TBF FINANCIAL, LLC VS. ROBER PICCIANO VS. STRATEGIC PRODUCTS AND SERVICES, INC. (L-7676-15, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3841-16T1

TBF FINANCIAL, LLC,

Plaintiff-Respondent,

v.

ROBERT PICCIANO,

Defendant/Third-Party
Plaintiff-Appellant,

v.

STRATEGIC PRODUCTS AND SERVICES,
INC. and PIERRE GUZMAN,

Third-Party Defendants-
Respondents.
_________________________________

Submitted April 18, 2018 – Decided June 20, 2018

Before Judges Currier and Geiger.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-7676-
15.

Kipp & Allen, LLP, attorneys for appellant
(Richard J. Allen, Jr., on the briefs).

Drinker Biddle & Reath, LLP, attorneys for
respondents Strategic Products and Services,
 Inc. and Pierre Guzman (Frank F. Velocci, on
the brief).

PER CURIAM

Defendant/third-party plaintiff Robert Picciano appeals from

the March 31, 2017 order dismissing the third-party complaint and

entering judgment against him after a bench trial. We affirm.

Picciano had a lease agreement with plaintiff TBF Financial

for an office telephone system (TBF agreement). During the term

of that lease, the service contract for that system came up for

renewal, although the lease agreement remained in effect. Instead

of renewing the service contract, Picciano opted to enter into a

new lease agreement with third-party defendant Strategic Products

and Services (SPS) for the installation and servicing of a new

telephone system.

Although Picciano conceded he was aware of his continuing

obligation under the TBF lease, he testified he believed SPS was

going to either remove the old phones or provide a shipping label

for their return.1 As to the TBF agreement, Picciano testified:

Mr. Guzman[2] never mentioned to me what was
going to happen to the old lease. Uh, that
topic never came up. I did assume that the

1
Although SPS provided information to Picciano advising how to
return the phones, Picciano did not comply and instead put the old
phones in a supply closet at his office.
2
Third-party defendant Pierre Guzman was the SPS representative
involved in this transaction.

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 old lease was going away because we were
getting a new lease and there would obviously
be no reason for me to have a second phone
system, and certainly not to pay for one.

Picciano believed the new lease would replace the TBF agreement.

Guzman testified he was the account executive for SPS who

handled the sale of the telephone system to Picciano. He denied

Picciano or anyone else from his office ever mentioning a pre-

existing lease to him. He stated all of his dealings and

conversations were with Picciano's office manager. It was not

until after the close of the transaction and installation of the

system that Picciano spoke to him directly asking about the TBF

agreement.

Guzman said he was surprised when Picciano mentioned he still

had an obligation under a pre-existing lease. Guzman advised he

would not have been able to offer the particular promotion to

Picciano if there were still an existing lease, as Picciano was

not eligible for the trade-up program if he did not own his

equipment. He confirmed information was sent to Picciano for the

return of the old phones.

After Picciano stopped making payments towards the TBF

agreement, plaintiff filed suit for breach of contract, seeking

recovery of the amount due under the lease agreement. Picciano

filed an answer and third-party complaint against SPS and Guzman

3 A-3841-16T1
alleging breach of contract, violation of the Consumer Fraud Act

(CFA), N.J.S.A. 56:8-1 to -20, and legal and equitable fraud. The

trial court granted summary judgment on liability to plaintiff on

its complaint. The third-party complaint proceeded to a bench

trial before Judge Keith E. Lynott.

On March 16, 2017, Judge Lynott issued a comprehensive oral

decision in which he found (1) "there was no contractual

undertaking by SPS to bear responsibility for the old lease, and,

therefore, no cause of action for breach of contract"; (2) "the

record is simply barren of evidence of any promises or assurances,

let alone a clear and definite promise or assurance that could

provide sufficient foundation for an estoppel" claim; and (3)

Picciano's "proofs do not establish unlawful conduct falling

within the purview of [the CFA]."

Judge Lynott entered final judgment on March 31, 2017 against

Picciano in the amount of $10,500, plus costs, and dismissed the

third-party complaint. This appeal followed.

On appeal, Picciano renews his arguments that third-party

defendants breached their contractual obligation to discharge the

TBF agreement, and, if no contractual obligation existed, then

third-party defendants were equitably estopped from denying their

obligation to satisfy the pre-existing lease as Picciano relied

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on their promises to do so. He also asserts the third-party

defendants violated the CFA.

"Final determinations made by the trial court sitting in a

non-jury case are subject to a limited and well-established scope

of review." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)

(quoting Seidman v. Clifton Sav. Bank, SLA, 205 N.J. 150, 169

(2011)). Although review of legal determinations made by the

trial court is de novo, we will not disturb the factual findings

of the trial court unless "convinced that they are so manifestly

unsupported by[,] or inconsistent with[,] the competent,

relevant[,] and reasonably credible evidence as to offend the

interests of justice." Ibid. (quoting Seidman, 205 N.J. at 169).

Additionally, we defer to the trial court's credibility

determinations, because it "'hears the case, sees and observes the

witnesses, and hears them testify,' affording it 'a better

perspective than a reviewing court in evaluating the veracity of

a witness.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting

Cesare v. Cesare, 154 N.J. 394, 412 (1998)).

With this deferential standard of review in mind, we affirm

substantially for the reasons set forth in Judge Lynott's

thoughtful and well-reasoned opinion. Picciano did not produce

any evidence of an express contractual agreement by SPS to assume

responsibility for the TBF agreement. The judge found, while "Dr.

5 A-3841-16T1
Picciano acknowledged that Mr. Guzman never expressly agreed to

assume or otherwise be responsible for settling, resolving, or

terminating the old lease; . . . he, at best, assumed this to be

the case based on his understanding that the transaction would

seamlessly replace[] one lease with another." Picciano's

assumptions here, without knowledge and acceptance by Guzman and

SPS, are insufficient to create an enforceable contract.

Furthermore, although the parties consummated the lease in a

series of written agreements, Picciano never sought to add a

provision requiring SPS to assume his remaining obligations under

the TBF agreement. Likewise, Picciano provided no evidence of a

promise made by SPS upon which he relied to invoke the doctrine

of equitable estoppel. Again, Picciano only assumed SPS would

undertake his prior lease obligations. Without testimony or

evidence that Guzman affirmatively assured Picciano that SPS would

assume his obligations under the TBF lease, there is insufficient

evidence for a finding of "a clear and definite promise by the

promisor." Pop's Cones, Inc. v. Resorts Intern. Hotel, Inc., 307

N.J. Super. 461, 469 (App. Div. 1998).

We are also satisfied plaintiff did not establish a violation

of the CFA. The Act permits a private cause of action where a

party has suffered an "ascertainable loss of moneys or property"

as a result of prohibited conduct. N.J.S.A. 56:8-19; accord

6 A-3841-16T1
Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 555-56 (2009). That

conduct includes "the use of unconscionable commercial practices,

deception, fraud, and misrepresentations 'in connection with the

sale or advertisement of any merchandise.'" DepoLink Court

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325,

338 (App. Div. 2013) (quoting N.J.S.A. 56:8-2).

As stated, Picciano failed to demonstrate Guzman

misrepresented or falsely promised that SPS would fulfill the

remaining obligations under the TBF agreement. Guzman was unaware

of the pre-existing agreement until after the completion of the

SPS transaction. Judge Lynott's findings of facts and conclusions

of law are amply supported by the evidence in the record.

Affirmed.

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