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Monogram Credit Card Bank of Georgia v. Tennesen

January 23, 2007

MONOGRAM CREDIT CARD BANK OF GEORGIA, PLAINTIFF,
v.
ROBERT C. TENNESEN, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
SLEEPY'S INC. AND 1-800 SLEEPY'S, INC., THIRD-PARTY DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-4744-04.

The opinion of the court was delivered by: Messano, J.S.C. (temporarily assigned)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 15, 2006

Before Judges Collester, Sabatino and Messano.

Third-party defendants, Sleepy's, Inc. and 1-800-Sleepy's, Inc. (Sleepy's), appeal the trial court's judgment of $6,000 in damages and $23,102.27 in counsel fees awarded under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (the CFA). Sleepy's contends there was insufficient evidence to demonstrate it withheld warranty information or otherwise committed an "unconscionable commercial practice" under the CFA and that the trial judge abused his discretion in determining the counsel fee award. We have carefully reviewed the record in light of the appropriate legal standards. We affirm.

The scope of our review of a judgment entered in a non-jury trial requires that the findings and conclusions of the trial judge not be disturbed if they are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).

This suit began as a collection matter in which Monogram Credit Card Bank of Georgia (Monogram) sued defendant, Robert Tennesen, to collect the balance due on Tennesen's credit card purchase of a mattress and related items from Sleepy's. Tennesen filed a third-party action against Sleepy's alleging violations of the CFA, common law fraud, breach of the covenant of good faith and fair dealing, breach of express and implied warranties, breach of contract, breach of implied contract, and negligence.*fn1

At trial, Tennesen testified to the following facts. He purchased a new Simmons Beautyrest king size mattress from Sleepy's Wayne, New Jersey store on October 13, 2003 for $1600 along with a Guardian mattress pad for an additional $45.*fn2 The sales invoice, however, incorrectly listed the price of the mattress and failed to include the purchase of the other items. The reverse side of the sales invoice contained a limited "warranty" from Sleepy's, but no copies of any manufacturers' warranties for the mattress or the mattress pad were provided.

Within ninety minutes of leaving the store, Tennesen phoned the Sleepy's store manager to advise him that the invoice was incorrect; the store manager acknowledged the inaccuracies and advised Tennesen that they would be corrected. Although the invoice indicated delivery would occur between 1:00 p.m. and 4:00 p.m. on October 15, the mattress was not delivered within that timeframe and Tennesen called Sleepy's customer service department to ascertain the cause of the delay. He was advised that deliveries were running late, but that the mattress would be delivered sometime later in the date. A second call from Tennesen resulted in a similar assurance.

At approximately 8:00 p.m., the delivery truck arrived at Tennesen's home. The two deliverymen, who did not identify themselves as employees of Sleepy's or some other company and wore no identifying uniforms or logos, had an extremely difficult time negotiating the stairway to the second floor of Tennesen's home. Ultimately, by bending the mattress, they were able to squeeze it under the low ceiling. When they reached the top of the stairway, they asked Tennesen for a drink of water. He obliged and, while he was downstairs getting the water, the deliverymen unwrapped the mattress from its plastic wrapper and laid it upon Tennesen's platform bed.

Tennesen inspected the exposed portions of the mattress, which was quite heavy and not designed to be flipped over or rotated during its normal usage. All appeared in order, so he signed the delivery invoice which indicated "merchandise received in good order/condition." The deliverymen gathered the plastic mattress wrapping to discard it and took it from the home when they left. They provided Tennesen with the mattress pad which was packaged in a clear cellophane wrapper, and Tennesen's wife placed the pad on the mattress disposing of the wrapper. No separate manufacturer's warranty for either the mattress or the mattress pad was left with Tennesen.

In the first week of December, Mrs. Tennesen wanted to place a new bedskirt on the platform bed and asked Tennesen to lift the mattress. With assistance of two helpers, he was able to lift the mattress and discovered two large holes on the bottom of the mattress. After reviewing the warranty provisions on the back of his invoice, which indicated the holes could void its protections, Tennesen called Sleepy's customer service department, explained the problem and was assured that a replacement mattress would be delivered on an agreed date, January 7, 2004.*fn3

On that date, a representative of Sleepy's came to the Tennesen home, inspected the mattress, and saw the two large holes. However, he also detected a small stain the size of an "eraser head" on the top of the mattress and advised Tennesen that he would not replace the mattress because it was stained. Tennesen then called the Guardian warranty plan but received no satisfaction. After being advised that nothing further could be done, Tennesen ...


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