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Page 1
13 A.3d 1057
(Cite as: 13 A.3d 1057)
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
R.I.,2011.
B.S. Intern. Ltd. v. JMAM, LLC
13 A.3d 1057
Supreme Court of Rhode Island.
B.S. INTERNATIONAL LTD.
v.
JMAM, LLC.
No. 2009–72–Appeal.
Feb. 16, 2011.
counterclaim. Manufacturer appealed.
Holding: The Supreme Court, Robinson, J., held that trial justice's determination regarding lack of credibility of
testimony of owner of manufacturer of costume jewelry, regarding authenticity of alleged typewritten modification
Page 2
13 A.3d 1057
(Cite as: 13 A.3d 1057)
The appellate court traditionally accords a great deal of respect to the factual determinations made by the trial
justice.
[3] Appeal and Error 30 1008.1(4)
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)3 Findings of Court
30k1008 Conclusiveness in General
30k1008.1 In General
[4] Appeal and Error 30 1008.1(1)
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)3 Findings of Court
[5] Appeal and Error 30 893(1)
30 Appeal and Error
30XVI Review
30XVI(F) Trial De Novo
Page 3
13 A.3d 1057
(Cite as: 13 A.3d 1057)
The interpretation of an unambiguous contract is a question of law, and thus, appellate review is de novo.
343k359 Weight and Sufficiency
343k359(1) k. In general. Most Cited Cases
Trial justice's determination regarding lack of credibility of testimony of owner of plaintiff manufacturer of cos-
tume jewelry, regarding authenticity of typewritten modification to written terms and conditions prepared by de-
fendant wholesaler, governing purchases by wholesaler of merchandise for resale to multimedia retailer, was not
Timothy J. Robenhymer, Esq., Warwick, for Defendant.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause
why the issues raised in this appeal should not be summarily decided. After considering the record, the memoranda
submitted by the parties, and the oral arguments of counsel, we are of the opinion that cause has not been shown and
that the case should be decided at this time.
For the reasons set forth below, we affirm the judgment of the Superior Court.
tume jewelry. The defendant, JMAM, LLC, is a wholesaler of costume jewelry and beauty products—doing busi-
ness as “Joan Rivers Worldwide Enterprises.” (We shall hereinafter refer to defendant simply as JMAM.)
Page 4
13 A.3d 1057
(Cite as: 13 A.3d 1057)
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
At some point in the early 1990s, B.S. International entered into a business relationship with JMAM, pursuant
to which B.S. International would manufacture costume jewelry for JMAM. In turn, JMAM would sell the costume
FN2. In the “About QVC” section of its website, QVC, Inc., describes itself as “one of the largest multime-
dia retailers in the world * * *.” QVC (Feb. 14, 2011), http:// www. qvc. com.
The dispute that gave rise to the instant litigation centers around the contractual agreement between the parties
with respect to rejected merchandise. More specifically, the ultimate issue is whether or not JMAM is entitled to
reimbursement from B.S. International for merchandise rejected by QVC due to customer dissatisfaction, even
goods.FN5
FN3. Ronald Lague, the self-employed owner of REL, testified that his business was referred to as “REL
Consulting” from 1991 to 2001 and as “REL Consulting, Inc.” from 2001 to the time of trial in June of
2008. We shall hereinafter refer to said entity simply as REL.
FN4. B.S. International was one of numerous manufacturers from whom JMAM purchased costume jewel-
financial officer of JMAM, testified that the credits that JMAM took were based upon the credits that QVC
would take against JMAM. We note this factual disagreement for the sake of completeness; but, after due
consideration, we deem this issue to be irrelevant with respect to the instant appeal.
Until 1998, the working relationship between B.S. International and JMAM was governed solely by oral agree-
ments. In 1998, however, JMAM developed written terms and conditions to be applied to “all accepted purchase
ter and the terms and conditions document, he added an additional term pertaining to the return of rejected
merchandise. Whether or not Mr. Baracsi actually did so was a contested issue at trial, and it is a subject
that we shall address later in this opinion.
