VADIM MELNYCHUK v. MOSHE'S AUTO REPAIR CORP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VADIM MELNYCHUK,

Plaintiff-Respondent,

v.

MOSHE'S AUTO REPAIR CORP.,

Defendant-Appellant,

and

WEST ORANGE AUTO BODY, INC.,

Defendant-Respondent,

and

MEITAL LEVI and JOHN MINCOLELLI,

Defendants.

_________________________________

October 1, 2015

Submitted May 26, 2015 Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9109-12.

Rosenberg & Associates, attorneys for appellant (Jordan P. Brewster, on the brief).

Richard A. Vrhovc, attorney for respondent Vadim Melnychuk.

Respondent West Orange Auto Body, Inc. has not filed a brief.

PER CURIAM

Defendant Moshe's Auto Repair Corporation (Moshe's) appeals a judgment awarding plaintiff $43,500, plus fees and costs. Moshe's claims: the trial court erred in refusing to allow an undisclosed defense witness to testify; the verdict sheet used was confusing and misleading; and the jury's verdict was against the weight of the evidence. We affirm.

I.

The following facts are drawn from plaintiff's testimony at the three-day jury trial. Plaintiff Vadim Melnychuk is physically disabled and confined to a wheelchair. Plaintiff purchased a 2005 Toyota Sienna minivan. To accommodate his handicap, plaintiff needed and obtained substantial modifications to the van in order to make it accessible and operable by him. He described the modifications as including "dropping the floor," removing the middle seats, installing a ramp, a special "swivel seat," hand controls, and a hydraulic system to tilt the van lower to the ground. Plaintiff paid $46,340 for the van, inclusive of the modifications.

In July or August 2010, plaintiff was involved in a serious automobile accident while driving the van. Plaintiff found a tow truck company to retrieve the van from an impound lot in West Orange and tow it to his home. The tow truck driver suggested taking the van to Moshe's to see if Moshe's could give plaintiff a "deal to fix it." Plaintiff agreed.

According to plaintiff, the owner of Moshe's, Moshe Levi (Levi),1 told plaintiff the van could be fixed for $8,500 and that it would take approximately two to three weeks to complete the repairs. Plaintiff was satisfied with the price and orally agreed to have Moshe's perform the repairs on the van. Plaintiff did not receive any paperwork from Moshe's or Levi indicating the price estimate of $8,500 or a completion estimate of two to three weeks.

A few days later, plaintiff received a call from Levi who told him that if he "wanted [Levi] to start working on the vehicle immediately, [plaintiff] would have to at least show [his] faith and issue some kind of payment." On September 1, 2010, plaintiff gave Moshe's a cash payment of $2,000, for which plaintiff received a receipt. The receipt was titled as a "Repair Order." Under the "Nature of Service" portion of the receipt, it stated "Deposit $2,000." Within a week of this payment, Levi called plaintiff again and said "progress is going good" but that he "need[ed] more parts and he need[ed] more money before he can continue work."

Two or three days after the second $2,000 payment, Levi told plaintiff that additional money was needed because a third party had to do the body work. At this time, Levi presented to plaintiff a written estimate for $11,312.31 and requested plaintiff's signature. This was the first written estimate plaintiff received in connection with the repair of his van. When plaintiff asked why the initial $8,500 estimate had increased, Levi responded that the $11,312.31 estimate was computer-generated and that there was "leeway" to work on the price. Plaintiff said he signed the estimate because he had already invested $4,000 into the repair but he believed the cost would still be $8,500 based on his conversations with Levi.

On September 28, 2010, plaintiff received another phone call from Levi informing him that the van was almost complete but that it was necessary to hire "a body shop guy," which required an additional $2,500. Plaintiff paid the additional $2,500.

Beginning in December 2010, plaintiff was hospitalized for the following fifteen months. In early 2011, unbeknownst to the hospitalized plaintiff, the van was towed from Moshe's to defendant West Orange Auto Body (West Orange). The owner of West Orange, defendant John Mincolelli, testified that he refused to work on the van because Levi still owed him money from prior jobs.

According to plaintiff, he called Levi in May 2011, and Levi told him the repair work on the van had been completed. Plaintiff called again in September 2011, and Levi demanded full payment.

