JOSEPH OETTINGER, JR v. STEVENS COMMERCIAL ROOFING LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOSEPH OETTINGER, JR.,

Plaintiff-Appellant,

v.

STEVENS COMMERCIAL ROOFING,

LLC, d/b/a STEVENS ROOFING,

Defendant-Respondent.

_______________________________

July 24, 2013

Submitted July 2, 2013 - Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. SC-1227-12.

Joseph Oettinger, Jr., appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Joseph Oettinger, Jr., the recipient of two unsolicited facsimile advertisements from defendant, appeals the Special Civil Part's dismissal of his uncontested lawsuit arising out of those faxes and his related demand for statutory damages, costs, and counsel fees. The trial court concluded that plaintiff needed to prove that he was tangibly harmed by the unwanted faxes in order to recover damages under the applicable statutory provisions creating the private cause of action. For the reasons that follow, we reverse the court's ruling of non-liability and its denial of statutory damages and costs, but affirm the court's rejection of plaintiff's claim for counsel fees as a self-represented litigant.

I.

These are the pertinent facts, accepting as true plaintiff's unopposed contentions. Plaintiff, an attorney, filed this action in the Special Civil Part in April 2012 after receiving at his Westwood office two unsolicited fax advertisements from defendant Stevens Commercial Roofing, LLC, doing business as Stevens Roofing. The first fax was sent on February 29, 2012 and the second on March 22, 2012.

A rider attached to plaintiff's complaint alleged that the fax transmissions violated provisions of both the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C.A. 227(b)(1)(c), and the New Jersey Junk Fax Act ("NJJFA"), N.J.S.A. 56:8-158(a). Plaintiff sought $500 in statutory damages for each unauthorized fax, pursuant to 47 U.S.C.A. 227(b)(3) and N.J.S.A. 56:8-159(b), which he requested the court to treble in its discretion. He also sought costs and counsel fees.

Defendant did not file an answer, nor did it file a brief in the present appeal.

In May 2012, plaintiff appeared in a proof hearing and presented his version of the facts to a Special Civil Part judge. After considering that presentation, the judge issued an order denying plaintiff's application for judgment. In a memorandum decision attached to the order, the judge held that plaintiff had not been "aggrieved" within the meaning of the NJJFA because there was no "proof that . . . plaintiff has been caused . . . demonstrable distress, suffering or injury." In reaching that conclusion, the judge relied on a definition of "aggrieved" in an unidentified edition of Webster's Dictionary1 and found that "[p]laintiff's certification and his testimony are each devoid of any evidence that might even suggest that . . . defendant's uninvited facsimiles caused him distress, suffering or injury." Notably, the judge's decision dismissing plaintiff's complaint only discussed plaintiff's cause of action pursuant to the NJJFA and did not discuss his separately pleaded claim under the TCPA.

In May 2012, plaintiff moved to amend the trial court's findings, vacate dismissal, and obtain a new trial or hearing. In his certification in support of that motion, plaintiff relied upon multiple dictionaries, including apparently a different edition of Webster's, which contained more expansive definitions of "aggrieved" than the one cited by the trial judge. Additionally, plaintiff argued that:

Even if one was to accept the [trial c]ourt's unreasonably restrictive definition of "aggrieved," the [trial c]ourt overlooked the fact that unsolicited fax advertisements aggrieve their recipients by their very nature. . . . [B]y faxing its advertising material to plaintiff, defendant shifted its printing costs to plaintiff, unjustly converting plaintiff's fax machine, paper[,] and electricity for its own use, and interrupting the availability of plaintiff's own fax machine.

On June 4, 2012, the trial court issued an order denying reconsideration. Plaintiff then filed the present appeal, prompting the trial judge to issue on June 22, 2012 a written amplification of his prior decision. In that amplification, the judge noted that "[t]he [L]egislature's inclusion of the word 'aggrieved' must have been for a purpose," and that plaintiff had not shown "that the defendant's uninvited facsimiles caused the plaintiff any harm."

The trial court's amplification included examples of what it considered to be hypothetical aggrievements:

The facsimiles did not wake [plaintiff] up in the middle of the night, they did not interrupt and/or destroy any other facsimiles that he would have otherwise received, they did not cause his facsimile machine to run out of paper so that he missed an important transmission from someone else, they did not break his train of thought while he was working on something else at his office, etc.

The amplification also discussed why the trial court declined to award counsel fees, which, the court explained, were not awarded because plaintiff represented himself and also because the fees submitted by plaintiff were unreasonable.

