                        NOT FOR PUBLICATION WITHOUT THE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-2970-15T2

JONATHAN WHITMAN,

        Plaintiff-Appellant,

v.

PAYPAL, INC.,

     Defendant-Respondent.
__________________________________

              Submitted May 8, 2018 – Decided June 18, 2018

              Before Judges Reisner, Gilson, and Mitterhoff.

              On appeal from Superior Court of New Jersey,
              Law Division, Special Civil Part, Ocean
              County, Docket No. SC-0905-15.

              Jonathan Whitman, appellant pro se.

              Holland   &   Knight,  LLP,   attorneys   for
              respondent (Duvol M. Thompson, on the brief).

PER CURIAM

        This appeal arises out of a Special Civil Part claim for

$3000.      Plaintiff Jonathan Whitman appeals from a January 6, 2016

order denying his motion for reconsideration of a June 25, 2015

judgment entered after trial and dismissing plaintiff's complaint
for failure to establish a breach of contract.             We affirm because

the trial court's findings are supported by substantial credible

evidence, and we discern no abuse of discretion in the denial of

plaintiff's motion for reconsideration.

                                    I.

      The trial and motion records established the following facts.

In   March   2015,   plaintiff   arranged     with   a    third-party    seller

(Seller)     to   purchase   materials   on   how    to    become   a   private

investigator.      The arrangements were made by using the internet

and telephone.       Plaintiff and the Seller agreed that plaintiff

would purchase three items:      photographs, videos, and a book.            The

total price of the items was $4000.             Plaintiff asked, and the

Seller agreed, to make three separate payments for the three items

using PayPal, an online payment service.

      Plaintiff and the Seller also agreed that the items would be

shipped together after all payments were made.            Those arrangements

were confirmed in an email from the Seller to plaintiff:

             The entire cost for the research material you
             requested is $4,000. I can break down the
             payments into three installments as follows:
             Upon payment of $1,500, you will receive a
             series of research photographs. Upon payment
             of the second $1,500, you will receive a
             series of research videotapes. Upon payment
             of the final $1,000, you will receive a
             research report book plus bonus material.
             Everything will ship to your New Jersey
             address once all payments are made.

                                     2                                  A-2970-15T2
     Plaintiff also requested and received an invoice that listed

the three items and the total payment:

            Research Photographs          [$] 1,500.00
            Research Videotapes           [$] 1,500.00
            Research Report Book          [$] 1,000.00

            TOTAL $4,000.00

            Items will be shipped by Fedex Express on the
            date of final payment.

     Thereafter, plaintiff made three payments to the Seller using

PayPal: on March 9, 2015, he paid $1500; on March 10, 2015, he

paid $1500; and on March 18, 2015, he paid $1000.           Unfortunately,

plaintiff   never   received   any   of   the   items    after    making   the

payments.

     On March 31, 2015, plaintiff filed a claim with PayPal for

reimbursement under PayPal's buyer protection plan.              PayPal is an

online service provider that helps buyers and sellers make and

accept payments.    To use PayPal services, users are asked to agree

to the terms and conditions of the PayPal User Agreement (User

Agreement).

     Section 13 of the User Agreement provides protection for

users (referred to as both purchasers or buyers) who pay for items

using PayPal, but do not receive the item or receive an item that

is significantly different than described.         To be covered by the

buyer protection plan, the buyer must meet several eligibility


                                     3                                A-2970-15T2
requirements.    Buyer protection does not cover intangible items,

such as services.    Buyer protection also requires the user to make

one payment per transaction.     In that regard, Section 13.2 of the

User Agreement provides in relevant part:

           Eligibility requirements.

           a.   To be eligible for PayPal Purchase
           Protection, you must meet all of the following
           requirements:

                Pay for the eligible      item    from    your
                 [PayPal] Account.

                Pay for the full amount of the item with
                 one   payment.   Items  purchased   with
                 multiple payments – like a deposit
                 followed by a final payment – are not
                 eligible.

     In   response   to   plaintiff's   claim,    PayPal   declined    the

reimbursement for two reasons.     First, it took the position that

plaintiff had purchased intangible items.         Second, it contended

that plaintiff made multiple payments for the items instead of a

single payment, as required by Section 13.2 of the User Agreement.

     In April 2015, plaintiff filed a complaint against PayPal in

the Special Civil Part, Small Claims Section.         Plaintiff sought

$3000 in damages to cover two of the three items that he had

purchased.   $3000 is the maximum amount of damages allowable in

the Small Claims Section.     See R. 6:1-2(a)(2).    Plaintiff alleged




                                   4                              A-2970-15T2
that PayPal breached the terms of its User Agreement by failing

to honor the buyer protection plan.

     The court conducted a one-day bench trial on April 29, 2015.

The two issues presented to the court were: (1) whether plaintiff

purchased tangible or intangible items; and (2) whether plaintiff

purchased three separate items in three separate transactions or

whether he made multiple installment payments for the items.

     The evidence at trial consisted of plaintiff's testimony, the

emails and invoice from the Seller, a copy of the User Agreement,

and testimony from a PayPal legal representative.              The PayPal

witness testified via telephone.

     After hearing the evidence, the trial court allowed the

parties to submit post-trial briefs.        On June 25, 2015, the court

issued a written opinion finding that plaintiff contracted for

tangible goods, but that he used installment payments that were

not covered under the User Agreement.            Accordingly, the court

dismissed plaintiff's complaint with prejudice.