In December 2011, plaintiff received a notice in the mail from the Motor Vehicle Commission advising him that his van was "deemed to have been abandoned" at an address in West Orange Township since 2010. The notice was signed by Mincolelli as the "Repair Facility Owner" and advised plaintiff that Mincolelli intended to obtain title of the van if plaintiff failed to retrieve it within thirty days. Plaintiff testified that he did not know Mincolelli before receiving this notice. When plaintiff asked Levi about the notice, Levi told him that his van had been in storage for three months and plaintiff had to pay $3,000 before it could be released.

Plaintiff testified that in May 2012 he paid $2,500 to Moshe's to release the van from storage at West Orange, and that he and Levi reached a "verbal agreement" that an additional payment of $1,000 would constitute full payment for all the services rendered. Upon attempting to retrieve the van from West Orange, plaintiff testified that the hand controls were missing and there was a "hole" in the floor where the ramp motor used to be. Plaintiff called the police and filed a police report for the missing handicap equipment. Plaintiff then told Levi to "just get [the van] running." Levi told plaintiff that it would take "two weeks tops." Thereafter, the van was towed from West Orange back to Moshe's. It was disputed whether the van was ever repaired, and plaintiff never recovered it.

On December 14, 2012, plaintiff filed a complaint against defendants Moshe's, West Orange, Mincolelli, and Meital Levi.2 Plaintiff alleged that defendants violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, breached their contract, and negligently performed their bailment regarding their repair work on, and custody of, the van.3 Moshe's counterclaimed that plaintiff had breached his contract with Moshe's.

During the trial, West Orange and Mincolelli settled with plaintiff. Mincolelli then testified as follows. The van was dropped off at West Orange without his consent. He had performed work for Moshe's on several occasions but had not been paid for several recent jobs. As a result, Mincolelli told Levi that he would not perform any work on plaintiff's van until he was paid for the other work performed. Moshe's did not pay Mincolelli, so the van remained unrepaired at West Orange for a period of one-and-a-half years. When asked why he stored the van on a vehicle lift so it could not be towed away, Mincolelli stated that he "had no trust in the gentleman," Levi, and that Levi previously had towed away vehicles without paying for them.4

Levi testified as follows. When the van first arrived at his shop, Levi told plaintiff he "couldn't even estimate" the cost of the repairs and that he would "have to tear the car apart" in order to make an estimate. There was no oral agreement of $8,500 for the repairs, but, only the written agreement of $11,312. The initial $2,000 payment was for a "diagnostic" of the vehicle, which required "tearing the car apart," which he began doing "right away."

On cross-examination, when asked why plaintiff made the second $2,000 payment, Levi testified that plaintiff called and told him he would pay an additional $2,000. Plaintiff's counsel then asked: "So, [plaintiff] just called you out of the blue and said 'I'm going to pay another $2,000?'" Levi then responded: "[y]eah."

Levi also acknowledged his shop was not licensed or able to perform body work, which is why he needed an additional $2,500 payment and why he had the van at West Orange. Levi said that upon receiving the van back from West Orange in May 2012, he was able to complete the mechanical work within a "couple [of] days," and that his attempts to contact plaintiff went unanswered.

The jury found that Moshe's had violated the CFA, breached its contract with plaintiff, and conducted a negligent bailment. The jury awarded plaintiff $14,500. On June 23, 2014, Judge Patrick J. Arre trebled the award to $43,500 under the CFA, and also awarded $43,318.39 in counsel fees and costs under the CFA. Moshe's appeals.5

II.

Moshe's primary argument on appeal is that the trial court abused its discretion by not allowing the testimony of Michael Casio, a former West Orange employee. "We review the trial court's evidentiary ruling under a deferential standard; it should be upheld absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment" which is "so wide of the mark that a manifest denial of justice resulted." State v. J.A.C., 210 N.J. 281, 295 (2012) (internal quotation marks omitted). We must hew to that standard of review.

