NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3025-23
M & M WHOLSESALE DISTRIBUTORS,
Plaintiff-Respondent,
v.
SAM'S WHOLESALE, LLC,
Defendant-Appellant,
and
MAHMOUD ABDEL-WAHAD,1
Defendant. ____________________________
Submitted June 4, 2025 – Decided June 13, 2025
Before Judges Mayer and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6362-22.
George J. Cotz, attorney for appellant.
1 Improperly pled as Mahmoud Wahab. Sammarro & Zalarick, PA, attorneys for respondent (Gary J. Zalarick, on the brief).
PER CURIAM
Defendant Sam's Wholesale, LLC (Sam's) appeals from the April 18, 2024
Law Division judgment in favor of plaintiff M & M Wholesale Distributors
(M&M) in the amount of $26,147.44 in this book account matter. 2 We affirm.
I.
On November 29, 2022, M&M, a wholesale distributor of candy,
cigarettes, and tobacco products, filed a complaint in the Law Division alleging
it provided $26,222.44 worth of goods to Sam's upon Sam's promise to pay for
those goods. M&M alleged it made a demand for payment, which Sam's refused.
The court held a one-day bench trial at which Mukesh Papaiya testified
on behalf of M&M as follows. M&M had a twenty-year business relationship
with Sam's. Mahmoud Abdel-Wahab, a principal of Sam's, regularly placed
2 Sam's case information statement indicates it is appealing the May 31, 2024 order denying its motion for reconsideration of the April 18, 2024 judgment. However, because Sam's made no substantive arguments with respect to the May 31, 2024 order in its brief we consider its appeal from that order waived. "[A]n issue not briefed is deemed waived." Pressler and Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2025); see also Telebright Corp., Inc. v. Dir., Div. of Tax., 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party failed to include any arguments supporting the contention in its brief). A-3025-23 2 orders with M&M for cigarettes and other tobacco products over the telephone. 3
Abdel-Wahab or a Sam's employee would come to M&M's place of business to
pick up the products, for which M&M would deliver an invoice. Although
M&M often obtained a signature on invoices when the products were picked up,
it did not always do so.
M&M ordinarily did not extend credit for its products beyond one week .
Sam's, however, frequently made partial payments on its invoices, often not
paying them in full for three or four weeks. Also, when it picked up products,
Sam's often gave M&M post-dated checks for outstanding invoices. M&M
understood it would not deposit those checks until the dates reflected on them,
which M&M considered a courtesy to Sam's. Ordinarily, it was M&M's practice
not to allow customers to pick up new orders until all outstanding invoices had
been paid.
M&M produced invoices which were admitted into evidence establishing
it provided cigarettes and tobacco products to Sam's on November 18, 2019,
with a cost of $20,147.44. In addition, on January 30, 2020, M&M charged
Sam's $6,000 because a check in that amount submitted by Sam's to M&M as
3 Abdel-Wahab was named as a defendant. M&M stipulated to the dismissal of the claims against him. A-3025-23 3 payment on a prior invoice was rejected twice for insufficient funds. On
November 18, 2019 and November 19, 2019, M&M charged Sam's five
assessments of $15 each for bank fees incurred by M&M for checks submitted
by Sam's as payment on other invoices that were rejected for insufficient funds.
Once the returned check and bank fees were added to the outstanding November
18, 2019 invoice, Sam's had an unpaid balance due of $26,222.44. M&M, which
waived a claim for interest and attorney's fees, sought that amount from Sam's.
Papaiya recalled that Abdel-Wahab picked up the November 18, 2019
order. M&M did not obtain a signature from Abdel-Wahab, who did not pay
Papaiya for the products he received. As of that date, Sam's had an outstanding
balance of $6,000 from a November 8, 2019 order. Abdel-Wahab gave M&M a
post-dated check for $6,000, which M&M considered payment on Sam's
outstanding balance.
Papaiya remembered Abdel-Wahab picked up the November 18, 2019
order because a few days later Abdel-Wahab returned to M&M asking to pick
up more cigarettes. As of that date, the $6,000 check for the November 8, 2019
order had been returned by the bank for insufficient funds and the November 18,
2019 invoice was not paid. Papaiya declined to provide any additional products
to Abdel-Wahab and terminated M&M's business relationship with Sam's.
