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Meyer v. Howard S. Bixenholtz Construction

July 25, 2008

GARY E. MEYER, PLAINTIFF-APPELLANT,
v.
HOWARD S. BIXENHOLTZ CONSTRUCTION, CONSTRUCTION SERVICES INC., BUILDER SERVICES GROUP, STUCCO SERVICES, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Special Civil Part, Camden County, Docket No. DC-13724-06.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted February 25, 2008

Before Judges Stern, A.A. Rodríguez and C.S. Fisher.

Plaintiff appeals from a judgment of the Special Civil Part, entered May 16, 2007, awarding him $500 in damages under the federal Telephone Consumer Protection Act, 47 U.S.C.A. §227 ("TCPA"). He contends that the trial judge applied the wrong standard of damages and wrongly entered judgment against only one of the defendants. We remand for further proceedings.

In his complaint, plaintiff sought $5,000 in damages against named entities and corporate defendants for "unsolicited faxes" or facsimile communications. At the hearing he also sought treble damages. The $500 judgment was entered only against Construction Services and Supply, Inc., whereas plaintiff sought damages of $500 (trebled to $1,500) "for each and every violation of the Telephone Consumer Protection Act," and "punitive damages . . . of at least $15,000" against defendants Howard S. Bixenholtz and Stucco Services, Inc., for sending plaintiff unauthorized faxes after he requested that they not be sent.*fn1

Plaintiff alleges that "[f]axes were sent from siX different companies, all having the same phone number, address and website listed with the exception of one of the faxes." He also asserts that because, with one exception, the offending entities were not in existence, Bixenholtz "cannot hide behind the corporate veil." Plaintiff insists that "the unsolicited faxes transmitted to plaintiff failed to identify in a margin at the top or bottom of each transmitted page or on the first page of the transmission the telephone number of the sender or of such business, other entity, or individual in violation of a section of the TCPA, 47 U.S.C.A. 227(d)(1)(B)," and the implementing regulations. In sum, plaintiff seeks an award of $500 for "each and every violation of the Telephone Consumer Protection Act (TCPA) and treble damages of $1,500" "for each and every violation." He also seeks entry of a judgment with "punitive damages" for "at least $15,000," holding Bixenholtz "jointly and severally liable along with Stucco Services, Inc." Plaintiff testified he "telephoned Mr. Bixenholtz and asked him . . . please do not fax my machine." Plaintiff asserted defendant continued to send "commercial solicitation for stucco, siding, soffit facie [and] gutters" in the name of "approximately five different defendants, fictitious entities."

According to plaintiff, Bixenholtz continued to send the faxes, even after he was served with the complaint, which evidenced "knowing and willful[]" conduct.

Defendant Bixenholtz, a stucco contractor, acknowledged "us[ing] the fax machine to solicit business" from general contractors. He stated he "[took] off the list" people who do not want to receive faxes, and "didn't know that this was illegal in any way." He operated under different names and entities including Stucco Services, Inc., "a current operating company." The faxes in the names of the various entities were dispatched from the same number with the same "header."

After reviewing the statute, the judge acknowledged plaintiff could bring "a private cause of action" in state court. He concluded that because plaintiff could not prove "actual monetary loss," $500 would be the total award for the violation. When plaintiff stated he was entitled to "$500 per fax, it's a separate violation each one, which means it would be a separate suit for each and every fax . . ."," the judge ultimately stated:

All right. The federal statute, which I'm reading for the first time, and I'm very uncomfortable making this decision because I would prefer to read the cases that have been decided under the statute.

But I'm not -- but because I don't want to prolong this, and because, in the future, I hope that you're never gonna send anymore faxes to this individual, because if you do, that then becomes an ...


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