At trial, Moshe's initially argued that Casio was being offered in the defense case to provide "rebuttal testimony." Later, Moshe's acknowledged that Casio was being offered to impeach Mincolelli's testimony. The trial court precluded Casio from testifying because Moshe's did not disclose Casio as a potential defense witness in response to plaintiff's interrogatories. Moreover, the court stated that impeachment was not a ground on which Moshe's should be permitted to call a witness not named in discovery. On appeal, Moshe's argues that Casio was proffered "to rebut the character evidence" offered by Mincolelli with regards to Levi's business dealings.

Pursuant to Rule 4:17-1, plaintiff served interrogatories before trial requesting that defendants "[i]dentify each and every person having knowledge of the facts of this case, including their addresses and telephone numbers." In response, Moshe's only listed Moshe Levi and Meital Levi. Moshe's again did not name Casio.6

"The discovery rules 'were designed to eliminate, as far as possible, concealment and surprise in the trial of law suits to the end that judgments therein be rested upon the real merits of the causes and not upon the skill and maneuvering of counsel.'" Wymbs v. Twp. of Wayne, 163 N.J. 523, 543 (2000) (quoting Evtush v. Hudson Bus Transp. Co., 7 N.J. 167, 173 (1951)). "This basic principle is designed to ensure that the outcome of litigation shall depend on its merits in the light of all the available facts, rather than on the craftiness of the parties or the guile of their counsel." McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 370 (2001).

Moshe's claims it could not name Casio earlier because Mincolelli's testimony regarding Levi's business practices was a "surprise." However, the record rebuts Moshe's assertion. In their answers to plaintiff's interrogatories, Mincolelli and West Orange stated that Levi and Moshe's owed Mincolelli and West Orange money on prior invoices and "therefore no work was to be done on any vehicle unless the invoices were paid." Thus, the interrogatory answers of Mincolelli and West Orange provided notice to Moshe's that Mincolelli could testify that Moshe's failed to pay its debts for earlier work, causing Mincolelli and West Orange to refuse to begin work on plaintiff's van.

Despite receiving Mincolelli's answers to plaintiff's interrogatories, Moshe's never amended its interrogatory answers to list Casio as a potential witness to rebut Mincolelli's claims. "[I]f a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period." R. 4:17-7. Rule 4:17-7 also allows for amendments of interrogatory answers after the initial twenty-day period if there is a showing of due diligence by the party seeking to amend its answers. Bender v. Anderson, 187 N.J. 411, 426-27 (2006). Here, Moshe's did not attempt to amend its answers.

Instead, Moshe's attempted to call a surprise witness at trial with no prior notice to plaintiff. Such surprise is contrary to the letter and spirit of our discovery rules.

Moshe's also cites D.G. ex rel. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1 (App. Div.), certif. denied, 196 N.J. 346, cert. denied, 555 U.S. 1085, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008), to argue that Casio's testimony should have been permitted because it was not proffered as a "result of a design to mislead" and there was no "surprise or prejudice" to plaintiff. Id. at 21. In D.G., the trial court permitted an undisclosed witness to testify for the defense after the plaintiff "opened the door" to his testimony by putting into evidence a letter written by the witness. Id. at 20-21.

Here, there was surprise and prejudice to plaintiff. Under D.G., there had been no mention of Casio in the discovery or at trial before Moshe's proffered Casio as a defense witness. Plaintiff had not had an opportunity to interview him or investigate the subject matter of his testimony. To permit Casio to testify, with no notice to plaintiff, on the second day of a three-day trial, would have prejudiced plaintiff in a manner "that the discovery rules 'were designed to eliminate.'" Wymbs, supra, 163 N.J. at 543 (citation omitted).

Moshe's cites Weiss v. Goldfarb, 295 N.J. Super. 212 (App. Div. 1996), rev'd on other grounds, 154 N.J. 468 (1998), which provides that proffered rebuttal testimony should be permitted when it attacks a "material predicate" of a case. Id. at 225-26. In Weiss, a trial court prevented a plaintiff's proffered expert from rebutting a defense expert because the plaintiff's expert did not testify in the plaintiff's case in chief. Id. at 225. We overturned the trial court and found that the plaintiff's proffered expert's testimony was "material" to plaintiff's case and it was "directly responsive" to the defense expert's testimony. Ibid.

