On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3382-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2008
Before Judges Stern and Waugh.
Defendants, husband and wife Sanford Karpo ("Sanford") and Rita Karpo ("Rita"), appeal from an order of October 31, 2007 that enters judgment in favor of plaintiff Scott Goldstein ("Goldstein") against defendants, individually and trading as College Financial Aid Services of Cherry Hill ("CFAS"), in the amount of $19,100 plus pre-judgment interest, totaling $22,690.80, for breach of contract incident to the loss of a student loan from American University ("AU"). Plaintiffs' Goldstein and his mother, Audrey Winograd ("Winograd"), cross-appeal challenges the dismissal of the counts of the complaint for negligence, common law fraud and consumer fraud.
Plaintiffs assert that defendants, who were engaged in assisting with college admission and financial aid applications, were negligent in filing Goldstein's application for financial aid at AU where Goldstein was accepted, that Goldstein lost $16,000 in aid his freshman year and, as a result, he was ineligible for $3,500 in aid for his second year. According to plaintiffs, they proved their claims of breach of contract, negligence, fraud and consumer fraud based on defendants' failure to file on time and to advise of the "deadline" for filing for financial aid at AU, and because defendants sent a false letter to AU asserting that Goldstein's mother was seriously ill with brain cancer.
Defendants argue that the trial judge erred "by allowing the entire deposition testimony of the director of financial [aid] of [AU] to be put into evidence without being able to cross[-]examine the witness," the claims against defendant Rita should have been dismissed "since Defendant Sanford Karpo was the sole-proprietor of his company," plaintiffs "failed to follow the instructions set forth in the Defendant's newsletter," the court improperly failed to dismiss the claims, the court improperly determined "that there was a breach of contract" and the court erred in not considering plaintiffs' failure to mitigate damages. On their cross-appeal, plaintiffs assert that "the trial court erred in dismissing the count for consumer fraud [and] the common law fraud count."
Our careful review of the record convinces us that defendants' contentions warrant only the following discussion and that the record warrants the judge's findings. R. 2:11-3(e)(1)(A), (E); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). However, we remand on the cross-appeal.
Defendants' brief lacks an adequate statement of facts and does not adequately refer to the record in making factual claims such as plaintiffs' alleged failure to follow defendants' oral instructions and newsletter. The evidence includes the following. Plaintiff Winograd retained defendants to assist her son, Goldstein, in preparing and filing applications for college admissions and financial aid. She paid defendants $350 of the $750 retainer. Defendant Sanford told Goldstein not to contact AU without conferring with him. The defendants' literature noted that CFAS will "prepare and file all financial aid forms." AU was Goldstein's first choice, and Sanford told him and his mother "that they would file the form" and that he could not. When Goldstein was accepted into AU, its admissions package indicated that any financial aid application had to have been received by then. Goldstein was advised by the school's financial aid officer that he lost $16,000 to $17,000 in financial aid for which he qualified. AU denied Goldstein's appeal seeking late consideration of his request for financial aid, and because Goldstein did not receive financial aid his freshman year, he could only receive $12,500 in aid his sophomore year.
The deposition testimony of Brian Lee Sang ("Sang"), Director of AU's Financial Aid Office, was read into evidence and included the following:
Q: Did you receive -- and when I say you, I mean American University -- did you receive a financial aid application for Scott Goldstein?
Q: And, do you know when you received that?
A: We received it the 11th of March.
Q: And did Scott receive a grant for his ...