A-3025-23 4 The wholesale tobacco products industry is heavily regulated. M&M is
authorized to place tax stamps on tobacco products. Sam's, as a tobacco sub -
jobber, does not have that authority. M&M is required to file monthly reports
with the Division of Taxation (Division) stating the amount of tax -stamped
cigarettes it sold to each sub-jobber. M&M included the November 18, 2019
sale in its monthly report to the Division of the number of cigarettes it sold to
Sam's in November 2019. Papaiya testified he sent Abdel-Wahab the November
8, 2019 and November 18, 2019 invoices and a registered letter seeking payment
of Sam's outstanding balance.
Abdel-Wahab also testified. He claimed he placed Sam's last order with
M&M on November 8, 2019, and paid Sam's outstanding balance. After that
date, he decided to terminate Sam's business relationship with M&M. Abdel-
Wahab did not recall placing an order with M&M on November 18, 2019, and
denied picking up products from M&M on that date. He denied receiving the
November 18, 2019 invoice or any communications from M&M seeking to
collect an outstanding balance.
He agreed he routinely gave M&M post-dated checks when he or one of
his employees picked up an order. Abdel-Wahab further testified those checks
always cleared before Sam's picked up a new order because M&M would not
A-3025-23 5 fill a new order unless Sam's had no outstanding invoices. In addition, M&M
would not allow Sam's to pick up a new order unless it obtained a signature
acknowledging the products had been received.
According to Abdel-Wahab, as of November 8, 2019, when Sam's picked
up its last order from M&M, it had no outstanding balance because it had
provided a $6,000 post-dated check to M&M. In addition, although the $6,000
check initially was rejected for insufficient funds, it was cleared by the bank in
December 2019, satisfying Sam's invoice for the November 8, 2019 order.
However, Abdel-Wahab could not explain a notation on the $6,000 check from
the bank dated December 27, 2019 stating, "return reason not authorized. NSF."
That bank record was admitted as evidence.
At the conclusion of the trial, the court issued an oral decision in favor of
M&M. The court found Papaiya's testimony to be credible.
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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-3025-23
M & M WHOLSESALE DISTRIBUTORS,
Plaintiff-Respondent,
v.
SAM'S WHOLESALE, LLC,
Defendant-Appellant,
and
MAHMOUD ABDEL-WAHAD,1
Defendant. ____________________________
Submitted June 4, 2025 – Decided June 13, 2025
Before Judges Mayer and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6362-22.
George J. Cotz, attorney for appellant.
1 Improperly pled as Mahmoud Wahab. Sammarro & Zalarick, PA, attorneys for respondent (Gary J. Zalarick, on the brief).
PER CURIAM
Defendant Sam's Wholesale, LLC (Sam's) appeals from the April 18, 2024
Law Division judgment in favor of plaintiff M & M Wholesale Distributors
(M&M) in the amount of $26,147.44 in this book account matter. 2 We affirm.
I.
On November 29, 2022, M&M, a wholesale distributor of candy,
cigarettes, and tobacco products, filed a complaint in the Law Division alleging
it provided $26,222.44 worth of goods to Sam's upon Sam's promise to pay for
those goods. M&M alleged it made a demand for payment, which Sam's refused.
The court held a one-day bench trial at which Mukesh Papaiya testified
on behalf of M&M as follows. M&M had a twenty-year business relationship
with Sam's. Mahmoud Abdel-Wahab, a principal of Sam's, regularly placed
2 Sam's case information statement indicates it is appealing the May 31, 2024 order denying its motion for reconsideration of the April 18, 2024 judgment. However, because Sam's made no substantive arguments with respect to the May 31, 2024 order in its brief we consider its appeal from that order waived. "[A]n issue not briefed is deemed waived." Pressler and Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2025); see also Telebright Corp., Inc. v. Dir., Div. of Tax., 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party failed to include any arguments supporting the contention in its brief). A-3025-23 2 orders with M&M for cigarettes and other tobacco products over the telephone. 3
Abdel-Wahab or a Sam's employee would come to M&M's place of business to
pick up the products, for which M&M would deliver an invoice. Although
M&M often obtained a signature on invoices when the products were picked up,
it did not always do so.
