RICK ATTANASIO v. AUSTIN ROBERTS JEWELERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2861-07T22861-07T2

RICK ATTANASIO,

Plaintiff-Respondent,

v.

AUSTIN ROBERTS JEWELERS,

Defendant-Appellant.

__________________________

 

Submitted February 10, 2009 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. SC 1137-07.

Ballard & Dragan, attorneys for appellant (Robert A. Ballard, Jr., on the brief).

Rick Attanasio, respondent pro se, has not filed a brief.

PER CURIAM

Defendant, Austin Roberts Jewelers, appeals from a judgment of the trial court entered on January 10, 2008, awarding plaintiff damages of $378 plus costs of suit. For the reasons that follow, we reverse.

On June 2, 2007, plaintiff purchased a sapphire bracelet and a pair of sapphire earrings from defendant as a gift for his wife. On September 22, 2007, plaintiff brought the jewelry back to the store, claiming that the stones in the bracelet had "lost their color." Plaintiff stated that his wife had noticed the change in the stones' color on September 5, 2007.

Plaintiff demanded a refund. Initially, Mary Reyes, defendant's employee, stated that she would honor the purchase through a store credit or would replace the bracelet. Reyes requested that plaintiff leave the bracelet at the store.

Plaintiff's wife went to the store on October 4, 2007, in order to select a replacement bracelet. She was told by Reyes at that time, however, that defendant would no longer honor the proffered credit since it had determined that the piece had been "abused."

Plaintiff filed suit in November 2007, seeking a refund of $856 representing the purchase price of the bracelet and earrings. Defendant filed a counterclaim for "business interruption and store closure" losses of $500 plus $200 for an expert witness's fee.

Plaintiff and Reyes both appeared pro se at trial, which was held on January 10, 2008. Plaintiff testified that after two months of normal use, the gemstones on the bracelet lost all of their color. Plaintiff also proffered a written appraisal from Tropiano Fine Jewelers, describing the bracelet as "a 14-carat bracelet with beads, which upon inspection appeared to be either synthetic or low-quality white sapphires with a color coating that has since worn off," and valuing the bracelet at $125. Plaintiff denied that either he or his wife had done anything "to affect this jewelry in a negative way[.]"

Plaintiff's wife testified and also denied "abus[ing] the bracelet." She stated that she wore the bracelet approximately three days a week. Towards the end of August, she "really noticed that the color all of a sudden was gone."

Reyes testified that the bracelet "was a . . . 14[-]carat gold chain containing multi-treated sapphires, faceted brioles and faceted beads." The purchase price was $400 for the bracelet and $400 for the earrings, plus $56 in sales tax.

Reyes stated that the store's return policy "is clearly posted and indicates that refunds are given if the item is returned in 10 days with [its] original sale receipt. Store credit is given on those returns without a receipt." Reyes stated that, although she did not personally communicate this policy to plaintiff, a sign stating the policy was prominently displayed in the store.

Reyes described the condition of the bracelet when plaintiff brought it back on September 22, 2007, as follows: "[T]he gold was blacked with dirt and grease, a [briolette] was missing . . . [and] the remaining [briolettes] and beads had their facets worn off and chipped." She further testified that the "distributor was contacted, as well as the manufacturer, and a determination was made that the bracelet had been abused badly by the customer and that the bracelet was also placed into a kind of solution which caused the stones to lose their color."

Reyes presented her son, David Reyes, who was qualified as an expert witness in gemology. David opined that the bracelet was "exposed to some type of chemical solution, . . . and . . . that [was his] professional opinion on why the color had changed . . . ." He opined further that the solution in question could have been bleach, or some other "[s]trong solution . . . ." He described the facets on the stones as having "a dull finish," which they would not get "by just wearing it, . . . because this is not a soft stone . . . ." The condition of the facets led David to opine further that the bracelet had been "tumbled" in the washing machine and "went through cycles and cycles, left in the wash[ing] machine, bleach was in there, and it just faded and it got in this . . . condition . . . ."

David disputed Tropiano's appraisal, and opined that the bracelet was worth at most "$50 for scrap value, because of the condition it is in . . . ."

Defendant also called Romuald Solomko, a jeweler and "an engineer of metalwork." He had experience in manufacturing jewelry for various stores, and stated that he was familiar with the metals involved in the bracelet at issue.

Solomko testified that Mary Reyes had called him to the store to examine the bracelet after plaintiff had brought it back. Solomko examined the bracelet through an eyepiece, and concluded that there had been "some chemical effect on this metal."

At the close of the testimony, the trial judge rendered a decision from the bench. In finding in favor of plaintiff, the judge stated:

[A] lot has been made as to the issue of whether it was a true sapphire or a treated sapphire, and that is one of the difficult pieces of this case . . . . Plaintiff testifie[d] he believed he purchased a multi-color sapphire gemstone bracelet and earrings. . . . But the difficulty I have with this case is how much a plaintiff, an ordinary, reasonable plaintiff, consumer of jewelry, knows, or should know, about sapphires . . . or any precious stone, for that matter.

. . . .

