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Pomerantz Paper Corp. v. New Community Corp.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 1, 2010

POMERANTZ PAPER CORP., PLAINTIFF-APPELLANT,
v.
NEW COMMUNITY CORPORATION, NEW COMMUNITY HOMES ASSOCIATION, LTD., NEW COMMUNITY SENIOR CITIZEN HOUSING CORP., NEW COMMUNITY HOUSING DEVELOPMENT, INC., NEW COMMUNITY ROSEVILLE CORP., NEW COMMUNITY MANOR HOUSING CORP., NEW COMMUNITY COMMONS HOUSING CORP., NEW COMMUNITY HARMONY HOUSE CORP., AND NEW COMMUNITY WORKFORCE DEVELOPMENT CENTER, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-3221-07.

The opinion of the court was delivered by: R. B. Coleman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 4, 2009

Before Judges R. B. Coleman, Sabatino and Simonelli.

Following a lengthy non-jury trial in the Law Division, the court issued a written opinion dated November 2, 2007, in which it found that plaintiff Pomerantz Paper Corp., a supplier of paper goods and janitorial and maintenance supplies, had failed to prove delivery of most of the invoiced goods that are the subject of its claim of breach of contract against defendant New Community Corp. As a consequence, the court awarded damages in an amount ($10,500) substantially less than plaintiff had sought (approximately $700,000). The court also ruled in favor of defendant New Community, a nonprofit corporation that manages residential properties for low-income tenants throughout the state, on its counterclaim brought under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. On the counterclaim, the trial court awarded damages trebled to $214,711.20, plus attorneys' fees.

Thereafter, defendant applied to fix the amount of the counsel fees and both parties moved for reconsideration of the dispositions of their respective claims. As a result of the motions for reconsideration, the court issued another written opinion, dated February 6, 2008, in which it (a) awarded defendant $86,015.21 in counsel fees; (b) reiterated the conclusion that plaintiff had "failed to meet [its] burden of proof for a substantial portion of [its] claim of damages in this case"; and (c) recalculated the ascertainable loss under defendant's CFA counterclaim to be $72,180.60, which was trebled to $216,541.80.

Plaintiff has appealed and argues principally that the court understated the amount of contractual damages owed by defendant and erroneously determined that plaintiff violated the CFA by overcharging defendant for the items it did deliver. Plaintiff also argues that the trial court improperly exercised its discretion by failing to bar testimony from defendant's expert witness due to the untimeliness of his report or by denying plaintiff the opportunity to present its own expert in rebuttal. Substantially, plaintiff charges that the trial court erred in allowing defendant's expert to offer unsupported net opinions related to the pricing of goods plaintiff sold to defendant.

Having duly considered these arguments, we reverse that portion of the court's amended order awarding only $10,500 on plaintiff's contract claim. We affirm that portion of the amended order that awarded $302,557.01 on defendant's counterclaim under the CFA, and we affirm the trial court's exercise of discretion on the evidentiary issues raised.

I.

As stated above, plaintiff is a supplier of paper goods, janitorial products and maintenance supplies to corporations. Defendant is a federally-funded, non-profit corporation which manages residential properties for low-income tenants. In 1991, the parties began their relationship, which operated according to a routine described by the trial court as follows:

Over the past fifteen (15) years, the parties had a business relationship during which [defendant] New Community purchased items from [plaintiff] Pomerantz based upon the representation of the Vice President of Pomerantz that New Community would be supplied goods at a reasonable price consistent with industry standards. Pursuant to this business relationship, New Community would send a purchase order to Pomerantz, and in return, Pomerantz would create a delivery slip for the goods requested in the purchase order and send that delivery slip with the shipment to New Community through Pomerantz's delivery truck driver. Upon delivery of the goods, Pomerantz's driver would obtain the signature of an employee of New Community on the delivery slip, and after Pomerantz's driver had left, New Community would unpack the shipment. Often times, Pomerantz would deliver its shipments on pallets and shrink-wrapped in plastic to New Community's Environmental Services Department parking lot. Pomerantz's driver would return a copy of the signed delivery slip to Pomerantz, and Pomerantz would then generate an invoice, dated with the same date shown on the delivery slip, for the goods that had been delivered to New Community. Pomerantz would then send the invoice to New Community, and once New Community's Environmental Services Department had confirmed delivery of the goods, the invoice would be sent to New Community's Billing department for payment.

