UMUT TURKDOGAN VS. MEDISPA OF SHREWSBURY LLC(DC-6054-14 AND DC-4870-14, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-3564-15T3

UMUT TURKDOGAN and
ENGIN TURKDOGAN,

Plaintiff-Respondents/
Cross-Appellants,

v.

MEDISPA OF SHREWSBURY LIMITED
LIABILITY COMPANY d/b/a MEDISPA
AT SHREWSBURRY, MARGUERITE
DEFONTE, CHRISTINA LYNN
TSAGARIS, NICHOLAS DEFONTE, LASER
MED SPA MANAGEMENT LIMITED LIABILITY
COMPANY, and DR. JAMES AVELLINI,

Defendants,

and

DR. JOSEPH FRETTA,

Defendant-Appellant/
Cross-Respondent.

__________________________________________

Submitted May 25, 2017 – Decided June 29, 2017

Before Judges Lihotz, Hoffman and O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Monmouth
County, Docket Nos. DC-6054-14 and DC-4870-
14.
 Law Offices Robbins and Robbins LLP,
attorneys for appellant/cross-respondent
(Spencer B. Robbins, on the brief).

The Swain Law Firm, P.C., attorneys for
respondents/cross-appellants (Andrew D.
Swain and Christopher A. Bradley, on the
brief).

PER CURIAM

Defendant Joseph Fretta, M.D., appeals from a March 14,

2016 Special Civil Part order denying his motion for

reconsideration of the December 17, 2015 order, which directed

he pay $7000 in counsel fees to plaintiffs, Umut Turkdogan and

Engin Turkdogan.1 Umut and Engin cross appeal from a November

13, 2015 order entering judgment for $590.96 in their favor, as

well as the December 17, 2015 order.

After reviewing the record, briefs, and applicable law, we

affirm in part and remand in part for further proceedings.

I

Plaintiffs' complaint alleges in May 2012, they each

sustained burns after undergoing a procedure to remove hair from

their backs using a laser. The procedure was performed at

defendant Medispa of Shrewsbury, L.L.C., (Medispa) by defendant

Christina Lynn Tsagaris, a cosmetician. Before trial,

1
Engin Turkdogan is the father of Umut Turkdogan. To avoid
confusion, we refer to the father as Engin and the son as Umut.
We do not intend any disrespect by such informality.

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defendants Medispa, Tsagaris, and Marguerite Defonte, the owner

of Medispa, each settled for $8000. Defendants James Avellini,

M.D., and Nicholas Defonte were dismissed from the complaint.

The matter was then tried against the sole remaining defendant,

Fretta.

It is not disputed cosmeticians are prohibited from using a

laser, see N.J.S.A. 45:5B-3, and that Tsagaris used a laser to

remove hair from both of plaintiffs' backs. In their complaint,

plaintiffs alleged Fretta held himself out to be and was in fact

Medispa's medical director. Plaintiffs specifically contended

Fretta violated the New Jersey Consumer Fraud Act (CFA),

N.J.S.A. 56:8-1 to -204, because, as medical director, he failed

to properly supervise Tsagaris to ensure she did not use a laser

for hair removal. Plaintiffs also claimed that, as medical

director, Fretta was negligent; specifically, he breached a duty

of care toward them by failing to ensure Tsagaris did not use a

laser and, as a proximate result, they were injured.

Plaintiffs further maintained that, even if he were not in

fact Medispa's medical director, Fretta violated the CFA by

allowing Medispa to falsely advertise that he was, thus inducing

plaintiffs to use Medispa's services out of a belief its

cosmeticians' services were being supervised by a physician.

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They also claimed Fretta was negligent for permitting Medispa to

use his name and, as a proximate result, sustained injury.2

At trial, plaintiffs, representatives of Medispa, and

Fretta testified. Both plaintiffs stated they received medical

treatment after being burned by the laser. Umut claimed his

economic damages were $1050; Engine testified his were $1190.

Umut also testified "it gave me assurance there was a medical

director. So it gave me understanding of the legitimacy of the

practice." Engin did not know there was a medical director or

physician associated with Medispa.

Both the owner of Medispa and one of its cosmeticians

testified that, at the time plaintiffs received the laser hair

removal services, Fretta was Medispa's medical director and

regularly represented such fact to third parties. Fretta

testified he was not Medispa's medical director and never

authorized Medispa to represent he was.

Following trial, the court issued an oral decision, in

which it found plaintiffs and the representatives of Medispa

2
Plaintiffs asserted other causes of action against Fretta in
their complaint, but none are at issue on appeal, with the
exception of the count alleging negligence per se. In their
brief before us, plaintiffs argue the trial court failed to
address whether Fretta was negligent per se. However, our
reading of this count reveals no allegation against Fretta was
made. Accordingly, we do not address any claim Fretta was
negligent per se.

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more credible than Fretta, who the court determined had not been

"completely forthright" with the court. Although not well

articulated, implicit in the court's findings was Fretta was not

in fact Medispa's medical director, but that Fretta allowed

Medispa to hold him out as though he were. The court found

that, as a result, Umut relied on the fact Medispa "was

operational under guise of medical authority overseeing the day

to day operations."

The court concluded that by allowing third parties to

believe he was Medispa's medical director when in fact he was

not, Fretta violated N.J.S.A. 56:8-2, which prohibits, among

other things, a misrepresentation, "or the knowing, concealment,

suppression, or omission of any material fact with intent that

others rely upon such concealment, suppression or omission, in

connection with the sale or advertisement of any merchandise."

