ESTATE OF ANKER HOLT v. WAYSIDE RESIDENCE INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ESTATE OF ANKER HOLT,

Plaintiff-Respondent,

v.

WAYSIDE RESIDENCE, INC., and

MICHAEL BERG,

Defendants,

and

PAMELA BERG,

Defendant-Appellant,

and

BANK OF AMERICA,

Defendant.

____________________________

February 24, 2015

Submitted February 10, 2015 Decided

Before Judges Yannotti, Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2327-09.

Law Offices of James P. Nolan and Associates, L.L.C., attorneys for appellant (Mr. Nolan, on the brief).

Law Offices of Jonathan F. Marshall, attorneys for respondent (Daniel M. Santarsiero and Jeff Thakker, on the brief).

PER CURIAM

Defendant Pamela Berg ("Mrs. Berg") appeals from an April 3, 2013 judgment entered after a jury verdict finding that Michael Berg ("Mr. Berg"), Mrs. Berg, and Wayside Residence, Inc. ("Wayside") (collectively referred to as "defendants") violated the New Jersey Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -20; and a May 8, 2013 order denying defendants' motion for a new trial and/or judgment notwithstanding the verdict.1 We affirm.

Lisa Kristiansen ("plaintiff"), administratrix of Anker Holt's (the "decedent") estate, filed a complaint against defendants alleging that defendants misappropriated the decedent's funds while the decedent resided at the Wayside Retirement Center (the "Retirement Center"), which defendants owned and operated.2 A month later, Mr. Berg pled guilty to third-degree theft by deception and agreed to pay plaintiff $39,629.93 in restitution.

During trial, plaintiff voluntarily dismissed all claims except Count Three for consumer fraud. Plaintiff's counsel read into the record portions of the deposition testimony of a previous employee of the Retirement Center (the "employee") regarding Mrs. Berg's involvement in the management of the Retirement Center. Defendants' counsel also read portions of the employee's deposition testimony into the record. Mrs. Berg testified at trial, maintaining that she was not involved in managing the Retirement Center and that she was living out of the state during the years that the decedent resided at the Retirement Center.

At trial, Mrs. Berg made a Rule 4:37-2(b) motion for dismissal contending that there was no evidence as to Mrs. Berg's culpability under the CFA. The judge denied that motion.

The jury found that defendants violated the CFA and that plaintiff proved an ascertainable loss proximately caused by that violation. The jury further found that "plaintiff proved[d] by the preponderance of the credible evidence that [Mr. and Mrs. Berg] committed consumer fraud against [the decedent]," which proximately caused the decedent an "ascertainable loss" of $35,000 individually. The jury also found that "plaintiff proved[d] by the preponderance of the credible evidence that [Wayside] committed consumer fraud against [the decedent]," which proximately caused plaintiff damages in the amount of $70,000. The trial judge trebled defendants' damages pursuant to the CFA and credited the restitution amount of $39,629.93. The judge entered judgment in the amount of $65,370.07 against Mrs. and Mr. Berg individually, and $170,370.07 against Wayside.

Mrs. Berg made a motion for a new trial arguing that the issue of Mrs. Berg's liability should not have been submitted to the jury because there was no evidence of any affirmative acts by Mrs. Berg that could have imposed liability on her under the CFA. The judge denied that motion.

On appeal, Mrs. Berg argues primarily that she did not commit an affirmative act constituting unlawful practice under the CFA because she was living out of the state and was not involved in the management of the Retirement Center during the years that the decedent resided there. As a result, Mrs. Berg maintains that the judge erred by failing to grant her trial motion for an involuntary dismissal, and later, her motion for a new trial.

I.

We reject Mrs. Berg's contention that the trial judge erred by denying defendants' Rule 4:37-2(b) motion for dismissal as to her.