It was the custom and practice of New Community that purchase orders would be sent to Pomerantz without New Community knowing the prices to be charged by Pomerantz for goods listed in the purchase order, and as a result, New Community would not become aware of the actual prices charged until it received a corresponding invoice from Pomerantz. New Community contends that, on or about the year 2000, New Community first began to question the prices being charged by Pomerantz.

It was the custom and practice of Pomerantz that when the items were shipped, the employees of Pomerantz would place a check mark on the delivery slip next to each of the items as the goods were placed onto Pomerantz's delivery truck. Similarly, on the same delivery slip delivered to New Community by Pomerantz's driver, New Community would either place a check mark next to each of the items as the goods were unpacked by New Community or place a line through the check mark that Pomerantz had previously placed on the delivery slip.

The trial court determined that, as a result of this routine or custom and practice of the parties, slips for delivered goods should have at least two marks or a checkmark to confirm that the goods were loaded onto plaintiff's truck and subsequently delivered to defendant. Hence, the court accepted defendant's contention that delivery slips for the invoices in dispute which did not have a checkmark by Pomerantz showing that the goods were in fact loaded onto its truck for delivery to New Community established that the goods had not been delivered. The court reasoned:

Because the placing of a check mark onto the delivery slip by Pomerantz was the custom and practice of Pomerantz and because Pomerantz provided no other credible proof that the goods in question were delivered to New Community, this court finds that Pomerantz can only be deemed to have made a proper delivery, and New Community responsible to pay, where the delivery slip for the goods appearing on the corresponding invoice(s) shows a check mark made by Pomerantz.

On appeal, plaintiff argues that the trial court erred in thus finding that most of the materials for which plaintiff sought payment had not been delivered, and that the court thereby miscalculated the amount due to plaintiff. We agree.

At the outset, we acknowledge that the scope of appellate review in a non-jury proceeding is limited. In Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974), the Court stated:

Considering first the scope of our appellate review of judgment entered in a non-jury case, as here, we note that our courts have held that the findings on which it is based should not be disturbed unless "... they are so wholly insupportable as to result in a denial of justice," and that the appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter. That the finding reviewed is based on factual determinations in which matters of crediblity are involved is not without significance. Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence. [(Citations omitted).]

On the other hand, an appellate court is not obligated to defer to the legal analysis of a trial court sitting without a jury. Marino v. Marino, 200 N.J. 315, 334 (2009); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan, supra, 140 N.J. at 378.

Here, the trial court found that ninety percent of plaintiff's outstanding invoices had no checkmark on the corresponding delivery slip, and the court, therefore, concluded the goods identified in the invoices had not been delivered. Based on testimony presented by Leah Dade, defendant's executive director of real estate operations, that invoices in the amount of approximately $15,000 were not paid to plaintiff even though the materials had been delivered, the court accepted that testimony as an admission by defendant. The court further found, however, based on testimony from defendant's expert, that plaintiff had overcharged defendant on such invoices by almost thirty percent. Therefore, the court reduced the amount due on those acknowledged invoices from $15,000 to $10,500.

Although that was an imprecise method of determining damages, we recognize that "[d]amages need not be proved with precision where that is impractical or impossible[.]" Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 110 (2007) (quoting Mosley v. Femina Fashions, Inc., 356 N.J. Super. 118, 128 (App. Div. 2002)). Considerable speculation is permitted by the trier of fact as to damages, V.A.L. Flores v. Westminster, 355 N.J. Super. 416, 424 (App. Div. 2002), and "[i]f the evidence affords a basis for estimating the damages with some reasonable degree of certainty it is sufficient." Desai v. Bd. of Adj. of Phillipsburg, 360 N.J. Super. 586, 595 (App. Div.), certif. denied, 177 N.J. 492 (2003).

Nevertheless, we reject that award of contract damages to plaintiff, as a matter of law, because the trial court's determination that most of the goods were not delivered does not take into account the requirement of the Uniform Commercial Code (UCC) that a buyer must pay for goods accepted without objection. As the trial court's recitation of the facts discloses, defendant never objected to the non-delivery of goods. Accordingly, we are constrained to remand for a recalculation of how much defendant owes plaintiff for the invoiced goods.

