July 20, 2007
BRYAN COOK AND FLORENCE COOK, PLAINTIFFS-APPELLANTS,
KEITH MCPHERSON, DEFENDANT-RESPONDENT, AND MARK KENDRA, DEERFIELD PLUMBING, MICHAEL HAMMER, RICH ENDERLEY, AND NEIL ALEXANDER, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-186-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 29, 2006
Before Judges A. A. Rodríguez, Collester and Sabatino.
A jury awarded plaintiffs Bryan and Florence Cook $180,000 in contractual damages arising out of their purchase of a home from a builder, defendant Keith McPherson. Plaintiffs appeal the award as insufficient, contending that the jury was improperly charged on the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 ("the CFA"). They also allege other trial errors. We affirm.
The seven-day trial concerned the sale of a private residence in Peapack-Gladstone. Here are the pertinent facts that emerged.
In October 2000, plaintiff Bryan Cook was transferred from Denver, Colorado to New Jersey in connection with his employment. His wife, plaintiff Florence Cook, remained in Denver with their two children, occasionally coming to New Jersey for house-hunting purposes. In searching for a home, plaintiffs utilized the services of Maureen Soderberg, an agent with the Coldwell Banker real estate firm. American Standard had referred Coldwell Banker to plaintiffs.
Plaintiffs were interested in finding a home in New Jersey somewhat larger then their existing home in Colorado, which was 4,000 square feet. With Soderberg's assistance, plaintiffs began looking at homes in the 5,500 to 5,600 square foot range.
Soderberg showed plaintiffs homes in Bedminster, Bernardsville, Far Hills, Chester, and Peapack-Gladstone, which were areas they suggested as places they would like to live. They hoped to find a home in the price range of $1.2 million to $1.3 million dollars.
One of the homes Soderberg showed to plaintiffs was a new home in Peapack-Gladstone built and owned by defendant. The house had been multiply listed so that numerous realtors, including Coldwell Banker, had access to the listing through the Multiple Listing Service ("MLS"). Weichert Realtors, representing the seller, McPherson, had listed the house on the MLS.
By the time plaintiffs viewed defendant's house, it had been on the market since January 2000. When plaintiffs first viewed the house, it was still under construction. Plaintiffs did not see the house fully constructed prior to closing. Nor did they see the architectural plans.
As is typical, the MLS listing for the house described its features, size and amenities. The listing stated that the house consisted of eleven rooms, and totaled 5,600 square feet. Across the bottom of the print-out of the listing the following item was printed: "(c)Copyright, Garden State Maureen SoderbergColdwell Banker." Soderberg testified that her name had been printed on the bottom of this MLS listing because she was the one who had gained access to it. Soderberg further stated her understanding that the only person who can alter a listing is the listing realtor. In this case, that would have been Weichert Realtors and its individual agent, Theodore Starycki.
At trial, plaintiffs' counsel introduced defendant's deposition testimony, in which he testified that he had provided to his realtor all information contained in the MLS listing. At his deposition, defendant also testified that he believed that 5,600 square feet was an accurate measurement. He also stated that, to his knowledge, the MLS listing had never been modified.
The MLS listing provided to plaintiffs became part of the sale contract between defendant and plaintiffs. The proposed contract was presented by plaintiffs, the buyers. Item D under the "Miscellaneous" section of the contract recites that various specific items were included in the sale "[a]s per listing agreement MLS [#]1220206 12/05/2000 attached." (emphasis added). Below these references was a handwritten entry about a backsplash allowance, followed by the parties' initials.
Both parties acknowledged that before executing the sale contract, they and their real estate agents reviewed its terms. Defendant conveyed to plaintiffs that he would agree to the terms of the proposed contract, as written, if the purchase price were increased from the sum plaintiffs had offered to $1,250,000. Plaintiffs agreed to that figure, and the price change was subsequently initialed by both parties.
On February 8, 2001, plaintiffs and defendant closed on the sale. After the closing, plaintiffs began having problems with the house. According to Soderberg's testimony, plaintiffs reported to her that they were having trouble getting defendant to come back and finishing work still uncompleted. Soderberg attempted to resolve the problem by contacting defendant and asking him to finish the work.
