SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1128-22 

BRUNO TEIXEIRA, 

 Plaintiff-Appellant, 

v.

ONOFRIO TRIARSI, 

 Defendant-Respondent. 

________________________

Argued March 19, 2024 – Decided May 1, 2024 

Before Judges Haas and Puglisi. 

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Docket No. L-2547-18.

Alfred C. Constants III argued the cause for appellant 

(Constants Law Offices, LLC, attorneys; Alfred C. 

Constants III, on the briefs).

Eric I. Abraham argued the cause for respondent (Hill 

Wallack LLP, attorneys; Eric I. Abraham and Francesca 

Ann Arcure, on the brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-1128-22

 Plaintiff Bruno Teixeira appeals from the Law Division's November 17, 

2022 order dismissing his claims under the Consumer Fraud Act (CFA), 

N.J.S.A. 56:8-1 to -229, and the jury's verdict in favor of defendant Onofrio 

Triarsi. We affirm. 

I.

In or around 2011, plaintiff developed an interest in renting defendant's 

commercial property in Elizabeth to open a restaurant onsite. Plaintiff drafted 

a business plan that included renovating the existing building on the property 

and employing a restaurateur to run the restaurant. He also hired an architect to 

prepare plans for updates to the property, which included renovating bathrooms, 

installing new floors, replacing electric and plumbing, painting and repairing the 

exterior, repaving the parking lot, and installing a larger exhaust system. The 

architect fully inspected the property and took measurements before he drafted 

the plans. Plaintiff also walked through the property two to three times with 

defendant's office manager and was aware the electric and plumbing did not 

meet city code requirements. 

On April 1, 2012, plaintiff and defendant entered into a five-year lease 

agreement, which plaintiff had downloaded from the internet, to rent the 

property for $3,000 a month. The lease contained a provision making plaintiff 
3 A-1128-22

responsible for all costs of any improvements to the property and obtaining any 

necessary permits and approvals. 

Plaintiff did not submit plans to the City of Elizabeth for its approval until 

July 2012, after he had commenced demolition of an addition to the building, 

with the intent to rebuild in its footprint. In September 2012, the city rejected 

the plans to replace the addition because it had improperly been constructed 

directly on the parking lot without a permit. At that point, plaintiff had already 

demolished ninety percent of the addition. Because he could not rebuild where 

the illegal addition had been, the building's interior usable space was reduced 

somewhere between forty and fifty percent. 

Although plaintiff and his architect were aware of the addition to the 

building, plaintiff was not advised by defendant or his office manager that it had 

been constructed without a permit. Upon hearing about the city's rejection, 

defendant advised plaintiff he would address the issue with the city, but a few 

months later changed his mind. 

Plaintiff stopped paying rent in September 2012 but continued to renovate 

the property. The city granted a certificate of occupancy in 2015 and approved 

a health inspection in February 2016. Plaintiff opened the restaurant but it failed 

to be profitable. 
4 A-1128-22

 At the expiration of the lease in February 2017, defendant filed a 

complaint to remove plaintiff from the property. A year later, the court entered 

a warrant for removal and plaintiff was removed from the property. 

 In July 2018, plaintiff filed a complaint against defendant alleging 

violations of the CFA, common law fraud, breach of good faith and fair dealing, 

breach of contract and unjust enrichment. Defendant filed an answer and 

counterclaim seeking unpaid rent, real estate taxes and loan balance, to which 

plaintiff filed an answer. The matter proceeded to arbitration, which resulted in 

an award of $95,348.05 to defendant, and plaintiff requested a trial de novo. 

 Defendant moved for summary judgment and plaintiff cross-moved for 

summary judgment. After hearing argument on March 6, 2020, the court denied 

both motions, finding there were genuine issues of material facts. 

 On March 27, 2020, the court partially granted defendant's motion for 

reconsideration, entering summary judgment in favor of defendant for plaintiff's 

non-payment of rent from February 2016 through 2018. The court denied 

summary judgment as to the remainder of the timeframes alleged in defendant's 

complaint and as to any exact amount owed. 

 On November 15, 2022, trial was conducted before Judge John G. Hudak 

and a jury. Plaintiff testified as his only witness. He conceded that prior to 
5 A-1128-22

entering into the lease, he had full access to the property and an opportunity to 

review the city's records but chose not to do so. He also testified he never 

discussed the lease, square footage, addition, or compliance with building codes 

with defendant. He further conceded defendant had no knowledge that the 

addition was built without the requisite permits. 

 At the close of plaintiff's case, defendant moved to dismiss plaintiff's 

complaint pursuant to Rule 4:37-2(b). The trial court dismissed plaintiff's CFA

and common law fraud claims: 

[D]rawing all inferences to the plaintiff, [he] says 

[defendant] was shocked and surprised, he did[ not]

know about that the addition was illegal. And I 

believed him. His quote, I believed him. 

So plaintiff is saying, I believe [defendant] did[ not] 

know about it, did[ not] know it was[ not] done 

properly, that the prior tenant did[ not] do what he was 

supposed to do . . . So even on that theory both common 

law fraud and the [CFA] fails. 

The court permitted the remainder of plaintiff's claims to proceed. 

Defendant testified he was unaware the prior tenant built the addition 

without a permit, because the lease required the tenant to obtain the necessary 

permits. After the close of defendant's case, the trial court read the applicable 

model jury charges to the jury. With regard to the dismissed counts, the court 

read the following instruction, to which plaintiff did not object: 
6 A-1128-22

Now early on in the trial, you may remember there were 

claims asserted that I told you about early in the initial 

instructions, and the attorneys told you earlier, claims 

that [are] asserted by the plaintiff for violations of the 

[CFA] for fraud and misrepresentation. However, 

those issues have been resolved, and they are not to be 

considered by you. They have been resolved by the 

parties and the [c]ourt. They are no longer matters for 

your consideration. 