The issue is governed by the relevant sections of UCC concerning sales. N.J.S.A. 12A:2-101 to -710. Those sections apply to transactions that involve the sale of more than $500 worth of goods. N.J.S.A. 12A:2-101. Under N.J.S.A. 12A:2-301, the buyer of goods is obligated to accept and pay for the merchandise. The buyer has a right to inspect the goods, N.J.S.A. 12A:2-513, and is also permitted to reject goods within a reasonable time after delivery upon notice to the seller, N.J.S.A. 12A:2-602. Acceptance occurs, however, when the buyer fails to make an effective rejection after having had a reasonable time to inspect. N.J.S.A. 12A:2-606. Notification is accomplished when one person takes such steps as may be reasonably required to inform the other in the ordinary course of business, whether or not the other actually comes to know of it. N.J.S.A. 12A:1-201(26).

Significantly, the burden is on the buyer to establish any breach with respect to the goods accepted. N.J.S.A. 12A:2-607. The seller may bring an action against the buyer for any nonpayment of goods. See N.J.S.A. 12A:2-709. There is a duty of good faith upon both parties. N.J.S.A. 12A:1-206.

In this case, numerous invoices were presented at trial, as was conflicting evidence as to whether the invoiced goods had been delivered. The evidence adduced at trial by both plaintiff and defendant indicated that plaintiff's driver would deliver the merchandise and obtain a signed delivery slip, and defendant's employees would later determine which items actually had been received. In spite of its claim that goods invoiced at several hundred thousand dollars were never delivered, defendant conceded that it never gave any written communication to plaintiff rejecting the referenced goods or notifying plaintiff of their non-delivery.

Plaintiff maintains that the signed delivery slips constituted proof of delivery, and that defendant had the obligation to notify plaintiff of non-delivery of merchandise. We agree that the UCC required defendant to properly reject any deficient or non-conforming goods and to notify plaintiff when goods were not received. To the extent that was not done, acceptance is presumed. Therefore, under the facts as found by the trial court, we conclude that the trial court erred in its determination that plaintiff failed to meet its burden of proving delivery. Quite simply, the signed delivery slips were not refuted by any evidence from defendant showing that defendant had reasonably notified plaintiff that the invoiced goods had not been delivered.

We note that defendant alleges that its director of environmental services, Mark Wilson, and his co-employees orally notified plaintiff that the goods were not received, and that the usual course of business between the parties was to communicate orally. Defendant, therefore, contends that such oral notification was sufficient to preserve its deference of non-delivery of goods. We do not agree.

When defendant placed an order, it did so on a written order form. When plaintiff delivered merchandise, there was a written delivery slip, signed by defendant's representatives and followed by a written invoice. If defendant did not receive the merchandise, it had an obligation to communicate that fact in writing within a reasonable period of time. Yet, defendant never stated in writing that the goods had not been delivered. Defendant, therefore, failed to properly reject the goods, and it became responsible for payment of all invoiced goods, except those that were back-ordered or where there was other credible evidence of non-delivery or non-conformance*fn1.

The trial court accepted the admission of defendant's executive director of real estate that $15,000 was the amount defendant owed, before discounting for overcharging. Plaintiff claims the amount owed should have been substantially higher. On remand, plaintiff must be allowed to establish the sums due for accepted goods. We cannot, on the record before us, determine those sums, nor are we inclined to exercise our original jurisdiction to attempt such a calculation. The critical issue is whether any credible evidence of timely notice of non-delivery was given with regard to invoiced goods for which payment was not rendered. If not, the goods are deemed to have been delivered and accepted.

II.

Plaintiff also contends the trial court erred in its determination that plaintiff violated the CFA by overcharging defendant, by engaging in a bait-and-switch scheme, and by misrepresenting prices. For example, the court initially found on defendant's counterclaim that there was an ascertainable loss based upon the sale of items such as vacuum cleaners and cylinders, for which the court stated plaintiff had clearly overcharged defendant, however, in response to plaintiff's motion for reconsideration, defendant conceded that it had not paid for some of those items. At that juncture, the court found that there was an ascertainable loss for different items for which defendant was overcharged or as to which the goods delivered were not as represented in the invoices. As to such items, including faucets and locks, the trial court awarded damages, which were then trebled, by reference to the testimony of defendant's expert concerning a reasonable price derived by ascertaining a maximum profit margin. Plaintiff contends that the proofs advanced by defendant at trial do not adequately demonstrate that plaintiff violated the CFA and that the trial record does not establish that defendant New Community suffered an ascertainable loss.

