FRANCIENNA GRANT VS. DAN'S AUTO BODY, L.L.C. AND DAN RUSSO(L-000174-14, CAPE MAY COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3462-15T2
FRANCIENNA GRANT,
Plaintiff-Appellant,
v.
DAN'S AUTO BODY, L.L.C.1 AND DAN RUSCO,
Defendants-Respondents.
_____________________________________
Submitted June 1, 2017 – Decided July 21, 2017
Before Judges Gooden Brown and Farrington.
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County, Docket
No. L-000174-14.
Francienna Grant, appellant pro se.
Paul J. Baldini, P.A., attorneys for
respondents (Mr. Baldini, on the brief).
PER CURIAM
Pro se plaintiff Francienna Grant appeals from the January
6, 2016 trial court order granting summary judgment to Dan Rusco
and Dan's Auto Body, L.L.C. (collectively defendants) and the
1
Improperly pled as Dan's Auto Body.
March 15, 2016 court order denying her motion for reconsideration.
We affirm.
We derive the following facts from evidence submitted by the
parties in support of, and in opposition to, the summary judgment
motion, viewed in the light most favorable to plaintiff. Angland
v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing
Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)).
Following an automobile accident, plaintiff brought her 2000 Jeep
Cherokee to defendants for repairs on April 25, 2007. Plaintiff
alleges Rusco agreed the replacement parts would be "[n]on[-
]junkyard Mopar parts that were like, kind and [q]uality in terms
of fit quality and performance to damaged parts[.]" Plaintiff
claims she was not provided with invoices nor work orders for the
2007 repairs.
In November 2013, plaintiff returned to defendants seeking
repainting of the hood of her vehicle, which defendants had painted
in 2007. Defendant performed the repair free of charge. As
plaintiff was driving out of the premises following the repair,
the brakes on the vehicle failed. As documented by the State
Trooper called to the scene by plaintiff, Rusco observed what he
believed to be brake fluid leaking from one of the rear tires.
The trooper noted in the police operations report, "Rusco stated
that he never touched the vehicle’s braking system. . . ." The
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vehicle was towed to Kindle Auto Plaza. It was at that time,
according to plaintiff, she first discovered that junkyard parts
had been installed in her vehicle by defendants in 2007.
In April 2014, Grant filed a civil complaint against Dan's
Auto Body (Dan’s) and Dan Rusco (Rusco) alleging that poor quality
parts were used to repair her 2000 Jeep Grand Cherokee in 2007,
causing damage which was not discoverable until 2013. Grant
alleged that defendant was negligent in making repairs in both
2007 and 2013. Grant further alleged violations of the Consumer
Fraud Act (CFA), N.J.S.A. 56:8-1 to -20.
Defendants moved to dismiss plaintiff's complaint, which
motion was denied on November 13, 2014, by Judge J. Christopher
Gibson, who further ordered the parties to provide additional
discovery. The judge denied defendants' second summary judgment
motion on March 16, 2015, finding substantive issues of material
fact. However, Judge Gibson limited plaintiff's claims to November
2013, finding the 2007 allegations barred by the statute of
limitations. Further, Judge Gibson declined to hear plaintiff's
motion for summary judgment against defendants on her consumer
fraud claims, noting she had failed to pay the requisite filing
fee, and had not pled violations of the CFA in her complaint.
Plaintiff moved for reconsideration of the March 16, 2015
order and sought leave to file an amended pleading, sanctions for
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defendants' failure to comply with discovery, and a stay pending
appeal. The motion was granted in part and denied in part. Finding
that he had erred in determining that plaintiff had failed to
plead violations of the CFA, the judge permitted her to file an
amended complaint "to plead with more specificity her allegations
of violations of the Consumer Fraud Act". Judge Gibson also denied
imposing sanctions opining,
The [c]ourt cannot determine how
[d]efendants failed to comply with
[p]laintiff's requests or what discovery
[d]efendants failed to provide. Although
[p]laintiff argues that [d]efendants have
persistently failed to provide discovery, in
the absence of specific items which are
purportedly due and which [d]efendants are
delinquent [in providing], the [c]ourt is not
inclined to award sanctions.
In September 2014, plaintiff filed an amended complaint
alleging violation of the CFA, in addition to violations of the
Auto Repair Deceptive Practices Regulations, N.J.A.C. 13:45A-7.1,
7.2, and 13:45A-26C.2; and Auto Body Repair Regulations for
Licensing of Facility, N.J.S.A. 39:13-2.1(a)(1) to -(4), (8), (9),
and (11). Plaintiff alleged further that Dan's breached their
agreement to repair her Jeep in 2007 with "quality Mopar like in
kind and function parts." Plaintiff also alleged defendants
violated discovery rules and were in contempt of court. Plaintiff
sought treble damages pursuant to the CFA.
