                        NOT FOR PUBLICATION WITHOUT THE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-5102-14T2


STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,

              Plaintiff-Respondent/
              Cross-Appellant,

v.

STOKES PHARMACY,

          Defendant-Appellant/
          Cross-Respondent.
______________________________________________

              Argued January 24, 2017 – Decided October 13, 2017

              Before Judges Messano and Guadagno.

              On appeal from the Superior Court of New
              Jersey, Law Division, Burlington County,
              Docket No. L-0097-14.

              Michael Confusione argued the cause for
              appellant/cross-respondent (Hegge &
              Confusione, LLC, attorneys; Mr. Confusione,
              of counsel and on the briefs).

              Ann Dee Lieberman argued the cause for
              respondent/cross-appellant (Newman &
              Andriuzzi, attorneys; Ms. Lieberman and
              Suzanne E. Mayer, on the briefs).
PER CURIAM

    On December 18, 1990, Joseph Brian Quick sustained serious

injuries when he was struck by a car while riding his bicycle.

State Farm Mutual Automobile Insurance Company provided

automobile insurance to Joseph under a policy issued to his

father, Robert C. Quick.

    Defendant Stokes Pharmacy provided medical services

including medication and durable medical equipment to Joseph

which were billed to and paid for by State Farm.      In November

2012, State Farm claimed it overpaid Stokes $165,465.20, for

services billed between April 5, 2012, and July 31, 2012.       State

Farm demanded reimbursement but Stokes refused.

    State Farm filed a complaint in the Law Division seeking

reimbursement.   After a three-day bench trial, the trial judge

entered an order awarding State Farm $134,934.62.      Stokes now

appeals, claiming it was denied a trial by jury; the evidence

failed to demonstrate State Farm's right to recovery; State

Farm's right to recovery was foreclosed by N.J.S.A. 26:2J-8.1

and N.J.S.A. 39:6A-9.1; and the trial judge erred in admitting

certain testimony and evidence.       State Farm cross-appeals and

maintains the judge erred in not awarding the full amount

sought, $165,465.20.


                                  2                           A-5102-14T2
    Stokes first claims that it was denied the right to a trial

by jury.   Without actually conceding that it never made a demand

for a jury trial, Stokes attempts to piggyback on the demand for

a jury trial made by State Farm in its complaint.   We find this

argument not only lacks merit but is somewhat disingenuous.

    Rule 4:35-1(a) provides in pertinent part,

           any party may demand a trial by jury of any
           issue triable of right by a jury by serving
           upon the other parties a demand therefor in
           writing not later than 10 days after the
           service of the last pleading directed to such
           issue. Such demand may be appended to the
           party's pleading.

Failure of a party to serve a demand for trial by jury

constitutes a waiver. R. 4:35-1(c).

    Stokes relies on 500 Columbia Turnpike Associates v.

Haselmann, 275 N.J. Super. 166 (1994), in arguing that once a

jury trial demand has been made by one party the consent of all

parties is required before it can be dispensed with.     We find

Columbia Turnpike distinguishable and Stokes' reliance on it

misplaced.

    In Columbia Turnpike, the plaintiff instituted litigation

against three defendants alleging tortious interference and

breach of a commercial lease. Id. at 169.   One of the

defendants, Feist & Feist, requested a trial by jury.      After a

jury was empaneled, counsel for another defendant, Haselmann,

                                 3                           A-5102-14T2
requested a bench trial on the claims against his client and

that a jury trial be conducted as to Feist & Feist. Ibid.     When

the judge ruled that all issues would be tried before a jury,

counsel for Feist & Feist waived trial by jury for his client.

Ibid.    The plaintiff's counsel objected, arguing that Rule 4:35-

1(d) required the consent of all parties to a waiver once a

party has requested a trial by jury.   The judge ruled that

because plaintiff had not requested a jury trial, it had no

right to demand a jury its waiver was not required under the

rule. Ibid.

    We reversed, noting that once a party requests a jury trial

the Rule requires all parties to consent by trial by the court

and "once Feist & Feist demanded a jury trial on all the issues,

trial by jury could be dispensed with only by consent of all the

parties or their counsel." Id. at 170.