The court held Fretta was liable to plaintiff "in consumer fraud

for treble damages," and "Fretta is responsible for 20 percent

of the cost spent by [Umut] for the procedure done." The court

reduced the damages attributable to Fretta to twenty percent

because

Fretta really didn't have anything to do
with these patients but for the fact that he
held himself out as a medical director. So
his percentage of culpability is much less
than that of the . . . co-defendants. And
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 . . . based on my assessment of the facts
and evidence as I see it, it is 20 percent.

The court then found Umut sustained economic losses of

$984.94. After trebling and then reducing this amount by twenty

percent, the court calculated Umut was entitled to $590.96 in

damages, plus reasonable attorneys fees. The court did not make

any findings as to Engin or any findings on plaintiffs' claim

Fretta had been negligent.

On November 2, 2015, the trial court entered an order

stating it was entering judgment in favor of "plaintiff" in the

amount of $590.96, and that plaintiffs' counsel was to submit a

certification on counsel fees. On November 13, 2015, the court

entered an order amending the November 2, 2015 order, stating

judgment for $590.96 was entered in favor of "plaintiffs"

instead of "plaintiff."

Plaintiffs' counsel submitted a certification in support of

their request for attorneys fees and, on December 17, 2015, the

court entered an order awarding plaintiffs $7000 for such fees.

In the order, the court provided its reasons for awarding this

particular sum in counsel fees. On March 14, 2016, the court

denied Fretta's motion for reconsideration of the December 17,

2015 order. In the March 14, 2016 order, the court stated:

This Court's award of attorney fees to
Plaintiff in the amount of $7,000 is clearly
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 outlined in the Order dated December 17,
2015. This Court finds no palpable mistake
of law or fact that would warrant
reconsideration of this award. Accordingly,
the Order dated December 17, 2015 remains in
full force and effect.

Fretta filed a notice of appeal and, on June 6, 2016, we

entered an order clarifying Fretta's appeal is limited to a

review of the March 14, 2016 order.

II

On appeal, Fretta contends the trial court erred when it

ordered him to pay $7000 in counsel fees, because he was

responsible for causing only $590.96 in damages. He also

challenges the November 2 and November 13, 2015 orders. As our

review is limited to the March 14, 2016 order, we do not address

Fretta's challenges to the November 2 and November 13, 2015

orders.

A trial court's award of counsel fees "will be disturbed

only on the rarest occasions, and then only because of a clear

abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317

(1995). Under state fee-shifting statutes, "the first step in

the fee-setting process is to determine the 'lodestar': the

number of hours reasonably expended multiplied by a reasonable

hourly rate." Id. at 334-35. This is the "most significant

element in the award of a reasonable fee because that function

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requires the trial court to evaluate carefully and critically

the aggregate hours and specific hourly rates advanced by

counsel for the prevailing party to support the fee

application." Id. at 335.

"It does not follow that the amount of time actually

expended is the amount of time reasonably expended." Ibid.

(quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir.

1980)). Hours are not considered reasonably expended if they

are "excessive, redundant, or otherwise unnecessary" or are

spent on "claims on which the party did not succeed" or "that

were distinct from claims on which the party did succeed."

Ibid. (quoting Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d

Cir. 1990)).

We have considered Fretta's arguments, and conclude they

are without sufficient merit to warrant discussion in a written

opinion. See R. 2:11-3(e)(1)(E). Bearing in mind a court's

discretion in awarding counsel fees, we affirm the March 14,

2016 order for substantially the same reasons set forth in that

order, as well as in the December 17, 2015 order.

In their cross-appeal, plaintiffs contend the trial court

erred because it awarded them only $7000 in fees and, further,

the court failed to find defendant's actions also constituted

negligence. Plaintiffs also point out the court did not make
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any findings about Engin with respect to any of his claims, and

that the court's findings on Umut's economic damages were

unsupported by the evidence.

After examining plaintiffs' arguments and the applicable

law on the question of counsel fees, we similarly conclude their

arguments devoid of merit. We affirm the December 17, 2015

order for the reasons expressed in that order.

We agree the court overlooked making any findings

concerning Engin's claims, and failed to provide its reasons for

rejecting plaintiffs' claim Fretta was negligent. "The judge's

failure to make findings and conclusions is not only in

disregard of oft-stated admonitions," but also causes "a

substantial disservice, for [the appellate court is] left unable

to resolve the meritorious issues which they project."

Girandola v. Allentown, 208 N.J. Super. 437, 440-41 (App. Div.

1986). However, because the court found Fretta was not in fact

the medical director of Medispa, we question, without deciding,

whether Fretta can be held liable for failing to ensure, as

plaintiffs allege, the cosmeticians did not use lasers on

customers to remove hair. But plaintiffs also contend Fretta

breached a duty of care to them by allowing his name to be used

by Medispa to attract customers. Plaintiffs maintain this

breach proximately caused them injury. Thus, we are compelled
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to remand this matter to the trial court, so that it may

determine whether a duty of care existed, see Hopkins v. Fox &

Lazo Realtors, 132 N.J. 426, 439 (1993), and if so, whether

Fretta breached that duty of care and proximately caused the

damages plaintiffs allege.

Finally, although a very minute point, the evidence reveals

Umut's economic damages totaled $1050, not $984.94; thus, after

making the adjustments the court found warranted, Umut's damages

total $630, not $590.96.3 On remand the court shall amend the

judgment to reflect Umut's damages on the claim Fretta violated

the CFA are $630.

Affirmed in part and remanded in part for further

proceedings consistent with this opinion. We do not retain

jurisdiction.

3
These adjustments are that $1050 is to be trebled and the
resulting sum reduced by twenty percent.
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