Opinion
DOCKET NO. A-3929-14T1
06-07-2016
COLLEEN ANGELONI-SIMKIN, Plaintiff-Appellant, v. ALL STAR ONE, LLC and KAREN BRENNER, Defendants-Respondents.
Michael J. Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief). John V. Maher, Jr., argued the cause for respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-5130-13. Michael J. Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief). John V. Maher, Jr., argued the cause for respondents. PER CURIAM
Plaintiff Colleen Angeloni-Simkin appeals from the April 22, 2015 Law Division order, dismissing her claims under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -200. We affirm.
The parties are fully familiar with the procedural history and facts of this case and, therefore, a brief summary will suffice here. Defendant All Star One, LLC (All Star One) is a competitive cheerleading gym that is owned and operated by defendant Karen Brenner. In May 2012, plaintiff's daughter tried out for a position on one of the cheerleading teams that trained at the gym. If her daughter was selected for a team, plaintiff would be required to pay for the cost of the child's training and for the competitive events in which her team would participate. After the tryout, Brenner placed plaintiff's daughter on a team.
On June 5, 2012, plaintiff attended a mandatory parent meeting that was conducted by Brenner. At the meeting, Plaintiff signed an "All Star One Enrollment Form" that described plaintiff's responsibility to make timely payments for all of the costs associated with her child's participation on the team. The form stated that there would be "no refunds to anyone who quits or is asked to leave the program. Anyone who leaves voluntarily or is dismissed remains responsible to [Brenner and] All Star One for all debts."
Brenner also distributed coupon books to the parents to use when they paid the monthly fees. Plaintiff was required to pay All Star One $120 per month for three hours of cheerleading and one hour of tumbling classes. She also paid $25 to cover "USASF Yearly Registration," and began making payments toward the choreography costs for developing the team's performance routine and the costs of participating in competitions. If all payments were made for the entire season in accordance with the payment coupons, each student would pay $7 50 in competition fees, $250 in choreography fees, and the $25 USASF fee in addition to the monthly tuition.
The U.S. All Star Federation (USASF) is an organization that sets rules and competition standards for the sport of competitive cheerleading. --------
In February 2013, plaintiff sent a series of emails to Brenner complaining about the costs of the program, and asserting that Brenner ran her business in an unorganized manner. Later that month, Brenner asked that plaintiff's daughter no longer participate as a team member. By that time, plaintiff had paid defendants $500 in competition fees, the entire $250 in choreography fees, and the $25 USASF fee.
On July 11, 2013, plaintiff filed her complaint against defendants. Plaintiff raised a number of claims, but most of them were dismissed or amicably resolved between the parties, leaving only the CFA claim. Judge Joseph Marczyk conducted a two-day bench trial to resolve this issue.
In support of her CFA claim, plaintiff testified that Brenner made three misrepresentations to her at the June 5, 2012 parent meeting, and in the enrollment materials provided at that time. Plaintiff testified that Brenner told the parents that the $25 USASF fee would be paid to the USASF to register each child so they could participate in competitions. However, Brenner did not enroll plaintiff's daughter with the USASF. Plaintiff also alleged that Brenner misrepresented that all of the choreography fees would be paid directly to the choreographers hired to work with the teams. Plaintiff claimed that Brenner used some of these fees for other purposes. Finally, plaintiff testified that Brenner told the parents that the cost of each competition was $75, but some of them did not cost that much.
In response, Brenner testified that only thirty-five students on All Star One's top-rated team had to pay $25 to register for the USASF in order to participate in competitions. However, defendants collected this fee from all of the students and used it to pay other expenses associated with the USASF. Brenner stated that defendants incurred these costs for registering All Star One as a USASF member gym, credentialing the gym's coaches with the USASF, compensating a competition coordinator, and registering the students into a database. Brenner refunded the $25 fee to plaintiff when she learned that plaintiff's daughter had inadvertently not been included in the database. Brenner testified that she never spoke to plaintiff or any other parent at the parent meeting about this fee.
Brenner testified that she used the choreography fees to hire outside choreographers. These fees were also used to pay for a nine-hour choreography camp for each team, that had to be staffed by All Star One coaches and staff. In addition, defendants used the choreography fees to pay for music for the routines the choreographers developed for the team. Again, Brenner testified that she never told plaintiff or the other parents that the choreography fees would only be used to pay the choreographers, and not for the other costs of developing the routines.
