Steven D'Agostino v. Bill Goichberg ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1350-23
STEVEN D'AGOSTINO,
Plaintiff-Appellant,
v.
BILL GOICHBERG and
CONTINENTIAL CHESS
ASSOCIATION,
Defendants-Respondents.
__________________________
Argued October 30, 2024 – Decided November 14, 2024
Before Judges Mayer and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. SC-000332-23.
Steven D'Agostino, appellant, argued the cause pro se.
Leo B. Dubler, III argued the cause for respondents
(Law Offices of Leo B. Dubler, III, LLC, attorneys; Leo
B. Dubler, III, of counsel and on the brief).
PER CURIAM
Plaintiff Steven D'Agostino appeals from a November 16, 2023 order,
entered after a bench trial, dismissing his complaint against defendants Bill
Goichberg and Continental Chess Association (CCA) (collectively, defendants)
with prejudice. We affirm.
We recite the facts from the trial record. Plaintiff, a chess player,
participated in events hosted by the CCA. The CCA, a for-profit chess
organization founded in 1968 by Goichberg, organizes chess tournaments
throughout the United States. It hosts an annual week-long chess tournament
known as the World Open. In order to participate in CCA tournaments,
including the World Open, competitors must be members of the United States
Chess Federation (USCF). 1 The USCF publishes a rulebook governing all chess
competitions.
Relevant to this appeal, Rule 32(b)(1) of the USCF rulebook states, "One
cash prize per player, no winner shall receive more than one cash award. The
award may be one full cash prize, if a clear winner or parts of two or more cash
prizes, if tied with others." Rule 32(b)(3) provides: "all the cash prizes involved
shall be summed and divided equally among the tied players unless any of the
1
The USCF, a non-profit organization, governs chess competitions nationwide
and maintains a database of members and their rankings.
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winners would receive more money by winning or dividing only a particular
prize, [for] which others . . . in the tie are ineligible."
As a USCF member and participant in prior CCA tournaments, plaintiff
received promotional mailings advertising the 2017 World Open. Plaintiff paid
the required entry fee to participate in the G/10 Championship (G/10), a side
event associated with the 2017 World Open.
The G/10 rules stipulated the "higher of [a player's] regular or quick
[rating will be] used for pairings and prizes." On the day of the tournament,
plaintiff "had a 1329 regular rating, and a 1244 [q]uick rating." Based on his
rating, plaintiff participated in the "[u]nder 1900 [s]ection" of the G/10, which
awarded $200 for first place, $100 for second place, and $50 for third place.
The G/10 also awarded prizes for the top scorers with certain ratings at the time
of the event as follows: $130 for under 1700; $110 for under 1500, and $90 for
under 1300.
Plaintiff performed well at the G/10 and his score placed him in a three-
way tie for second place. The two other players with whom plaintiff tied were
higher rated.
At the end of the G/10, tournament director Robert Messenger gave
plaintiff a prize check for $120. Plaintiff believed the sum "was way too small"
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based on the number of prizes he thought he was eligible to receive. Messenger
reminded plaintiff of the USCF's "one-prize-per-person" rule. Plaintiff accepted
and cashed the $120 prize money check and "did not make an issue out of it at
that time."
On the eve of the six-year statute of limitations, plaintiff filed a complaint
against defendants in the Special Civil Part, alleging "defendants engaged in
[c]onsumer [f]raud when they advertised a 2017 chess tournament offering
multiple prizes for the winners of each section" despite "a hidden [and]
undisclosed rule that a player can only receive one prize." In his complaint,
plaintiff asserted entitlement "to an extra $195 in prize money," and "treble
damages of the portion of prizes that [the CCA] did not pay [him], for an
additional amount of $585."
The judge conducted a bench trial on November 13, 2023. Plaintiff
testified on his own behalf and Messenger testified on behalf of defendants.