In December 2002, Florence Cook obtained the architectural plans for the residence from the Township of Peapack. Upon reviewing the architectural plans, plaintiffs learned that, contrary to the MLS listing, the house as designed actually contained only 4,782 square feet of living space. The entire building area was compromised of only 5,023 square feet. This prompted Florence Cook to measure the square footage of the home herself. She calculated a total of 4,788 square feet of living area. All of these figures fell short of the 5,600 square feet represented in the MLS listing.
At trial, defendant testified that he had no idea how the 5,600 square foot estimate specifically came to be included in the MLS listing. Defendant testified that the original MLS listing offered the house in January 2000 for $1.3 million but had stated no square footage. In August 2000, the MLS listing was revised to raise the offering price to $1.325 million dollars, but still lacked a square footage estimate. The final MLS listing for the house, when it was shown to plaintiffs, stated the price as $1.325 million and included the aforementioned 5,600 square foot estimate.
Defendant testified that he had not known the MLS listing accessed by Soderberg was different than the earlier multiple listings that he had seen. On cross-examination, defendant did admit to initialing the sale contract under Item D, which referenced the MLS listing. Defendant contended that he did not learn that the MLS had contained the 5,600 square feet estimate until his deposition.
After discovering the square-footage disparity and being dissatisfied with other aspects of their new home, plaintiffs filed a civil action in the Law Division in February 2003. The complaint initially named, as the sole defendant, Keith McPherson. Soon thereafter, plaintiffs amended the complaint to include numerous additional defendants, including Washington Architectural Group, P.A. (which had designed the home); Mark Kendra (a mason subcontractor); Deerfield Plumbing (a plumbing subcontractor); Michael Hammer (a utility subcontractor); Rich Enderley*fn1 (a painting subcontractor); and Neil Alexander (an HVAC subcontractor). The amended complaint alleged that those co-defendants had also breached their obligations concerning the home. Eventually, however, plaintiffs voluntarily dismissed the additional defendants.
With respect to McPherson, the amended complaint alleged that he had "willfully and knowingly" failed to complete repairs on the home, had "intentionally misrepresented the commencement date of the homeowner warranty," committed "negligence" and "intentional contract breach," and "committed acts of [c]onsumer [f]raud," causing plaintiffs harm. The amended complaint did not specifically mention the square-footage disparity, but that issue was treated in the litigation as subsumed within the plaintiffs' allegations. Plaintiffs sought compensatory damages, as well as treble damages under the CFA, attorneys fees, interest, and costs.
After the case had been called for trial, plaintiffs moved, among other things, to amend the complaint to join Weichert Realty as an additional defendant, or in the alternative, to order that any potential claims against Weichert Realty would be preserved and not barred by the entire controversy doctrine.
The motion to amend was precipitated by defendant's post-discovery attempt to contend that Weichert Realty, and its individual agent, Starycki, were responsible for causing the misrepresentation concerning the 5,600 square feet estimate. Defendant had not impleaded Weichert Realty or Starycki as third-party defendants. Given the circumstances, the judge denied the motion to amend but did rule that the entire controversy doctrine would not bar a future action against Weichert Realty or its employees.
During the trial, plaintiffs both testified. They also presented testimony from their real estate agent, Soderberg, as well as a structural engineer and an HVAC consultant as expert witnesses. Defendant testified on his own behalf. He presented no experts or other witnesses.
On the second day of deliberations, the jury returned a verdict. In the verdict, the jury unanimously found that defendant had "breached [his] contract of sale [with plaintiffs] by selling them a house with defective construction or unfinished work or features." It awarded $116,000 in damages for those breaches. By a 7-1 vote, the jury also found that defendant "breached [the] contract of sale by selling [plaintiffs] a smaller house than the square footage stated by the contract." For that separate breach, the jury awarded $64,000 in additional damages. As to plaintiffs' claims under the CFA, the jury unanimously found that plaintiff had failed to prove that defendant "violated the [CFA] by misrepresenting the square footage of the house."
The trial judge molded the verdict in a final judgment entered on May 16, 2005. The judgment awarded plaintiffs the total sum of $180,000 on their breach-of-contract claims, plus prejudgment interest of $16,359, pursuant to R. 4:42-11.
Plaintiffs subsequently moved for judgment notwithstanding the verdict. The motion sought to vacate the jury's finding that defendant had not violated the CFA. The motion also sought to amend the judgment to include "McPherson Construction, LLC" as an additional judgment debtor, based upon information that plaintiffs had obtained after the verdict revealing that defendant had incorporated the LLC in December 2003. The trial judge denied the motion on July 8, 2005.