And what gets more confusing, or difficult, in [t]he [c]ourt's view of this case, is that the actual receipt of payment doesn't explain what the plaintiff is purchasing in any specificity. It says one sapphire bracelet, one . . . pair of sapphire earrings. . . . And there seems to this court to be some obligation of the party in the best position to explain what someone is purchasing, they have that obligation to explain that all sapphire bracelets are not created equally, because that's what this case is all about.

. . . .

Consumers are at the mercy of sellers of services and sellers of objects. You're not on the same playing field. There is a more knowledgeable defendant and an unknowledgeable plaintiff. . . . But it's clear to me that this plaintiff was not an informed consumer . . . as to what types of sapphire he was buying, but also as how to care for this piece of jewelry, and that apparently wasn't also explained by the defendant in this particular case.

However, that doesn't mean that because something wasn't explained that you don't, as a consumer, have certain obligations, also, to do things that have some common sense. For example, I don't think anyone[,] without asking a question[,] would take this and dip it in gasoline, t[u]rpentine, Clorox, or some kind of abrasive chemical, as testified by Mr. Reyes. Made a lot of sense. He opined, I think correctly, that it was exposed to a chemical solution, or tumbled in a washing machine. He opined that that was perhaps what happened here. Maybe mistakenly this was left in a pocket in a piece of clothing, or something, and got thrown in the wash. He attempted to explain what he thought, as an expert witness, happened, and that's important for [t]he [c]ourt to know because that's what this case ultimately comes down to is some reasonable explanation by an expert as to what happened, because no one . . . contemplated -- not the defendant, not the plaintiff -- that in three months you end up with this. Absolutely a frustration of purpose. That's not what the plaintiff purchased. Plaintiff didn't want to purchase this.

But how did it happen? Well, it happened because the plaintiff wasn't an informed consumer, who had some responsibility to become an informed consumer, but the defendant has certain explanation and obligation to inform the consumer. . . . I understand, based upon the expert testimony, that you certainly can't put it in certain chemical solutions and certain things that would or could have happened unintentionally, which I suspect happened here, created this problem. And I'm not so sure the opinion of Mr. Reyes is far off the mark. I think probably what happened [was] this got exposed to some chemical, or some washing machine, or a combination of both.

. . . .

And [t]he [c]ourt would agree that it would not be [defendant's] fault in . . . that case, except the one piece that troubles this court is . . . weighing perhaps what could have been some better disclosure here as to how to handle this piece of jewelry and/or perhaps what . . . the plaintiff was actually purchasing.

Based upon these findings, the trial judge awarded plaintiff damages in the amount of $378, which he calculated as the $350 decrease in the value of the bracelet plus the twenty-eight dollars in sales tax on the bracelet alone.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE TRIAL JUDGE ERRED IN ADMITTING HEARSAY DOCUMENTS CONTAINING EXPERT OPINIONS ON CAUSATION AND DAMAGES

POINT II

THE TRIAL JUDGE'S DECISION WAS COMPLETELY AGAINST THE GREATER WEIGHT OF THE EVIDENCE

We need not address defendant's first issue, because we concur with defendant's second argument that the trial court's decision was against the weight of the evidence.

At the outset, we note that our scope of review of a trial court's findings in a non-jury case is limited. We will not disturb those findings unless "'they are so wholly insupportable as to result in a denial of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)(quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd 33 N.J. 78 (1960)). We defer to "'the factual findings and legal conclusions of the trial judge unless . . . they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Id. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

Notwithstanding that deferential standard, we are satisfied that the trial judge's "factual findings and legal conclusions" are "manifestly unsupported by or inconsistent with" the evidence of record. Ibid. The judge accepted as a "reasonable explanation" David Reyes' expert opinion that the bracelet had been "exposed to some chemical, or some washing machine, or a combination of both." The judge deemed that opinion as "not so . . . far off the mark." Furthermore, the judge noted that, as a consumer, plaintiff had "certain obligations . . . to do things that have some common sense" in caring for the bracelet and should not "without asking a question[,] . . . [have] dip[ped] it in . . . Clorox or some kind of abrasive chemical, as testified by [David] Reyes."

From these findings, the trial judge then proceeded to the anomalous conclusion that "plaintiff was not an informed consumer" and, therefore, defendant was at "fault" for not providing plaintiff with "some better disclosure . . . as to how to handle this piece of jewelry and/or perhaps what . . . plaintiff was actually purchasing."

Having accepted defendant's expert evidence that the bracelet had been abused by exposure to some abrasive substance such as laundry bleach, and having found further that a consumer's "common sense" should prevent such an occurrence, the judge's conclusion that defendant was liable for the damage based upon its failure to "inform" plaintiff on "how to handle" the bracelet is "'so . . . insupportable as to result in a denial of justice.'" Rova Farms, supra, 65 N.J. at 483-84.

Reversed.

 

The trial judge did not address defendant's counterclaim in his decision or in the January 10, 2008 order. Defendant has not raised the issue on appeal; therefore, defendant is "deemed to have waived that issue." Sciarrotta v. Global Spectrum, 392 N.J. Super. 403, 405 (App. Div. 2007), rev'd on other grounds, 194 N.J. 345 (2008).

Although not expressly stated in his decision, it appears the judge accepted David Reyes' estimate of fifty dollars, rather than Tropiano's appraisal of $125, as the value of the bracelet.

(continued)

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A-2861-07T2

June 24, 2009