                                NOT FOR PUBLICATION WITHOUT THE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-3650-17T4

GAIL FUNG,

          Plaintiff-Respondent,

v.

VARSITY TUTORS, LLC,

     Defendant-Appellant.
____________________________

                    Submitted April 8, 2019 – Decided April 25, 2019

                    Before Judges Messano, Fasciale and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. SC-000355-18.

                    Ogletree, Deakins, Nash, Smoak & Stewart, PC,
                    attorneys for appellant (Michael Nacchio, on the brief).

                    Respondent has not filed a brief.

PER CURIAM
      In this small claims special civil part case, defendant Varsity Tutors, LLC,

appeals from a March 5, 2018 final judgment entered after a bench trial. Judge

Joseph G. Monaghan conducted the trial, made credibility findings, and rendered

an oral and written opinion. The judge believed plaintiff that she did not see or

execute a purported agreement to arbitrate, considered all the evidence adduced

at trial, and awarded plaintiff $1694.14 for unpaid services that she rendered as

a tutor.

      On appeal, defendant argues that (1) the judge erred by denying its motion

to dismiss and compel arbitration; (2) the judge abused his discretion in denying

defendant's adjournment request and motion for remote testimony; and (3) the

judge's verdict was entered against the weight of the evidence.1 We disagree

and affirm.

                                        I.

      Plaintiff filed her complaint on February 8, 2018, and received a trial date

for February 26, 2018. On February 22, 2018, defendant requested a thirty-day


1
  Because defendant is appealing from a judgment entered after a bench trial,
the correct standard of review is whether there exists sufficient evidence in the
record to support the judge's findings. See Rova Farms Resort v. Inv'rs Ins. Co.,
65 N.J. 474, 483-84 (1974) (stating that in a "non-jury case," the judge's findings
"should not be disturbed unless they are so wholly insupportable as to result in
a denial of justice," and that the judge's findings are binding on appeal wh en
"supported by adequate, substantial and credible evidence.")
                                                                           A-3650-17T4
                                        2
adjournment to March 26, 2018, or alternatively, a one-week adjournment to

March 5, 2018. Although plaintiff objected – for medical issues – the judge

nevertheless granted defendant's request and adjourned the trial for one-week,

or until March 5, 2018.

      On February 26, 2018, defendant filed a motion to dismiss the complaint,

compel arbitration, or alternatively permit remote testimony. Because the return

date of the motion was after the date of the adjournment, defendant requested

the judge adjourn the trial for a second time. Defendant produced a certification

of Christopher C. Swenson, defendant's vice president and general counsel,

indicating he was unavailable to appear in court for the March 5, 2018 trial

because he had to attend a meeting in Arizona. Plaintiff opposed defendant's

motions, and on the subject of the arbitration, asserted that she never signed an

agreement to arbitrate. The judge denied defendant's request for a second

adjournment of the trial.

      Before the trial started on March 5, 2018, defendant argued the merits of

its motions to dismiss and compel arbitration, which the judge denied. As to the

request to compel arbitration, the judged needed to take testimony from plaintiff,

especially because of the contentions she raised in her opposition. The judge

then started the trial.


                                                                          A-3650-17T4
                                        3
                                        II.

        Defendant is a Missouri limited liability company that provides a live

learning platform to connect tutors with students/clients for online and in-person

tutoring.   Plaintiff began working for defendant as a tutor, specializing in

standardized testing, in October 2017. She was an independent contractor, and

defendant provided opportunities for plaintiff to tutor students that fit her self-

selected criteria in certain subjects. Plaintiff would bill and be paid at an hourly

rate.

        Plaintiff argued that defendant owed her a total $2301.11, from three

outstanding invoices. After hearing plaintiff's testimony and considering the

evidence presented, the judge found that plaintiff "proved her right to collection

of two of the invoices which comes out to $1694.14." The judge noted that

"[n]one of the payments [from defendant to plaintiff] match up for Dece mber

payments in terms of the $1024.16 or the $669.98 being paid in December."

Accordingly, the judge found that plaintiff proved that she was not paid for two

of the three invoices: one invoice for $1024.16 and another for $669.98, totaling

$1649.14.




                                                                            A-3650-17T4
                                         4
                                       III.

      We begin by addressing defendant's contention that the judge erred by

denying its motion to compel arbitration. We exercise de novo review of a

judge's decision on the enforceability of an arbitration clause.       Morgan v.

Sanford Brown Inst., 225 N.J. 289, 302-03 (2016). Whether an arbitration

clause is enforceable is a legal issue; therefore, we afford no special deference

to the judge's determination of that issue. Hirsch v. Amper Fin. Servs., LLC,

215 N.J. 174, 186 (2013). Here, the judge made credibility findings as part of

his decision to deny the motion.

