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Don Cosa Images v. Brantley


October 7, 2010


On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-008251-09.

Per curiam.


Submitted September 7, 2010

Before Judges Payne and Messano.

Defendant, Tia Brantley, appeals from a judgment in the amount of $3,500 plus attorney's fees of $500 and costs of $57 entered against her and in favor of plaintiff, Don Cosa Images, following a bench trial in the Superior Court, Special Civil Part. Determining that the trial judge misconstrued the contract at issue in the matter and mistakenly denied defendant the right to present her defense and counterclaim, we reverse and remand the matter for a new trial.

We draw our recitation of the facts from the record and other materials submitted by defendant on appeal that she was precluded from introducing at trial as the result of the judge's determination not to hear her defense and counterclaim. That evidence reflects that, on June 21, 2007, defendant entered into a contract with Don Cosa Images for the purchase of a Microdot hair augmentation process involving the use of a nylon filament cap to which human hair had been affixed, which was anchored to the user's head by looping her natural hair into it. The cost was $3,500, which defendant financed through GE Care Credit.

The contract provided, in relevant part:

1. Description of The Doncosa*fn1 Images MicrodotTM Process ("MicrodotTM")

D. I . . . understand that after a period of time it will be necessary for the Donor Hair to be repaired. The frequency of the repair will depend upon the care given to the process by me. That frequency can average from . . . (5) to (8) months. I further understand that the human hair replacement will last up to 3 years with proper maintenance.

F. At the time of application of my Donor Hair, I have been advised to consult with the stylists as to the proper techniques and care which I will be required to follow. I understand that it is necessary to follow the instructions given in order to maintain the appearance of the process and to minimize the natural hair loss during shampooing, drying, brushing and styling.

G. I have been advised to visit DC [Doncosa] for maintenance every two (2) to six (6) weeks for adjustments due to natural hair growth and normal wear. Off & on must be done 4 times a year.

4. Limited Warranty:

A. If the Donor Hair has been applied and if I am not fully satisfied with the application, I must notify DC prior to the expiration of fourteen (14) days after the application process (hereinafter fourteen [14] days after the application of the process is called the "fourteenth Day Date") so that DC can attempt to address the area of concern. If I have done so, and if I returned for an appointment within the fourteenth Date, and if I am still not satisfied by the fourteenth Day Date, and if I have not removed the Donor Hair prior to the fourteenth Day Date, then on or after the fourteenth Day Date, but on or before five (5) days after the fourteenth Day Date, DC shall attempt to re-cut, re-design or reposition the MicrodotTM process at no additional cost.


Defendant received her hairpiece on June 30, 2007. On July 12, 2007, she returned for a wash and a set. On August 18, 2007, she had the application tightened. Thereafter, on August 25, 2007, she had surgery. Defendant did not return to Don Cosa until November 17, 2007. However, she states that she made appointments in the interim, one of which she cancelled and the remainder of which were cancelled by Don Cosa. On appeal, defendant has offered as evidence of cancellation an appointment card for Saturday, September 29, 2007.

When defendant returned to Don Cosa in November, her natural hair was entangled with the product and matted.

According to her account, on inspecting defendant's head, the owner of Don Cosa, James Costabile, threw up his hands and left the room, sending an inexperienced employee to address the situation. That employee removed the hairpiece with scissors, thereby cutting a hole in it, and in the course of removing it, she left plaintiff's hair with unsightly patches in it. The attendant threw away the hairpiece, which plaintiff rescued.

Defendant was charged $100 for the hairpiece removal and was told that she would be charged an additional $100 to repair her natural hair. Instead, defendant requested something to cover her head, was given a dirty white towel, and she left the salon.

She had her own hair repaired elsewhere.

On November 24, defendant returned to the salon with the hairpiece, which was described by a Don Cosa employee as having "lots of rips and holes in it." The hairpiece was then repaired and reinstalled, at a cost of $105.