At trial, plaintiff explained he sought treble damages under the Consumer
Fraud Act (CFA), N.J.S.A. 56:8-1 to -229. The judge asked why plaintiff waited
almost six years to file his claim and plaintiff responded, "I appreciate
everything that the defendant[s] ha[ve] done for the game of chess, [and] I really
didn't want to bring this suit." Plaintiff testified he attempted to resolve the
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matter with defendants before the statute of limitations expired but Messenger
said settlement "wasn't an option."
Plaintiff argued the USCF rule allowing one prize per player was akin to
a "submerged clause." According to plaintiff, "since that term wasn't disclosed,
it's not enforceable, and therefore [he] should be entitled to the full amount of
prizes, . . . that [he] earned." Plaintiff further testified the tournament's website
failed to state the one-prize-per-player limitation.
As part of his trial testimony, Messenger admitted there was no online
version of the USCF rulebook in 2017. However, Messenger explained the CCA
"posted rules that said . . . more rules are in the USCF rulebook." Messenger
also stated a player could ascertain the rules governing the G/10 by means other
than purchasing a physical copy of the [USCF] rulebook. Messenger testified
plaintiff could have asked the tournament director about the rules,2 reviewed a
physical copy of the rulebook maintained on site at the tournament, or emailed
the CCA inquiring how prize money would be awarded. Additionally,
Messenger stated the tournament's website included a notation that "more rules
appear[ed] in the USCF rulebook and also appl[ied]."
2
Messenger was the tournament director for the 2017 World Open.
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Messenger gave a detailed explanation regarding the CCA's calculation of
prize money based on the three-way tie for second place. According to
Messenger, "under [the] rules, you can only win one prize." Thus, Messenger
testified the tournament "awarded $120 to each player, which was the correct
award under [USCF] rules."
Based on the trial testimony, the judge rendered the following findings
regarding the availability of the tournament rules:
I find that the rules are available, whether or not
convenient, but they're available. And maybe you got
to spend some money to get them if you want them
physically in your hand. But they're available. They're
not . . . hiding anything from anybody. And if they are,
they're hiding it nationwide, which I find not credible.
Additionally, the judge rejected plaintiff's CFA claim. The judge
concluded the prize money did "not fit the definition of merchandise. So it's not
consumer fraud."
Plaintiff did not dispute the judge's disposition of his CFA claim but
argued, alternatively, that he presented "straight breach of contract damages."
Plaintiff argued:
[I]t's my position that even if [the limiting rules] did
exist, which they did not, . . . it would still be
insufficient, you have to put the limitations, right here
with all the rest of the rules, that's easy to do, one
sentence, one prize per person, if that's the limitation,
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you announce it. They're required to do so by law, they
failed to do so.
....
[T]hey announced all the other terms, conditions,
limitations, except for the limitation of one prize per
person. . . . [i]t's my position under basic common law
contract principles, that if you have a term, that's not
disclosed, that adversely affects the other party, then
that's not enforceable.
Although the judge already rendered his decision, he addressed plaintiff's
contract argument. The judge stated:
This is not a common law contract. These are rules of
an event, same as a football game or a baseball game.
The [National Football League] or the . . . National
Hockey League can make up their own rules. That's not
a contract. That's a rule. There's a difference between
a contract and a rule.
After the judge ruled plaintiff was entitled only to one prize of $120, the
parties told the judge that plaintiff received that sum in 2017; plaintiff, however,
maintained his entitlement to additional prize money. Based on that
information, the judge engaged in the following colloquy with plaintiff:
THE COURT: Well, then I have to change my ruling.
. . . I would suggest you look at accord and satisfaction.
If you accepted the offer of what his claim is, then you
have vacated your argument, sir.
[PLAINTIFF]: I accepted it under protest . . . .
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THE COURT: It doesn't matter. Acceptance is
acceptance. It's like what you cash a check, you may
be writing on it under protest, but once you cashed that
check, your case is over. And so if you accepted the
$120, that's accord and satisfaction.
On November 16, 2023, the judge entered an order dismissing plaintiff's
complaint with prejudice for the reasons he stated on the record on November
13, 2023.