Pursuant to Rule 4:37-2(b), a defendant may move for dismissal of a plaintiff's claims "on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." The "motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid. "If the court, accepting as true all the evidence which supports the position of the party defending against the motion and according him [or her] the benefit of all inferences which can reasonably and legitimately be deduced therefrom, finds that reasonable minds could differ, then the motion must be denied." ADS Assocs. Grp., Inc. v. Oritani Sav. Bank, 219 N.J. 496, 510-11 (2014) (citation and internal quotation marks omitted). We review a trial judge's decision to grant or deny a Rule 4:37-2(b) motion for involuntary dismissal de novo, applying the same standard as the trial court. Id. at 511.

The CFA "provides relief to consumers from 'fraudulent practices in the market place.'" Lee v. Carter-Reed Co., 203 N.J. 496, 521 (2010) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 11 (2004)). To prevail on a CFA claim, a plaintiff must establish (1) that the defendant engaged in an unlawful practice; (2) that the consumer suffered an "ascertainable loss"; and (3) "'a causal relationship between the unlawful conduct and the ascertainable loss.'" Ibid. (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009)).

N.J.S.A. 56:8-2 defines an unlawful practice as

The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby[.]

An unlawful practice can be an affirmative act, a knowing omission, or a violation of an administrative regulation. Allen v. V & A Bros., Inc., 208 N.J. 114, 131 (2011). An "affirmative act" is "something done voluntarily by a person. The act may be physical but also may be any steps taken voluntarily by a person to advance a plan or design or to accomplish a purpose." Model Jury Charge (Civil), "Consumer Fraud Act" (Dec. 2011).

Here, the trial judge denied defendant's motion for involuntary dismissal

Now, it was conceded during the oral argument of this motion that simply being an owner, operator, shareholder, director, officer, employee of an entity charged with consumer fraud in and of itself is not enough. In other words, status is, in and of itself not sufficient. Counsel for the plaintiff concedes that there are thin reeds of evidence . . . against Mrs. Berg. He enumerated a number of facts which he contends warrants the inference sufficient to send this case to the jury as to [Mrs. Berg].

Specifically, that Mrs. Berg was a [fifty] percent owner of the business, president, [and] partner. Mrs. Berg is or was at all relevant times the person in charge . . . and in the [c]ourt's view all of those facts pertain to status and as plaintiff's counsel concedes that's simply not enough in and of itself. Plaintiff points to the fact that restitution was paid on a joint checking account. The [c]ourt's view [is that] this was an act, not simply status, but an act following the allegations of consumer fraud in this case.

The judge then referenced the employee's deposition testimony in evidence that Mrs. Berg occasionally deposited the Retirement Center's residents' checks, and concluded that this fact was "indeed a slender reed, but it does exist" such that the motion to dismiss Mrs. Berg had to be denied.

The trial judge correctly denied defendants' Rule 4:37-2(b) motion. There was sufficient evidence to support a judgment in plaintiff's favor, that Mrs. Berg committed an affirmative act of depositing checks and had oversight of the Retirement Center's banking, which facilitated the misappropriation of the decedent's funds and constituted an unlawful practice under the CFA. Specifically, the employee's deposition testimony in evidence stated that Mrs. Berg was the "owner and administrator along with [Mr. Berg]," that both Mrs. and Mr. Berg "did all of the banking," that Mrs. Berg would "pay the bills" and "sign the check[s] to pay the bills." Therefore, it was proper for the jury to resolve the issue of whether Mrs. Berg violated the CFA.

Mrs. Berg's argument that she cannot be held liable under the "participation theory" in Allen, supra, 208 N.J. at 130-33, similarly fails. There was sufficient evidence establishing that Mrs. Berg individually participated by depositing checks and having oversight of the Retirement Center's banking, and was therefore personally involved in the commission of the consumer fraud.

II.

We also reject Mrs. Berg's contention that the trial court erred by denying defendants' motion for a new trial.

A jury verdict is "'impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice.'" Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)).

Rule 4:49-1(a) provides that a trial judge shall grant a new trial if, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Jury verdicts are thus "entitled to considerable deference and 'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)); see also Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) (indicating that "[j]ury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice"), certif. denied, 186 N.J. 242 (2006).

