                        NOT FOR PUBLICATION WITHOUT THE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-0870-16T4

CP# 1109, LLC, a Delaware
LLC,

        Plaintiff-Appellant,

and

MARTIN E. O'BOYLE,

        Plaintiff,

v.

CONTINENTAL MOTORS, INC., a
Delaware Corporation, and
MATTITUCK SERVICES, INC.,
f/k/a TELEDYNE MATTITUCK
SERVICES, INC., a Delaware
Corporation,

        Defendants-Respondents.

              Argued May 10, 2018 - Decided August 29, 2018

              Before Judges Simonelli, Rothstadt and Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Docket No.
              L-4837-13.

              Jonathan R. O'Boyle argued the cause                 for
              appellant  (The  O'Boyle  Law Firm,                  PC,
           attorneys; Jonathan R. O'Boyle, of counsel and
           on the briefs).

           Frank J. Vitolo argued the cause for
           respondents (Riker Danzig Scherer Hyland &
           Perretti, LLP, attorneys; Frank J. Vitolo, of
           counsel and on the brief; Thomas M. Kenny, on
           the brief).

PER CURIAM

     In 2015, plaintiff CP#1109, LLC filed an amended complaint

against defendants Continental Motors, Inc. (CMI) and Mattituck

Services, Inc. (Mattituck), alleging that CMI's defective engine

cylinders caused damage to plaintiff's single engine airplane

after they were installed by Mattituck, CMI's authorized service

center.   Plaintiff asserted causes of action for breach of express

warranty, breach of contract, and violations of the New Jersey

Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and the Magnuson-

Moss Warranty Federal Trade Commission Improvement Act (MMWA), 15

U.S.C. §§ 2301 to 2312.1

     After a five-day trial conducted from May 5 to 12, 2016, the

jury returned a verdict in favor of defendants.      Plaintiff now

appeals from the conforming final judgment entered on July 13,

2016, arguing reversible trial errors consisting of the admission


1
   Plaintiff's amended complaint replaced its original nine-count
complaint filed in 2013 and sounding in products liability. The
trial court granted plaintiff's motion to file an amended complaint
after granting defendants' motions for summary judgment on
plaintiff's products liability claims.


                                 2                          A-0870-16T4
of a spreadsheet as a business record, confusing jury instructions,

an   erroneous   jury   verdict   form,     the     omission   of   an    adverse

inference    instruction,   and   cumulative        error.     Plaintiff      also

argues error in the imposition of taxed costs following the

verdict. We have considered these arguments in light of the record

and applicable legal principles.           We reject each of the points

raised on appeal and affirm.

      We recount the facts relevant to this appeal.                    CMI is a

manufacturer     of   reciprocating       engines    for     general     aviation

aircrafts.    The engine at the heart of this case was manufactured

by CMI and ultimately installed in the airplane sold to plaintiff

in 2008.     Plaintiff purchased the airplane used.                 In November

2010, plaintiff contacted CMI's customer service team to report a

cracked crankcase in the engine in need of repair. CMI recommended

sending the damaged engine to Mattituck, CMI's distributor and

repair facility located in New York.                 Plaintiff arranged for

Albatross Air, a company in West Virginia where the airplane was

located at the time, to remove the engine from the airplane and

ship it to Mattituck.       Once Mattituck received the engine, they

repaired the crankcase and replaced two of the engine's cylinders

with new cylinders manufactured by CMI                and covered by CMI's

cylinder warranty.      The repaired engine was then shipped back to




                                      3                                   A-0870-16T4
Albatross Air, which reinstalled the engine and returned the

airplane to plaintiff.

       Subsequently, on September 27, 2012, CMI was notified that

an aircraft in Nevada was grounded after the engine, which was

manufactured by CMI, overheated.                   A subsequent investigation of

the    coolant    in     the   engine    revealed         that    the   cylinders     were

contaminated      with     casting      sand       from   the     factory    during    the

manufacturing      process.        CMI    immediately           notified    the   Federal

Aviation Administration (FAA) and instituted remedial measures

that    were     later    approved       by       the   FAA,2    including    reviewing

manufacturing records to determine what cylinders were potentially

affected in order to conduct inspections.                        As a result of that

review, CMI identified fifty-five potentially affected cylinders,

including plaintiff's.           Some of the fifty-five cylinders were in

CMI's inventory, but some, like plaintiff's, had been shipped to

distributors and were already in the field.                      After conducting some

inspections, CMI determined that not every part was affected.