      Credibility is always for the factfinder (here, the judge) to determine.

Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956).

"Appellate courts should defer to trial courts' credibility findings that are often

influenced by matters such as observations of the character and demeanor of

witnesses and common human experience that are not transmitted by the

record." State v. Kuropchak, 221 N.J. 368, 382 (2015) (quoting State v. Locurto,

157 N.J. 463, 474 (1999)). Our review is "limited to 'whether the findings made

could reasonably have been reached on sufficient credible evidence present in

the record.'" Id. at 382-83 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).




                                                                           A-3650-17T4
                                        5
      The judge found defendant failed to prove that plaintiff received or

executed a contract with the arbitration clause. Thus, under basic contract

principles, the judge determined that there was no valid contract, and

consequently, no agreement to arbitrate. The judge reached this conclusion

primarily based on his credibility findings. But the judge also found "plaintiff's

testimony about not agreeing to [a]rbitration and not having a copy of the

agreement to be both credible and consistent with the documentary evidence."

In light of our deferential review, we decline to disturb the judge's credibility

findings. We conclude that there exists sufficient credible evidence in the record

to support the judge's findings.

                                     IV.

      The granting or denial of an adjournment is left to the discretion of the

trial judge. Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003). A

judge abuses his discretion when his "decision [was] made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)

(citation and internal quotation marks omitted). Rule 6:4-7(a), governing the

special civil part, provides:

             All requests for adjournments of hearings, trials and
             complementary dispute resolution events shall be made

                                                                          A-3650-17T4
                                        6
            to the clerk's office as soon as the need is known, but
            absent good cause for the delay not less than [five] days
            before the scheduled court event. Prior to contacting
            the clerk's office, the party requesting the adjournment
            shall notify the adversary that the request is going to be
            made and, except for requests made pursuant to
            paragraph (b) of this rule, shall then notify the clerk of
            the adversary's response. The court shall then decide
            the issue and, if granted, assign a new date. The
            requesting party shall notify the adversary of the court's
            response.

      The judge granted defendant's first request, in which defendant suggested

the one-week adjournment.      In its letter requesting the first adjournment,

defendant did not mention Swenson's required attendance at the meeting in

Arizona, which had been scheduled for several months. Plaintiff objected to

defendant's request for another adjournment. We conclude that the judge did

not abuse his discretion – that is, his decision was not "made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis."

      Defendant also argues that the judge incorrectly denied its motion for

telephonic testimony of its witness, Swenson. The judge concluded that he

would not be taking telephonic testimony and stated, "this whole case is going

to turn on credibility and how does [plaintiff] have the opportunity to cross -

examine effectively somebody who's on the phone in Tempe, Arizona?" In his


                                                                         A-3650-17T4
                                        7
supplemental statement of reasons supporting the judgment, the judge further

explained: "The [c]ourt noted that credibility would be an important factor in

the case. The [c]ourt would be unable to assess credibility via telephonic

testimony and, further, plaintiff would be deprived of the ability to conduct [a

thorough] cross[-]examination."

      In State v. Santos, 210 N.J. 129, 141 (2012), our Supreme Court

articulated a two-part test for admitting telephonic testimony, which was

distilled from Judge Pressler's opinion in Aqua Marine Products, Inc. v. Pathe

Computer Control Systems, Corp., 229 N.J. Super. 264, 275 (App. Div. 1988):

            First, the court must determine whether the opposing
            party has consented to the testimony or whether there
            is a "special circumstance," also referred to as an
            "exigency," "compelling the taking of telephone
            testimony." Aqua Marine, 229 N.J. Super. at 275.
            Second, the court must be satisfied that "the witness'
            identity and credentials are known quantities" and that
            there is some "circumstantial voucher of the integrity
            of the testimony." Ibid.

            [Santos, 210 N.J. at 141.]

Moreover, "as the second part to the test implies, it poses substantial practical

and logistical hurdles that an applicant seeking leave to present telephonic

testimony must satisfy in order [to] meet the test's demand for preservation of

the essential integrity of the testimony." Id. at 142.


