite make sense[,]" and

was "somewhat evasive and vague[.]" The judge determined there

was no evidence of any overpayment by defendants and, therefore,

4 A-4040-15T3
the judge stated he did not believe Scariati's claim that she used

a credit memo to pay the outstanding invoices.

The judge also rejected defendants' assertion that

plaintiff's demand for payment for services performed prior to

July 8, 2008 was barred by the six-year statute of limitations,

N.J.S.A. 2A:14-1. The judge held that Scariati "acknowledged the

debt that was owed to" plaintiff in her July 15, 2009 email to

Wisdom. Therefore, the judge ruled that the statute of limitations

did not apply.

Using the information contained in plaintiff's invoices, the

judge entered a judgment against Scariati in the amount of $4075;

against Light Solutions in the amount of $10,000;2 and against

Equinox Entities in the amount of $17,850. As stated above, this

judgment included payments for services plaintiff performed prior

to July 8, 2008. This appeal followed.

On appeal, defendants argue that the evidence presented at

trial was insufficient to support the trial judge's conclusion

2
After plaintiff filed its complaint, Scariati filed an answer,
but her two companies did not. Plaintiff obtained a $33,462.08
default judgment against Light Solutions and filed a writ of
execution with the county sheriff to collect it. Pursuant to that
writ, a Light Solutions client, who owed money to that company in
connection with a separate matter, paid plaintiff $22,000.
Plaintiff then subtracted this amount from the amount Light
Solutions owed it. The court subsequently vacated the defaults
entered against Light Solutions and Equinox Entities.

5 A-4040-15T3
that plaintiff provided services to defendants and they failed to

pay the amounts due. We disagree.

Our review of a trial court's fact-finding in a non-jury case

is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150,

169 (2011). "The general rule is that findings by the trial court

are binding on appeal when supported by adequate, substantial,

credible evidence. Deference is especially appropriate when the

evidence is largely testimonial and involves questions of

credibility." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-

12 (1998)). We "should 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." Ibid. (internal quotation marks

omitted). However, we owe no deference to a trial court's

interpretation of the law, and review issues of law de novo.

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995). We also review mixed questions of law and fact de

novo. In re Malone, 381 N.J. Super. 344, 349 (App. Div. 2005).

Applying these standards, the record fully supports the trial

judge's findings concerning the accuracy of the billing statements

plaintiff submitted in evidence. Wisdom identified each of the

statements, and testified that the billings were for work performed

6 A-4040-15T3
by plaintiff for defendants. Wisdom also identified the amounts

defendants had not paid for the period between 2000 and 2011. The

judge, who had the opportunity to view and hear Wisdom as he

testified, found that Wisdom's testimony was credible and we defer

to that determination.

On the other hand, the judge found that Scariati's conflicting

statements concerning the amounts due were not worthy of belief.

After initially claiming that no payments were owed because

plaintiff failed to perform the work, she later asserted she relied

upon a credit memo to pay each invoice. Under these circumstances,

we discern no basis for disturbing the judge's calculation of the

amounts each defendant owed plaintiff for work performed between

2000 and 2011.

Defendants next argue that the judge erred by permitting

plaintiff to collect amounts between 2000 and July 8, 2008, which

were outside the six-year statute of limitations period prior to

the filing of plaintiff's complaint on July 8, 2014. We agree.

A six-year statute of limitations period applied to

plaintiffs claim. N.J.S.A. 2A:14-1. However, in apparent reliance

upon N.J.S.A. 2A:14-24,3 the judge concluded as a matter of law

that when Scariati sent the July 15, 2009 email to Wisdom, she

3
The judge did not cite N.J.S.A. 2A:14-24 in his oral decision.

7 A-4040-15T3
"acknowledged the debt that was owed to" plaintiff and re-started

the statute of limitations period. By so ruling, we conclude the

judge mistakenly applied this statute.

