PAUL PROFETA VS. TOWN SPORTS INTERNATIONAL LIVINGSTON,ET AL.(DC-6077-15, 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NOT FOR PUBLICATION WITHOUT THE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-1805-15T4

PAUL PROFETA,

Plaintiff-Appellant,

v.

TOWN SPORTS INTERNATIONAL
LIVINGSTON and SAUL
CONCEPCION,

Defendants-Respondents.
______________________________________________

Argued June 6, 2017 – Decided November 17, 2017

Before Judges Messano and Grall.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket
No. DC-6077-15.

Paul Profeta, appellant, argued the cause
pro se (Marc J. Gross and Gary L.
Koenigsberg, on the briefs).

Robert C. Neff, Jr., argued the cause for
respondents (Wilson, Elser, Moskowitz,
Edelman & Dicker, LLP, attorneys; Mr. Neff,
of counsel and on the brief).

PER CURIAM
 Plaintiff Paul Profeta is a member of a health club,

defendant Town Sports International Livingston, doing business

as New York Sports Club (NYSC). Defendant Saul Concepcion is

the general manager of that facility. Profeta filed a complaint

in the Special Civil Part charging defendants with violations of

the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, unjust

enrichment and breach of contract and the covenant of good faith

and fair dealing. Profeta appeals a judgment awarding him

$60.18 for breach of contract and dismissing his other claims.

He also appeals an order denying reconsideration.

Because Profeta presented no argument on denial of

reconsideration in his opening brief, we will not address the

argument presented in his reply brief. See In re Bell Atlantic-

New Jersey, Inc., 342 N.J. Super. 439, 442-43 (App. Div. 2001).

We affirm the dismissal of his CFA claim because that

determination "is based on findings of fact that are adequately

supported by the record," Rule 2:11-3(e)(1)(A), and Profeta has

not shown legal error warranting reversal. R. 2:10-2.

The pertinent facts are largely undisputed. Profeta was a

"member" of NYSC and was paying $95.23 monthly for a "passport"

membership plan. NYSC billed the monthly payments to his credit

card.

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 In mid-November 2014, Profeta approached Concepcion to ask

about a $19.95 "month-to-month" rate with "no commitment" that

NYSC advertised outside the facility. Profeta was interested

until Concepcion told him there was a $150 enrollment fee.

Concepcion offered and Profeta accepted a different plan, a

"premier" membership with a monthly rate of $32.05, $63.18 less

than he was paying. Under the terms of his "passport"

membership agreement, he had to pay the "passport" rate until

the next billing cycle commenced on December 1.

Concepcion did not change Profeta's membership in the

company's computer system until early February 2015.

Consequently, Profeta was not charged at the reduced rate until

March 1. Concepcion testified that NYSC was not allowing

general managers to change membership plans in November, and

when he tried to change Profeta's plan in December a computer

glitch required another swipe of Profeta's credit card. Because

Profeta did not bring him the card until February, he could not

make the change earlier.

Invoices NYSC admitted at trial show that NYSC charged

Profeta's credit card at the lower $32.05 monthly rate as of

March 1 but billed him at his prior monthly rate for three

billing cycles — December, January and February. Profeta sought

a refund of the difference.

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 Concepcion's first attempt to secure a refund for Profeta

was an April 13 email to NYSC explaining: "[M]ember attempted to

rewrite in November but the process was never completed due to a

500 TimeOut Error. Please credit difference from [sic] Passport

and Premier" for December and January.

On April 17, 2015, Profeta emailed Concepcion and warned he

would file a lawsuit if he did not receive a refund by April 24.

Four days before that deadline, his attorney sent the complaint

to the Clerk of the Special Civil Part. On April 22, the Clerk

filed the complaint and NYSC prepared an invoice reporting a

$120.35 credit to Profeta's card. The next day, Concepcion

emailed Profeta and advised the refund had been processed.

Profeta responded: "Unfortunately it is too little too late. I

have no proof [that] what you say is true and given your past

history, no reason to rely on it."

In his complaint, Profeta alleged overcharges in January

and February; he omitted December. At trial, Concepcion

admitted NYSC gave Profeta refunds for December and January but

not February. Because Profeta and Concepcion agreed there were

three overcharges, the trial court amended the contract claim to

conform to the evidence. The court did not amend the CFA claim,

because the court concluded Profeta failed to prove a violation.

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 The court determined Profeta could not prove a CFA claim

based on deceptive advertising, because he rejected the

advertised $19.95 membership when he was told about the

enrollment fee. As to the overcharges and delayed refunds, the

court found that Concepcion attempted to process Profeta's

reduced charge in November and to obtain a refund of the

overcharge on April 13. Considering those facts and the

parties' mutual confusion about the number of overcharges, the

court would not "ascribe, as the fact finder, a fraudulent

intent on the part of the defendant," and concluded that Profeta

established nothing more than NYSC's incompetence and his own

understandable frustration. Thus, the court was "not persuaded"

Profeta met his burden of proof.

Appellate courts "review the trial court's determinations,

premised on the testimony of witnesses and written evidence at a

bench trial, in accordance with a deferential standard."

D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013). Although

review of legal determinations is de novo, id. at 182-83,

appellate courts do "'not disturb the factual findings and legal

conclusions of the trial judge 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.'" Rova Farms Resort, Inc. v.

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Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone

v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.

1963)); see R. 2:10-2. Appellate courts generally do not review

issues that have not been raised in the trial court and on

appeal. See, e.g., Nieder v. Royal Indem. Ins. Co., 62 N.J.

229, 234 (1973).