Finally, Brenner testified that she never told plaintiff that the cost of each competition was $75. Brenner hoped that each team would participate in ten competitions during the season. Some of these competitions cost less than $75 per team member, while others cost much more. If any parent asked what a particular competition cost, she would refer them to the event sponsor's website. Plaintiff never asked her for this information. With regard to plaintiff's daughter's team, Brenner was only able to schedule nine competitions that season. As a result, the parents voted to use the remaining fees for an end-of-the-year team party.
At the conclusion of the trial, Judge Marczyk rendered a comprehensive oral decision dismissing plaintiff's CFA claims. Before reviewing the judge's findings, and in order to place them into context, we briefly set forth the standard plaintiff had to meet to establish a CFA claim.
Generally, to succeed on a CFA claim, a plaintiff must demonstrate "(1) unlawful conduct by the defendants; (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendants' unlawful conduct and the plaintiff's ascertainable loss." N.J. Citizen Action v. Schering-Plough Corp., 367 N.J. Super. 8, 12-13 (App. Div.), certif. denied, 178 N.J. 249 (2003). "There is no precise formulation for an 'unconscionable' act that satisfies the statutory standard for an unlawful practice. The statute establishes 'a broad business ethic' applied 'to balance the interests of the consumer public and those of the sellers.'" D'Agostino v. Maldonado, 216 N.J. 168, 184 (2013) (quoting Kugler v. Romain, 58 N.J. 522, 543-44 (1971)). However, "[a]n unconscionable practice under the CFA 'necessarily entails a lack of good faith, fair dealing, and honesty.'" Id. at 189 (quoting Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161, 168 (3d Cir. 1998)).
At the outset, Judge Marczyk found that "plaintiff's testimony was not credible when considered in the context of the other testimony in evidence in the case." On the other hand, the judge found that Brenner's testimony was "straightforward and credible[,]" and he "gave great weight to her testimony."
The judge rejected plaintiff's claim that Brenner misrepresented how the USASF fee would be used. The judge stated:
[T]he [c]ourt did not find plaintiff's testimony regarding the [USASF] fee to be credible. The [c]ourt found . . . Brenner's testimony persuasive that she never stated that she was acting as some kind of pass through for the fee. The [c]ourt believed [Brenner's] testimony that the fee was used for registering the athletes on the website, uploading, and registering each athlete for the competitions they entered, [and] fees associated with credentialing the coaches and being a member of the gym.
The judge also found that plaintiff did not establish that defendants violated the CFA with regard to the handling of the choreography fees. The judge believed Brenner's testimony that she never told plaintiff that the choreography fees would only be used to pay the third-party choreographers, and not for the other expenses associated with choreographing a team's routine. The judge stated:
[T]he [c]ourt found credible . . . Brenner's explanation that the choreography involves much more than simply paying a choreographer
to work with the students. Rather[,] the [c]ourt found persuasive [Brenner's] testimony that the choreography fee is utilized not only for paying a choreographer, but also a DJ for music, choreography camp, defendant[s'] staff, along with any changes to the routine and/or music.
The judge next addressed plaintiff's claim that Brenner misrepresented that each competition cost $75. Again finding that plaintiff's testimony was not credible, the judge noted that "it seems clear that the various competitions charged different fees and . . . there would have been no way to know months in advance precisely how much each competition would have cost at the beginning of the season." The judge also observed that plaintiff admitted that she arrived at the $75 figure herself by simply dividing the $750 total fee by the ten competitions planned for each team. Thus, the judge found no basis for plaintiff's assertion that Brenner misrepresented this charge.
Finally, the judge rejected plaintiff's claim that the coupon books were misleading. The judge stated that the coupons for the USASF, choreography, and competition fees "do not suggest that [Brenner] would act as a mere conduit through which the fees would be paid to a third party and . . . the coupons are [not] in violation of the [CFA]." This appeal followed.
On appeal, plaintiff argues that "[t]he trial judge disregarded the substantial, credible evidence introduced at trial and misapplied controlling New Jersey law in ruling that defendants' representations did not violate the [CFA]." However, our review of a trial court's fact-finding in a non-jury case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011).
"The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). We "should not disturb the factual findings and legal conclusions of the trial judge 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. However, we owe no deference to a trial court's interpretation of the law, and review issues of law de novo. Mountain Hill, LLC v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009).
After a thorough review of the record and consideration of the controlling legal principles, we conclude that plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by Judge Marczyk in his thoughtful oral opinion. The judge's factual findings, including his specific credibility determinations, are fully supported by the record and, in light of those facts, his legal conclusions are unassailable.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION