AHMED ELDERBY v. ALEX GERALDINO

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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2953-20

AHMED ELDERBY,

Plaintiff-Appellant,

ALEX GERALDINO and
NEW JERSEY TEAMSTERS
FOOTBALL CLUB,

Defendants-Respondents.
____________________________

Argued April 4, 2022 – Decided April 13, 2022

Before Judges Fasciale and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-4148-19.

Hisham Hamed argued the cause for appellant.

Steven S. Glickman argued the cause for respondents.

PER CURIAM

Plaintiff appeals from a May 11, 2021 order issued after a bench trial

entering a no cause of action dismissing the complaint against defendant New
Jersey Teamsters Football and defendant Alex Geraldino (collectively

defendants). Judge Kimberly Espinales-Maloney conducted the trial and

rendered a written opinion, on which we substantially agree. We affirm and add

these brief remarks.

Geraldino formed Teamsters in 2017, a semi-professional soccer team.

Defendants hired plaintiff as an assistant coach in early 2018. Approximately

one-and-a-half years later, defendants held a "Club Information Briefing"

meeting with the staff. The accompanying presentation identified all staff

members as volunteers. Plaintiff testified he indicated multiple times that he

wanted to be compensated. Shortly after a game in June 2019, plaintiff was

dismissed from his position.

The judge found plaintiff was "marginally credible," and that his

testimony "largely lack[ed] collaboration in the proofs and at times [was] not

reasonable." Plaintiff's counsel called two other witnesses who testified at the

trial. The judge was unwilling to give one of them "significant weight" because

the testimony was brief. The judge found Geraldino testified credibly and gave

his testimony "significant weight" especially because his testimony was

corroborated by "several [evidential] sources." The judge determined plaintiff

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did not satisfy his burden on any of his claims against defendants and dismissed

each with prejudice.

On appeal, plaintiff raises the following points for this court's

consideration:

[POINT I]

THE TRIAL [JUDGE]'S FACTUAL FINDINGS AND
LEGAL CONCLUSIONS ARE MANIFESTLY
UNSUPPORTED AND/OR INCONSISTENT WITH
ADEQUATE, SUBSTANTIAL AND CREDIBLE
EVIDENCE AS TO OFFEND THE INTERESTS OF
JUSTICE, AND MUST THEREFORE BE REVERSED
AS A MATTER OF LAW[.]

A. The Trial [Judge] Erroneously Dismissed
Plaintiff's Breach Of Contract Claim[.]

B. The Trial [Judge] Erroneously Dismissed
Plaintiff's Unjust Enrichment Claim[.]

1. Contrary to the trial [judge]'s findings,
there is a plethora of evidence that supports
[p]laintiff's reasonable expectation that
[d]efendants were going to compensate
him for his coaching services, and that it
would not be "unjust" to award [p]laintiff
damages[.]

[2]. Various portions of the trial [judge]'s
fact and credibility findings were not based
upon credible evidence in the record[.]

A-2953-20
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C. The Trial [Judge] Erroneously Dismissed
Plaintiff's Common[-]Law Fraud Claim[.] 1

Our standard of review is well-settled. In an appeal from a non-jury trial,

we "give deference to the trial [judge] that heard the witnesses, sifted the

competing evidence, and made reasoned conclusions." Griepenburg v. Twp. of

Ocean, 220 N.J. 239, 254 (2015). We will "'not disturb the factual findings and

legal conclusions of the trial judge' unless convinced that those findings were

'so manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting

Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Our

"review of a cold record is no substitute for the trial [judge]'s opportunity to hear

and see the witnesses who testified on the stand." Balducci v. Cige, 240 N.J.
574, 595 (2020).

II.

Plaintiff contends the judge erred in dismissing his three counts: (1)

breach of contract, (2) unjust enrichment, and (3) common-law fraud. The judge

properly dismissed these counts with prejudice. Plaintiff has not demonstrated

1
To comport with our style conventions we have altered the capitalization and
formatting of plaintiff's subheadings, but have omitted the alterations for
readability.
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that the judge's findings were manifestly unreasonable or unsupported by the

record.

We first address plaintiff's breach of contract claim. Plaintiff contends he

and defendants had an oral contract, despite a lack of an agreement to specific

wages or compensation. There is sufficient credible evidence in the record to

support the judge's findings.

A plaintiff must satisfy four elements to establish a breach of contract

claim: (1) "[t]he parties entered into a contract containing certain terms"; (2)

the plaintiff "did what the contract required [him] to do"; (3) the "defendant[s]

did not do what the contract required [them] to do," defined as a "breach of the

contract"; and (4) the defendants' breach caused a loss to the plaintiff. Globe

Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016) (first, third, and fourth

alterations in original) (quoting Model Jury Charge (Civil), 4.10A, "The

Contract Claim—Generally" (approved May 1998)).

A contract exists where there is "offer and acceptance, and must be

sufficiently definite 'that the performance to be rendered by each party can be

ascertained with reasonable certainty.'" Weichert Co. Realtors v. Ryan, 128 N.J.
427, 435 (1992) (quoting Borough of W. Caldwell v. Borough of Caldwell,

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26 N.J. 9, 24-25 (1958)). "[I]f parties agree on essential terms and manifest an

intention to be found by those terms, they have created an enforceable contract."

Ibid. "Mutual assent requires that the parties have an understanding of the terms

to which they have agreed." Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J.
430, 442 (2014).

