JULIANA DINIZ v. HEITS BUILDING SYSTEMS, INC.

Annotate this Case


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4554-04T24554-04T2

JULIANA DINIZ,

Plaintiff-Respondent,

v.

HEITS BUILDING SYSTEMS, INC.

T/A DAVID HEITNER, PRESIDENT,

Defendants-Appellants.

______________________________


Submitted January 24, 2006 - Decided March 7, 2006

Before Judges Kestin, R. B. Coleman

and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Special Civil

Part, Bergen County, DC-1198-05.

Mitchell J. Kassoff, attorney for

appellants.

Anish A. Joshi, attorney for respondent.

PER CURIAM

Defendant appeals from a judgment entered in the Special Civil Part awarding plaintiff damages of $15,000 and dismissing defendant's counterclaim. We affirm.

Plaintiff had filed suit against defendant, seeking a return of the $20,000 payment she had made for the purchase of a cleaning business franchise. Defendant counterclaimed for damages resulting from, defendant asserted, a breach of plaintiff's obligation to complete her purchase of the franchise. Judge Isabel B. Stark received evidence on March 31, 2005, and rendered an oral decision on April 5, 2005. She concluded that the franchise documents, written in English, were presented to plaintiff, who spoke no English, and that the explanation of those documents, given to plaintiff by defendant's representatives, were incomplete and misleading. The judge also determined that plaintiff received no benefit from the agreement. From these facts, Judge Stark concluded defendant had violated the Consumer Fraud Act and awarded plaintiff a return of the funds she had advanced, subject to the jurisdictional limit of the Special Civil Part, and fees. She also concluded that defendant had produced "nothing in this trial that would approach a preponderance of evidence on any counterclaim for alleged lost business." Accordingly, she dismissed the counterclaim. On appeal, defendant raises the following issues

JUDGE STARK'S DECISION IS COMPLETELY CONTRARY TO THE UNDISPUTED AND UNCHALLENGED EVIDENCE PRESENTED AT TRIAL AND WAS REACHED TO IMPROPERLY HELP AN ALLEGED NON-ENGLISH SPEAKING IMMIGRANT AT THE EXPENSE OF A BUSINESSMAN PROPERLY USING A CONTRACT WRITTEN IN ENGLISH.

JUDGE STARK'S REJECTION OF A FRANCHISE AGREEMENT BECAUSE IT IS WRITTEN IN ENGLISH AND NOT EXPLAINED IN DETAIL TO SOMEONE WHO DOES NOT UNDERSTAND ENGLISH IS A VIOLATION OF STATE LAW, FEDERAL LAW AND THE UNITED STATES CONSTITUTION.

EVEN IF JUDGE STARK'S DECISION IS CORRECT THAT NON-ENGLISH SPEAKING PEOPLE HAVE GREATER RIGHTS THAN ENGLISH SPEAKING PEOPLE, THE FACTS IN THE INSTANT CASE STILL REQUIRE THE REVERSAL OF HER DECISION.

EVEN IF JUDGE STARK IS CORRECT AS TO THE VALIDITY OF THE FRANCHISE AGREEMENT, PLAINTIFF-RESPONDENT'S ACTIONS BOTH RATIFIED THE FRANCHISE AGREEMENT AND GAVE DEFENDANTS-APPELLANTS RIGHTS PURSUANT TO A THEORY OF QUANTUM MERUIT.

THE NEW JERSEY FRANCHISE PRACTICES ACT DOES NOT APPLY BASED UPON PLAINTIFF-RESPONDENT'S PLEADINGS AND TESTIMONY IN THIS CASE.

JUDGE STARK'S IMPROPER ADMISSION OF TESTIMONY AND DOCUMENTARY EVIDENCE AND THE RELIANCE UPON SAME WAS A MATERIAL AND REVERSIBLE ERROR.

THE NEW JERSEY CONSUMER FRAUD ACT DOES NOT APPLY TO THIS CASE.

DEFENDANTS-APPELLANTS PROVIDED AMPLE, PROPER AND SUFFICIENT PROOF AS TO THE DAMAGES CAUSED BY PLAINTIFF-RESPONDENT AND ARE ENTITLED TO THE AWARD OF SAME AS ALLEGED IN THEIR COUNTERCLAIMS.

BY BASING HER DECISION ON ALLEGATIONS NOT MADE BY PLAINTIFF-RESPONDENT JUDGE STARK COMMITTED REVERSIBLE ERROR SINCE DEFENDANTS-APPELLANTS WERE NOT ON NOTICE TO ADDRESS THESE ISSUES AT TRIAL.

CONFIRMATION IS REQUESTED THAT DAVID HEITNER IS NOT PERSONALLY LIABLE SINCE HE WAS ACTING SOLELY IN HIS CAPACITY AS PRESIDENT OF THE CORPORATE DEFENDANT AND THE SECOND DEFENDANT IS LISTED AS "T/A DAVID HEITNER, PRESIDENT".

We have carefully reviewed the record and the applicable law in light of these contentions. We conclude that defendant's contentions are without sufficient merit to justify discussion in a written opinion. See R. 2:11-3(e)(1)(A) & (E). We add, however, the following brief comments.

Defendant asserts that Judge Stark afforded rights to plaintiff that would not be available to an English-speaking litigant. This characterization completely misstates Judge Stark's opinion. Judge Stark concluded that plaintiff was induced to sign the franchise agreement by virtue of misrepresentations of the contents of that agreement. Under those circumstances, any litigant would be entitled to a return of funds deposited. See Berman v. Gurwicz, 178 N.J. Super. 611, 617-18 (Ch. Div. 1980).

Judge Stark's factual findings were solidly grounded in substantial, credible evidence in this record and her legal conclusions from those facts were correct. Her decision may not be disturbed on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) ("findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence"); Fagliarone v. Township of North Bergen, 78 N.J. Super. 154, 155 (App. Div.) (an appellate court will 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."), certif. denied, 40 N.J. 221 (1963).

We affirm for the reasons expressed by Judge Stark in her thorough oral opinion of April 5, 2005.


The judgment also awarded attorneys fees in an unspecified amount. The fees were justified by the judge's finding of a violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. The record does not reflect when those fees were quantified or in what amount, but defendant has not briefed any issue regarding the amount of the fees. Accordingly, that issue is waived. Liebling v. Garden State Indemn., 337 N.J. Super. 447, 465-66 (App. Div. 2001).

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A-4554-04T2

March 7, 2006