Rather, some parts had a small amount of sand and some parts had

no sand at all.




2
   In response to CMI's notification, the FAA concluded that the
investigation "indicated the deficiency was not deliberate or
intentional . . . nor was there a lack of competency." Moreover,
CMI's remedial actions "demonstrated a constructive attitude"
towards compliance.

                                              4                                   A-0870-16T4
      Because CMI did not sell directly to consumers, in order to

inspect the potentially affected cylinders in the field, CMI

conducted an investigation, which involved a lengthy process of

identifying, locating, and contacting the purchasers.          The first

step in the process was to locate the serial numbers of the

affected cylinders and cross-reference those numbers with the

sales   orders    to   determine   which    distributors    received    the

cylinders.   Then, CMI had to contact the distributors to ascertain

the identity of the ultimate purchaser.           Once CMI obtained that

information, CMI could then contact the purchasers directly.

      In conducting the investigation, CMI's customer service team

developed and maintained a spreadsheet used to track the serial

numbers of the affected cylinders, the distributors, and, once

identified, the ultimate purchasers.        The spreadsheet listed any

contact CMI had with these individuals or entities.          According to

the   notations   on   the   spreadsheet,   CMI   emailed   Mattituck    to

determine who purchased the two cylinders Mattituck had placed in

plaintiff's airplane engine.       Mattituck identified Tim Kearns of

Albatross Air as the purchaser.         The spreadsheet also indicated

that on November 5, 2012, CMI contacted Kearns who identified

CP#1109's owner, Martin O'Boyle,3 as the owner of the airplane.


3
  Originally, O'Boyle was a named plaintiff in the complaint.
However, the trial judge dismissed O'Boyle from the case on the


                                    5                             A-0870-16T4
Additionally, the spreadsheet noted that CMI contacted Chip Bonner

from Southeast Aero Services, Inc. (Southeast), who stated that

O'Boyle's airplane was located at his facility in St. Augustine,

Florida.

     Despite CMI's efforts to identify and notify purchasers,

plaintiff claimed it was never notified by CMI and first became

aware of the problem on or around January 16, 2013, when Bonner

conducted an annual inspection of the aircraft and reported that

the engine's water pump was running hot, causing the engine to

overheat and rendering the aircraft unsafe to fly.          Additionally,

plaintiff   claimed   that   after   the   airplane   was   returned   from

Mattituck in 2011, there were problems with the engine, including

overheating and lack of power, which conditions progressively

worsened. Plaintiff requested a new engine from CMI and incidental

costs for having the plane grounded.        CMI responded that pursuant

to its "component cylinder warranty," it would only be responsible

for repairing or replacing the cylinders and components affected

by the cylinders, and was not required to provide plaintiff with

a new engine.    CMI offered plaintiff a $30,000 credit towards

either a rebuilt engine, at a cost of $51,906, or a new engine,

at a cost of $60,991.   Plaintiff rejected the offer and reiterated


last day of trial, ruling that he had "no separate interest" or
cause of action in an individual capacity.


                                     6                             A-0870-16T4
its demand for a new engine at no cost, plus consequential damages.

After CMI refused, plaintiff sued.

     At trial, Martin O'Boyle and William Ring testified for

plaintiff.   Ring, an attorney and corporate officer of plaintiff,

testified    about   plaintiff's   interactions    with    defendants       in

connection with the engine repairs, the circumstances under which

plaintiff    discovered    the     sand   contamination,       the    failed

negotiations    between    plaintiff      and    defendants,     including

plaintiff's claim that defendants reneged on their initial offer

to replace the engine free of charge, and the monetary damages

sought by plaintiff.

     Michael Ernest Ward, CMI's Director of Certification and

Airworthiness, testified for defendants.        Ward testified about his

handling of CMI's special investigation in response to the reported

sand contamination as well as the terms of the limited warranty

covering the cylinders.     According to Ward, the warranty covered

each cylinder shipped from CMI on or after April 2, 2010, and was

limited to repair or replacement of the component parts, rather

than the engine as a whole.      The warranty also expressly excluded

"incidental or consequential damages arising out of any defect in

the cylinders or related part . . . ."      The warranty was explained

on a "TopCare card[,]" that was included in the cylinder shipments

and was available on CMI's website.             Typically, the aircraft


                                     7                               A-0870-16T4
mechanic would insert the warranty card in the engine log book

along with the other documentation for the aircraft.                    In rebuttal,

Ring denied "receiv[ing] any notification of [the] warranty."

      Defendant also presented the testimony of Terry Lee Horton,

CMI's designated corporate representative who was qualified "as

an expert in the operation, maintenance, and repair" of the same

type of engine as plaintiff's.             Horton testified that based on his

review of the engine log book, there was no dangerous condition

reported    in    plaintiff's   aircraft        in   2011    or   2013.        Rather,

according    to    Horton,    following        the   January      4,    2013    annual

inspection, Bonner, whom Horton knew as a competent mechanic,

signed the logbook indicating that plaintiff's aircraft was "in

an airworthy condition[.]"           Further, Horton testified there was

no indication of cooling issues in any of the logbook entries

after maintenance checks.            Although Horton did not examine the

pump in plaintiff's airplane, based on his review of the records

and   photographs,     he    found    no    evidence    "that     there    was     sand

contamination in [the] coolant system" of plaintiff's airplane.

Horton testified that if the cylinders installed in plaintiff's

engine were contaminated with sand and "if the pump had damage to

it caused by sand, you would see erosion."                   Horton concluded he

had   "no   reason    to    believe    that     there       was   any   issue      with




                                           8                                   A-0870-16T4
airworthiness of [plaintiff's] engine and its ability to perform

properly and . . . function normally."

      Following deliberations, the jury rendered a verdict in favor

of   defendants.     Pertinent   to   this   appeal,   in    responding    to

questions four and five, respectively, on the verdict sheet, the

jury found that CMI "issue[d] an express warranty, directly or

indirectly, to [plaintiff] pertaining to the cylinders installed"

in plaintiff's airplane, but that CMI did not breach same.            Other

than question four, which was a vote of 6-1, the jury's vote was

unanimous on all other questions.         This appeal followed.

      First, plaintiff challenges the trial judge's admission of

the excel spreadsheet, identified as D-44 in evidence, as a

business record, arguing that it "failed every prong of the

business records test[,]" and was not harmless error because "D-

44 was the only evidence presented that challenged" plaintiff's

failure to warn theory under the CFA.         We disagree.

      "A   trial   court's   evidentiary     rulings   are   'entitled     to

deference absent a showing of an abuse of discretion, i.e., there

has been a clear error of judgment.'" Belmont Condo. Ass'n v.

Geibel, 432 N.J. Super. 52, 95 (App. Div. 2013) (quoting State v.

Marrero, 148 N.J. 469, 484 (1997)).        Thus, we will uphold "a trial

court's evidentiary ruling . . . 'unless it can be shown that the

trial court palpably abused its discretion, that is, that its


                                      9                             A-0870-16T4
finding was so wide off the mark that a manifest denial of justice

resulted.'"   Id. at 95-96 (quoting Green v. N.J. Mfrs. Ins. Co.,

160 N.J. 480, 492 (1999)).

     N.J.R.E. 803(c)(6), known as the business records exception

to the hearsay rule, allows the admission of

          [a] statement contained in a writing or other
          record of acts, events, conditions, and,
          subject to [Rule] 808, opinions or diagnoses,
          made at or near the time of observation by a
          person   with    actual  knowledge   or  from
          information supplied by such a person, if the
          writing or other record was made in the
          regular course of business and it was the
          regular practice of that business to make it,
          unless the sources of information or the
          method,    purpose    or   circumstances   of
          preparation    indicate   that   it   is  not
          trustworthy.

