AMERICAN DREAM CONSTRUCTION VS. MIRVA RIVERA (DC-013225-18, ESSEX COUNTY AND…

                                NOT FOR PUBLICATION WITHOUT THE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-4131-18T3

AMERICAN DREAM
CONSTRUCTION,

          Plaintiff-Appellant,

v.

MIRVA RIVERA,

     Defendant-Respondent.
_________________________

                   Submitted October 14, 2020 – Decided October 29, 2020

                   Before Judges Moynihan and Gummer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Docket No. DC-013225-18.

                   Bastarrika, Soto, Gonzalez & Somohano, LLP,
                   attorneys for appellant (Franklin G. Soto, on the brief).

                   Mirva Rivera, respondent pro se.

PER CURIAM

          In this breach-of-contract case, plaintiff American Dream Construction

appeals from a judgment in favor of defendant Mirva Rivera issued after a bench
trial.    Plaintiff argues that the trial judge erred in failing to give any

consideration to a purported exemplar of defendant's signature and in refusing

to permit plaintiff's counsel to cross-examine defendant. Because the judge

acted within his discretion in weighing the evidence before him and because

plaintiff's counsel never asked to cross-examine defendant, we affirm.

         In the complaint, plaintiff alleged that it had an agreement with defendant

to replace the roof of defendant's house for $14,000. According to plaintiff, the

work was completed, and a remaining payment of $7000 was due. In her answer,

defendant stated that she had agreed to a payment of $11,000 and denied that

the parties had signed a contract, plaintiff had completed properly the work, and

she owed plaintiff any money.

         During this Special Civil Part bench trial, plaintiff presented only one

witness, plaintiff's owner. He testified that: he was hired to work on defendant's

roof, he had a contract, plaintiff had completed the work in accordance with the

contract, and defendant owed plaintiff $7000. Through that witness, plaintiff's

counsel submitted to the judge a copy of the contract on which plaintiff bases

its case. The judge described the contract as stating, "owner, Mirva. That's what

. . . it says and . . . it's not written in cursive. It's almost like it's printed out." 1


1
    Plaintiff did not include a copy of the contract in its appellate submissions.
                                                                                   A-4131-18T3
                                             2
      Defendant, who was self-represented, cross-examined plaintiff's witness.

He conceded that he had never met defendant and had not witnessed the

execution of the contract. He initially testified that he had given the contract to

a friend. He also stated that a co-worker had provided the contract to defendant's

sister. He later testified that his friend had given the contract to defendant, he

believed she had signed it, and he received the signed contract with a check. He

ultimately acknowledged that he did not know who had signed the contract.

Plaintiff did not call the co-worker, his friend, or defendant's sister to testify at

trial and did not attempt to introduce the check into evidence.

      When defendant finished her cross-examination, she stated that she had

not signed the contract and had not seen it previously. After that statement, the

judge asked plaintiff's counsel: "Do you have any other questions? Do you have

any other witnesses?" Plaintiff's counsel answered, "[n]o."

      The judge then asked defendant if she wanted to testify. Defendant again

stated that she had not met plaintiff's witness, had not entered into a contract

with him, and had not executed the contract produced by him. She denied that

the signature on the contract was her signature. She indicated that the contract

signature was printed. She stated that she does not print her signature, but signs




                                                                             A-4131-18T3
                                         3
it. When defendant indicated that she had completed her testimony, plaintiff's

counsel did not ask to cross-examine her.

      The judge then asked plaintiff's witness about the check he had received.

The witness, who had not brought a copy of the check with him, instead handed

to the judge an Open Public Records Act (OPRA) request form obtained by

plaintiff's counsel and purportedly signed by defendant. Plaintiff's counsel

asked the judge to compare the signature on that document with the signature on

the contract. The judge looked at the document, noted that the signature on the

contract was printed, and had the OPRA request form marked.

      In his decision, the judge correctly held that plaintiff had the burden of

proving its case by a preponderance of the evidence. See Globe Motor Co. v.

Igdalev, 225 N.J. 469, 482 (2016). He stated his factual findings, including that

plaintiff's sole witness was not present when the contract was signed and was

not present when the check was submitted. He pointed out that plaintiff had not

produced the check and had not called as a witness the friend who had received

the check. He noted that defendant had denied signing the contract or entering

into a contract with plaintiff's witness. The judge concluded that "at best . . .

the evidence is [in] equipoise, would be equal." He held that plaintiff had not

established that defendant had signed the contract or made the down payment.


                                                                         A-4131-18T3
                                       4
Because plaintiff had not met its burden of proof, the judge found in favor of

defendant.

      Plaintiff asserts without citation to the record that the judge "ignored" and

"refused to consider" the OPRA request form. That assertion is not supported

by the record. In fact, the record demonstrates that the judge took the form from

plaintiff's witness, looked at it, and had it marked. Plaintiff contends that the

judge refused to compare the signature on the contract with the signature on the

request form. In fact, after plaintiff's witness handed the judge the request form,

the judge looked specifically at the purported signature on the contract and

stated that defendant's name was "not written in cursive" and was "almost like

it's printed out." The signature on the request form is in cursive. 2

      Our review of a trial court's findings in a non-jury case is limited. We

will 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. Twp. of N. Bergen, 78 N.J. Super.

