September 13, 2013
STEVEN D'AGOSTINO, Plaintiff-Appellant,
EBAY, INC., Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 26, 2013
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Ocean County, Docket No. SC-0349-12.
Steven D'Agostino, appellant, argued the cause pro se.
Duvol M. Thompson (Holland & Knight, LLP) argued the cause for respondent.
Before Judges Alvarez and Maven.
Plaintiff Steven D'Agostino appeals from a May 16, 2012 Special Civil Part order dismissing his complaint after trial on the basis that he had no cause of action against defendant eBay, Inc. (eBay). D'Agostino also appeals the subsequent denial of his Rule 4:49-1 motion for a new trial. For the reasons that follow, we affirm.
We glean the following circumstances from the testimony and exhibits presented during the trial. D'Agostino, who for years had sold merchandise on eBay's internet sales site, posted his 1999 Subaru Outback wagon for auction. He said in the "Notes" appended to the listing:
I also had the car listed locally on Craigslist for $1, 500, so I do reserve the right to end the auction early if it sells, but truthfully, the odds of that happening are very slim as all the local people on Craigslist around here are total cheapskates.
The car's interior is kind of dirty at the moment, needs to be vacuumed, but if the winning bid is over $1, 500, I will definitely clean it inside and out for you. Last note: if the car sells for $500 or less, I'm taking the CD player out and selling it myself separately.
D'Agostino could have set a reserve price but did not; he could have refused to sell the vehicle if unsatisfied with the sales price. Instead, he sold the car for $711.25.
D'Agostino posted the auction listing for the car on Sunday, September 18, 2011, ending on Sunday, September 25. On Saturday, September 24, when he tried to revise the posting, the change resulted in the photographs being moved far down the screen to an area of the listing where, in his opinion, it was unlikely that they would be seen. That same day, D'Agostino contacted eBay's customer service department, which promised to resolve the problem within twenty-four hours. It was not resolved before the sale posting ended.
After the sale, D'Agostino contacted eBay, complaining that the listing and the photographs of the Subaru had become separated. He was dissatisfied with the sale price, and attributed it to the flawed posting. EBay's customer service representative offered him partial credit towards the outstanding $60 auction fee. When D'Agostino declined the offer, he was told to communicate with the dispute resolution department. He promptly wrote a letter regarding his concerns but received no response. After a couple of months passed, eBay sent an e-mail advising D'Agostino that he could no longer list merchandise on eBay because he had not paid the fee.
At some unspecified time thereafter, a collection agency contacted D'Agostino regarding the outstanding fee. He then sued eBay, demanding $800 in "lost profits from the sale of [the] car, plus tort damages from the loss of [his] perfect flawless account on Ebay since Mar[ch] of 1999, and tort damages from the negative credit reported by Ebay."
In reaching the conclusion that D'Agostino had no cause of action, the court stated as follows:
The parties here are eBay, that runs a service where individuals can post things for sale, property for sale. Mr. D'Agostino had been participating on eBay for many years and had posted a number of items. He was familiar with the process. He had posted items on an auction site previously, and on this occasion, he posted a Subaru Outback with some very significant problems connected to it for sale.
He had the right to post a reserve auction. He did not do that. That was one of the ways that these matters were posted or that people could post property for sale on eBay, and he explained why he didn't do it. . . . [H]is experience was that it could drive prices down, so he chose not to post a reserve.
He also testified that there is no obligation to follow through with a sale; that although he felt that there would be some impact on his reputation if he did that, but legally -- and that's what we're talking about here -- . . . he had no obligation to fulfill the sale if he didn't want to.
So, we've got a situation where he had the option to place a reserve on the property, didn't do that, and could have walked away from the sale if he was getting an insufficient number. But . . . the notes that have been highlighted and referenced here make it difficult for this Court to come to a conclusion that the $711 bid that he ultimately received on this property was disproportionate or grossly undervalued or anything of the sort.
At the same time, he was listing it on Craigslist at $1, 500, which, more or less, represents a ceiling here because anybody reading this would know that they could go to Craigslist and buy it for $1, 500.
He also had a reference there that if the winning bid is under $1, 500, he'll clean it as opposed to if it's . . . I mean, if it's over $1, 500. If not, you're going to get . . . a dirty car. And he goes on in a note to say if the car sells for $500 or less, then you're getting it without the CD player.
So . . . what was his expectation? It's hard to say that $711 was out of line with his expectation here. [A] breach of contract action is effectively what it is, and I don't see where he has shown that eBay breached any contract. There's nothing here. It's not an act of negligence on their part. They're providing a service that the parties had contracted for.
And, you know, they had some technical issue that occurred here, apparently, although all . . . that was explained was that during the last day that it was listed, the pictures dropped . . . further down on the site. All the verbiage and everything was still listed.
The plaintiff produces no expert testimony as to what the actual value of the vehicle was, so his damages are completely and absolutely speculative. There's just absolutely nothing here to show that the $711 did not represent the fair market valuation for the sale of this property and that it didn't meet his reasonable expectations.
There is also a substantial problem regarding the proximate cause of . . . any purported injuries that he might have arising out of money, defect, or problem[s] occurring on eBay's part. And, I mean, what this . . . comes down to, . . . he had some annoyance with eBay, didn't pay the $60 fee . . . whether he was justified or not in having this annoyance with eBay.
The bottom line is that he sold his vehicle, he put the money in his pocket, he didn't pay eBay for . . . the fee for running the auction. So, they said, listen, if you're not going to pay us our fee for conducting the auction, you're not going to participate in the future as . . . somebody working on eBay.