M&M ordinarily did not extend credit for its products beyond one week .
Sam's, however, frequently made partial payments on its invoices, often not
paying them in full for three or four weeks. Also, when it picked up products,
Sam's often gave M&M post-dated checks for outstanding invoices. M&M
understood it would not deposit those checks until the dates reflected on them,
which M&M considered a courtesy to Sam's. Ordinarily, it was M&M's practice
not to allow customers to pick up new orders until all outstanding invoices had
been paid.
M&M produced invoices which were admitted into evidence establishing
it provided cigarettes and tobacco products to Sam's on November 18, 2019,
with a cost of $20,147.44. In addition, on January 30, 2020, M&M charged
Sam's $6,000 because a check in that amount submitted by Sam's to M&M as
3 Abdel-Wahab was named as a defendant. M&M stipulated to the dismissal of the claims against him. A-3025-23 3 payment on a prior invoice was rejected twice for insufficient funds. On
November 18, 2019 and November 19, 2019, M&M charged Sam's five
assessments of $15 each for bank fees incurred by M&M for checks submitted
by Sam's as payment on other invoices that were rejected for insufficient funds.
Once the returned check and bank fees were added to the outstanding November
18, 2019 invoice, Sam's had an unpaid balance due of $26,222.44. M&M, which
waived a claim for interest and attorney's fees, sought that amount from Sam's.
Papaiya recalled that Abdel-Wahab picked up the November 18, 2019
order. M&M did not obtain a signature from Abdel-Wahab, who did not pay
Papaiya for the products he received. As of that date, Sam's had an outstanding
balance of $6,000 from a November 8, 2019 order. Abdel-Wahab gave M&M a
post-dated check for $6,000, which M&M considered payment on Sam's
outstanding balance.
Papaiya remembered Abdel-Wahab picked up the November 18, 2019
order because a few days later Abdel-Wahab returned to M&M asking to pick
up more cigarettes. As of that date, the $6,000 check for the November 8, 2019
order had been returned by the bank for insufficient funds and the November 18,
2019 invoice was not paid. Papaiya declined to provide any additional products
to Abdel-Wahab and terminated M&M's business relationship with Sam's.
A-3025-23 4 The wholesale tobacco products industry is heavily regulated. M&M is
authorized to place tax stamps on tobacco products. Sam's, as a tobacco sub -
jobber, does not have that authority. M&M is required to file monthly reports
with the Division of Taxation (Division) stating the amount of tax -stamped
cigarettes it sold to each sub-jobber. M&M included the November 18, 2019
sale in its monthly report to the Division of the number of cigarettes it sold to
Sam's in November 2019. Papaiya testified he sent Abdel-Wahab the November
8, 2019 and November 18, 2019 invoices and a registered letter seeking payment
of Sam's outstanding balance.
Abdel-Wahab also testified. He claimed he placed Sam's last order with
M&M on November 8, 2019, and paid Sam's outstanding balance. After that
date, he decided to terminate Sam's business relationship with M&M. Abdel-
Wahab did not recall placing an order with M&M on November 18, 2019, and
denied picking up products from M&M on that date. He denied receiving the
November 18, 2019 invoice or any communications from M&M seeking to
collect an outstanding balance.
He agreed he routinely gave M&M post-dated checks when he or one of
his employees picked up an order. Abdel-Wahab further testified those checks
always cleared before Sam's picked up a new order because M&M would not
A-3025-23 5 fill a new order unless Sam's had no outstanding invoices. In addition, M&M
would not allow Sam's to pick up a new order unless it obtained a signature
acknowledging the products had been received.
According to Abdel-Wahab, as of November 8, 2019, when Sam's picked
up its last order from M&M, it had no outstanding balance because it had
provided a $6,000 post-dated check to M&M. In addition, although the $6,000
check initially was rejected for insufficient funds, it was cleared by the bank in
December 2019, satisfying Sam's invoice for the November 8, 2019 order.
However, Abdel-Wahab could not explain a notation on the $6,000 check from
the bank dated December 27, 2019 stating, "return reason not authorized. NSF."
That bank record was admitted as evidence.