Moshe's argues that the "the testimony of Mr. Mincolelli as to Mr. Levi's business dealings became a material predicate to plaintiff's case in that it further painted Moshe's as someone who would engage in unconscionable tactics." We disagree that Mincolelli's testimony was a material predicate that permitted the introduction of a surprise witness for rebuttal purposes. The material predicate of plaintiff's case was Moshe's failure to provide a written estimate to plaintiff or to repair the van, not the business relationship between Mincolelli and Levi. Therefore, the trial court did not abuse its discretion in refusing to permit Casio's testimony.

In any event, any error was harmless. Casio was not involved with plaintiff's van. Moshe's did not clearly proffer what testimony Casio would have provided, or when it would have been admissible under N.J.R.E. 404(a) or 405(a). Finally, the issue in the case was Moshe's dealings with plaintiff, not Mincolelli's dealings with Moshe's. The evidence that Moshe's violated its obligation to plaintiff was strong, and the value of Casio's "impeachment" of Mincolelli was uncertain. Thus, its exclusion was not "clearly capable of producing an unjust result." R. 2:10-2.

III.

Moshe's also challenges the jury verdict sheet. "A verdict sheet is intended for recordation of the jury's verdict and is not designed to supplement oral jury instructions." State v. Gandhi, 201 N.J. 161, 196 (2010). A verdict sheet is not a grounds for reversal unless it was "misleading, confusing, or ambiguous." Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997). To understand Moshe's challenges, we briefly examine the CFA and its implementing regulations.

The CFA was intended "'to greatly expand protections for New Jersey Consumers.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 120-21 (2014). The CFA provides a private cause of action to consumers who fall victim to "unlawful practice[s]." D'Agostino v. Maldonado, 216 N.J. 168, 184 (2013). The CFA requires proof of (1) unlawful conduct; (2) an ascertainable loss; and (3) a causal relationship between the two. Id. at 184; see also N.J.S.A. 56:8-2.

The CFA itself bars "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." N.J.S.A. 56:8-2. The CFA also required the promulgation of "regulations necessary to effectuate the purposes of the act." N.J.S.A. 56:8-48. Regulations were promulgated to specify certain "deceptive practices" by automotive repair dealers. N.J.A.C. 13:45A-26C.2; see Scibek v. Longette, 339 N.J. Super. 72, 78-79 (App. Div. 2001). A violation of these regulation constitutes a violation of the CFA. See Sprenger v. Trout, 375 N.J. Super. 120, 131 (App. Div. 2005).

Moshe's raises three arguments why the jury verdict sheet was confusing: (A) the trial judge erred in denying defense counsel's request that the verdict sheet include a definition of "commencing work;" (B) the verdict sheet did not separate out the various causes of action; and (C) the verdict sheet failed to define the causal relationship between "ascertainable loss" and Moshe's conduct.

A.

First, Moshe's argues that the trial court's refusal to incorporate Moshe's proposed definition of "commencing work" made the verdict sheet misleading, confusing, or ambiguous. On the verdict sheet, the phrase "commencing work" was used in two questions, one of which Moshe's was found not liable, and the other of which Moshe's was found liable. The latter question asked the jury to determine if Moshe's violated N.J.A.C. 13:45A-26C.2(a)(3), and incorporated the language of its subsections N.J.A.C. 13:45A-26C.2(a)(3)(i)(1), (4), and (5).

We do not decide whether the trial court was required to define "commencing work." Instead, we find that the trial court's denial of Moshe's request to define "commencing work" was harmless for several reasons. First, despite being invited to do so by the trial court, Moshe's did not argue to the jury that "commencing work" had the meaning Moshe's claimed. Indeed, Moshe's, which admittedly tore the van apart before providing the written estimate, did not even argue to the jury that it had not commenced work. This indicates that the issue before us was of little import in the trial.