"The purpose of the business records exception is to 'broaden the

area of admissibility of relevant evidence where there is necessity

and sufficient guarantee of trustworthiness.'"     Liptak v. Rite

Aid, Inc., 289 N.J. Super. 199, 219 (App. Div. 1996) (quoting

State v. Hudes, 128 N.J. Super. 589, 599 (Cty. Ct. 1974)).

     In order to qualify under the rule, the proponent must satisfy

three conditions:

          First, the writing must be made in the regular
          course of business.      Second, it must be
          prepared within a short time of the act,
          condition or event being described. Finally,
          the source of the information and the method
          and circumstances of the preparation of the
          writing   must  justify   allowing   it   into
          evidence.

                               10                            A-0870-16T4
           [State v. Sweet, 195 N.J. 357, 370 (2008)
           (quoting State v. Matulewicz, 101 N.J. 27, 29
           (1985) (footnote omitted)).]

However, the foundation witness need not "have personal knowledge

of the facts contained in the record."       Hahnemann Univ. Hosp. v.

Dudnick, 292 N.J. Super. 11, 17-18 (App. Div. 1996).

     Here, after plaintiff objected to the admission of the excel

spreadsheet, the judge conducted a N.J.R.E. 104 hearing during

which   Ward   testified   that   although   he   was    responsible      for

overseeing     CMI's   special      investigation       into   the       sand

contamination, including identifying and contacting purchasers of

potentially affected cylinders, it was CMI's customer service

department's function to actually identify the affected cylinders

and contact the purchasers.       Ward testified that Exhibit D-44 was

"an Excel spreadsheet that was created by [CMI's] customer service

department to track . . . the notification information" and "to

document" that "the notification . . . was accomplished."

     He testified further that Exhibit D-44 was created by Shaine

Little, who had personal knowledge of the acts and events appearing

in it, and was created at or near the time of the events appearing

in the record.    According to Ward, the records were kept in the

course of CMI's regularly conducted business activity and it was

CMI's regular practice to make such a record in connection with



                                    11                               A-0870-16T4
these types of special investigations, although "[i]t may not be

in . . . this specific Excel format."

      On cross-examination, Ward indicated that although he did not

personally create the spreadsheet, he had personal knowledge of

the circumstances of its creation from "conversation with Shaine

Little" and "[k]nowing how customer service conducts . . . these

types of notifications."      According to Ward, it was "the practice

in the customer service department," that "when they speak to

someone on the phone[,] they will make a notation into this

tracking document."       He reiterated that exhibit D-44 was created

as   individuals    were    contacted    during      the   course    of   the

investigation, from September 27, 2012 to February 2013, and was

not created in anticipation of litigation but was rather "a live

document that [was] updated during the process" to track the

notifications.     Ward further testified that in his twenty-three

years at CMI, he had received documents similar to Exhibit D-44

on   three    or   four    occasions    in    connection     with    similar

investigations.

      Following the hearing, the judge admitted exhibit D-44 to

show "who was contacted [by CMI], and when" they were contacted.

To support his ruling, the judge determined that Ward was in charge

of   the   investigatory    process,    had   been   involved   in   similar

investigations over the years, albeit only three to four, and "in


                                   12                                A-0870-16T4
each   of   the   circumstances     there    has    been   a   compilation      of

information . . .        that[] essentially[] records the type of

information that is reported here." According to the judge, Ward's

"knowledge of customer service and the way in which they operate,

and his particular knowledge of . . . Shaine Little," demonstrated

that "the process that was taken here" complied with N.J.R.E.

803(c)(6) inasmuch as the information was supplied "by a person

with actual knowledge[.]"

       However, the judge limited exhibit D-44's admissibility by

redacting any reference to the results of the investigation or any

conclusions drawn in connection with the investigation.              The judge

explained that while a business record made in the regular course

of business is admissible, the "record may contain . . . other

hearsay that is so far removed from the duty to record" that it

"has the ability to create some undue prejudice . . . ."                   Thus,

"[t]o the extent that there is embedded within it another layer

of hearsay information having to do with the opinions of others

concerning the condition of this engine, that goes to the heart

of this question[,]" the judge redacted such information.