Page 5
13 A.3d 1057
(Cite as: 13 A.3d 1057)
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
On January 30, 2004, JMAM notified its vendors by letter that the policies and procedures concerning “Cus-
tomer Defective Returns” FN8 would change in February of that year. B.S. International and JMAM agreed, however,
that the new policy announced in the January letter would not apply to purchase orders that had already been placed
prior to the date of the announcement of the policy change. (Since the case at bar concerns rejected merchandise
excluded by their agreement from the reach of the prospective policy change, the details of that policy change are of
no relevance to this appeal.)
chandise—even though that merchandise had not actually been returned to B.S. International.
On November 5, 2004, B.S. International commenced a civil action against JMAM in the Superior Court for
Providence County, alleging, in pertinent part, that JMAM owed B.S. International $41,294.21 for goods sold and
delivered to JMAM during calendar years 2003 and 2004. Thereafter, JMAM filed an answer and a counterclaim; in
the counterclaim, JMAM alleged, in pertinent part, that B.S. International owed JMAM $13,760.44.
Relevant Testimony and Evidence Presented at Trial
The only issue before us on appeal is what terms and conditions governed merchandise that was rejected before
the policy change would become effective in February of 2004. More specifically, the issue is whether or not JMAM
was entitled to reimbursement from B.S. International for rejected merchandise, even though that merchandise was
not actually returned to B.S. International.
FN11 provision reads as follows:
FN9. We note that the cover letters contained in the two exhibits are signed by different employees of
JMAM, but this fact is of no relevance to the dispute between the parties.
FN10. The text of the cover letter reads in pertinent part as follows:
Page 6
13 A.3d 1057
(Cite as: 13 A.3d 1057)
vendor, agree to those terms and conditions for all accepted purchase orders.” (Internal quotation marks
Consulting!!!”
Since it is undisputed that the rejected merchandise at issue was not in fact “returned and inspected by R.E.L.
Consulting,” the trial justice was called upon to determine whether or not the above-quoted typewritten provision
actually was part of the contractual agreement between the parties, such that B.S. International was not required to
(which had been sent to B.S. International by JMAM); he stated that he signed the first page (the above-referenced
cover letter) and then mailed both pages back to JMAM.
On cross-examination, Mr. Baracsi was confronted with defense Exhibit A (not to be confused with the above-
referenced plaintiff's Exhibit 1A). Mr. Baracsi identified that exhibit as a copy of the terms and conditions cover
letter, signed by him, preceded by a facsimile cover sheet prepared by his secretary. FN12 He testified that his secre-
FN12. The facsimile cover sheet reads in pertinent part as follows:
“ATTACHED IS A SIGNED COPY OF THE ‘TERMS & CONDITIONS' SUBJECT TO YOUR PUR-
CHASE ORDERS.
(the page that contains the typewritten “PS”) was during the course of the instant litigation.
Mr. Halliday further testified that the practice between JMAM and its various vendors was to return “customer
defective returns” to the vendors; however, he testified that JMAM did so as an “accommodation.” He explained the
practice in further detail as follows:
Page 7
13 A.3d 1057
(Cite as: 13 A.3d 1057)
unusual returns or anything. * * * It really didn't have anything to do with the conditions of charging them back
for returns.”
It was Mr. Halliday's testimony that Exhibit 1A (i.e., the exhibit that does not contain the additional typewritten
tions.
Of particular relevance to the instant appeal, the trial justice made findings of fact regarding the terms and con-
ditions that governed the relationship between the parties prior to February of 2004. The trial justice found that there
had been no written agreement between the parties prior to 1998, at which time JMAM sent to its vendors (including
B.S. International) a purchase order which set forth the governing terms and conditions. He further found that the
testimony, the trial justice then found that the terms and conditions that governed the relationship between the par-
ties were as set forth in Exhibit 1A.
FN13. The trial justice used the term “legend” to refer to the additional typewritten provision that appears
in Exhibit 1B.
