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

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,

NOT FOR PUBLICATION WITHOUT THE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.

August 29, 2018
2 A-0870-16T4

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 MagnusonMoss 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.
3 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 
4 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.
5 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 
6 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.
7 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 
8 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 
9 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 "D44 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 
10 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.
11 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 
12 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 
13 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
14 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, 
15 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."
16 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. AluriVallabhaneni, 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]
17 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)).
18 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 
19 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 
20 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 
21 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. 
22 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.