                                                                         A-3650-17T4
                                         8
      As to the first prong of the Aqua Marine test, plaintiff did not consent to

defendant presenting telephonic testimony.        And there was no "special

circumstance or exigency." Defendant's witness, Swenson, was unable to appear

because he had to attend a meeting in Arizona. Defense counsel did not inform

the court of this scheduling conflict when he requested his first adjournment. In

his supplemental statement, the judge reasoned:

                   Defendant failed to submit that Mr. Swenson was
            the only person – or even the most knowledgeable
            person – with information regarding plaintiff's work
            history with defendant. Mr. Swenson is corporate
            counsel for defendant and most of plaintiff's
            interactions and communications with defendant was
            through a Ms. Katherine Karzel. Ms. Karzel is,
            according to Mr. Swenson's Certification, defendant's
            Manager of Tutor Engagement. Defendant never
            offered to produce Ms. Karzel or any other witness in
            lieu of Mr. Swenson. Defendant never advised the
            [c]ourt that Ms. Karzel was unavailable or there was no
            one else from the defendant company familiar with
            plaintiff's work history.

            . . . In paragraph 7 of Mr. Swenson's Certification Mr.
            Swenson advised he would "investigate" plaintiff's
            complaints regarding outstanding invoices.          Mr.
            Swenson did not allege to have more direct and specific
            knowledge of plaintiff's situation.

Moreover, the judge elaborated that,

            [e]verything about [Swenson's] [C]ertification is
            generally that's what we will do; we're going to
            arbitrate, we're going to make her come out to Missouri,

                                                                         A-3650-17T4
                                       9
            et cetera. But he does not say I have personal
            knowledge, I had a phone call with her, after the phone
            call we discussed this clause to the contract, she signed
            it, or anything else. He just says here's our working
            model, I have personal knowledge this is our general
            working model. That's what he's saying.

      Importantly, we reiterate that the judge noted credibility was a primary

factor and that he would be unable to assess Swenson's credibility by telephone,

and that plaintiff would be unable to cross-examine Swenson effectively.

Accordingly, we conclude that defendant failed to satisfy either prong under

Aqua Marine, and the judge did not abuse his discretion when he denied

defendant's request to present telephonic testimony.

                                      V.

      Finally, we conclude that there exists sufficient evidence in the record to

support the judge's findings that defendant owed plaintiff $1694.14 for unpaid

services that she rendered.

      Defendant contends that plaintiff misrepresented her evidence of the

invoices, and asserts that plaintiff's exhibits were not invoices but rather simply

an "activity log" that accounted for plaintiff's activity and the hours that she

billed. During the trial, when plaintiff offered the three outstanding invoices

into evidence, defense counsel objected to the documents as hearsay and that

they were not authenticated. The judge engaged in a colloquy with plaintiff and

                                                                           A-3650-17T4
                                       10
asked her if the three documents were the alleged outstanding amounts owed to

her. Plaintiff explained,

            [y]es, they're from me to the company and it's right off
            the company's website, you see the top of it, that's how
            we invoice the client and that's what [defendant] uses
            to pay us. It's on the [defendant's] website, we have to
            use it, so I was only able to get a snapshot of it because
            they had shut me down prior to. But I knew that I would
            need it if I was going to pursue trying to get money from
            them.

The judge overruled defense counsel's objection and admitted the documents

into evidence. We see no abuse of discretion. Even if the documents were not

technically "invoices," they accurately depicted plaintiff's activity on

defendant's website and indicated the amount of hours that plaintiff billed and

the amount owed to plaintiff.       Furthermore, plaintiff's own independent

testimony demonstrated the basis for the judge's findings as to the correct

amount of unpaid services rendered.

      Importantly, defense counsel conceded that defendant did not pay plaintiff

the $605.97 because defendant was investigating whether plaintiff was billing

more hours than she worked. In his oral decision, the judge noted that two of

the three amounts that plaintiff claimed were outstanding – $1024.16 and

$669.98 – did not match up with any of the checks paid to plaintiff, which were

offered into evidence by defendant. However, the judge noted that plaintiff

                                                                         A-3650-17T4
                                       11
billed defendant for $605.97 on December 24 and on December 27, plaintiff

received a check in the amount of $605.97. Thus, the judge determined that

plaintiff was not owed for this invoice, which she alleged was still outstanding.

But, the judge found that plaintiff proved by a preponderance of the evidence

that she was not paid on the other two invoices in the amounts of $1024.16 and

$669.97. The judge reasoned, "[t]here's no evidence of any of those payments."

He therefore awarded plaintiff a total of $1694.14.

      To the extent that we have not addressed all of the parties' arguments, we

conclude that they lack sufficient merit to warrant discussion in this written

opinion. R. 2:11-3(e)(1)(E). We add these brief remarks. Although defendant

argues that the parties are required to arbitrate in St. Louis, Missouri, the judge

believed plaintiff that she never saw or executed such an agreement. And we

flatly reject defendant's arguments that the judge's discretionary rulings denied

it due process.

      Affirmed.




                                                                           A-3650-17T4
                                       12