On appeal, plaintiff contends the judge improperly dismissed his
complaint with prejudice. Specifically, plaintiff argues the judge erred in: 1)
finding the CFA inapplicable; 2) determining the prize limitation clause was
enforceable; 3) concluding plaintiff failed to present a cognizable common law
contract claim; and 4) applying the doctrine of accord and satisfaction to nullify
his claims. We reject these arguments.
"Final determinations made by the trial court in a non-jury case are subject
to a limited and well-established scope of review." D'Agostino v. Maldonado,
216 N.J. 168, 182 (2013) (quoting Seidman v. Clifton Sav. Bank, S.L.A., 205
N.J. 150, 169 (2011)). Appellate courts "give deference to the trial court that
heard the witnesses, sifted the competing evidence, and made reasoned
conclusions." Allstate Ins. Co. v. Northfield Med. Ctr., P.C., 228 N.J. 596, 619
(2017) (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474,
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483-84 (1974)). "Deference is especially appropriate 'when the evidence is
largely testimonial and involves questions of credibility.'" Cesare v. Cesare,
154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J.
108, 117 (1997)). "That is so because an appellate court's review of a cold record
is no substitute for the trial court's opportunity to hear and see the witnesses who
testified on the stand." Balducci v. Cige, 240 N.J. 574, 595 (2020) (citing State
v. Elders, 192 N.J. 224, 244 (2007)).
Accordingly, "findings by the trial court are binding on appeal when
supported by adequate, substantial, credible evidence." Cesare, 154 N.J. at 411-
12 (quoting Rova Farms Resort, Inc., 65 N.J. at 484). An appellate court "may
not overturn the trial court's fact[-]findings unless [it concludes] that those
findings are 'manifestly unsupported' by the 'reasonably credible evidence' in the
record." Balducci, 240 N.J. at 595 (quoting Seidman, 205 N.J. at 169).
"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 Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Whether a cause of action satisfies the CFA is a question of law we review de
novo. See All The Way Towng, LLC v. Bucks Cnty. Int'l., Inc., 236 N.J. 431,
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440-41 (2019) (holding legal determinations regarding the applicability,
validity, or interpretation of laws, statutes, or rules are reviewed de novo).
We first address plaintiff's argument that the judge erred in dismissing his
CFA claim. Plaintiff contends prize money meets the definition of
"merchandise" under the CFA.
The CFA provides:
The 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, whether or not any person has in
fact been misled, deceived or damaged thereby, is
declared to be an unlawful practice[.]
[N.J.S.A. 56:8-2.]
Under the CFA, the term "merchandise" includes "any objects, wares, goods,
commodities, services or anything offered, directly or indirectly to the public
for sale[.]" N.J.S.A. 56:8-1(c).
Plaintiff relies on dicta to argue the CFA's broad definition of
"merchandise" includes an award of prize money as a service. Bandler v.
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Landry's Inc., 464 N.J. Super. 311, 318 n.3 (App. Div. 2020). Plaintiff argues
the term "services" "no doubt covers gaming entertainment." Ibid.However, Bandler addressed preemption, not the CFA. In that case, we
stated:
The sole issue presented in this appeal is whether
the Casino Control Act (CCA), N.J.S.A. 5:12-1 to -233,
which grants the Division of Gaming Enforcement
(Division) authority to regulate gaming-related
advertising, N.J.S.A. 5:12-70(a)(16), preempts plaintiff's
consumer fraud and common law action alleging a casino
hotel falsely advertised a poker tournament. We conclude
the action is not preempted.
[Id. at 315.]
Nothing in Bandler supports plaintiff's argument that prize money constitutes a
service satisfying the CFA's definition of merchandise.
Even if we agreed that tournament prize money meets the definition of
merchandise under the CFA, which we do not, plaintiff failed to demonstrate
that defendants acted with knowledge and intentionally omitted referencing the
one-prize-per-player limit. To establish a CFA claim based on an omission, a
"plaintiff must show that the defendant acted with knowledge, and intent is an
essential element of the fraud." Cox v. Sears Roebuck & Co., 138 N.J. 2, 18
(1994).