The judge made reasoned findings that we decline to disturb. The judge

found:

In this case it is clear that the parties did [not] 2 have a
contract, oral or otherwise. Again, the fact that there is
no written memorialization is not what is fatal to this
claim. Rather, the evidence produced at trial
demonstrate[s] clearly that there was no meeting of the
minds as to essential terms. Even assuming that
[defendants] told [plaintiff] [they were] going to pay
him for coaching, there was no mutual assent as to how
much he would be paid. Both parties testified that there
was no agreed-upon hourly rate set. [Plaintiff] testified
that they discussed an "average" rate for a coach[,]
which [defendants] vehemently denied. To
successfully litigate this type of claim, both parties
must mutually assent to the terms of the agreement
which requires that they both have an understanding of
the terms to which they agreed. . . . The [c]ourt finds
that based on the testimony and the proofs shown,
plaintiff has not met [his] burden of proving by a
preponderance of the evidence that an oral contract

2
The judge's written decision contained a typo because "not" was omitted. The
judge later writes in the opinion, "the court has found that there was no contract
here."
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existed between the parties based on the lack of mutual
assent shown.

The judge determined the agreement lacked a meeting of the minds as to

plaintiff's compensation. The parties agreed there was no set hourly rate. The

judge, believing Geraldino over plaintiff's testimony, determined the parties

never discussed an "average" rate for coaching, as plaintiff had contended.

There was no contract, and the judge properly dismissed the breach of contract

count.

Plaintiff contends the judge erred in dismissing his unjust enrichment

claim because it was reasonable for him to expect payment, and he argues the

judge did not properly consider the W-9 Form. On the judge's credibility

findings, plaintiff contends the judge erroneously valued Geraldino's testimony

more than plaintiff's testimony.

Unjust enrichment claims apply in matters where the parties did not have

a contract. See N.Y.-Conn. Dev. Corp. v. Blinds-To-Go (U.S.) Inc., 449 N.J.

Super. 542, 556 (App. Div. 2017). To prove a claim for unjust enrichment, a

plaintiff must "show both that [the] defendant received a benefit and that

retention of that benefit without payment would be unjust." VRG Corp. v. GKN

Realty Corp., 135 N.J. 549, 554 (1994). Thus, a plaintiff "must establish that

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the services were performed with an expectation that the beneficiary would pay

for them, and under circumstances that should have put the beneficiary on notice

that the plaintiff expected to be paid." Weichert Co. Realtors, 128 N.J. at 438.

The judge determined the first element, if a benefit was conferred, was

clearly satisfied because plaintiff coached Teamsters for over a year. However,

the judge dismissed the unjust enrichment count after she found plaintiff did not

have a "reasonable expectation" to be paid for his coaching, and that awarding

damages would be unjust. The judge reasoned that while plaintiff was requested

to submit a W-9 form, his expectation to be paid was unreasonable

given that he was only paid $150 once for tryouts is not
clear on this record. Moreover, [plaintiff] also gained
a benefit by coaching for the Teamsters because he
gained experienced coaching adults. When the court
weighs all the proofs and surrounding circumstances,
the court finds that plaintiff's expectation to be paid is
not reasonable. When [plaintiff] was hired, none of the
staff was being compensated.

Credible evidence supports these findings. Teamsters was a semi-

professional soccer team that only had four sponsors. During plaintiff's tenure

as an assistant coach, defendants did not pay any other staff or players. The

judge properly dismissed the unjust enrichment claim as it was unreasonable for

plaintiff to expect compensation given the record before us.

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C.

And as to the fraud claim, plaintiff contends the trial judge failed to

consider each element of his common-law fraud claim and only focused on the

material misrepresentation portion.

There are five elements of common-law fraud: "(1) a material

misrepresentation of a presently existing or past fact; (2) knowledge or belief by

the defendant of its falsity; (3) an intention that the other person rely on it; (4)

reasonable reliance thereon by the other person; and (5) resulting damages."

Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997). Rule 4:5-8(a)

requires allegations of fraud be pled with particularity. See State ex rel.

Campagna v. Post Integrations, Inc., 451 N.J. Super. 276, 278 (App. Div. 2017);

see also State, Dep't. of Treasury, Div. of Inv. ex rel. McCormac v. Qwest

Commc'ns Int'l, Inc., 387 N.J. Super. 469, 485-86 (App. Div. 2006) (stating that

a judge can dismiss a fraud claim if "the allegations do not set forth with

specificity, nor do they constitute as pleaded, satisfaction of the elements of

legal or equitable fraud" (quoting Levinson v. D'Alfonso & Stein, 320 N.J.

Super. 312, 315 (App. Div. 1999))).

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The judge concluded plaintiff did not meet this heightened standard

because he failed to show defendants made material misrepresentations. The

judge determined:

other than [plaintiff's] testimony that . . . Geraldino
promised to pay him at some point once they had
sponsors, the credible proofs point to the contrary. First
and foremost, I found . . . Geraldino’s testimony more
credible . . . . Moreover, the staff meeting further
supports the contention that the staff was not being paid
and by [plaintiff's] own testimony, Coach Javier was
not paid until May 2019. In addition, neither Mr.
Santella nor the players were being paid either. Based
on this record, the court cannot find that the evidence
supports a finding that [p]laintiff has proven by clear
and convincing evidence that [d]efendant[s] made the
material misrepresentation of promising a salary for his
coaching duties. Moreover, since the first element
fails, [p]laintiff cannot recover under the claim of
common law fraud since all five elements must be met
to prevail.

This conclusion is clearly supported by the record. Plaintiff needed to

prove each and every element, and the failure to prove there was a material

misrepresentation was enough to dismiss the claim.

Affirmed.

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