On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Morris County, Docket No.: L-159-03.
The opinion of the court was delivered by: Lihotz, J.T.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued - September 12, 2006
Before Judges Kestin, Graves and Lihotz.
Defendants Liquidation Direct, Inc. (LD) and its owner, Juan "J.J." Correa, appeal from the entry of final judgment awarded to plaintiff, Papergraphics International, Inc., which included a treble damage award pursuant to the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-01 to -109. We affirm the trial court's finding of liability, except, we conclude the court erred in applying the CFA to this sales transaction. Accordingly, we remand for modification of the judgment to reflect a proper award of damages.
After buying excess computer inventory, LD advertised goods for wholesale distribution through its internet website, known as Liquidationdirect.com. These products could be bought through telephone or email orders. Plaintiff sent an email to Correa offering to buy certain Epson printer ink jet cartridges that were "100% original and in perfect condition." Correa's email reply stated, "I have epson [sic] ink cartridges. New factory-sealed[,] any interest[,] please call." Samples of the cartridges were provided to plaintiff for examination.
Plaintiff purchased 5,000 cartridges at a cost of $40,450. Upon delivery, LD's representative observed plaintiff's employee review the goods by counting the pieces and examining the cartridges' packaging. The shipment was accepted and plaintiff issued payment. Thereafter, a second order for 4,714 cartridges was placed, for which plaintiff paid $38,952.
Plaintiff later learned the cartridges were not authentic. Plaintiff advised LD of its refusal to keep the counterfeit goods and its desire for a refund of the purchase price paid for both shipments. LD declined. Plaintiff sued, alleging breach of contract, breach of UCC warranties, unjust enrichment, fraud, conversion, and consumer fraud.
At the close of discovery, plaintiff's expert, Howard Seitz, who served as a Counterfeit Investigator for Epson America, Inc., submitted a certification describing his inspection of the cartridges. In his opinion, the cartridges were counterfeit because the Epson trademark hologram was incorrect and all the cartridges bore the same date code and place of origin.
Following cross-motions for summary judgment, the motion judge, relying on Seitz's unrefuted certification, determined the cartridges were counterfeit and granted plaintiff's motion for partial summary judgment. Thereafter, the balance of the complaint was voluntarily dismissed. Final judgment was entered for plaintiff in the amount of $278,505.16, which included the total sales' cost paid of $79,402, trebled under the CFA, along with an award of attorney's fees and costs of $40,299.16.
Our review of the record and all arguments presented satisfies us that the motion judge properly granted summary judgment on causes other than the CFA action and judgment on those causes shall not be disturbed on appeal, as we find no denial of justice. Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied, 144 N.J. 174 (1996) (quoting Goodyear Tire and Rubber Co. v. Kin Props., Inc., 276 N.J. Super. 96, 106 (App. Div.), certif. denied, 139 N.J. 290 (1994)). Plaintiff's expert opined the goods were counterfeit, while defendants failed to establish any contrary contention. Thus, "the evidence '[was] so one-sided that one party must prevail as a matter of law.'" Housel v. Theodoridis, 314 N.J. Super. 597, 603-04 (App. Div. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202, 213 (1986)). We determine the legal issues raised by defendants' appeal, other than the application of the CFA, are without merit, R. 2:11-3(e)(1)(E), and, accordingly, we uphold the motion judge's grant of summary judgment to plaintiff on liability and the award of damages totaling $79,402.
We next address plaintiff's standing to assert a CFA claim. Defendants argue CFA remedies are not available, as a matter of law, asserting the commercial transaction between the parties was not a covered "consumer" transaction, because plaintiff did not purchase the product for use in its operation. See Coastal Group v. Dryvit Sys. Inc., 274 N.J. Super. 171, 179 (App. Div. 1994); Hundred East Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 355-57 (App. Div.), certif. denied, 107 N.J. 60 (1986). Plaintiff counters, arguing the goods sold ...