       We agree that Ward's testimony established the foundational

prerequisites     for   admission    of     the    excel   spreadsheet     under

N.J.R.E. 803(c)(6) as a business record.              We reject plaintiff's

contentions that the spreadsheet lacked temporal proximity or was


                                     13                                  A-0870-16T4
created in anticipation of litigation.           We also reject plaintiff's

attempt to analogize these facts to the facts in Palmer v. Hoffman,

318 U.S. 109, 111-14 (1943), where the Court held that a single

incident report that was only prepared due to an unusual accident

was not routinely created.          Here, Ward had reviewed this type of

information     in     connection         with   three     or      four    special

investigations in Ward's twenty-three years with CMI, and, in

every one of them, a document mirroring Exhibit D-44 was created.

      Next, plaintiff contends that the jury instructions "were

confusing" and "[q]uestion [four] of the verdict form misstate[d]

the law of warranties."            Plaintiff asserts the judge erred in

overruling its objection, warranting reversal.               We disagree.

      Proper jury charges are essential to a fair trial, Reynolds

v. Gonzalez, 172 N.J. 266, 288 (2002), and the failure to provide

clear and correct jury charges may constitute plain error.                      Das

v.   Thani,   171    N.J.   518,    527    (2002).       Indeed,    "[e]rroneous

instructions are poor candidates for rehabilitation as harmless,

and are ordinarily presumed to be reversible error."                      State v.

Afanador, 151 N.J. 41, 54 (1997).

      However, generally, we "will not disturb a jury's verdict

based on a trial court's instructional error 'where the charge,

considered as a whole, adequately conveys the law and is unlikely

to confuse or mislead the jury, even though part of the charge,


                                      14                                   A-0870-16T4
standing alone, might be incorrect.'"            Wade v. Kessler Inst., 172

N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235,

254 (1996)).       Similarly, "a trial court's interrogatories to a

jury are not grounds for a reversal unless they were misleading,

confusing, or ambiguous."        Sons of Thunder v. Borden, Inc., 148

N.J. 396, 418 (1997).        In fact, when "reviewing an interrogatory

for reversible error," the interrogatory should be "consider[ed]

. . . in the context of the [jury] charge as a whole," as "[a]n

accurate and thorough jury charge often can cure the potential for

confusion that may be present in an interrogatory."                      Ponzo v.

Pelle, 166 N.J. 481, 491 (2001).

        Here, plaintiff contends that "the [j]ury instructions as it

applied to affirmative misrepresentations were confusing when read

to the [j]ury in situ" because "the scienter requirement                          of

unconscionable       practices        elided     with         the      affirmative

misrepresentation charge[,]" which, "under New Jersey's Consumer

Fraud Act do not contain mens rea as an element."                    Following the

charge,     plaintiff's    counsel    noted     that    there       "may[]be    some

confusion     as   to     unconscionable       practices       and     affirmative

misstatements" as "it just seemed to [him] that they were almost

joined at the hip."         The judge responded that he "[a]ctually

.   .   .   separated   them"   and    determined      that     the    charge    was

"adequate."


                                      15                                   A-0870-16T4
       We agree with the judge's assessment.                    In fact, the jury

charge tracked the Model Jury Charge (Civil), 4.43, "Consumer

Fraud Act" (2011).            "Generally speaking, the language contained

in any model charge results from the considered discussion amongst

experienced      jurists        and   practitioners."           Flood     v.     Aluri-

Vallabhaneni, 431 N.J. Super. 365, 383-84 (App. Div. 2013).                       Thus,

there is a "presumption of propriety that attaches to a trial

court's reliance on the model jury charge . . . ."                            Estate of

Kotsovska, ex rel. Kotsovska v. Liebman, 221 N.J. 568, 596 (2015).

       Next, plaintiff contends that question four of "[t]he verdict

form allowed the jury to [consider] the terms of an express

warranty so long as it was issued directly or indirectly, even if

that    indirect       issuance   was     unilateral     by   merely    posting      the

warranty online."         We are satisfied that question four was neither

confusing nor a misstatement of the law. In any event, some errors

or ambiguities on the verdict sheet will not constitute reversible

error where, "in the context of the entire trial," it is apparent

the jury was not confused.                 Maleki v. Atl. Gastroenterology

Assocs., P.A., 407 N.J. Super. 123, 132-34 (App. Div. 2009). Here,

the    jury    posed    no    questions    about   the    verdict      form    and   the

accompanying jury charge was accurate and thorough.