On December 27, 2007, defendant telefaxed a letter to Costabile expressing her dissatisfaction with the treatment she had received. Costabile responded the next day, stating:

As with any cosmetic improvement it is very frustrating to know this is something you choose to do because you feel the state of your hair is affecting your self-esteem as well as your overall appearance. Unfortunately, this is not your own hair and there will limitations. [sic] Maintenance is a must with this process and if you do not keep up on your scheduled appointments, the hair will not perform the way it was meant to.

Why don't you make an appointment so that we can go over your concern and reapply the hair back on.

Additional correspondence ensued, but it did not result in a resolution of defendant's complaints. However, after initially refusing to do so, on February 2, 2009, GE Money Bank credited defendant's account in the amount of $3,500 and removed all fees and finance charges.

On March 19, 2009, plaintiff instituted a collection action against defendant. Defendant answered and counterclaimed asserting causes of action for negligence, infliction of emotional distress, and breach of contract. She sought $15,000 in damages.

No discovery occurred in the matter, which was tried on October 7, 2009. At the trial, Don Cosa was represented by counsel; defendant appeared pro se. Testimony was elicited from Stacey Costabile, who stated that she was the owner of the company. Despite the fact that she was represented, all questioning was done by the trial judge, who determined that defendant was in breach of her contract with Don Cosa because she did not notify it within fourteen days of her August 18 salon visit that she was dissatisfied. When defendant sought to explain that she was not dissatisfied with the care of her hair that took place on August 18, the judge did not permit the testimony. The following colloquy took place:

THE COURT: . . . Did you read the contract?

MS. BRANTLEY: Yes I did.

THE COURT: When did you complain about this?

MS. BRANTLEY: In 11 of '07.

THE COURT: All right. It says right here you must notify them 14 days after the application process. You didn't do that.

MS. BRANTLEY: No. I didn't have a problem with what's going on in the contract. I had a problem with when I went back to them -

THE COURT: When was -

MS. BRANTLEY: - to get -


MS. BRANTLEY: Which was in 11 of '07.

THE COURT: What about - the last time you were there was 8 - August 18th, correct?


THE COURT: And then you complained on November 17th, right?

MS. BRANTLEY: Because they canceled my appointment. I was supposed to see them -

THE COURT: Did you send them a letter or anything?

MS. BRANTLEY: As far as -

THE COURT: Between August and November, did you send them a letter saying I'm dissatisfied, anything?

MS. BRANTLEY: No. That's not what -

THE COURT: Well, then you're in - you've - you've got - you - this is what you bargained for. You bargained for 14 days. You didn't do it within 14 days. You're in breach.

MS. BRANTLEY: They're in breach of their contract - the deal -

THE COURT: That may be.

MS. BRANTLEY: - because -

THE COURT: I'm not even ruling on that. This is a legal issue. The legal issue is that you must notify them within 14 days after the application process. The last application process, by your own admission, was August 18. You don't complain about it until three months later - four months later. You're past the 14 days.

The case is over.

As a consequence of his ruling, the judge did not permit testimony with respect to defendant's counterclaim and did not allow defendant's expert to testify.

Judgment in plaintiff's favor was entered for $3,500.

However, the order of judgment also contained an award of attorney's fees and costs. Although such an award was contractually permitted if Don Cosa prevailed in a legal action, nothing in the record suggests that a fee request in compliance with RPC 1.5 was submitted to the judge.

On appeal, we review the judge's legal conclusion that defendant breached her contract with plaintiff de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). That review satisfies us that the trial judge misconstrued the contract between the parties when he applied the contract's limited warranty provision to a dispute that did not concern the quality of the product as initially applied, but rather, conduct arising thereafter, consisting of the company's alleged cancellation of appointments, treatment of defendant on November 17, 2007 and Costabile's letter to defendant of December 28, 2007. That legal error led the judge improperly to bar testimony and evidence regarding defendant's defenses and her counterclaim, thereby depriving her of her due process rights. Western Elec. Co., Inc. v. Stern, 544 F.2d 1196, 1199 (3d Cir.) (to deny defendant the right to present a full defense on the issues would violate due process), rehearing denied, 551 F.2d 1 (3d Cir. 1976). As a consequence, the case must be retried.

Reversed and remanded for a new trial.

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