KIMERLING & WISDOM, LLC VS. MARIA T. SCARIATI (L-3027-14, HUDSON COUNTY AND STATEWIDE)
A-4040-15T3
| N.J. Super. Ct. App. Div. | Nov 14, 2017Background
- Kimerling & Wisdom (plaintiff) provided tax, accounting, and financial planning services to Maria Scariati and her companies Light Solutions, Inc. and Equinox Entities, Ltd. from 2000–2011; no written retainer; invoicing was periodic.
- Plaintiff alleged defendants stopped paying in full early in the relationship; invoiced amounts were the primary evidence of services and unpaid balances.
- Scariati testified inconsistently: initially that services were unsatisfactory and payments ceased around 2006, later that an alleged (unproduced) credit memo justified payments; the trial judge found her testimony not credible.
- Plaintiff filed suit on July 8, 2014 seeking recovery for services in the six years prior to filing, but sought at trial to recover invoices dating back to 2000; the trial judge entered judgment including pre-2008 charges.
- The judge relied on a July 15, 2009 email from Scariati promising future efforts to clear overdue invoices to toll/restart the statute of limitations; the Appellate Division concluded that email was not an unconditional written acknowledgment sufficient to revive time-barred claims.
- Outcome: appellate court affirmed liability findings based on plaintiff’s credible billing testimony, reversed the award to the extent it included services before July 8, 2008, and remanded to recalculate damages for July 8, 2008–July 8, 2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff proved defendants received services and failed to pay | Billing records and Wisdom’s testimony identify services and unpaid amounts | Defendant argues evidence insufficient and testimony not credible | Trial court credibility findings for plaintiff upheld; sufficient evidence of services and unpaid balances |
| Whether claims for services before July 8, 2008 were time-barred | The 2009 email from Scariati amounted to an acknowledgment restarting limitations | Email was not an unconditional written promise; statute of limitations bars pre‑July 8, 2008 claims | Court held the 2009 email insufficient under N.J.S.A. 2A:14-24; pre-2008 claims reversed |
| Whether the 2009 email satisfied statutory writing requirement to revive debt | Plaintiff contends email acknowledged debt and restarted limitation period | Defendant contends email was conditional and not a written promise to pay | Held conditional language (attempting to finance in future) insufficient; no revival |
| Whether an unpreserved claim that plaintiff improperly applied a collected payment should be considered on appeal | Plaintiff did not need to address as issue was not preserved at trial | Defendants raised it on appeal contending illegal collection/application | Appellate court declined to consider the unpreserved issue (no jurisdictional or public-importance exception); meritless if considered |
Key Cases Cited
- Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150 (2011) (standard of appellate review for factfinding in nonjury cases)
- Cesare v. Cesare, 154 N.J. 394 (1998) (deference to trial court credibility findings)
- Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366 (1995) (appellate review of legal questions de novo)
- Denville Amusement Co. v. Fogelson, 84 N.J. Super. 164 (App. Div. 1964) (acknowledgment must fairly imply a promise to pay immediately or on demand)
- Evers v. Jacobsen, 129 N.J.L. 89 (Ct. Err. & App. 1942) (promise to revive time‑barred debt must be unconditional and unqualified)