NOT FOR PUBLICATION WITHOUT THE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.
2 A-3841-16T1
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
4 A-3841-16T1
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.
7 A-3841-16T1