    While it is clear that State Farm demanded a jury trial in

its complaint, it is equally clear that Stokes made no request

for a jury trial in either its initial or in an amended answer.

In the limited record before us, there is no indication it ever

made such a demand before the trial judge or objected to a bench

trial.

    In a Rule 104 hearing held on March 31, 2015, the trial

judge indicated that he has "engaged in some conferencing with

                                 4                          A-5102-14T2
counsel not for the purpose of settlement, but for the purpose

of . . . exploring presentation and seeing what the issues

happen to be."   We were not provided with transcripts of those

conferences, but it is apparent that by the time of the March

31, 2015 hearing, the parties were anticipating a bench trial.1

This is evident from a statement made that day by the trial

judge after he denied State Farm's request to adjourn the trial

date: "it is a non-jury trial, and I will see that justice is

done."   Certainly, if Stokes was under the impression that the

case would be tried to a jury, or had any objection to a bench

trial, its counsel had the opportunity to raise the issue with

the trial judge at that time and failed to do so.   Stokes has

not provided any proof that it ever requested a trial by jury or

objected the bench trial.

     In State Farm's brief, it alleges that during a pretrial

conference2 before the trial judge, "both parties agreed that the

matter should proceed as a bench trial not a trial by jury."      No

transcript of this conference has been provided, but if this


1
  Later in the transcript, the attorney for Stokes stated that he
had spoken earlier with the judge in chambers "regarding how the
trial will be handled by [the attorney] and [his co-counsel]."
2
  Court records indicate that, before trial began on April 28,
2015, there were motion hearings scheduled on July 25, 2014,
October 10, 2014, October 24, 2014, March 31, 2015, and March
30, 2015.

                                5                         A-5102-14T2
occurred, there was an oral waiver of the right to trial by jury

which is permissible by Rule 4:35-1(d).     If there was a jury

trial waiver, it is troubling that appellate counsel, who does

not deny State Farm's claim of such a waiver, argues before us

that Stokes was entitled to a jury trial.     We acknowledge that

appellate counsel did not represent Stokes at trial and no

transcripts of pretrial conferences have been produced.

Nevertheless we caution counsel that misrepresentation, "even

when carried out in the name of zealous representation," is not

permissible. In re Seelig, 180 N.J. 234, 250 (2004).

    Because State Farm's claim that both parties waived the

right to trial by jury is not contested by Stokes and there is

ample support in the record indicating Stokes consented to a

bench trial, we reject the argument that Stokes was denied the

right to trial by jury.

    Stokes next claims State Farm's complaint failed to specify

the cause of action under which it sought recovery from Stokes.

In its complaint, State Farm alleged:

         For dates of service from April 5, 2012
         through July 12, 2012, agents, servants and
         employees of Defendant Stokes Pharmacy,
         provided medical services in the form of
         medication to Joseph Brian Quick.      These
         services were erroneously and/or over-billed
         and/or duplicatively billed to State Farm
         Mutual Automobile Insurance Company.    As a
         result of these erroneously billed and/or

                               6                            A-5102-14T2
         over-billed and/or duplicatively billed dates
         of service, State Farm Mutual Automobile
         Insurance Company thereafter over paid Stokes
         Pharmacy, the sum of $165,492.94 for these
         services.

    In its answer, Stokes denied the allegations, but failed to

raise any defenses.   During the March 31, 2015 hearing, the

judge permitted Stokes to amend its answer to raise the defense

of accord and satisfaction.   Stokes now argues that the judge

failed to apply the legal requirements for unjust enrichment to

State Farm's claim.   State Farm did not seek restitution for a

payment made under a mistake of fact, but sought to recoup

overpayments as a result of Stokes' overbilling.   Stokes only

sought to include accord and satisfaction in its amended answer

and did not raise the issue of unjust enrichment before the

trial judge.

    It is well-settled that we will not 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).   We decline

to consider the issue now.




                                7                          A-5102-14T2
    Stokes also claims the trial judge's finding that more than

$130,000 in overpayments were made to Stokes is not supported by

adequate, substantial and credible evidence.   We disagree.