In reviewing a trial judge's decision on a motion for a new trial, we view the evidence in a light most favorable to the party opposing the new trial motion. Caldwell v. Haynes, 136 N.J. 422, 432 (1994). Moreover, we give substantial deference to the trial judge, who observed the same witnesses as the jurors, and who developed a "feel of the case." See, e.g., Carrino, supra, 78 N.J. at 361; Baxter, supra, 74 N.J. at 597-98; Dolson v. Anastasia, 55 N.J. 2, 7 (1969).

Here, the trial judge denied defendants' motion for a new trial as to Mrs. Berg's liability

[T]here was sufficient evidence to establish [Mrs.] Berg's liability in this matter. . . . Included in the evidence . . . was . . . the deposition testimony of [the employee], which established that Mr. and Mrs. Berg were responsible for the banking at [the Retirement Center], and that Mrs. Berg was present at the [Retirement Center] during the time that [the decedent] was a resident.

Mrs. Berg testified, and the jury was entitled to evaluate her credibility. From the evidence a jury could have reasonably found a violation of the [CFA]. Thus the issue of Mrs. Berg's liability was properly submitted to the jury.

Mrs. Berg points to portions in the employee's deposition testimony to emphasize Mrs. Berg's lack of involvement and presence at the Retirement Center, and argues that Mrs. Berg only performed ministerial tasks

A. She did go to the bank occasionally and make deposits. [Mrs. Berg] did that. Also [Mr. Berg] did that.

Q. Now before 2008, you actually saw her go to the bank and deposit resident[s'] checks?

A. She said I'm going to the bank to deposit checks, yes.

Q. But she didn't say which checks she was depositing?

A. No.

Q. You have no idea whether they were her personal checks or whether they were office checks, she never - -

A. I don't know.

. . . .

Q. Let me hone in on when Mrs. Berg wasn't there . . . [for] a lengthy period of time[,] when she wasn't there at all?

A. Yes

Q. And do you know about when that was?

A. Oh, my goodness, I know that they sold their Monmouth Beach house and they moved into that other house, and at that point she wasn't there much, she was more at the house. And then when she was selling the house she was there even more, but there, quite a long time when she was not there.

Q. At least a couple of years?

A. To never walk in, to never walk in. She'd be there every so often, but very rare. But there was a couple of years where she was on and off, very on and off.

Q. So she certainly wasn't managing anything at that point?

A. No, un uh.

Giving deference to the trial judge and viewing the evidence in a light most favorable to plaintiff, we conclude that Mrs. Berg has not clearly and convincingly shown that there was a miscarriage of justice. The jury was free to weigh Mrs. Berg's and the employee's testimony and ultimately reject Mrs. Berg's testimony. State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001) (noting that a jury is "free to accept or reject" the testimony of a witness based on credibility), certif. denied, 171 N.J. 338 (2002).

Affirmed.

1 Mrs. Berg lists in her notice of appeal and amended notice of appeal that she is also appealing from a May 27, 2011 order denying defendants' motion for summary judgment; an August 5, 2011 order denying defendants' motion to dismiss; and a December 10, 2013 order awarding plaintiff fees and costs. Mrs. Berg has waived any issues as to these orders. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (indicating that "[a]n issue not briefed on appeal is deemed waived"). Mr. Berg and Wayside have not participated in this appeal.

2 Plaintiff alleged in the complaint that defendants misappropriated the decedent's funds (Count One); acted recklessly, unlawfully, and maliciously (Count Two); committed fraud and consumer fraud (Count Three); violated "the laws, rules[,] and regulations protecting the institutionalized elderly" (Count Four); were negligent (Count Five); and were unjustly enriched (Count Six). Plaintiff also alleged that Bank of America failed to properly manage the decedent's accounts (Count Seven). Plaintiff subsequently amended the complaint alleging that defendants violated the anti-racketeering statute, N.J.S.A. 2C:41-1 to -6.2, as a new Count Seven, and plaintiff re-designated her claim against Bank of America as Count Eight. Plaintiff's brief notes that plaintiff's claim against Bank of America was "dismissed before trial." Bank of America has not participated in this appeal.