SHARL M. GHOBRIAL VS. WAHID ELNASHFAN (DC-010038-18, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 14, 2020
• Docket: A-2150-18T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2150-18T4

SHARL M. GHOBRIAL,

Plaintiff-Respondent,

v.

WAHID R. ELNASHFAN,

Defendant-Appellant. _________________________

Argued November 18, 2020 – Decided December 14, 2020

Before Judges Vernoia and Enright.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. DC-010038-18.

Wahid R. Elnashfan, appellant, argued the cause pro se.

Sharl M. Ghobrial, respondent, argued the cause pro se.

PER CURIAM

Following a bench trial, the Special Civil Part entered an October 29, 2018

order awarding plaintiff Sharl M. Ghobrial a $4500 final judgment against

defendant Wahid R. Elnashfan and dismissing defendant's counterclaim. Defendant appeals from that order and a December 24, 2018 order denying his

motion for reconsideration. Because defendant has failed to provide the required

record of the trial court proceedings permitting a review of his arguments on

appeal, we affirm the court's orders.

We begin by noting that the record on appeal does not include the

pleadings, the exhibits admitted in evidence at trial, or transcripts of the entire

three-day trial in this matter. We therefore glean the facts, as best we can, from

the court's bench opinion following trial and the court's written statement of

reasons supporting its denial of defendant's reconsideration motion.

Plaintiff filed a complaint alleging he gave defendant $9000 in cash in

exchange for defendant's agreement to perform construction work at plaintiff's

home. Plaintiff also alleged defendant failed to perform and complete all of the

required construction work. Defendant filed an answer denying plaintiff's

allegations and a counterclaim alleging that he provided 160 hours of tutoring

services to plaintiff at the rate of $50 per hour, and that plaintiff owed him $8000

for the services provided. 1

1 The scant record provided on appeal also suggests that defendant claimed plaintiff breached an agreement pursuant to which he was to buy a house, have defendant renovate it, and pay defendant a portion of the rental income from the house after the renovation was complete. A-2150-18T4 2 During the three-day trial, plaintiff and defendant testified and presented

exhibits that were admitted in evidence supporting their respective claims and

defenses.2 Defendant called two witnesses, who apparently provided testimony

supporting defendant's counterclaim.3

After the testimony and evidence was presented, the court rendered an

opinion from the bench. In sum, the court found plaintiff's testimony credible

and rejected defendant's version of the events as not credible. The court also

found the testimony of defendant's witnesses was not credible, concluding their

testimony should be "disregarded" because they had past and ongoing business

relationships with defendant, were closely connected to defendant, and were

biased in defendant's favor.

Based on those findings, the court found no credible evidence supporting

defendant's counterclaim, and accepted plaintiff's testimony that he advanced

defendant $9000 in cash and that defendant failed to complete the agreed-upon

construction work. The court found plaintiff was entitled to a $4500 refund for

the portion of the advance paid for the work defendant failed to perform. The

2 At oral argument before this court, defendant acknowledged exhibits were admitted in evidence at trial and not included in the record on appeal. 3 The limited record before us does not include the full names of these witnesses. A-2150-18T4 3 court entered an order dismissing defendant's counterclaim and awarding a

$4500 final judgment in plaintiff's favor against defendant.

Defendant filed a motion for reconsideration. 4 In its written statement of

reasons, the court denied the motion, finding defendant failed to demonstrate

that the court's order for judgment and dismissal of the counterclaim was "based

upon a palpably incorrect or irrational basis" or that the court "failed to consider

or did not appreciate the significance of certain evidence." See D'Atria v.

D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990) (explaining the standard

for granting a motion for reconsideration). The court further explained

defendant did not present any new information that he could not have presented

during the trial and which, in the interest of justice, supported reconsideration.

See ibid.

Defendant appealed from the court's order entering the $4,500 final

judgment against him and dismissing his counterclaim. He also appealed from

the court's order denying his motion for reconsideration.

On May 8, 2019, we sua sponte dismissed the appeal based on defendant's

failure to prosecute. In a July 1, 2019 order, we denied defendant's motion to

4 The record does not include the papers filed in support of the reconsideration motion. A-2150-18T4 4 vacate the dismissal and for an abbreviated transcript, and we explained that

"[d]efendant's motion to reinstate the appeal [would] not be considered until

defendant . . . either ordered all of the transcripts or obtained an order from the

trial court granting an abbreviated transcript."