So, I . . . see no cause of action, as I said. I see no breach of contract. I see no proximate cause, and I'm going to enter a no cause of action for Mr. D'Agostino.
When he denied the motion for a new trial, the trial judge observed that D'Agostino's cause of action for unlawful interference with prospective economic damage was simply not proven. Additionally, he failed to prove that compensation for the sale of his vehicle was not reasonable. Furthermore, it was undisputed that he had the alternative of simply removing the car from auction and rejecting the offer. The judge reiterated that D'Agostino received the benefit for which eBay was entitled to be paid a commission — namely, the sale of the vehicle. Although there were negotiations regarding the amount of the commission, there was no meeting of the minds and D'Agostino simply failed to pay. As the judge noted, he still had not paid the commission; therefore, eBay "made a business decision that they were not going to deal with [him] into the future." Hence the judge could not find that eBay committed a "wrongful act without justification interfering with [D'Agostino's] expectancy of economic advantage." For those reasons, in addition to the speculative nature of any damages, the trial judge denied the request for a new trial.
D'Agostino, who is self-represented, couches the legal arguments in his brief in slightly different terms from his points on appeal. The actual arguments are intended to have us act as the factfinder. We must be mindful, however, that so long as the facts found by a trial court during a bench trial are supported by competent evidence in the record, they will not be disturbed. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). In our view, the trial judge's findings of fact had ample support in the record. Accordingly, we will only address the points raised in the brief as they allege actual errors by the trial court subject to appellate review. D'Agostino's points are:
I) THE USED CAR PRICE GUIDE SHOULD HAVE BEEN AN EXCEPTION TO THE HEARSAY RULE.
II) DEFENSE COUNSEL SANDBAGGED ITS OBJECTION TO THE ADMISSIBILITY OF THE EVIDENCE DURING TRIAL. COURT DID NOT ALLOW LATE OBJECTION TO BE TREATED AS REQUEST FOR A N.J.R.E. 104 HEARING.
III) THE COURT WAS IN ERROR FOR IGNORING ALL OF EBAY'S BREACHES OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.
IV) THE COURT ESSENTIALLY ALLOWED AN INCOMPLETE DEFENSE EXHIBIT, AND THEN FURTHER DISALLOWED MY TESTIMONY AS TO MY STATE OF MIND.
V) THE COURT'S ASSUMPTIONS ABOUT THE "CRAIGSLIST PRICE" WERE INACCURATE AND BASED ON FACTS NOT IN EVIDENCE.
Defendant's first point is that the used car price guide he attempted to move into evidence during trial should have been admitted as an exception to the hearsay rule pursuant to N.J.R.E. 803(c)(17). However, this rule would not have enabled the admission of the guide as evidence in this case. No expert or other testimony was proffered establishing the necessary foundation, such as the reliability of the document. See State v. Magee, 131 N.J.Super. 292, 297 (App. Div. 1974). Moreover, the admission of the evidence was discretionary. Since no foundation was established, the judge did not abuse his discretion by barring the exhibit. See State v. Lungsford, 167 N.J.Super. 296, 306 (App. Div. 1979).
The guide was not even relevant, since whether any offer was accepted was entirely within D'Agostino's control, and since he did not establish that some conduct on eBay's part resulted in the sales price. At no time did he connect the separation of the pictures from his posting as the cause for the allegedly lower sales price. His argument on this point is purely speculative. Moreover, D'Agostino chose to list the vehicle without a reserve based on his best judgment as to how to make it marketable. D'Agostino also chose to sell for the offered price in order, in his view, to preserve his reputation as a seller on eBay. Again, the decision was entirely within his control. In any event, in the absence of an adequate foundation, the price guide was not admissible under N.J.R.E. 803(c)(17), was not relevant, and the trial judge did not abuse his discretion by declining to admit it.
D'Agostino also complains that eBay's counsel "sandbagged" him because he did not complain about D'Agostino's use of the used car price guide during mediation efforts conducted at the courthouse. But it was not error for eBay's counsel to remain silent about D'Agostino's use of the guide in negotiations, yet object at trial. We do not find D'Agostino's analogy to a discovery violation to be convincing. We find no abuse of discretion in the trial judge's refusal to admit it.
"A covenant of good faith and fair dealing is implied in every contract[.]" Wilson v. Amerada Hess Corp., 168 N.J. 236, 244 (2001). "Good faith conduct is conduct that does not 'violate community standards of decency, fairness or reasonableness.'" Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 224 (2005) (quoting Wilson, supra, 168 N.J. at 245). The covenant . . . calls for parties to a contract to refrain from doing 'anything which will have the effect of destroying or injuring the right of the other party to receive' the benefits of the contract" Id. at 224-25 (quoting Palisades Props Inc v Brunietti 44 N.J. 117 130 (1965)) We do not find D'Agostino's claim that eBay violated these contract principles convincing
D'Agostino also asserts that NJRE 803(c)(3) permitted him to testify about what he meant in the note appended to his listing and that the trial judge erred in excluding the testimony That rule however requires the statement sought to be introduced to have been made at some prior time It does not authorize the admission of a contemporaneous explanation of state of mind In other words the state of mind exception would apply if and only if the testimony concerned statements D'Agostino made prior to trial
See eg State v McGuire 419 N.J.Super. 88 136 (App Div) certif denied 208 N.J. 335 (2011)
D'Agostino's final point that the court made "assumptions" about his Craigslist posting of the vehicle for $1500 that were inaccurate and based on facts not in evidence is not supported by the record We will not discuss it further in a written opinion See R 2:11-3(e)(1)(E)