 The jury returned a unanimous verdict in favor of defendant, and the court 

entered an order granting judgment for defendant in the amount of $133,000. 

This appeal follows. 

II. 

We review an order on a defendant's motion for involuntary dismissal, Rule 

4:37-2(b), employing the same standard as the trial court. Filgueiras v. Newark Pub. 

Sch., 426 N.J. Super. 449, 455 (App. Div. 2012). "Under Rule 4:37-2(b), a motion 

for [an involuntary dismissal] is granted only if, accepting the plaintiff's facts and 

considering the applicable law, 'no rational [factfinder] could draw from the 

evidence presented' that the plaintiff is entitled to relief." Prioleau v. Ky. Fried 

Chicken, Inc., 434 N.J. Super. 558, 569 (App. Div. 2014) (quoting Pitts v. Newark 

Bd. of Educ., 337 N.J. Super. 331, 340 (App. Div. 2001)). If reasonable minds could 

reach different conclusions, the motion must be denied. Id. at 570. 
7 A-1128-22

We first turn to plaintiff's contention the trial court erred by dismissing 

the CFA count. "[T]he [CFA] requires an 'unconscionable commercial practice, 

deception, fraud, false pretense, false promise, misrepresentation, or the 

knowing concealment of any material fact.'" Rodio v. Smith, 123 N.J. 345, 352 

(1991) (citing N.J.S.A. 56:8-2). The CFA covers sales of real estate, and it 

prohibits fraud, misrepresentations, knowing omissions, or any other 

"commercial practice that is unconscionable," even if no person "has in fact been 

misled, deceived or damaged thereby." N.J.S.A. 56:8-2. 

Violations of the CFA may be established through: (1) an affirmative 

misrepresentation by defendant; (2) a defendant's knowing and intentional 

omission or failure to disclose a material fact; or (3) "violations of specific 

regulations promulgated under the [CFA]." Monogram Credit Card Bank of Ga. 

v. Tennesen, 390 N.J. Super. 123, 133 (App. Div. 2007) (quoting Cox v. Sears 

Roebuck & Co., 138 N.J. 2, 18 (1994)). 

"[W]hen the alleged consumer fraud consists of an omission, the plaintiff 

must show that the defendant acted with knowledge, and intent is an essential 

element of the fraud." Cox, 138 N.J. at 17-18. However, if "the alleged 

consumer-fraud violation consists of an affirmative act, intent is not an essential 
8 A-1128-22

element and the plaintiff need not prove that the defendant intended to commit 

an unlawful act." Ibid.

 Plaintiff argues the trial court erred in finding there was no evidence of 

misrepresentation and in failing to consider defendant's omission of the illegal 

addition, which should have been presented to the jury. We disagree because 

the trial court correctly decided no rational jury could find plaintiff was entitled 

to relief. Whether the claim was based on an affirmative statement or an 

omission is irrelevant because both theories require a plaintiff to establish 

defendant had knowledge of a material fact. Ibid. Here, plaintiff plainly 

conceded defendant was unaware the addition had been constructed without 

permits, and this admission was fatal to either avenue of his CFA claim. 

 Second, plaintiff argues the jury charge "created" the fact the CFA count 

had been resolved, which caused the jury to wrongly conclude plaintiff already 

recovered money from defendant, rendering his remaining claims superfluous. 

He also asserts the judge read a different version of the jury charge than what 

had been agreed on by counsel; specifically, the judge added the last two

sentences to the charge: "They have been resolved by the parties and the [c]ourt. 

They are no longer matters for your consideration."
9 A-1128-22

"[N]ot every improper jury charge warrants reversal and a new trial. 'As 

a general matter, [appellate courts] will not reverse if an erroneous jury 

instruction was "incapable of producing an unjust result or prejudicing 

substantial rights."'" Prioleau, 223 N.J. at 257 (alteration in original) (quoting 

Mandal v. Port Auth. of N.Y. & N.J., 430 N.J. Super. 287, 296 (App. Div. 

2013)). 

When a defendant fails to object to an error regarding jury charges, we

review for plain error. State v. Singleton, 211 N.J. 157, 182-83 (2012). Plain 

error is error that "was 'clearly capable of producing an unjust result,' Rule 2:10-

2; that is, whether there is 'a reasonable doubt . . . as to whether the error led the 

jury to a result it otherwise might not have reached.'" State v. Dunbrack, 245

N.J. 531, 544 (2021) (quoting State v. Funderburg, 225 N.J. 66, 79 (2016)). 

"Relief under the plain error rule, Rule 2:10-2, at least in civil cases, is

discretionary and 'should be sparingly employed.'" Baker v. Nat'l State Bank, 

161 N.J. 220, 226 (1999) (quoting Ford v. Reichert, 23 N.J. 429, 435 (1957)). 

 Here, the trial court advised the jury the CFA and common law fraud 

claims had been resolved by the parties and the court and were not to be 

considered by the jury. Nothing in this instruction indicated how or why the 

claims had been resolved, whether the court had dismissed the claims to 
10 A-1128-22

plaintiff's detriment or the parties had settled them to his benefit. Contrary to 

plaintiff's contention, the charge did not create a false impression that plaintiff 

had recovered money; it was neutral and factual, and not clearly capable of 

producing an unjust result. 

To the extent we have not expressly addressed any issues raised by 

defendant, it is because they lack sufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(1)(E). 

 Affirmed.