Plaintiffs' appeal ensued. Defendant does not cross-appeal. On appeal, plaintiffs contend (1) the trial judge erred in failing to charge that defendant McPherson would be liable under the CFA for misrepresentations by his agents, including Weichert Realty; (2) plaintiffs were entitled to an adverse inference against defendant because he did not call any Weichert representatives as witnesses; and (3) plaintiffs were entitled to a new trial after advising the court of their post-verdict discovery of alleged perjury by defendant. We have duly considered these arguments, and conclude, for the reasons we shall explain, that the judgment should not be disturbed.
As their primary contention on appeal, plaintiffs argue that the trial judge erred in failing to charge the jury that the listing realtor, Weichert Realty, and its employees, could be regarded as agents of defendant for purposes of the CFA. Plaintiffs had included such an instruction in the proposed jury instructions they supplied before the charge conference. In particular, their proposed charge suggested that the jury be informed that
[t]he term "person" includes not only a human being or his/her legal representative, but also a partnership, corporation, company, trust, business entity, association as well as his/her agent, employee, salesperson, partner, officer, director, member, stockholder, associate, trustee or beneficiary of a trust.
This proposed instruction was consistent with the model charges. See Model Jury Charge (Civil), § 4.23 (2001).
As a professional realtor, Weichert Realty is subject to the strictures of the CFA for fraudulent conduct in connection with the sale of a residence. See Gennari v. Weichert Co. Realtors, 288 N.J. Super. 504 (App. Div. 1996), aff'd and modified by 148 N.J. 582 (1997). Byrne v. Weichert Realtors, 290 N.J. Super. 126, 134-35 (App. Div.), certif. denied, 147 N.J. 259 (1996). The pertinent question implicated by plaintiffs' appeal is whether the judge should have charged that Weichert Realty's client, McPherson, could be liable to plaintiffs under the CFA if the jury found that Weichert Realty had been the source of the mistaken 5,600 square foot estimate in the MLS listing. This question implicates statutory and common-law agency principles.
Under the CFA, "[t]he term 'person' . . . shall include any natural person or his legal representative, partnership, corporation, company, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestuis que trustent thereof[.]" N.J.S.A. 56:8-1(d) (emphasis added). Moreover, under general notions of agency, "a principal may be held, in an action of deceit, for damages resulting from his agent's fraudulent representation, where the principal has put the agent in such a position that a person of ordinary prudence, conversant with business uses, would be justified in presuming that the agent has the authority to make the representation." Gardner v. Rosecliff Realty Co., 41 N.J. Super. 1, 9 (App. Div. 1956). See also Restatement (Second) of Agency § 258 (1958).
Applying these agency principles in Gennari v. Weichert, supra, we concluded that the builder of a home could be liable in contribution to a real estate broker that had made false representations to a purchaser in violation of the CFA, in circumstances where the builder had been complicit with the realtor in the misrepresentations. Id., 288 N.J. Super. at 543-44. In that scenario, because "the concurrence of the misrepresentations of both the broker and the builder . . . caused [the] plaintiffs to enter into contracts with [the builder's] company," we held that the builder and his company were "jointly liable" with the realtor. Id. at 543.
We thus concur with plaintiffs that McPherson theoretically could be liable to them under the CFA for misrepresentations allegedly made by Weichert, as McPherson's agent, on the MLS listing. Even so, we will not set aside the verdict on this basis because of the procedural manner in which this charge issue unfolded.
After various other aspects of the charge were addressed, the following colloquy took place:
[PLAINTIFFS' COUNSEL]: And then on the definitions of the Consumer Fraud Act claims as again we put in our proposed jury charges, within the Consumer Fraud Act there is the definition of the term "person."
THE COURT: Not needed.
[PLAINTIFFS' COUNSEL]: Pardon me?
THE COURT: Mr. McPherson is definitely a person.
[PLAINTIFFS' COUNSEL]: No, no. But it includes not only a human being or his legal representative, the point being it includes him and his representatives.
THE COURT: What? Oh, I don't think so. We're talking about it includes him and subcontractors and agents?
[PLAINTIFFS' COUNSEL]: Oh, absolutely.