Whether the requirements of a statute are met is a question of law, as to which we do not owe any deference to the trial court's conclusions. Manalapan Realty, L.P., supra, 140 N.J. at 378. We review legal questions de novo. Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002). However, the admissibility of evidence at trial is subject to the exercise of sound discretion by the trial judge. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).

Because the resolution of issues related to the claimed violations of the CFA was significantly influenced by the trial court's evidentiary rulings, we shall preliminarily address these issues. In this regard, plaintiff argues that the trial court should have barred testimony from defendant's expert Frank Ciufo, because the expert's report was served the last day of discovery after 5:00 p.m. As an alternative, plaintiff argues the court should have allowed plaintiff to present a rebuttal expert, who was prepared to testify that "[Ciufo's] conclusion that there was a standard profit to be charged in the institutional supply industry was complete hogwash." Beyond that, plaintiff contends the opinion of Ciufo constituted a net opinion that should have been excluded.

In summary, Ciufo opined that "based on my experience in the industry... the pricing charged by Pomerantz in this case is excessive and far beyond the custom and practice in the not[-]for[-]profit industry and is not consistent with the understanding that New Community had with Pomerantz" that Pomerantz would provide competitive pricing consistent with the nature of New Community as a non-profit.

Contrary to plaintiff's arguments, defendant contends that its expert's report was timely served and that plaintiff did not request an extension of discovery period for the purpose of providing an expert report in rebuttal. Defendant also argues that plaintiff declined to pursue the trial judge's suggestion of making a motion to the presiding judge if there were extenuating circumstances that warranted the reopening of discovery. Defendant maintained that Ciufo had more than twenty years experience in logistical material management, dealing with the procurement of goods and services, and that his opinion was adequately predicated on customs, standards, market rates and prices charged to institutions such as defendant. Ciufo testified that the industry standard in supply to non-profit entities allowed for a markup between point five percent and twenty percent. In his opinion, any markup greater than twenty percent constituted overcharging.

The court accepted Ciufo as an expert in materials purchasing and despite Ciufo's statement that he had problems analyzing plaintiff's pricing due to the vagueness of the invoices, and the fact that Ciufo did not have actual price lists from plaintiff, the court found Ciufo's opinion that plaintiff overcharged by twenty to thirty percent to be persuasive. Ciufo also charged, and the trial court accepted, that plaintiff provided generic brands and charged inflated prices as if the goods were name-brand products.

An appellate court will generally defer to a trial court's decisions regarding discovery, applying an abuse of discretion review. Bender v. Anderson, 187 N.J. 411, 428 (2006). Also, "[w]e generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC Partnership, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). In addition, a trial court's decision to admit expert testimony is reviewed on an abuse of discretion standard. Kuehn v. Pub Zone, 364 N.J. Super. 301, 319-21 (App. Div. 2003), certif. denied, 178 N.J. 454 (2004). N.J.R.E. 703 provides that an expert opinion may be based upon "facts or data" so long as they are of the type reasonably relied upon by experts in that field. Experts must base their opinions on facts and may not state bare conclusions, unsupported by factual evidence, which are inadmissible as a "net opinion." State v. Townsend, 186 N.J. 473, 494 (2006). "In essence, the net opinion rule requires an expert witness to give the why and wherefore of his expert opinion, not just a mere conclusion." Vitrano by Vitrano v. Schiffman, 305 N.J. Super. 572, 577 (App. Div. 1997) (quoting Jiminez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.) certif. denied, 145 N.J. 374 (1996)). The weight to which an expert opinion is entitled can rise no higher than the facts and reasoning upon which that opinion is predicated. Johnson v. Salem Corp., 97 N.J. 78, 91 (1984). However, personal observation is a "fact" that can be relied upon as the basis for an opinion. See Buckelew v. Grossbard, 87 N.J. 512, 530 (1981). The failure of an expert to give weight to a factor thought important by an adverse party does not reduce his or her testimony to an inadmissible net opinion, if he or she otherwise offers sufficient reasons which logically support the opinion. Rosenberg v. Tavorath, 352 N.J. Super. 385, 401-02 (App. Div. 2002).