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Here, the judge weighed the evidence regarding plaintiff's ability to obtain
the rules governing the G/10. Based on the evidence, the judge rejected
plaintiff's testimony that defendants intentionally omitted information regarding
the tournament rules as "not credible." The judge concluded defendants did not
hide the rule stipulating "one player, one prize" and, in fact, the rule was
available to plaintiff.
We are satisfied the judge's dismissal of plaintiff's CFA claim was correct.
The awarded prize money was not merchandise to support a cognizable claim
under the CFA. Nor did plaintiff proffer any evidence demonstrating defendants
knowingly intended to mislead plaintiff regarding the tournament prize money.
We next consider plaintiff's argument that the judge improperly dismissed
his common law contract claim. Plaintiff asserts "the prize limitation clause"
was unenforceable because it "was not presented at all[] and was not visible at
all no matter how much of a circuitous route which the tournament participant
was willing to travel." 3
Despite having rendered his decision dismissing plaintiff's complaint, the
judge considered and rejected plaintiff's contract argument. Based on the trial
3
Plaintiff cites an unpublished case in support of his contract argument. Under
Rule 1:36-3, "no unpublished opinion shall constitute precedent or be binding
on any court." See Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 559 (2015).
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testimony and evidence, the judge determined plaintiff failed to sustain a claim
based on breach of contract. As the judge stated: "These are rules of an event,
same as a football game or a baseball game. . . . That's not a contract. That's a
rule. There's a difference between a contract and a rule."
Moreover, at trial, plaintiff did not deny his status as an active member of
the USCF. Membership in the USCF was a prerequisite to a player's
participation in the G/10. As a dues paying member of the USCF, plaintiff was
bound by the USCF rules, whether or not he purchased a physical copy or
otherwise familiarized himself with the organization's rulebook. Thus, plaintiff
was bound by the USCF rule limiting his prize winnings to one prize per player.
We next address the judge's dismissal of plaintiff's complaint based on the
doctrine of accord and satisfaction. Plaintiff claims he accepted the July 4, 2017
prize money check "under protest" and, therefore, the doctrine is inapplicable.
We reject this argument.
The traditional elements of an accord and satisfaction
are the following: (1) a dispute as to the amount of
money owed; (2) a clear manifestation of intent by the
debtor to the creditor that payment is in satisfaction of
the disputed amount; and (3) acceptance of satisfaction
by the creditor.
[A.G. King Tree Surgeons v. Deeb, 140 N.J. Super.
346, 348-49 (Cty. Dist. Ct. 1976) (citing U.S. ex rel
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Glickfeld v. Krendel, 136 F.Supp. 276, 282 (D.N.J.
1955)).]
The doctrine of accord and satisfaction applies where:
dependent upon the offer of the payment of a less sum
than that claimed, it is necessary that the money should
be offered in full satisfaction of the demand and be
accompanied by such acts or declarations as amount to
a condition that if the money is accepted it is to be in
full satisfaction, and be of such a character that the
creditor is bound to understand such offer.
[Peterson v. Hartford Accident & Indem. Co., 32 N.J.
Super. 23, 31 (App. Div. 1954).]
Whether accord and satisfaction bars a plaintiff's claim is a fact-dependent
inquiry. See Zeller v. Markson Rosenthal & Co., 299 N.J. Super. 461, 465 (App.
Div. 1997). We will not disturb a trial judge's fact findings if they are supported
by adequate, substantial, and credible evidence. Rova Farms Resort, Inc., 65
N.J. at 484.
Here, after considering the trial testimony, the judge found plaintiff
accepted and deposited the $120 prize check as payment in full. Plaintiff
proffered no competent or admissible evidence that he marked the check as
deposited under protest or otherwise indicated the amount tendered was less than
the full amount.
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Because there is sufficient credible evidence in the record, we are satisfied
the judge appropriately applied the doctrine of accord and satisfaction to bar
plaintiff's claims against defendants.
To the extent we have not addressed any arguments raised by plaintiff,
they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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