At the conclusion of the trial, the court issued an oral decision in favor of
M&M. The court found Papaiya's testimony to be credible. It noted he testified
largely without the aid of notes and had a good recollection of the parties'
interactions. While the court recognized Abdel-Wahab appeared candid and
knowledgeable about the subject matter of his testimony, the documentary
evidence admitted at trial called his credibility into question. The court found
M&M kept "meticulous records that track the monies in and out of the company
A-3025-23 6 for each of the customer accounts" and those records corroborated Papaiya's
testimony.
The court found the parties entered a contract for the sale and purchase of
tobacco products. In addition, based on the "great deal of exactitude in the
evidence presented by M&M," the court found Papaiya was "completely
credible" when he detailed the debits and credits on Sam's account. The court
found "it d[id]n't make sense . . . that he would have charges on November 18th"
for products "that just weren't picked up" by Sam's. The court explained: "It's
just not credible based upon what I'm confronted with. I don't find it to be
inherently believable."
The court rejected Abdel-Wahab's testimony he did not receive any
communications from M&M with respect to the outstanding balance for the
November 18, 2019 invoice. In addition, the court disbelieved Abdel-Wahab's
testimony Sam's did not have an outstanding balance on the November 8, 2019
invoice. The court found his testimony to be contradicted by the documentary
evidence that Abdel-Wahab gave M&M a post-dated check for $6,000 on
November 8, 2019. The court found that M&M proved this check was declined
by Sam's bank on December 27, 2019 for insufficient funds and never
subsequently honored.
A-3025-23 7 The court also found Abdel-Wahab's testimony M&M would not give him
products without obtaining a signature to lack credibility. The court noted
invoices from past transactions between the parties without signatures were
admitted as evidence. Thus, the court concluded Sam's received the products
reflected in the November 18, 2019 invoice in the amount of $20,147.44. In
addition, the court found the $6,000 check Sam's submitted on the prior invoice
was never honored. The court rejected M&M's claim for $75 in bank fees for
declined checks, finding M&M produced no proof Sam's agreed to pay such
fees. The court, therefore, found M&M was entitled to entry of judgment in the
amount of $26,147.44. An April 18, 2024 judgment memorialized the court's
decision.
Sam's subsequently moved for reconsideration of the April 18, 2024
judgment.
On May 31, 2024, the court issued a written decision denying the motion.
The court rejected Sam's argument that the court "misunderstood the testimony
of [Abdel-Wahab] as it related to the way he dealt with" M&M. The court noted
Sam's did not identify any evidence overlooked by the court and concluded
reconsideration was not warranted merely because Sam's disagreed with the
court's decision. In addition, the court rejected Sam's argument it relied on
A-3025-23 8 documents not admitted into evidence, noting the exhibits were admitted and its
decision hinged largely on the testimony of the two witnesses. A May 31, 2024
order memorialized the trial court's decision.
This appeal follows. Sam's argues the trial court's findings of fact and
conclusions of law are not supported by competent, relevant, and reasonably
credible evidence.
II.
"Our review of '[f]inal determinations made by the trial court sitting in a
non-jury case . . . [is] limited and well-established.'" Balducci v. Cige, 456 N.J.
Super. 219, 233 (App. Div. 2018) (alterations in original) (quoting Seidman v.
Clifton Sav. Bank, 205 N.J. 150, 169 (2011)). The trial court's findings of fact
are "binding on appeal when supported by adequate, substantial, credible
evidence." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "[W]e
do not disturb the factual findings and legal conclusions of the trial [court]
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." Ibid. (alterations in the original) (quoting In re
Forfeiture of Pers. Weapons & Firearms Identification Card Belonging to F.M. ,
225 N.J. 487, 506 (2016)).
A-3025-23 9 We have reviewed the record and find no basis on which to disturb the
trial court's findings of fact and conclusions of law. The record amply supports
the trial court's conclusion the parties entered a contract for the purchase of
tobacco products and Sam's breached that contract by failing to pay for the
products it received, as reflected in the November 18, 2019 invoice. In addition,
the record supports the trial court's finding that Sam's $6,000 check for the prior
invoice was never honored.
To the extent we have not specifically addressed any of Sam's remaining
claims, we conclude they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3025-23 10