On August 19, 2019, the trial court entered an ordered granting

defendant's request for an abbreviated transcript. See R. 2:5-3(c). The order

explains the approved abbreviated transcript is based on "points on which"

defendant will rely on appeal, and the order permits an abbreviated transcript of

the trial court's findings and conclusions, and defendant's cross-examination of

plaintiff regarding defendant's counterclaim. 5 Two months later, we granted

defendant's motion to reinstate his appeal.

In support of his appeal, defendant filed a brief with an appendix

consisting of a copy of an unpublished decision and the two orders from which

his appeal is taken. Defendant's appendix does not include any pleadings in the

case or any exhibits that were admitted as evidence at trial. The abbreviated

transcripts supplied by defendant include an eight-page transcript of the October

17, 2018 trial proceeding, which includes five short, selected segments of

5 Defendant does not include in the record on appeal any of the papers he filed with the trial court in support of his motion for an abbreviated transcript. A-2150-18T4 5 testimony from plaintiff and defendant. 6 Defendant also provided an

abbreviated eight-page October 24, 2018 transcript which includes an almost

seven-minute segment of the trial during which plaintiff and defendant answered

questions posed by the court. Lastly, defendant provided a transcript of selected

portions of the October 29, 2018 proceedings, which includes the court's opinion

from the bench following the completion of the presentation of the evidence and

three segments, consisting of thirteen pages, during which defendant cross

examined plaintiff.7

The four arguments presented in defendant's merits brief on appeal are

founded on the contention the trial evidence either does not support or

contradicts the court's factual and credibility findings. More particularly, in

Points I and II, defendant asserts there is insufficient evidence supporting the

court's finding he breached a contractual obligation owed to plaintiff. In Point

III, he claims the court's dismissal of his counterclaim is not supported by the

6 The transcripts denote the selected portions of the proceedings as "segments." The five segments of the trial proceedings, as reflected on the October 17, 2018 transcript, are of trial court proceedings of the following durations: thirty seconds, twelve seconds, one minute and nineteen seconds, one minute and seventeen seconds, and one minute and forty-seven seconds. 7 The three segments are of durations of eight minutes and forty-nine seconds, five minutes and ten seconds, and forty-two seconds. A-2150-18T4 6 weight of the evidence. In Point IV, defendant contends the court 's credibility

determinations are not supported by the evidence presented at trial.

Our standard of review of "the findings and conclusions of a trial court

following a bench trial are well-established." Allstate Ins. Co. v. Northfield

Med. Ctr., P.C., 228 N.J. 596, 619 (2017). We do not "engage in an independent

assessment of the evidence as if [we] were the court of first instance," State v.

Locurto, 157 N.J. 463, 471 (1999), and we will "not weigh the evidence, assess

the credibility of witnesses, or make conclusions about the evidence," Mountain

Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008)

(quoting State v. Barone, 147 N.J. 599, 615 (1997)). Instead,

[w]e give deference to the trial court that heard the witnesses, sifted the competing evidence, and made reasoned conclusions. Reviewing appellate courts should "not disturb the factual findings and legal conclusions of the trial judge" unless convinced that those findings and conclusions were "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice."

[Allstate Ins., 228 N.J. at 619 (citations omitted) (quoting Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015)).] "[W]e defer to the trial court's credibility determinations, because it

'"hears the case, sees and observes the witnesses, and hears them testify,"

A-2150-18T4 7 affording it "a better perspective than a reviewing court in evaluating the

veracity of a witness."'" City Council of Orange Twp. v. Edwards, 455 N.J.

Super. 261, 272 (App. Div. 2018) (quoting Gnall v. Gnall, 222 N.J. 414, 428

(2015)). We will not disturb a trial court's findings "unless they are so clearly

insupportable as to result in their denial of justice." Estate of Ostlund v.

Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007) (citing Rova Farms Resort

v Investors Ins. Co., 65 N.J. 474, 483 (1974)). We review the trial court's

interpretation of law de novo. Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).

Where, as here, a party on appeal argues a trial court's findings of fact and

credibility determinations are not supported by, or are contradicted by, the

record, we must necessarily review and analyze that record. Simple logic

dictates that it is impossible to determine if a court's fact and credibility

determinations are supported by the trial record without a review of the record

itself.