       Next,    citing       Washington    v.   Perez,    219   N.J.    338     (2014),

plaintiff claims the judge "erred by allowing [defense counsel]


                                           16                                   A-0870-16T4
to argue to the jury an adverse inference against the [p]laintiff

because it failed to produce an expert" after the judge failed to

give an adverse inference charge.           In Washington, our Supreme

Court recognized, as has been long held, that the failure to offer

testimony within the party's power to produce permits an inference

that the missing testimony would be unfavorable to that party's

case.   Id. at 352.      "Whether a litigant seeks to have the court

instruct the jurors on this adverse inference or to urge the

inference     in    closing   argument,    the   trial   court   has    the

responsibility to determine if the inference is reasonable under

the circumstances of the case."           State v. Velasquez, 391 N.J.

Super. 291, 306 (App. Div. 2007).

     We acknowledge that "[t]his court and others have stressed

the need for trial courts to exercise caution in authorizing the

inference[,]" ibid., and that a missing witness charge "will rarely

be warranted when the missing witness is not a fact witness, but

an expert."        Washington, 219 N.J. at 364.     However, "it is one

thing for counsel in . . . summation to point to the absence of

particular witnesses; it is quite another when the court puts the

weight of its authority behind such a summation by telling the

jury it may draw an adverse inference from their absence."             State

v. Hill, 199 N.J. 545, 562 (2009) (quoting Wild v. Roman, 91 N.J.

Super. 410, 415 (App. Div. 1966)).


                                   17                             A-0870-16T4
     Here,    prior   to   summations,       plaintiff's     counsel   queried

whether defense counsel would "seek[] an adverse inference from

the absence of an expert" testifying for plaintiff.                    Defense

counsel responded that he was "going to say there's no expert here

for the other side[,]" but he was not going to identify plaintiff's

missing expert "[b]y name[.]"         The judge responded that he would

"certainly permit that."      During summation, defense counsel stated

"[p]laintiffs have no expert in this case to contradict anything

that Mr. Horton said," and "[y]ou'd think they would have an expert

who looked at the pump to come in and explain to you this is what

the damage shows."

     In    these   circumstances,     we   are   satisfied     there   was    no

reversible error.     The import of defense counsel's comments was

to point out that plaintiff failed to prove its case and failed

to rebut defendants' expert with expert testimony of its own.

Notably, as represented, defense counsel did not name a missing

witness.     Unlike   a    criminal   case    where   "the    presumption     of

innocence and the State's obligation to establish each element of

the crime charged . . . must be considered" when the inference is

sought against a defendant, Velasquez, 391 N.J. Super. at 309,

here, the burden of proof rested squarely on plaintiff. "[C]ounsel

has great latitude during closing arguments" as long as comments

are "restrained within the facts shown or reasonably suggested by


                                      18                               A-0870-16T4
the evidence adduced."      Tartaglia v. UBS PaineWebber, Inc., 197

N.J. 81, 128 (2008) (quoting State v. Bogen, 13 N.J. 137, 140

(1953)).    Here, defense counsel's comments were duly restrained.

     Because we find no merit in any of plaintiff's contentions

asserting trial error, we reject plaintiff's claim of cumulative

error.     See State v. Rambo, 401 N.J. Super. 506, 527 (App. Div.

2008) ("Having found no error, we reject defendant's invocation

of the principle of cumulative error.").

     Finally, we address plaintiff's assertion that the judge

erred when he issued an amended final judgment imposing taxed

costs after "the clerk failed to tax costs in the first instance

under [Rule] 4:42-8(a),(c)."         Further, plaintiff contends the

judge    "erred   when   [he]   failed   to   review   costs   [p]laintiff

challenged under [Rule] 4:42-8(a) . . . ."