     In July 2015, plaintiff filed a motion for reconsideration.

In connection with that motion, plaintiff submitted a series of

emails that he exchanged with representatives of PayPal after the

trial.    In    those    emails,    plaintiff    described   hypothetical

transactions,   and     he   contended   that   PayPal's   representatives



                                     5                             A-2970-15T2
confirmed his position that the purchases should have been covered

by the buyer protection plan.

     The    court   heard     oral    argument   on   the   motion    for

reconsideration and, on January 6, 2016, the court entered an

order denying the motion.      The trial court did not expressly rule

on whether the post-trial emails were admissible.           Instead, the

court found that those emails did not qualify as new evidence and

did not constitute grounds for reconsideration.

                                     II.

     On appeal, plaintiff makes eleven arguments, which relate to

four alleged errors by the trial court.          Plaintiff contends the

trial court erred in: (1) allowing the witness for PayPal to

testify    via   telephone;    (2)    not   finding   PayPal's   witness

incredible; (3) not admitting his post-trial emails with PayPal

representatives into evidence on the motion for reconsideration;

and (4) not construing the buyer protection plan against PayPal.

     We will start by analyzing the key issue on this appeal:

whether there was substantial credible evidence in the record to

support the trial court's finding that plaintiff made installment

payments, which were not covered by the buyer protection plan.

Because we hold that there was sufficient evidence in the record

to support that finding, we reject defendant's arguments and

affirm.

                                      6                          A-2970-15T2
     Our review of a judgment entered by a trial court in a

non-jury case is limited.         Cumberland Farms, Inc. v. N.J. Dep't

of Envtl. Prot., 447 N.J. Super. 423, 437 (App. Div. 2016).              The

trial judge's findings "are considered binding on appeal when

supported by adequate, substantial and credible evidence."              Rova

Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Moreover,   a   trial   court's   rulings   on   evidentiary   issues   are

reviewed for abuse of discretion.           Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).         We review legal

issues, however, de novo.     J.G. Ries & Sons, Inc. v. Spectraserv,

Inc., 384 N.J. Super. 216, 221-22 (App. Div. 2006).

     The User Agreement clearly states that for buyer protection

to apply, items must be purchased with "one payment."             It also

states that "[i]tems purchased with multiple payments – like a

deposit followed by a final payment – are not eligible."                The

trial court correctly determined that the User Agreement excluded

items purchased with installment payments.         Based on the evidence

presented at trial, the trial court then found that plaintiff

purchased three items for a total of $4000, but made the payments

in three installments.      That finding is supported by substantial

credible evidence in the record, and we discern no basis to disturb

that factual finding.



                                     7                            A-2970-15T2
      Plaintiff argues that it was an error for the trial court to

allow PayPal's only witness to testify via telephone.                  Initially,

we note that plaintiff did not preserve that objection for appeal.

Although he initially objected at trial, he ultimately stated that

he would leave the decision to the trial court.

      Trial courts can allow witnesses to testify telephonically

provided the court makes two determinations.              State v. Santos, 210

N.J. 129, 141 (2012).          "First, the court must determine whether

the opposing party has consented to the testimony or whether there

is a 'special circumstance,' . . . 'compelling the taking of

telephone testimony.'"         Ibid. (quoting Aqua Marine Prod., Inc. v.

Pathe Comput. Control Sys. Corp., 229 N.J. Super. 264, 275 (App.

Div. 1988)).        "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.

      Here,    there    were    special       circumstances     that       justified

telephonic     testimony,      because       the    witness    was    located       in

California    and    the   trial   was    a    small   claims   matter.          More

importantly, there is nothing in the record to indicate that the

witness' identity and credentials were not known quantities and

the   circumstances     vouched    for    the      integrity   of    the   witness'

testimony.

                                         8                                   A-2970-15T2
       We also discern no abuse of discretion in the trial court's

decision not to admit and consider the emails that plaintiff

exchanged with representatives of PayPal after the trial.                        As

previously stated, the trial court did not expressly rule on the

admissibility of the post-trial emails.           The trial court noted,

however, that those emails were exchanged without a full disclosure

of the purpose of the emails.             Just as importantly, the trial

court found that the emails did not constitute new evidence that

would form the basis for reconsideration.

       Plaintiff's remaining arguments lack sufficient merit to

warrant a discussion in a written opinion. See R. 2:11-3(e)(1)(E).

We do, however, make the following comment.

       Plaintiff filed an over-length brief and made repetitive

arguments   about   a    relatively   simple    case.        In   that   regard,

plaintiff asserted that his due process and equal protection rights

were    somehow   violated,    and    he    focused     on    three      specific

contentions.      First, that the court erred by allowing PayPal's

witness to testify via telephone.           Second, that the court erred

by not accepting the post-trial emails.          Finally, that the trial

court erred by not construing the User Agreement against PayPal

under the doctrine of "contra proferentem."

       The record establishes that plaintiff was given a fair and

impartial trial.        Plaintiff's arguments lose sight of the fact

                                      9                                   A-2970-15T2
that he arranged the transaction with the Seller and the trial

court's   findings   against   him,    which   were    based   on   evidence

presented at trial, do not constitute a deprivation of due process

or an infringement on equal protection.               Instead, a reasoned

analysis establishes that plaintiff may not be happy with the

result, but he was afforded a fair and impartial trial.

     Affirmed.




                                  10                                 A-2970-15T2