Our Rules of Court require that an appellant provide those portions of the

trial record required to properly consider and decide the arguments raised on

appeal. Rule 2:6-1(a)(1) requires that an appellant include in the appendix on

appeal the pleadings and "such other parts of the record . . . as are essential to

A-2150-18T4 8 the proper consideration of the issues, including such parts as the appellant

should reasonably assume will be relied upon by the respondent in meeting the

issues raised." R. 2:6-1(a)(1)(A) and (I). The record on appeal must also include

the transcripts of the proceedings before the trial court. R. 2:5-4(a). It is the

appellant's obligation to order and obtain the trial transcripts for our

consideration on appeal. R. 2:5-3(a).

A party's failure to provide the record on appeal required by the Rules of

Court hinders our ability to conduct proper appellate review. Johnson v.

Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001).

Indeed, the trial court record is so essential to our determination of issues raised

on appeal, we are not "obliged to attempt review of an issue when the relevant

portions of the [trial court] record are not included" on appeal. Cmty. Hosp.

Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C., 381 N.J.

Super. 119, 127 (App. Div. 2005); see also State v. Cordero, 438 N.J. Super.

472, 489 (App. Div. 2014) (finding review of the appellant's arguments was not

possible because the appellant failed to provide an adequate record of trial court

proceedings).

The limited record defendant provides on appeal renders it impossible to

conduct any reasoned review of his arguments challenging the court's entry of

A-2150-18T4 9 judgment and dismissal of his counterclaim. Defendant argues the court's fact

findings are not supported by the trial evidence and testimony, but he fails to

provide any of the exhibits admitted into evidence at trial and he opted not to

provide the transcripts of the entire trial. Instead, and as noted, he provides only

brief snippets of testimony, covering mere minutes of the testimony offered

during the three-day trial.

A complete transcript of the trial proceedings is "ordinarily . . . an integral

part of the record on appeal." In re Guardianship of Dotson, 72 N.J. 112, 115

(1976). It provides an appellant with "a firm foundation for his [or her]

arguments that trial error occurred" and it provides the reviewing court with "a

basis for a complete and proper analysis of all the issues" presented on appeal.

Ibid.

Defendant did not avoid the obligation to provide all of the trial transcripts

by successfully moving for an abbreviated transcript. An abbreviated transcript

must include those portions of the proceedings "on which the appellant will rely

on the appeal." R. 2:5-3(c)(2); see also Dotson, 72 N.J. at 117 (explaining an

abbreviated transcript is appropriate "[w]here the specified grounds of appeal

do not require a complete transcript"). On his motion for an abbreviated

A-2150-18T4 10 transcript, defendant was required to identify those portions of the record upon

which he intended to rely on appeal. R. 2:5-3(c)(2).

Defendant's arguments on appeal, however, require much more than an

analysis of the snippets of testimony he identified to the motion court as

comprising the trial record pertinent to the issues he intended to raise on appeal.

For example, he argues the trial court erred by finding his witnesses not credible,

but he does not include his witnesses' testimony in the abbreviated transcript.

More broadly, defendant's primary claim is that the court's findings of fact and

credibility determinations are not supported by the testimony and evidence at

trial. To address that argument, we must consider the entire evidentiary record.

Defendant's representation to the motion court about the portions of the record

pertinent to the issues he intended to raise on appeal did not absolve him of the

responsibility to provide the transcripts of the proceedings necessary for our

consideration of the issues he actually raises on appeal. See R. 2:6-1(a)(1)(I).

It is our preference to address the merits of a party's claim where that is

possible. See, e.g., In re Corbo, 238 N.J. 246, 255 (2019). We also appreciate

that defendant appears as a self-represented litigant. Defendant has ably

represented himself in this matter, but his failure to provide the pleadings, the

evidence introduced at trial, and transcripts of the entire trial prevents us from

A-2150-18T4 11 addressing and deciding the merits of the issues he raises on appeal. For those

reasons, we affirm the court's orders. 8

Affirmed.

8 Defendant waived his challenge to the court's order denying his motion for reconsideration. He does not offer any argument supporting his appeal from the order denying that motion. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (holding that "[a]n issue not briefed on appeal is deemed waived"); Jefferson Loan Co., Inc. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008) (same). A-2150-18T4 12