    State Farm called Diane Zazzaro at the Rule 104 hearing and

as a witness at trial.   Zazzaro identified each claim submitted

by Stokes and the corresponding payments made by State Farm.

There were no objections to any of these exhibits by Stokes.

While Stokes attempted to prove through its co-owner/manager,

Michael Tursi, that the payments received from State Farm on

behalf of James Quick were applied to outstanding balances,

Tursi was unable to provide any documents to support his claim

or to rebut State Farm's proofs of overpayment.   The evidence

introduced by State Farm provided compelling support for the

judge's conclusions.

    Stokes next argues that State Farm's right to sue Stokes

for overpayments is foreclosed by the Health Claims

Authorization, Processing and Payment Act (HCAPPA), N.J.S.A.

26:2J-1 to -47 and the New Jersey Automobile Reparation Reform

Act (No Fault Law), N.J.S.A. 39:6A-1 to -35.   Again, we

disagree.

    HCAPPA provides certain adjudicative or administrative

procedures by which health maintenance organizations should

resolve claims for unpaid or improperly paid claims.   Stokes now

                                8                          A-5102-14T2
argues HCAPPA requires a carrier to file a claim for overpayment

within eighteen months of payment.   That section, N.J.S.A.

26:2J-8.1(d)(12), provides in pertinent part:

         No   health    care    provider   shall    seek
         reimbursement from a payer or covered person
         for underpayment of a claim submitted pursuant
         to this section later than 18 months from the
         date the first payment on the claim was made,
         except if the claim is the subject of an appeal
         submitted pursuant to subsection e. of this
         section or the claim is subject to continual
         claims submission.

    Stokes claims State Farm's complaint was filed more than

eighteen months after the "prescription period" and a remand is

required to determine if these were payments of PIP benefits or

health insurance benefits subject to HCAPPA.

    State Farm maintains that it has paid and continues to pay

PIP benefits to Brian Quick, which are not subject to the

restrictions contained in N.J.S.A. 26:2J-8.1(d)(12) and N.J.S.A.

17B:27-44.2.   Stokes suggests that the payments to Quick may not

be PIP benefits but provides no proof to support this claim.

Rather, Stokes, who did not raise this issue before the trial

judge, now seeks a remand for that determination to be made.      As

there is no indication in the record that these payments were

anything other than PIP benefits, we find no merit to Stokes'

argument and see no need for a remand.



                                9                           A-5102-14T2
    Stokes next argues for the first time on appeal, that

nothing in N.J.S.A. 39:6A-9.1, permits State Farm to sue a

"health provider like Stokes."    State Farm did not rely on this

statute in seeking recovery from Stokes and Stokes failed to

raise this argument before the trial judge.    We see no relevance

of N.J.S.A. 39:6A-9.1, which addresses the ability of an insurer

paying PIP benefits to recover from insured and uninsured

tortfeasors, to the action brought by State Farm and no merit to

Stokes' argument. R. 2:11-3(e)(1)(E).

    Finally, Stokes challenges evidentiary rulings made by the

trial judge permitting State Farm to call a witness, Carla

Salmonson, who was not identified during discovery, and

admitting a spread sheet prepared by Salmonson under the

supervision of State Farm's counsel.

    Just before trial began, State Farm moved to bar any

testimony regarding outstanding balances claimed by Stokes

because no affirmative defense was ever raised in its answer.

Counsel for Stokes explained its proposed defense:

         Your Honor my client's position in this matter
         is basically they got the monies from State
         Farm, applied it to the open accounts
         receivable, and at this point in time there's
         no other monies due to State Farm.

    The judge then permitted Stokes to amend its complaint to

allege "full accord and satisfaction" and denied a request by

                                 10                         A-5102-14T2
counsel for State Farm to adjourn the trial.   During the Rule

104 hearing prior to trial, Tursi testified that during 2012,

State Farm provided "partial payments" to Stokes and subsequent

payments received from State Farm were applied to outstanding

balances.   Tursi relied in part on a spread sheet listing

$434,833.08 in payments made by State Farm to Stokes from

November 7, 2011 to September 28, 2012, well beyond the time

frame of claimed overpayments alleged in State Farm's complaint.