THE COURT: That is not within the definition. That's got to be a matter of law that you present some law to me on; that if a subcontractor does something, then it's attributed to the general contractor, and you want me to give that kind of instruction. But that is not - that doesn't come directly out of the definition of person. A person is defined more broadly so that there is no mistake on the part of the jury that when the statute says "person" it means a live human being. The statute also means a business entity. That's also a person. But that is not an issue in this case because Mr. McPherson is not operating as a separate business entity.
[PLAINTIFFS' COUNSEL]: But he is acting through his subcontractors and his real estate agent, and I can get you law on that, under the Consumer Fraud Act.
THE COURT: What I am saying, that is a different legal issue and you are going to have to give me law and a specific instruction.
[PLAINTIFFS' COUNSEL]: Okay.
THE COURT: But it's not - I think it's totally unnecessary to put definition of person into the jury charge when the person that's a defendant is an individual human being. But you give me some law you and you want some charge on that, I'll certainly look at it.
[PLAINTIFFS' COUNSEL]: Yeah, we do have that, and I believe that was in connection with our motion on Weichert which was pretrial. But I'll get you those cases.
[PLAINTIFFS' COUNSEL]: Those are my preliminary [thoughts]. I am looking for your motion in limine because I know we dealt with the agent issue under the Consumer Fraud Act. So let me - I'll look for that.
THE COURT: Tell me about that tomorrow. But that's something you want, some kind of language about - about Mr. McPherson being responsible for his agents and the representations that they make?
[PLAINTIFFS' COUNSEL]: Right. That would go to both aspects of the Consumer Fraud [c]laim.
THE COURT: All right. Find that law. Make sure [defense counsel] has it so we can talk about it and talk about it tomorrow.
THE COURT: And, secondly, for Consumer Fraud violation, I think ultimately it's joint and several liability. In other words, even if Weichert is also responsible, if the jury concludes that Mr. McPherson is responsible for Consumer Fraud, then he's responsible for the whole thing. I may be wrong about that, but I think that's the way it works, especially when Weichert is not a party in the case. But if I'm wrong about that, you let me know tomorrow. [Emphasis added.]
On the next day, counsel and the court again conferred and discussed various aspects of the jury charge. During the course of that second conference, the judge asked counsel if "the format and the general contents of the jury instruction that we discussed yesterday [are] satisfactory." Plaintiffs' counsel responded, without qualification, "[i]t's fine." Counsel did not present any case law or other legal authority on the agency issue. The agency matter simply was dropped.
Concerning McPherson, the judge instructed the jury, in pertinent part:
Part of a statute or written law we have in the State of New Jersey called the Consumer Fraud Act says, 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 lands or real estate, whether or not any person has, in fact, been mislead, deceived or damaged thereby, is declared to be an unlawful practice.
Another part of the Consumer Fraud Act says that any person who suffers any ascertainable loss of monies or property as a result of the use or employment by another person of any fraud check, act or practice declared unlawful under this Act may bring a lawsuit.
So, a plaintiff who brings a claim under the Consumer Fraud Act must prove a violation of the Act in one of the ways described, and also an ascertainable loss caused by that violation of the Act.
The statute that I quoted provides two possible bases for responsibility under the Consumer Fraud Act that are relevant to this case. It declares two general categories of conduct as unlawful. The first relates to that part of the Act stating that any unconscionable commercial practice, deception, fraud, false pretense, false promise or misrepresentation is an unlawful practice. This category of conduct is referred to as an affirmative act.
The Cooks in this case claim that Keith McPherson committed an affirmative act of Consumer Fraud when he caused the Multiple Listing sheet to misrepresent affirmatively the square footage of the house.
With respect to the alleged affirmative act of misrepresenting the square footage, it is not necessary for plaintiffs to show that the defendant intended that his conduct should deceive. What is important is that the affirmative act must have had the potential to mislead or deceive when it was performed. The capacity to mislead is the prime ingredient of the affirmative Consumer Fraud alleged with respect to the square footage of the house. Intent is not an essential element. Consumer Fraud consisting of affirmative acts does not require a showing of intent to mislead.
In accordance with the definitions that I have just given you, you must decide whether plaintiffs have proven that defendant McPherson misrepresented the square footage of the house in the contract documents. If plaintiffs have proven an affirmative misrepresentation as to square footage, then you are next going to have to decide whether that misrepresentation brought about or in legal terminology proximately caused an ascertainable loss to plaintiffs, and, if so, how much was the loss.