II
Standard of Review
[1][2] We apply a deferential standard of review with respect to the factual findings of a trial justice sitting
without a jury in a civil case. Costa v. Silva, 996 A.2d 607, 611 (R.I.2010); Grady v. Narragansett Electric Co., 962
has had an opportunity to appraise witness demeanor and to take into account other realities that cannot be grasped
from a reading of a cold record.” In re Dissolution of Anderson, Zangari & Bossian, 888 A.2d at 975; see also In re
Richard A., 946 A.2d 204, 209 (R.I.2008); Rodriques v. Santos, 466 A.2d 306, 309 (R.I.1983) (“On appeal we do
Page 8
13 A.3d 1057
(Cite as: 13 A.3d 1057)
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
not consider arguments that certain evidence is more credible than other evidence. That is a function of the trial
[4] As we have repeatedly and clearly stated, we will not disturb factual findings “unless the record shows that
the findings are clearly wrong or unless the trial justice overlooked or misconceived material evidence on a control-
ling issue.” In re Dissolution of Anderson, Zangari & Bossian, 888 A.2d at 975; see also Costa, 996 A.2d at 611;
Grady, 962 A.2d at 41.
[5] The interpretation of an unambiguous contract is a question of law. See Clark–Fitzpatrick, Inc./Franki
III
Analysis
After a careful review of the record and the appellate arguments of the parties, we perceive nothing that sug-
gests that the trial justice overlooked or misconceived material evidence or that his factual findings were clearly
cation (i.e., the typewritten modification) had been communicated to or assented to by JMAM, it was not unreasona-
ble for the trial justice to determine that such had never happened. It was also not clearly erroneous for the trial jus-
tice to decline to accept as credible Mr. Baracsi's assertion that his secretary had promptly faxed the signed terms
and conditions cover sheet back to JMAM, yet had failed to also fax the page with the modification or communicate
to JMAM that a modification would be forthcoming in the mail. Since we perceive no error in the trial justice's de-
1A, entitled “INSPECTION AND PAYMENT,” is the only provision concerning rejected merchandise. It provides
in pertinent part: “Defective Articles will be rejected by the Buyer [i.e., JMAM] and the prices thereof will be debit-
ed against the account of the seller.” (Emphasis added.) There is nothing in Exhibit 1A to suggest that the return of
goods was a prerequisite to JMAM's entitlement to reimbursement.
Accordingly, since there is no provision in the above-mentioned terms and conditions as set forth in Exhibit 1A
Page 9
13 A.3d 1057
(Cite as: 13 A.3d 1057)
B.S. Intern. Ltd. v. JMAM, LLC
13 A.3d 1057
END OF DOCUMENT
Page 2
13 A.3d 1057
(Cite as: 13 A.3d 1057)
The appellate court traditionally accords a great deal of respect to the factual determinations made by the trial
justice.
[3] Appeal and Error 30 1008.1(4)
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)3 Findings of Court
30k1008 Conclusiveness in General
30k1008.1 In General
[4] Appeal and Error 30 1008.1(1)
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)3 Findings of Court
[5] Appeal and Error 30 893(1)
30 Appeal and Error
30XVI Review
30XVI(F) Trial De Novo
Page 3
13 A.3d 1057
(Cite as: 13 A.3d 1057)
The interpretation of an unambiguous contract is a question of law, and thus, appellate review is de novo.
343k359 Weight and Sufficiency
343k359(1) k. In general. Most Cited Cases
Trial justice's determination regarding lack of credibility of testimony of owner of plaintiff manufacturer of cos-
tume jewelry, regarding authenticity of typewritten modification to written terms and conditions prepared by de-
fendant wholesaler, governing purchases by wholesaler of merchandise for resale to multimedia retailer, was not
Timothy J. Robenhymer, Esq., Warwick, for Defendant.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause
why the issues raised in this appeal should not be summarily decided. After considering the record, the memoranda
submitted by the parties, and the oral arguments of counsel, we are of the opinion that cause has not been shown and
that the case should be decided at this time.
For the reasons set forth below, we affirm the judgment of the Superior Court.
tume jewelry. The defendant, JMAM, LLC, is a wholesaler of costume jewelry and beauty products—doing busi-
ness as “Joan Rivers Worldwide Enterprises.” (We shall hereinafter refer to defendant simply as JMAM.)