Here, the report of defendant's expert was served within the discovery period, albeit at 5:00 p.m. on the last day. In contrast, plaintiff did not serve a timely report and did not make the required showing to extend the discovery end date. Defendant's expert was found to be qualified, and his opinion appears to support the record. He worked more than twenty years in the business of purchasing materials for large institutions. The expert admitted that due to the vagueness of the invoices, some of the suggested prices were speculative and that he was not sure what plaintiff had actually charged. Accordingly, the expert deduced what the merchandise was, and estimated what a proper price should have been. For example, although he did not know what the prices for materials were in 2002, Ciufo used a formula for discounting present day prices. Recognizing that some prices had changed because of fuel costs, he adjusted his formula by discounting five percent per year for inflation. To be sure, Ciufo's opinion would have been more reliable if he had obtained price lists from other vendors from 2002 to compare to the prices charged by plaintiff at that time, but his opinions were not necessarily invalid due to the method he employed.

Applying our usual deferential standard of review, Rova Farms, supra, 65 N.J. at 483-84, we cannot conclude that the court's exercise of discretion to admit such testimony was misapplied. We are satisfied the trial court understood the foundations of the expert's opinions, and ultimately found them persuasive. Under all the circumstances, we decline plaintiff's request that we vacate the court's calculations to the extent they relied on defendant's expert's testimony that plaintiff overcharged defendant by thirty percent or more.

III.

The CFA provides for treble damages for any person who suffers an "ascertainable loss" as a result of [t]he 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 merchandise or real estate, or with the subsequent performance of such person as aforesaid[.] [N.J.S.A. 56:8-2.]

Liability under the CFA can be premised on "three general categories of unlawful acts: (1) affirmative acts; (2) knowing omissions; and (3) regulatory violations." Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 245 (2005). Affirmative acts are "unlawful practices that include unconscionable commercial practices, fraud, deception, false promise, false pretense and misrepresentation." Ibid. For affirmative acts, intent is not an element of the unlawful practice. Ibid. "A practice can be unlawful even if no person was in fact misled or deceived thereby." Cox v. Sears Roebuck & Co., 138 N.J. 2, 17 (1994) (citation omitted). "The capacity to mislead is the prime ingredient of all types of consumer fraud." Ibid. "However, 'a breach of warranty, or any breach of contract, is not per se unfair or unconscionable....'" Id. at 18 (quoting D'Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J. Super. 11, 25 (App. Div. 1985)).

In order to prevail, a plaintiff must show an "ascertainable loss" which can be attributed to the unlawful conduct. Thiedemann, supra, 183 N.J. at 246. The ascertainable loss must be a "definite, certain and measurable loss, rather than one that is merely theoretical." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 558 (2009). Ascertainable loss does not have to involve out-of-pocket expenses; it can include a lost benefit of the bargain. Thiedemann, supra, 183 N.J. at 248. Still, the loss must be quantifiable even if it has not been experienced as an out-of-pocket loss. Hoffman v. Asseenontv.com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009).

A consumer transaction occurs whenever there is a "sale of consumer goods regardless of who purchases those goods and for what purpose." Marascio v. Campanella, 298 N.J. Super. 491, 498 (App. Div. 1997). Historically, "consumer" connoted an individual, but in Hundred East Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 355 (App. Div.), certif. denied, 107 N.J. 60 (1986), that definition was expanded to include businesses that purchase goods for use in their business operations. "[S]o long as the disputed contract involves goods... generally sold to the public at large, the mere fact that a corporation purchases the goods for use in its business does not preclude invocation of the" CFA. Marascio, supra, 298 N.J. Super. at 499. Compare Papergraphics Int'l Inc. v. Correra, 389 N.J. Super. 8, 14 (App. Div. 2006) (finding the purchase of 10,000 ink jet cartridges for resale belied CFA application). A consumer is defined as one who diminishes or destroys the economic goods as opposed to one who purchases the goods and passes it on for the benefit of another. Arc Networks, Inc. v. Gold Phone Card Co., 333 N.J. Super. 587, 591 (Law Div. 2000).