     The decision to award costs is within the trial court's

discretion and is reviewable for an abuse thereof.              Children's

Inst. v. Verona Twp. Bd. of Adjustment, 290 N.J. Super. 350, 358

(App. Div. 1996). Rule 4:42-8(a) provides that "[u]nless otherwise

provided by law, these rules or court order, costs shall be allowed

as of course to the prevailing party.         The action of the clerk in

taxing costs is reviewable by the court on motion."            In seeking

costs, Rule 4:42-8(c) mandates that

            [a] party entitled to taxed costs shall file
            with the clerk of the court an affidavit

                                    19                             A-0870-16T4
          stating that the disbursements taxable by law
          and therein set forth have been necessarily
          incurred and are reasonable in amount, and if
          incurred for the attendance of witnesses,
          shall state the number of days of actual
          attendance and the distance traveled, if
          mileage is charged.

     After the jury returned the verdict in defendants' favor, on

June 24, 2016, defendants applied to the clerk to tax costs against

plaintiff in the amount of $13,068.25, submitting a supporting

certification in accordance with Rule 4:42-8(c).     Plaintiff did

not object to the application.   For reasons that are not apparent

on this record, the clerk failed to tax costs.    However, on July

13, 2016, the trial judge entered an amended final judgment

awarding taxed costs in the amount requested payable "no later

than twenty . . . days following the service of [the] [a]mended

[j]udgment . . . ."

     On August 5, 2016, plaintiff moved to review the taxation of

costs, claiming the costs were too high and inappropriate.         By

then, the trial judge had retired.    Thus, on September 16, 2016,

a different judge adjudicated plaintiff's application and denied

the motion.   Deferring to the trial judge who was "familiar with"

the case, the motion judge explained that plaintiff did not

challenge the application previously and "even though they may

have been regular costs of litigation," the trial judge may have




                                 20                         A-0870-16T4
assessed the costs "because of how late in the case [defendants]

became aware that these people had to be flown in, and the like."

     While we would have preferred a more detailed explanation for

the trial judge's reasoning, appeals are taken from orders or

judgments and not the reasons for them.         Ellison v. Evergreen

Cemetery, 266 N.J. Super. 74, 78 (App. Div. 1993). N.J.S.A. 22A:2-

8 allows "[a] party to whom costs are awarded . . . to include in

his bill of costs his necessary disbursements," for "[t]he legal

fees of witnesses, including mileage for each attendance . . .;"

"[t]he costs of taking depositions when taxable, by order of the

court;" "Sheriff’s fees for service of process . . .;" "[a]ll

filing and docketing fees and charges paid to the clerk of court;"

and "[s]uch other reasonable and necessary expenses as are taxable

according to the course and practice of the court or by express

provision of law, or rule of court."

     Defendants'   certification    submitted   in   support    of    the

application for taxed costs sought "[d]isbursements" for postage,

photocopying,   messenger   service,    Superior     Court     deposits,

recording and filing fees, Sheriff and subpoena fees, and outside

duplication costs.    Defendants also sought "witness fees" and

"deposition[]" expenses for out of state witnesses, including

airfare, lodging, car rental, food and associated costs.




                               21                                A-0870-16T4
      In its merits brief, defendants assert the case "was plagued

by   [p]laintiff's     inexcusable    delays   and    gamesmanship,      which

included a no-show on trial day, the eleventh-hour withdrawal of

trial counsel and several unilateral trial adjournment requests."

Indeed, on April 28, 2015, the trial judge entered an amended case

management order scheduling trial on May 26, 2015.            On October 28,

2015,   the    trial   judge   dismissed     plaintiff's     complaint    with

prejudice     and   relieved   plaintiff's   then    attorney   as   counsel,

finding that plaintiff "failed to appear for trial" and "[was] not

ready to proceed to trial and that plaintiff['s] counsel could no

longer continue with his representation of plaintiff[] . . . ."

Although the trial judge later reinstated plaintiff's complaint

in a December 21, 2015 order, the judge scheduled trial for

February 8, 2016, a date that was subsequently adjourned, and

granted defendants' motion for attorneys' fees.

      Given   the   trial   judge's   familiarity     with   the   procedural

history of this litigation, we discern this to be the rationale

for the judge's determination.         Thus, we are satisfied that the

record contains ample reasons supporting the judge's exercise of

his sound discretion.

      Affirmed.




                                      22                              A-0870-16T4