Page 4
13 A.3d 1057
(Cite as: 13 A.3d 1057)
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
At some point in the early 1990s, B.S. International entered into a business relationship with JMAM, pursuant
to which B.S. International would manufacture costume jewelry for JMAM. In turn, JMAM would sell the costume
FN2. In the “About QVC” section of its website, QVC, Inc., describes itself as “one of the largest multime-
dia retailers in the world * * *.” QVC (Feb. 14, 2011), http:// www. qvc. com.
The dispute that gave rise to the instant litigation centers around the contractual agreement between the parties
with respect to rejected merchandise. More specifically, the ultimate issue is whether or not JMAM is entitled to
reimbursement from B.S. International for merchandise rejected by QVC due to customer dissatisfaction, even
goods.FN5
FN3. Ronald Lague, the self-employed owner of REL, testified that his business was referred to as “REL
Consulting” from 1991 to 2001 and as “REL Consulting, Inc.” from 2001 to the time of trial in June of
2008. We shall hereinafter refer to said entity simply as REL.
FN4. B.S. International was one of numerous manufacturers from whom JMAM purchased costume jewel-
financial officer of JMAM, testified that the credits that JMAM took were based upon the credits that QVC
would take against JMAM. We note this factual disagreement for the sake of completeness; but, after due
consideration, we deem this issue to be irrelevant with respect to the instant appeal.
Until 1998, the working relationship between B.S. International and JMAM was governed solely by oral agree-
ments. In 1998, however, JMAM developed written terms and conditions to be applied to “all accepted purchase
ter and the terms and conditions document, he added an additional term pertaining to the return of rejected
merchandise. Whether or not Mr. Baracsi actually did so was a contested issue at trial, and it is a subject
that we shall address later in this opinion.
Page 5
13 A.3d 1057
(Cite as: 13 A.3d 1057)
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
On January 30, 2004, JMAM notified its vendors by letter that the policies and procedures concerning “Cus-
tomer Defective Returns” FN8 would change in February of that year. B.S. International and JMAM agreed, however,
that the new policy announced in the January letter would not apply to purchase orders that had already been placed
prior to the date of the announcement of the policy change. (Since the case at bar concerns rejected merchandise
excluded by their agreement from the reach of the prospective policy change, the details of that policy change are of
no relevance to this appeal.)
chandise—even though that merchandise had not actually been returned to B.S. International.
On November 5, 2004, B.S. International commenced a civil action against JMAM in the Superior Court for
Providence County, alleging, in pertinent part, that JMAM owed B.S. International $41,294.21 for goods sold and
delivered to JMAM during calendar years 2003 and 2004. Thereafter, JMAM filed an answer and a counterclaim; in
the counterclaim, JMAM alleged, in pertinent part, that B.S. International owed JMAM $13,760.44.
Relevant Testimony and Evidence Presented at Trial
The only issue before us on appeal is what terms and conditions governed merchandise that was rejected before
the policy change would become effective in February of 2004. More specifically, the issue is whether or not JMAM
was entitled to reimbursement from B.S. International for rejected merchandise, even though that merchandise was
not actually returned to B.S. International.
FN11 provision reads as follows:
FN9. We note that the cover letters contained in the two exhibits are signed by different employees of
JMAM, but this fact is of no relevance to the dispute between the parties.
FN10. The text of the cover letter reads in pertinent part as follows:
Page 6
13 A.3d 1057
(Cite as: 13 A.3d 1057)
vendor, agree to those terms and conditions for all accepted purchase orders.” (Internal quotation marks
Consulting!!!”
Since it is undisputed that the rejected merchandise at issue was not in fact “returned and inspected by R.E.L.
Consulting,” the trial justice was called upon to determine whether or not the above-quoted typewritten provision
actually was part of the contractual agreement between the parties, such that B.S. International was not required to
(which had been sent to B.S. International by JMAM); he stated that he signed the first page (the above-referenced
cover letter) and then mailed both pages back to JMAM.