In pertinent part, N.J.S.A. 2A:14-24 states:

In actions at law grounded on any simple
contract, no acknowledgment or promise by
words only shall be deemed sufficient evidence
of a new or continuing contract, so as to take
any case out of the operation of [the
applicable statute of limitations], or to
deprive any person of the benefit thereof,
unless such acknowledgment or promise shall
be made or continued by or in some writing to
be signed by the party chargeable thereby.

"In addition to the requirement of a writing[,][4] it is also

necessary that the acknowledgment relied upon be such as in its

entirety fairly supports an implication of a promise to pay the

debt immediately or on demand." Denville Amusement Co. v.

Fogelson, 84 N.J. Super. 164, 170 (App. Div. 1964) (citing

Bassett v. Christensen, 127 N.J.L. 259, 261 (E. & A. 1941). Thus,

in order "[t]o constitute a promise to pay sufficient to remove

the bar of the statute of limitations the promise [also] must be

unconditional and unqualified." Evers v. Jacobsen, 129 N.J.L. 89,

91 (E. & A. 1942) (emphasis added).

4
Because they were not in writing, Scariati's statements to Wisdom
and Kimerling during the May 2007 conference call obviously did
not fall under N.J.S.A. 2A:14-24.

8 A-4040-15T3
 In Evers, the Court of Errors and Appeals applied these

principles to a fact situation that is remarkably similar to the

facts presented here. In that case, the plaintiff was the holder

of notes made by the defendant. Id. at 90. The notes were not

paid and no action was taken by the plaintiff during the statute

of limitations period. Ibid. Nine years after the notes matured,

the defendant sent a payment to the defendant with a letter

stating, "I am going to send you more when I can." Id. at 91. In

her action on the notes, the plaintiff claimed that the defendant's

payment and letter, nine years after the notes matured, "took the

debt out of the statute of limitations and gave it new life because

of this new contract." Ibid. The Court disagreed, and held:

To constitute a promise to pay sufficient
to remove the bar of the statute of
limitations[,] the promise must be
unconditional and unqualified. . . . Tested
by this well settled rule[,] we find no proofs
of any unqualified promise to pay. The only
definite proof is found in the defendant's
letter . . . , in which he promised "to send
you more as and when I can." This clearly is
not an unconditional promise to pay."

[Ibid. (internal citations omitted).]

Here, Scariati's July 15, 2009 email was not unconditional

and unqualified, and it did not state that she was going to make

payment immediately or on demand. Instead, she merely wrote that

if a pending litigation matter was completed at some date in the

9 A-4040-15T3
future, she would try to finance a property "to pull out some

funds to finally clear up your long overdue invoices." The email

did not specify the particular invoices she described as being

"overdue," and Scariati did not even make clear whether she was

speaking only for herself or on behalf of one or both of her

companies.

Therefore, plaintiff was barred from recovering any funds for

work performed before July 8, 2008, which was the first day of the

six-year statute of limitations period, and the judge erred by

applying N.J.S.A. 2A:14-24 to the facts of this case. Accordingly,

we remand this matter to the trial court to recalculate the amounts

due plaintiff for the period between July 8, 2008 and July 8,

2014, and for the entry of an amended judgment.

Finally, defendants argue for the first time on appeal that

plaintiff "illegally collected" money from one of Light Solutions'

clients and improperly applied it to that company's debt. 5

Ordinarily, we will decline consideration of an issue not properly

raised before the trial court, unless the jurisdiction of the

court is implicated or the matter concerns an issue of great public

importance. Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citing

5
At trial, defendants' attorney merely noted at the end of his
oral argument that plaintiff allegedly did not report the
collection of these funds until the trial.

10 A-4040-15T3
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Neither

situation exists here and, therefore, we need not consider

defendants' contention on this point. Nevertheless, we have

reviewed defendant's argument and conclude that is without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed in part; reversed in part; and remanded for further

proceedings consistent with this opinion. We do not retain

jurisdiction.

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