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Oettinger v. Stevens Commercial Roofing, LLC

Superior Court of New Jersey, Appellate Division

July 24, 2013

JOSEPH OETTINGER, JR., Plaintiff-Appellant,
v.
STEVENS COMMERCIAL ROOFING, LLC, d/b/a STEVENS ROOFING, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 2, 2013

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. SC-1227-12.

Joseph Oettinger, Jr., appellant pro se.

Respondent has not filed a brief.

Before Judges Sapp-Peterson and Sabatino.

PER CURIAM.

Plaintiff Joseph Oettinger, Jr., the recipient of two unsolicited facsimile advertisements from defendant, appeals the Special Civil Part's dismissal of his uncontested lawsuit arising out of those faxes and his related demand for statutory damages, costs, and counsel fees. The trial court concluded that plaintiff needed to prove that he was tangibly harmed by the unwanted faxes in order to recover damages under the applicable statutory provisions creating the private cause of action. For the reasons that follow, we reverse the court's ruling of non-liability and its denial of statutory damages and costs, but affirm the court's rejection of plaintiff's claim for counsel fees as a self-represented litigant.

I.

These are the pertinent facts, accepting as true plaintiff's unopposed contentions. Plaintiff, an attorney, filed this action in the Special Civil Part in April 2012 after receiving at his Westwood office two unsolicited fax advertisements from defendant Stevens Commercial Roofing, LLC, doing business as Stevens Roofing. The first fax was sent on February 29, 2012 and the second on March 22, 2012.

A rider attached to plaintiff's complaint alleged that the fax transmissions violated provisions of both the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C.A. § 227(b)(1)(c), and the New Jersey Junk Fax Act ("NJJFA"), N.J.S.A. 56:8-158(a). Plaintiff sought $500 in statutory damages for each unauthorized fax, pursuant to 47 U.S.C.A. § 227(b)(3) and N.J.S.A. 56:8-159(b), which he requested the court to treble in its discretion. He also sought costs and counsel fees.

Defendant did not file an answer, nor did it file a brief in the present appeal.

In May 2012, plaintiff appeared in a proof hearing and presented his version of the facts to a Special Civil Part judge. After considering that presentation, the judge issued an order denying plaintiff's application for judgment. In a memorandum decision attached to the order, the judge held that plaintiff had not been "aggrieved" within the meaning of the NJJFA because there was no "proof that . . . plaintiff has been caused . . . demonstrable distress, suffering or injury." In reaching that conclusion, the judge relied on a definition of "aggrieved" in an unidentified edition of Webster's Dictionary[1]and found that "[p]laintiff's certification and his testimony are each devoid of any evidence that might even suggest that . . . defendant's uninvited facsimiles caused him distress, suffering or injury." Notably, the judge's decision dismissing plaintiff's complaint only discussed plaintiff's cause of action pursuant to the NJJFA and did not discuss his separately pleaded claim under the TCPA.

In May 2012, plaintiff moved to amend the trial court's findings, vacate dismissal, and obtain a new trial or hearing. In his certification in support of that motion, plaintiff relied upon multiple dictionaries, including apparently a different edition of Webster's, which contained more expansive definitions of "aggrieved" ...


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