State Farm objected to the introduction of the spread sheet at

trial.   The judge admitted the spread sheet in evidence but

adjourned the trial thirty days to permit State Farm to inspect

Stokes' computer and compare the items on the Stokes spread

sheet with State Farm's billing records for the expanded period.

     When trial resumed3 on April 28, 2015, State Farm recalled

Tursi and Zazzaro.   Zazzaro testified that, as a result of the

judge's March 31, 2015 decision, she requested that her claims

processor, Carla Salmonson, gather all invoices, explanation of

benefits (EOBs), and drafts on the Quick account for the

expanded period of November 7, 2011 through September 28, 2012.

These were then compared to the Stokes spread sheet and three

documents were created:   the first contained items listed on


3
  After the Rule 104 hearing, the judge converted the hearing and
accepted the testimony of Zazzaro and Tursi as trial testimony.

                               11                            A-5102-14T2
Tursi's spread sheet but never billed to State Farm totaling

$130,069.47 (PA-1); a second exhibit listed all items actually

billed to State Farm, totaling $291,071.43 (PA-2); and a third

listed all payments made by State Farm to Stokes for the

expanded period on Tursi's spread sheet totaling $434,833.08

(PA-3).

    These documents established that between November 7, 2011

and September 28, 2012, State Farm paid out $434,833.08 on the

account, but State Farm never received bills for $130,069.47.

When counsel for State Farm attempted to move the exhibits into

evidence, the judge sustained Stokes' objection, as Zazzaro did

not prepare them.   The judge gave State Farm the opportunity to

call a witness to authenticate the documents and trial was

continued to June 2, 2015.

    State Farm proposed calling Patricia Cox-Obeid and

Salmonson but Stokes objected to Salmonson as she was not named

in discovery and had not been deposed.   The judge overruled the

objection and permitted counsel for Stokes to meet with

Salmonson before she testified.

    Cox-Obeid testified she was the State Farm claim

representative assigned to the Quick account and, working with

Salmonson, gathered the EOBs, medical billings, and proofs of

payment from November 2011 through April 2012.

                               12                          A-5102-14T2
    Salmonson explained how she accessed the State Farm

electronic claim system, which contains a scanned copy of "every

single document that comes into the file," and printed out the

documents from the Quick account.   Counsel for State Farm then

again moved to enter the three exhibits into evidence.    Over

Stokes' objection they were admitted.

    Stokes now argues that the judge erred in allowing

Salmonson to testify and in admitting the three exhibits.     We

find these arguments lack sufficient merit to warrant further

discussion in our opinion beyond these brief comments. R. 2:11-

3(e)(1)(E).

    We generally defer the rulings of our trial court judges as

to the admission or exclusion of proffered evidence and will not

disturb those rulings absent a clear abuse of discretion. Dinter

v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div.

1991).   State Farm compiled the three challenged exhibits and

was compelled to call Salmonson as a witness to authenticate

them, only after Stokes presented a spread sheet through Tursi

which exceeded the time frame of the claims made by State Farm

and was completely devoid of authentication.   There was no way

for State Farm to anticipate the Tursi document and we see no

reason to disturb the judge's rulings here.



                               13                           A-5102-14T2
    State Farm's cross-appeal raises five points.    We find all

five lack merit and address only the claim that the trial judge

erred in not awarding State Farm all of its claimed amount of

$165,465.20.

    The trial judge based the award primarily on exhibit PA-1,

the list of items not billed to State Farm, which he referred to

as a "smoking gun" and his finding that Zazzaro, Cox-Obeid, and

Salmonson were credible witnesses.    The judge awarded the amount

contained in this exhibit, $130,069.47.

    Final determinations made by the trial court sitting in a

non-jury case are subject to a limited and well-established

scope of review: "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." Seidman v. Clifton Sav. Bank,

S.L.A., 205 N.J. 150, 169 (2011) (internal quotations omitted).

Our task is to "ponder[] whether . . . there is substantial

evidence in support of the trial judge's findings and

conclusions." Ibid.

    Informed by this standard of review, we find no reason to

disturb the trial judge's decision.



                              14                           A-5102-14T2
Affirmed.




            15   A-5102-14T2