Second, a violation of N.J.A.C. 13:45A-26C.2(a)(3) was only one of several ways in which the jury found that Moshe's violated the CFA regulations. The jury also unanimously found Moshe's violated the CFA regulations by "[m]aking or authorizing in any manner or by any means whatever any statement, written or oral, which is untrue or misleading, and which is known, or by which the exercise of reasonable care should be known, to be untrue or misleading," N.J.A.C. 13:45A-26C.2(a)(1), and "[m]aking deceptive or misleading statements or false promises of a character likely to influence, persuade or induce a customer to authorize the repair, service, or maintenance of a motor vehicle," N.J.A.C. 13:45A-26C.2(a)(5). A finding that an automotive repair dealer committed any one of the deceptive practices listed in N.J.A.C. 13:45A-26C.2 is sufficient to justify a finding of violation of the CFA and to support a damage award. Sprenger, supra, 375 N.J. Super. at 131 (citing Cox v. Sears Roebuck & Co., 138 N.J. 2, 18-19 (1994)). The trial court so instructed the jury, as confirmed in the verdict sheet: "Did the Plaintiff prove that [Moshe's] did any of the following [CFA regulations violations]?

Third, the jury also found that Moshe's committed two CFA statutory violations under N.J.S.A. 58:8-2. The first question on the verdict sheet asked if plaintiff proved that "the defendant [Moshe's] made a false promise or misrepresentation to plaintiff" or if plaintiff proved that "[Moshe's] used a false pretense in the repair of plaintiff's vehicle." The second question on the verdict sheet asked if plaintiff proved that "[Moshe's] knowingly concealed from the plaintiff a material fact, or knowingly omit[ted] or suppress[ed] a material fact regarding [Moshe's] repair of plaintiff's vehicle." In response to both of these questions, the jury checked "[y]es."

Fourth, the trial court instructed the jurors, as confirmed on the verdict sheet, that "[i]f you answered yes to any of the above questions [alleging CFA statutory and regulatory violations]," the jury could consider whether the "conduct on the part of [Moshe's] caused the plaintiff an ascertainable loss[.]" Moshe's does not argue that its CFA statutory violations, and its other CFA regulatory violations, caused plaintiff no ascertainable loss. Nor does Moshe's argue that the $14,500 amount of ascertainable loss would have been different had the jury been differently instructed on the one regulatory question using the phrase "commencing work." Such a claim would be implausible given the many CFA statutory and regulatory violations found by the jury, and given that the jury found the same $14,500 damages for Moshe's breach of contract based on the alleged oral $8,500 estimate.

Taken in totality, the trial court's denial of Moshe's proposed definition of "commence work" was harmless given the several other bases in which the jury determined Moshe's had violated the CFA.

B.

Moshe's also argues that the verdict sheet was misleading and confusing because it did not separate out the separate causes of action involved in the case. Moshe's did not raise this argument in the trial court. Indeed, the record is clear that both plaintiff and defense counsel jointly prepared the jury verdict sheet and worked, at length, with the trial court to determine how the questions would be structured. At no point did Moshe's argue that the actual layout of the questions, and their subparts, improperly conflated or confused the issues. In fact, when asked by the trial court whether he had "anything else" with regard to the jury verdict sheet, defense counsel stated "[n]o, your honor."

We find that the participation of Moshe's counsel in drafting the format of the verdict sheet, coupled with his failure to object to the format of the verdict sheet, bars his challenge on appeal to the format under the doctrine of invited error. "The doctrine of invited error does not permit a defendant to pursue a strategy . . . and then when the strategy does not work out as planned, cry foul and win a new trial." State v. Williams, 219 N.J. 89, 101 (2014), certif. denied, __ U.S. __, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015). "Under that settled principle of law, trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[.]" State v. A.R., 213 N.J. 542, 561 (2013) (internal quotation marks omitted).

"Even if a party has 'invited' an error, though, courts will not bar defendants from raising an issue on appeal if the particular error . . . cut mortally into the substantial rights of the defendant" such that it "would cause a fundamental miscarriage of justice." A.R., supra, 213 N.J. at 562. Moshe's has not shown that preclusion of this claim on appeal would cause a "fundamental miscarriage of justice." Rather, a review of the jury verdict sheet reveals that the questions asked of the jurors aligned with each of the claims and counterclaims presented during this case.