154, 155 (App. Div. 1963); see also Seidman v. Clifton Savs. Bank, S.L.A., 205


2
  We know the signature on the OPRA request form is in cursive because, unlike
the contract, plaintiff included a copy of the OPRA request form in its appellate
submissions.
                                                                           A-4131-18T3
                                         5
N.J. 150, 169 (2011). Factual findings by a judge in a non-jury case "are binding

on appeal when supported by adequate, substantial, credible evidence." Gnall

v. Gnall, 222 N.J. 414, 428 (2015). Plaintiff introduced the OPRA request form

in an attempt to support plaintiff's contention that defendant had signed the

contract. Given that the "signature" on the contract is printed and the signature

on the OPRA form is in cursive, the judge understandably may have given little

or no weight to the OPRA request form. That determination was within his

discretion.

      Plaintiff asserts without citation to the record that the judge refused to

permit plaintiff's counsel to cross-examine defendant. In fact, plaintiff's counsel

never asked to cross-examine defendant and, thus, the judge never refused a

cross-examination request from plaintiff's counsel.        At the conclusion of

defendant's testimony, the judge asked plaintiff's witness a question about the

down-payment check. Plaintiff's counsel did not then ask to cross-examine

defendant and did not object to the judge's question. Instead, plaintiff's counsel

seemed to present plaintiff's witness in rebuttal to defendant's testimony that she

had not signed the contract. On rebuttal, plaintiff's witness raised for the first

time the OPRA request form, a document plaintiff had not presented during its

witness's initial testimony. Because plaintiff's counsel did not ask to cross-


                                                                           A-4131-18T3
                                        6
examine defendant and did not object when the court proceeded to plaintiff's

rebuttal case, we find no merit in plaintiff's argument. See Vartenissian v. Food

Haulers, Inc., 193 N.J. Super. 603, 610 (App. Div. 1984) (finding that without

an "objection, from which the trial judge would have had an opportunity to cure

the defect, we will not consider the deficiency on appeal").

      We are mindful that our case law has recognized the potential importance

of cross-examination in "ascertaining the truth of a matter." Jamgochian v. N.J.

State Parole Bd., 394 N.J. Super. 517, 536 (App. Div. 2007), aff'd as modified,

196 N.J. 222 (2008). Perhaps the better course would have been for the judge

to ask plaintiff's counsel if she wanted to cross-examine defendant, even though

she had not requested it. If that omission to ask in the face of plaintiff's counsel's

failure to request cross-examination was error, it was invited error. Trial errors

that were "induced" or "acquiesced in" by counsel "are not a basis for reversal

on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div. 1974); see also

State v. Corsaro, 107 N.J. 339, 345 (1987).

      We would not invoke the doctrine of invited error if doing so would "cause

a fundamental miscarriage of justice." Brett v. Great Am. Recreation, 144 N.J.

479, 508 (1996). Here, we see no miscarriage of justice. In order to prevail,

plaintiff had a burden to prove by a preponderance of the evidence that the


                                                                              A-4131-18T3
                                          7
parties had entered into a contract that contained the terms alleged by plaintiff.

See Globe Motor, 225 N.J. at 482. At trial, plaintiff did not call as a witness

someone who had met with defendant and had seen her sign the contract at issue.

Instead, plaintiff presented a witness who had never met defendant and

submitted to the judge a signature exemplar that was in cursive even though the

signature on the contract was printed. The judge reasonably found that plaintiff

had failed to meet its burden of proof.

      Affirmed.




                                                                          A-4131-18T3
                                          8
Share Review:
Yes it is. Based on the user review published on NO-SCAM.com, it is strongly advised to avoid AMERICAN DREAM CONSTRUCTION VS. MIRVA RIVERA (DC-013225-18, ESSEX COUNTY AND STATEWIDE) in any dealing and transaction.
Not really. In spite of the review published here, there has been no response from AMERICAN DREAM CONSTRUCTION VS. MIRVA RIVERA (DC-013225-18, ESSEX COUNTY AND STATEWIDE). Lack of accountability is a major factor in determining trust.
Because unlike No-Scam.com, other websites get paid to remove negative reviews and replace them with fake positive ones.
AMERICAN DREAM CONSTRUCTION VS. MIRVA RIVERA (DC-013225-18, ESSEX COUNTY AND STATEWIDE) is rated 1 out of 5 based on the reviews submitted by our users and is marked as POOR.
Never trust websites which offer a shady ‘advocacy package’ to businesses. Search for relevant reviews on Ripoff Report and Pissed Consumer to see more unbiased reviews.
The above review and comments against AMERICAN DREAM CONSTRUCTION VS. MIRVA RIVERA (DC-013225-18, ESSEX COUNTY AND STATEWIDE) were submitted by NO-SCAM.com user(s) and have been published as-is. NO-SCAM.com does not edit, alter or remove content published by it’s users. There’s no amount of money a business can pay to manipulate their reviews or complaints and NO-SCAM.com will NOT entertain any request to remove the review on AMERICAN DREAM CONSTRUCTION VS. MIRVA RIVERA (DC-013225-18, ESSEX COUNTY AND STATEWIDE) at any cost whatsoever.
>