II.

The first issue we address is the trial court's ruling that plaintiff failed to prove he was sufficiently "aggrieved" to obtain damages under the applicable statutes. Both the TCPA and the NJJFA prohibit the use of a fax machine to send unsolicited advertisements to another fax machine. See 47 U.S.C.A. 227(b)(1)(c); N.J.S.A. 56:8-158(a). Additionally, both statutes create a private cause of action that may be brought against violators of the respective statutes. See 47 U.S.C.A. 227(b)(3); N.J.S.A. 56:8-159(a).

At issue in this case is the language in the NJJFA creating a private right of action for "[a] person . . . aggrieved by a violation[.]" N.J.S.A. 56:8-159(a) (emphasis added). The federal counterpart does not include the word "aggrieved," instead it states that "[a] person . . . may, if otherwise permitted by the laws or rules of court of a [s]tate, bring in an appropriate court of that [s]tate . . . [a]n action based on a violation[.]" 47 U.S.C.A. 227(b)(3) (emphasis added).

Despite the slight variation between the language in the NJJFA and the TCPA, our review of the legislative history, structure, and purposes of the NJJFA leads us to conclude that the Legislature did not intend to impose an added requirement of tangible harm upon a claimant seeking to vindicate his or her rights under the Act. Instead, the $500 sum for each violation referred to in the NJJFA represents statutory damages that must be awarded upon proof of a violation, regardless of whether a plaintiff can establish discrete harm flowing from that violation.

As a matter of federal law, it is well settled under the TCPA that a claimant only needs to show that he or she received a fax that was sent in violation of the TCPA. In Local Baking Products, Inc. v. Kosher Bagel Munch, Inc., 421 N.J. Super. 268, 273-74 (App. Div.), certif. denied, 209 N.J. 96 (2011), this court explained that the TCPA's "private action remedy . . . [allows] a consumer . . . to recover not merely actual damages but a minimum of $500 for each violation. The drafters recognized . . . that the $500 minimum damage award would be sufficient to motivate private redress of a consumer's grievance[.]"

Turning to the cognate provisions in the NJJFA, we note that the term "aggrieved" is not defined in the statute. Therefore, we seek to construe that statutory term by considering the plain meaning of the language and the intent of the Legislature. See Levin v. Parsippany-Troy Hills, 82 N.J. 174, 182 (1980).

As evidenced by the various definitions of "aggrieved" cited by the trial court and plaintiff, we conclude that, in the absence of legislative history and if one were to ignore the related federal statute, the word could potentially be used to mean either: (1) that a claimant is required to make a showing of actual harm to demonstrate that they have been "aggrieved," or (2) that a claimant is presumptively "aggrieved" when he or she is the recipient of a fax sent in violation of the NJJFA. That said, the legislative history, structure, and purposes of the NJJFA all lead us to conclude that the Legislature did not intend to inject an additional requirement of tangible harm for claimants seeking relief under the Act.

Both the Committee Statement and the Sponsor's Statement accompanying the Assembly bill that became the NJJFA contained the following insightful explanation of the statute's implications: "A person violating the provisions of this bill would be subject to a penalty of not more than $500 per occurrence or the actual damages caused by the violation, whichever is greater for sending an unsolicited advertisement to a telephone fax machine." Assembly Commerce & Econ. Dev. Comm. Statement to Assembly Bill No. 669 (Sept. 23, 2004) (emphasis added); Sponsor's Statement to Assembly Bill No. 669 (Sept. 28, 2004). The statements of the committee and sponsor do not indicate a limit to the instances when a violator of the statute would be exposed to liability. Had the Legislature intended to create a cause of action only for claimants that could prove tangible harm beyond the receipt of each unsolicited fax, then the legislative statements presumably would have qualified their discussion by specifying that a person violating the statute would be subject to liability only in instances when the recipient is demonstrably harmed.

The manifest intent we discern from the legislative history is also consistent with the structure and purposes of the NJJFA. By offering claimants the greater of $500 or, alternatively, the actual damages suffered, the Legislature was clearly motivated by an objective to create a deterrent for those who would send unsolicited faxes, not just a desire to make victims of the practice whole.