On cross-examination, Mr. Baracsi was confronted with defense Exhibit A (not to be confused with the above-
referenced plaintiff's Exhibit 1A). Mr. Baracsi identified that exhibit as a copy of the terms and conditions cover
letter, signed by him, preceded by a facsimile cover sheet prepared by his secretary. FN12 He testified that his secre-
FN12. The facsimile cover sheet reads in pertinent part as follows:
“ATTACHED IS A SIGNED COPY OF THE ‘TERMS & CONDITIONS' SUBJECT TO YOUR PUR-
CHASE ORDERS.
(the page that contains the typewritten “PS”) was during the course of the instant litigation.
Mr. Halliday further testified that the practice between JMAM and its various vendors was to return “customer
defective returns” to the vendors; however, he testified that JMAM did so as an “accommodation.” He explained the
practice in further detail as follows:
Page 7
13 A.3d 1057
(Cite as: 13 A.3d 1057)
unusual returns or anything. * * * It really didn't have anything to do with the conditions of charging them back
for returns.”
It was Mr. Halliday's testimony that Exhibit 1A (i.e., the exhibit that does not contain the additional typewritten
tions.
Of particular relevance to the instant appeal, the trial justice made findings of fact regarding the terms and con-
ditions that governed the relationship between the parties prior to February of 2004. The trial justice found that there
had been no written agreement between the parties prior to 1998, at which time JMAM sent to its vendors (including
B.S. International) a purchase order which set forth the governing terms and conditions. He further found that the
testimony, the trial justice then found that the terms and conditions that governed the relationship between the par-
ties were as set forth in Exhibit 1A.
FN13. The trial justice used the term “legend” to refer to the additional typewritten provision that appears
in Exhibit 1B.
II
Standard of Review
[1][2] We apply a deferential standard of review with respect to the factual findings of a trial justice sitting
without a jury in a civil case. Costa v. Silva, 996 A.2d 607, 611 (R.I.2010); Grady v. Narragansett Electric Co., 962
has had an opportunity to appraise witness demeanor and to take into account other realities that cannot be grasped
from a reading of a cold record.” In re Dissolution of Anderson, Zangari & Bossian, 888 A.2d at 975; see also In re
Richard A., 946 A.2d 204, 209 (R.I.2008); Rodriques v. Santos, 466 A.2d 306, 309 (R.I.1983) (“On appeal we do
Page 8
13 A.3d 1057
(Cite as: 13 A.3d 1057)
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
not consider arguments that certain evidence is more credible than other evidence. That is a function of the trial
[4] As we have repeatedly and clearly stated, we will not disturb factual findings “unless the record shows that
the findings are clearly wrong or unless the trial justice overlooked or misconceived material evidence on a control-
ling issue.” In re Dissolution of Anderson, Zangari & Bossian, 888 A.2d at 975; see also Costa, 996 A.2d at 611;
Grady, 962 A.2d at 41.
[5] The interpretation of an unambiguous contract is a question of law. See Clark–Fitzpatrick, Inc./Franki
III
Analysis
After a careful review of the record and the appellate arguments of the parties, we perceive nothing that sug-
gests that the trial justice overlooked or misconceived material evidence or that his factual findings were clearly
cation (i.e., the typewritten modification) had been communicated to or assented to by JMAM, it was not unreasona-
ble for the trial justice to determine that such had never happened. It was also not clearly erroneous for the trial jus-
tice to decline to accept as credible Mr. Baracsi's assertion that his secretary had promptly faxed the signed terms
and conditions cover sheet back to JMAM, yet had failed to also fax the page with the modification or communicate
to JMAM that a modification would be forthcoming in the mail. Since we perceive no error in the trial justice's de-
1A, entitled “INSPECTION AND PAYMENT,” is the only provision concerning rejected merchandise. It provides
in pertinent part: “Defective Articles will be rejected by the Buyer [i.e., JMAM] and the prices thereof will be debit-
ed against the account of the seller.” (Emphasis added.) There is nothing in Exhibit 1A to suggest that the return of
goods was a prerequisite to JMAM's entitlement to reimbursement.
Accordingly, since there is no provision in the above-mentioned terms and conditions as set forth in Exhibit 1A
Page 9
13 A.3d 1057
(Cite as: 13 A.3d 1057)
B.S. Intern. Ltd. v. JMAM, LLC
13 A.3d 1057
END OF DOCUMENT