Questions one and two related to the claimed violations of N.J.S.A. 58:8-2 of the CFA. Question three, with six subparts, covered each of the six claimed deceptive practices under N.J.A.C. 13:45A-26C.2(a)(1), (2), (3), (5), (6), and (7). Therefore, the language was properly grouped together and the jury properly considered whether Moshe's had provided any of the prescribed estimates that would shield it from liability. Questions four and five addressed whether the CFA violations caused plaintiff ascertainable loss. Questions six through eight concerned plaintiff's breach of contract claim and damages. Questions nine through eleven similarly addressed Moshe's counterclaim for breach of contract by plaintiff. Questions twelve through fourteen concerned whether Moshe's was liable for negligent bailment, and damages. Contrary to Moshe's argument, the format of this sheet did not conflate the various causes of action and was not misleading, confusing, or ambiguous.

Regarding question three's subpart which addressed estimates, Moshe's does not complain that it listed several methods of providing an estimate in one question. Indeed, all methods of providing an estimate in N.J.A.C. 13:45-26C.2(a)(3) that are at issue in a case should be listed in one question. Under N.J.A.C. 13:45A-26C.2(a)(3), a defendant cannot be liable if he provided "one of the following" forms of estimate before "[c]ommencing work for compensation." Here, the question did not list all the methods of providing an estimate included in N.J.A.C. 13:45-26C.2(a)(3), but that was too invited error. In any event, that was not prejudicial for the reasons set forth in our prior discussion of "commencing work."

C.

Moshe's also argues on appeal for the first time that the verdict sheet should have defined the CFA's term "ascertainable loss." We reject Moshe's argument under the invited error doctrine, discussed above. Moshe's counsel helped draft the verdict sheet. He never proposed a definition for "ascertainable loss" to the trial court, but instead said he had no objection to the verdict sheet. Moshe's cannot now obtain reversal by claiming the verdict sheet its counsel helped draft was erroneous.

Moshe's also does not show a fundamental miscarriage of justice. The phrase "ascertainable loss" comes directly from N.J.S.A. 56:8-19. "Ascertainable" is used in its standard dictionary meaning as "quantifiable or measurable." D'Agostino, supra, 216 N.J. at 185. The jury instructions, based on the Model Jury Charge (Civil), 4.43 "Consumer Fraud Act" (2011), equated "loss" with "damage." Nothing suggests the jury misunderstood those terms. To the contrary, plaintiff's counsel suggested in his closing that plaintiff's damages were the $9,000 total plaintiff paid Moshe's, plus the $5,500 salvage value of the van prior to repair, and the jury awarded $14,500.

IV.

Moshe's final argument on appeal is that the jury's verdict was against the weight of the trial evidence. However, "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1; see Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 462 (2009). There is no indication in the record that Moshe's made such a "weight" motion. This bars consideration of a "weight" argument on appeal. Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998). Moreover, Moshe's asks us to rule on the weight of the evidence "without the benefit of any trial court opinion," thus depriving us of the view of the judge who saw and heard the witnesses. Id. at 362. As a result, we decline to entertain Moshe's argument that the jury's verdict was against the weight of the evidence. Id. at 362-63. In any event, there was ample evidence showing Moshe's actions caused damages to plaintiff, and nothing in the cold record suggests the verdict was a "miscarriage of justice." R. 2:10-1.

V.

Plaintiff's brief requested counsel fees for the defense of this appeal. Under Rule 2:11-4, "[a]n application for a fee for legal services rendered on appeal shall be made by motion supported by affidavits prescribed by R. 4:42-9(b)." Thus, we will not reach plaintiff's request for counsel fees. Plaintiff may file an appropriate motion pursuant to Rule 2:11-4.

Affirmed.

1 Levi later testified that he was the manager of the repair shop.

2 Meital Levi, the wife of Moshe Levi, was dismissed from the case prior to trial.

3 Initially, the complaint also contained a negligence claim. However, that claim was not pursued at trial.

4 Moshe's objection to this testimony was overruled. Moshe's has not appealed that ruling.

5 Moshe's does not appeal the jury's rejection of his counterclaim.

6 No claim is made that Moshe's, in a pretrial information exchange under Rule 4:25-7(b), identified Casio as a witness to be called in Moshe's case in chief.