Here, the court appropriately recognized that business entities are not automatically excluded from the protection of the CFA. The court characterized defendant as a consumer protected under the Act. Though defendant is a large corporation managing fifteen apartment complexes and purchasing substantial amounts of supplies every year from a variety of vendors, defendant was purchasing consumer products, such as locks, vacuums and janitorial supplies, for use in its apartment buildings.

Still, defendant is entitled to protection if plaintiff actually violated the CFA. The court based its determination that plaintiff did violate the Act on three grounds: (1) Pomerantz was charging unconscionably high prices to defendant; (2) it was engaging in a bait-and-switch operation; and (3) it was misrepresenting the prices of products. We are reminded that our appellate function is to determine whether the trial court's findings are supported by substantial credible evidence in the record. Rova Farms, supra, 65 N.J. at 483-84. "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent relevant and reasonably credible evidence as to offend the interests of justice." Id.. at 404.

With respect to overcharging, the trial court accepted defendant's expert's opinion that, in general, plaintiff overcharged defendant by thirty percent. While we have indicated that the foundation for that opinion and finding was not the firmest, we recognize that the court was justified in relying on the experience and knowledge of defendant's expert. An expert's experience may be sufficient support for his opinion. Bellardini v. Krikerian, 222 N.J. Super. 457, 462-63 (App. Div. 1998). The court cited as one example of an unconscionable price that the vacuum cleaners that plaintiff sold to defendant for $2,599 cost plaintiff approximately $1,300. Mandel Pomerantz, vice president of plaintiff, testified that the vacuum manufacturer recommended a price of $2,599. We do not find it was unreasonable for the trial court to conclude that this was an instance of overcharging. That view is not altered by the fact that defendant eventually purchased the same vacuum from another vendor for $2,100, approximately $500 or roughly twenty percent lower than plaintiff's price. The trial court's conclusion that plaintiff's prices were unconscionable does not offend the interests of justice.

Similarly, the court determined that plaintiff had engaged in a bait-and-switch scheme in violation of the CFA. The CFA describes a bait-and-switch scheme as "[t]he advertisement of merchandise as part of a plan or scheme not to sell the item or service so advertised or not to sell the same at the advertised price." N.J.S.A. 56:8-2.2. Here, plaintiff did not actually "advertise" the price. Instead, the court found that it was deceptive for plaintiff to deliver generic brands which it then described as brand name items in its invoices. Certain of the invoices provided after delivery stated "Delta" faucets had been delivered, when, in fact, generic brand faucets were supplied. Other invoices referred to SS faucets, which defendant understood to mean stainless steel, when the components were of a lesser quality and different material. Plaintiff did not deny that it did not provide Delta or stainless steel faucets, and the trial court could and did find that defendant ordered or expected Delta brand faucets. The court also found that the prices charged were consistent with the pricing of higher quality products.

We are satisfied there was sufficient evidence to support the trial court's factual findings, and we decline to disturb the court's findings and conclusions of law regarding the asserted violations of the CFA. Defendant presented evidence of a "definite, certain and measurable loss," as a result of plaintiff's unlawful conduct. Thiedemann, supra, 183 N.J. at 248. As a result, the trial judge was able to calculate the ascertainable loss "by multiplying the amount of overcharge per unit per good by the number of paid units[.]" She included these calculations in her February 6, 2008 opinion, finding the total ascertainable loss to be $72,180.60 which was then trebled to $216,541.80. These calculations were supported by the record and appropriate in this case, as "[a]n 'estimate of damages, calculated within a reasonable degree of certainty' will suffice to demonstrate an ascertainable loss." Id. at 249 (quoting CoX v. Sears Roebuck & Co., supra, 138 N.J. at 22). See also Desai, supra, 360 N.J. Super. at 595 (stating that "[i]f evidence affords a basis for estimating the damages with some reasonable degree of certainty it is sufficient.").

Plaintiff raises additional arguments concerning the trial court's denial of interest on unpaid invoices and regarding the dismissal of claims against other defendants. We find these arguments and any others that we have not specifically addressed lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed and remanded as to plaintiff's contract claim. Affirmed in all other respects.


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