Although it would have been preferable for the trial judge to also have charged the jury on agency principles and the broad definition of a "person" under the CFA, we do not perceive that his failure to do so, after counsel did not press the issue before the charge was finalized, amounted to plain error. See R. 1:7-2 and R. 2:10-2.
Plaintiffs had a variety of theories and claims before the jury, the CFA claim being just one of them. The possibility that Weichert Realtors or one of its employees, rather than McPherson or some other individual, was responsible for the 5,600 figure in the MLS listing seen by plaintiffs before the sale was simply that: a possibility. There was no direct proof from anyone as to how the 5,600 figure had been calculated or injected. If the agency-based charge had been given, the jury nevertheless easily could have found the circumstantial theory against Weichert Realty, and indirectly against McPherson, to be unconvincing.*fn2
We are very mindful that flawed jury instructions are often regarded as matters of reversible error. See, e.g., Das v. Thani, 171 N.J. 518, 527 (2002). However, we have nonetheless at times treated such charging errors in civil cases as falling short of the manifest injustice warranting a retrial, particularly where the remainder of the charge is otherwise proper. Mogull v. CB Commercial Real Estate Group Inc., 162 N.J. 449, 468-71 (2000); Fischer v. Canario, 143 N.J. 235, 254 (1996).
Here, the seventeen percent disparity between the 5,600 square feet contained in the MLS listing for the house and the 4,782 of square footage shown on the architectural plans is substantial, but not unconscionable. The jury found McPherson personally responsible for that discrepancy in its special verdict answer determining that he had breached the contract because of that misrepresentation. In finding such a breach on the part of McPherson, the jury seemingly concluded that he, not anyone else, had caused the 5,600 figure to be injected into the sales materials. Or, on the other hand, the verdict logically can be interpreted as the jury holding defendant contractually accountable for any conduct by his realtor that may have generated the 5,600 estimate. Either way, we discern no necessity for a retrial, in these particular circumstances. The jury awarded plaintiffs $64,000 in compensation for the error, an amount that also does not signal any manifest injustice, notwithstanding plaintiffs' failure to also collect treble damages and attorneys fees under the CFA.
In sum, while we recognize the incomplete nature of the jury instruction under the CFA, we do not regard its omission of an agency charge as plain error. There being no manifest injustice, see Bradford v. Kupper Assoc., 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996), the motion for new trial on this point was justifiably denied and the appeal on this issue is unavailing.
The next contention of plaintiffs is that the judge committed reversible error in failing to give the jury an adverse inference charge against defendant because he did not call to the witness stand any representatives of Weichert Realty. Plaintiffs likewise claim it was reversible error to preclude their counsel from arguing such an adverse inference in summation. We disagree.
"Generally, failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." State v. Clawans, 38 N.J. 162, 170 (1962). In order for such inference to be drawn, however, "it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved." Id. at 171. See also Nisivoccia v. Ademhill Assocs., 286 N.J. Super. 419 (1996) (applying the adverse inference principles of Clawans in a civil context).
Plaintiffs contend that such an adverse inference is warranted here because defendant, in effect, blamed Weichert Realty for the discrepancy in square footage appearing on the MLS listing. While that is true, we are unpersuaded that Weichert's employees would have presented testimony "superior to that already utilized in respect to the fact to be proved." Clawans, supra, 38 N.J. at 171. In discovery Weichert Realty did not provide an explanation as to how the 5,600 specifically was calculated or made its way into the MLS listing. The source of that estimate and the manner in which it was included in the MLS listing is, to this day, unknown. Moreover, defendant had no better access to Weichert Realty's potential witnesses, through a subpoena, than did plaintiffs. The realtor's personnel were not in defendant's control; indeed, there was patent adversity between defendant and Weichert Realty and potential mutual exposure for contribution or indemnity, particularly if plaintiffs brought their reserved claim against Weichert Realty in a subsequent action.
In addition to these substantive problems, there were also procedural difficulties in the manner in which the adverse inference issue arose. Plaintiffs' counsel only made a fleeting mention of a potential adverse inference during the charge conference, and did not specifically ask the judge for a ruling on the issue. Further, plaintiffs' counsel did not advise defense counsel of her desire to raise an adverse inference in her own closing until after defense counsel had already summed up. This is the reverse of the procedure in Nisivoccia, in which we observed:
[w]hereas a defendant in a civil suit could be disadvantaged by a plaintiff's summation comment unless defense counsel anticipates and addresses the issue first, the reverse is much less likely to be the case. [This court was] therefore, persuaded that the remarks by [the] defendants' attorney during summation did not prejudice the jury against plaintiffs due to any absence of an authorized Clawans charge or pre-approved summation comment. [Nisivoccia, supra, 286 N.J. Super. at 430-31 (emphasis added).]