Profeta argues the trial court "should have found consumer

fraud." (capitalization omitted). In support of that claim he

contends, "[d]efendants clearly engaged in consumer fraud." He

asserts that defendants: acknowledged he was still owed $60.18;

took "several months just to make a partial refund"; engaged in

"'bait and switch' false advertising that did not indicate

change fees or that a change could only be made at the first of

the month"; and, by paying in response to his threat to sue,

demonstrated "they can pay if they want to." In addition, he

argues "the trial court improperly ascribed a duty to [him] to

hold to his self-imposed deadline of April 24" before filing

suit.1

To establish a cause of action under the CFA Profeta was

required to prove three elements: "1) unlawful conduct . . . 2)

1
The brief submitted on Profeta's behalf includes additional
assertions based on post-trial conduct, which are irrelevant to
the claims pled in the complaint and tried to the court.

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an ascertainable loss . . . ; and 3) a causal relationship

between the unlawful conduct and the ascertainable loss."

Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009).

The unlawful conduct essential is "an 'unlawful practice'

as defined in the legislation." Cox v. Sears Roebuck & Co., 138

N.J. 2, 17 (1994). "Unlawful practices fall into three general

categories: affirmative acts, knowing omissions, and regulation

violations. The first two are found in the language of N.J.S.A.

56:8-2, and the third is based on regulations enacted under

N.J.S.A. 56:8-4." Ibid.

The Legislature has supplemented the CFA over the years to

address specific types of consumer transactions and authorize

implementing regulations, and health clubs are among the

businesses so addressed, N.J.S.A. 56:8-39 to -48; N.J.A.C.

13:45A-25.1 to -25.7. Profeta relies solely on the "unlawful

practices" identified in N.J.S.A. 56:8-2:

The act, use or employment by any person of
any unconscionable commercial practice,
deception, fraud, false pretense, false
promise, 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 or real
estate, or with the subsequent performance
of such person as aforesaid . . . .

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 "The capacity to mislead is the prime ingredient of

deception or an unconscionable commercial practice." Fenwick v.

Kay Am. Jeep, Inc., 72 N.J. 372, 378 (1977)). As used in the

CFA, "the term "unconscionable" implies [a] lack of 'good faith,

honesty in fact and observance of fair dealing.'" Cox, supra,

138 N.J. at 18 (quoting Kugler v. Romain, 58 N.J. 522, 544

(1971)).

The trial court properly found Profeta failed to prove a

claim based on deceptive advertising. Profeta rejected the

$19.95 fee that NYSC advertised without any reference to its

$150 enrollment fee, and he sought damages for NYSC's failure to

bill him at the rate for the different membership plan he chose

instead. The retained overcharge was the only loss Profeta

established and that loss had no causal connection with the

deceptive advertisement. This is not a case where a consumer

was lured into joining a health club by an advertisement;

Profeta was a member. In short, Profeta failed to prove

essential elements of this claim — an ascertainable loss

causally related to deceptive advertising. Bosland, supra, 197

N.J. at 561; see also Weinberg v. Sprint Corp., 173 N.J. 233,

251 (2002) (noting that "a claim of ascertainable loss [is] a

prerequisite for a private cause of action" under the CFA).

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 The trial court also found Profeta failed to prove a CFA

violation based on NYSC's billing his credit card at the wrong

rate for three months and delaying his refund. As to this

claim, the court concluded the conduct proven was more

consistent with "incompetence" than with an "unlawful practice"

as defined in N.J.S.A. 56:8-2.

Concepcion's testimony, which the court referenced and

obviously credited, provided ample evidential support for the

court's rejection of this claim. It undercut a finding of an

act or omission that had the "capacity to mislead," Fenwick,

supra, 72 N.J. at 378, or conduct demonstrating a lack of good

faith, honesty and fair dealing, Cox, supra, 138 N.J. at 18,

which are the prime ingredients of a CFA claim. Concepcion

described his: inability to change memberships in November;

unsuccessful attempt to change Profeta's membership in December

due to a computer problem; request to re-swipe Profeta's credit

card so he could make the change; and his correction of

Profeta's membership when Profeta gave him the credit card.

Because of the ample evidential support, we defer to the trial

court's determination.

Profeta also contends the trial court erred in assigning

significance to his filing of the complaint before the deadline

he gave NYSC. In Bosland v. Warnock Dodge, Inc., 197 N.J. 543,

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561 (2009), the Court held that the CFA does not require a pre-

suit demand before filing a complaint for refund of an

overcharge. But in Bosland, the unlawful practice at issue was

not the delayed refund, the plaintiff had established an

unlawful practice based on an overcharge that violated a

regulation implementing the CFA. Id. at 557. The question was

whether the plaintiff's failure to demand a refund barred his

recovery in a private action under the CFA. Id. at 552-53. In

this case, Profeta did not establish an essential unlawful

practice.2 Accordingly, the trial court's consideration of

Profeta's disregard of the deadline was immaterial to the denial

of his CFA claim. As such, any error was clearly incapable of

producing an unjust result. R. 2:10-2.

Profeta also argues that "the overall conduct of the trial

court deprived the litigants of a fair trial." Review of the

record has convinced us the point has insufficient merit to

warrant more than brief comment. R. 2:11-3(e)(1)(E). Viewed in

context, the court's direct and stern comments were intended to

maintain decorum in the courtroom, secure a proper presentation

2
On appeal Profeta relies on an unpublished decision of this
court, which was not brought to the trial court's attention
until appended as an exhibit to counsel's certification
accompanying the motion for reconsideration. The trial court
was not bound to follow that decision. See R. 1:36-3.

10 A-1805-15T4
of testimony and promote an efficient presentation of

documentary evidence. The harsh delivery does not reflect bias

or partiality.

Affirmed.

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