Given that the Legislature intended to create such a baseline deterrent, irrespective of the actual damages suffered by the recipient, we see no basis for distinguishing between who is entitled to exercise the private right of action, so long as a plaintiff is the recipient of a fax sent in violation of the statute. "Generally, courts presume that 'or' is used in a statute disjunctively unless there is clear legislative intent to the contrary." Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction 21:14 (7th ed. 2009). Hence, the use of the disjunctive term "or" within the statutory text comports with an interpretation that a plaintiff under the statute shall receive $500 per fax, or, in the alternative, a higher sum in actual damages if they are provable. See Cox v. Sears Roebuck & Co., 138 N.J. 2, 19 (1994) (interpreting the Legislature's use of the word "or" in the Consumer Fraud Act, N.J.S.A. 56:8-2, as evidence that the Legislature intended for the statute's requirement of "any unconscionable commercial practice, deception, fraud, . . . or the knowing concealment, suppression, or omission of any material fact" to be a disjunctive condition).

Moreover, absent a more explicit renunciation of the expansive approach to liability exposure taken in the TCPA, we believe the NJJFA should be read in harmony with its federal counterpart. As we have noted, plaintiff's claim pleaded under the federal statute was not discussed in the trial court's memorandum accompanying its order, nor was it mentioned in the court's opinion amplifying its reasoning. For sake of completeness, both statutes must be considered in an analysis of the dismissal of the entire complaint. Having done so, we decline to read the NJJFA's use of the word "aggrieved" as an act of the Legislature to "bar such actions [under the TCPA] or 'opt-out [of TCPA actions].'" Zelma v. Market U.S.A., 343 N.J. Super. 356, 360-67 (App. Div. 2001) (interpreting the TCPA's phrase "if otherwise permitted by the laws or rules of court of a State" as allowing actions in state court unless the state "opt[s]-out" of the statute's cause of action). No such "opt-out" has occurred in New Jersey. If anything, the NJJFA's adoption of the federal $500 statutory award under the TCPA reflects a common objective to treat that amount as an automatic remedy.

III.

The second issue we consider is plaintiff's claim for attorney's fees. After considering plaintiff's arguments, we conclude that the trial court's denial of counsel fees was appropriate. As the Supreme Court recently held in Segal v. Lynch, 211 N.J. 230 (2012), where it reversed counsel fees that had been awarded to a licensed attorney who had represented herself in proceedings relating to her service as a parenting coordinator, the "better rule" is that fee awards to self-represented attorneys should be disallowed. Id. at 263.

Although the Court recognized in Segal the competing policy arguments for and against the fee-shifting requested, it found "the reasoning of those precedents that reject counsel fee awards to attorneys who represent themselves to be persuasive in the circumstance of [that] appeal." Id. at 264. Among other things, the Segal majority underscored the United States Supreme Court's conclusion that "allowing pro se attorney litigants to secure an award of attorney's fees would create an unwanted disincentive for attorneys to hire counsel." Ibid. (citing Kay v. Ehrler, 499 U.S. 432, 438, 111 S. Ct. 1435, 1438, 113 L. Ed. 2d 486, 493 (1991)). The Court in Segal also found it problematic to allow the self-represented lawyer "to be compensated for her time expended in securing relief when others [who are not lawyers] would be precluded from being compensated for their time." Ibid.

The same policy considerations apply here. See DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 341 (App. Div. 2013) (analogously holding that a self-represented attorney's time spent representing himself is not an eligible "ascertainable loss" under the Consumer Fraud Act).

We are unpersuaded by plaintiff's attempts to distinguish the cases cited by the trial court by arguing that they apply only to instances where an award of attorney's fees would be a discretionary decision. Plaintiff argues that the fact that the NJJFA's fee-shifting provision, N.J.S.A. 56:8-159(b), uses the term "shall" signifies that a fee award to any prevailing plaintiff under the statute is mandatory, regardless of the plaintiff's self-represented status. We do not construe the statute in that fashion. Doing so would give self-represented lawyers who receive unwanted faxes a significant monetary advantage over pro se non-attorneys, who likewise seek relief under the statue and who devote their time and attention uncompensated to their lawsuits. There is no indication that the Legislature wanted such a disparity.

IV.

The remainder of plaintiff's contentions, including his request that we remand the case to allow him to amend the complaint to include allegations of his receipt of additional unsolicited faxes from defendant, lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed in part and reversed in part. Consistent with our decision, within thirty days of this opinion, the trial court shall issue a revised final judgment awarding plaintiff $1000 (representing two $500 statutory awards for the two unsolicited faxes), plus applicable costs but not counsel fees.

1 The court stated: "Webster's dictionary defines 'aggrieved' as being troubled or distressed in spirit; or to be suffering from an infringement; or showing or expressing grief, injury [or] offense."