The comments to the model civil jury charges underscore the necessity for proper notice. The comments instruct:
[a] party desiring an adverse inference charge should advise the trial judge and counsel out of the jury's presence at the close of his adversary's case of his intention to request the adverse inference charge as to particular persons not called and the reasons why the charge should be given. The adversary should then be given the opportunity to either call the designated witness or demonstrate to the court "by argument or proof the reasons for the failure to call." [Comment to Model Jury Charge (Civil), § 1.18 (1970).]
Although plaintiffs' counsel did allude to a potential adverse inference prior to her closing, she could have provided opposing counsel, under the circumstances, with better notice of her precise intentions in advance.
On the whole, we discern no substantive error or misapplication of discretion by the trial judge in his rulings on the adverse inference issue.
Plaintiffs also contend that the trial judge should have granted a new trial because they learned after the verdict through a title search that defendant Keith McPherson had formed a corporation in December 2003, approximately a year and a half before his trial testimony. At trial, defendant had testified that he was doing business as a sole proprietor and had not incorporated. The post-verdict information suggests that defendant was either lying at trial or had a gross failure of recollection.
When these matters were brought to the trial judge's attention, he sensibly conducted a hearing on the matter. Following that hearing, the judge ultimately concluded that, although defendant's apparent lack of candor on this subject is disturbing, the information is not sufficiently material to the central issues in this case to warrant a new trial on the consumer fraud action. The reason for that is that ultimately this information about the corporate status and the other property that was transferred to it had nothing directly to do with the transaction between McPherson and the Cooks. It involved a different property and it occurred some two to three years after the time that the home, the house was built and sold to the Cooks. So when Mr. McPherson testified that he operated as a sole proprietor, in affect that he had built and done business in his own name, that testimony was not false as to the transaction with the Cooks; it was not accurate as to the subsequent transactions that he may have engaged in but it was not false as to the essential transaction in this case.
So while it certainly would have been useful, and if I were in [defense counsel's] position I would certainly like to have that ammunition to argue to the jury that Mr. McPherson is not credible and could not be believed with respect to his testimony as to the crux of this case, which is whether or not he had anything to do with the misrepresentation or the inaccurate information about square footage and anything to do with the concealment of the holes in the foundation walls, I would as an attorney certainly like to have the information that came to be known after the trial.
But ultimately I cannot conclude based on the information that has been submitted and my presiding over this trial that the information would have changed the jury's verdict on the consumer fraud count. In the end the primary defense of Mr. McPherson as to the consumer fraud allegations was that he did not misrepresent the square footage, and he had no knowledge of the purpose of the mystery holes in the foundation walls. It was plaintiffs' burden to prove that he did have knowledge of those items, and that he did affirmatively make a misrepresentation with respect to the square footage, and that he did with knowledge conceal the holes in the foundation walls. This evidence, although it may have been useful to the plaintiffs, I conclude is not sufficient . . . for me to conclude now that there was an injustice done with respect to the jury's verdict because it was likely to make a difference in the outcome or it had some strong probability of making a difference in the outcome of the jury's verdict because it is a collateral matter and it ultimately goes to impeachment of the party witness rather than a material issue central to the decision in this case, it is not sufficient for a new trial on the consumer fraud counts. And for that reason the motion is denied. [Emphasis added.]
We concur with the judge's observation that this was a collateral issue, and defer to his considered assessment that the additional proof does not rise to a level of materiality to justify a new trial. See Shammas v. Shammas, 9 N.J. 321, 330 (1952) (allegedly perjured testimony does not warrant a new trial unless it is "shown by clear, convincing and satisfactory evidence to have been, not false merely, but . . . to have been material to the issue tried and not merely cumulative but probably to have controlled the result"); see also Balip Automotive Repairs, Inc., v. Schroeder, 8 N.J. Super. 238 (App. Div. 1950), aff'd, 7 N.J. 152 (1951). We sustain this ruling as well.*fn3