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Plaintiff moved for summary judgment in October 2015 and
defendants cross-moved for summary judgment. Plaintiff alleged
defendants violated the CFA by failing to install the agreed upon
quality parts and failing to provide required documents. She
claimed, without the benefit of expert testimony, that but for the
failure to install the agreed upon parts, there would not have
been the corrosion which caused the brakes to fail.
Defendants admitted performing work on plaintiff's Jeep in
2007, and performing the paint repair free of charge in 2013. They
denied performing any work on the Jeep in 2013, other than the
paint repair, and asserted they were in full compliance with the
requirements of the CFA in 2007. Defendants pointed to the 2013
AAA Roadside Assistance Report noting the vehicle had 174,000
miles on it, and the brakes were broken. In a well-reasoned
written decision filed January 6, 2016, Judge Gibson denied
plaintiff's motion and granted summary judgment to defendants.
Finding no substantial issues of material fact, Judge Gibson
found plaintiff failed to satisfy the requirements of N.J.S.A.
2A:14-2 and her claims that poor quality parts were placed in her
vehicle were therefore barred. Relying on Caravaggio v.
D'Agostini, 166 N.J. 237, 246 (2001) and Ford Motor Credit Co.,
LLC v. Mendola, 427 N.J. Super. 226, 236-37 (App. Div. 2012), the
judge found plaintiff filed her claim outside the two-year statute
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of limitations and failed to substantiate her claim with expert
testimony. Further, the judge determined that plaintiff's
discovery rule claim was without merit because she admitted she
returned to defendant's place of business for the sole purpose of
having her hood repainted.
The judge found further that defendants were not in default
of plaintiff's discovery requests and did not commit dilatory acts
in failing to keep documents for in excess of six or seven years
without notice of pending litigation. The judge also determined
that plaintiff lacked standing to bring an action pursuant to
N.J.S.A. 39:13-1, finding the power to investigate licensees under
that section was reserved pursuant to N.J.A.C. 13:21-21.17(a) for
the Director of the Motor Vehicle Commission.
With regard to the CFA, Judge Gibson found defendants did not
violate the Act. In so finding, the judge rejected plaintiff's
claim that defendants failed to provide plaintiff with invoices
for the work performed in 2007. The judge found further that the
evidence showed that plaintiff signed the invoices and the invoices
"clearly stated that economy parts were to be used." The judge
noted the disclaimer from the estimate stated:
This estimate has been prepared based on the
use of automobile parts not made by the
original manufacturer. Parts used in the
repair of your vehicle by other than the
original manufacturer are required to be at
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least equal in like, kind and quality in terms
of fit, quality and performance to replacement
parts available from the original
manufacturer.
As to the repainting of the vehicle hood, the judge found no
written estimate of price was required as no compensation was
requested for the work.
Judge Gibson rejected plaintiff's allegations that defendants
committed deceptive practices pursuant to N.J.A.C. 13:45A-26C.2,
finding that not only was documentation provided by the defendants,
but, in addition, plaintiff failed to prove an ascertainable loss.
The judge found plaintiff failed to prove a nexus between the
alleged defects found in her vehicle in 2013 and the work performed
by defendants in 2007.
In rejecting plaintiff's claims for breach of contract and
implied warranty, the judge found "[p]laintiff failed to provide
expert testimony[,] . . . lay witness testimony", or a sufficient
factual record for these claims. The judge found plaintiff's
proffer of her invoice from Kindle Auto Plaza dated August 11,
2015, with the phrase "writing on front diff cover resembles used
part" insufficient to prove her claim that those alleged "used"
parts were installed by defendants. Notably, the judge pointed
out that the Kindle invoice indicated it installed used parts, and
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an earlier Kindle invoice from November 19, 2013, did not indicate
what types of parts were installed in plaintiff's vehicle.
The judge also rejected plaintiff's claim that her vehicle
was unsafe to drive based on the Kindle 2015 invoice,2 which stated
the vehicle was unsafe due to major rust, noting this was seven
years after defendant performed the repairs. The judge further
found plaintiff failed to produce an expert to prove economy parts
would have rusted sooner than Mopar parts. Finally, the judge
took notice of defendants' invoice from 2007, finding that although
it proved he worked on the front axle, it also definitively proved
Rusco did not work on plaintiff's brakes or rotors. Further, the
invoice detailed "work done" and indicated "economy parts" were
used in each instance. Consequently, the judge concluded Kindle's
recommendation in 2013, that plaintiff needed front brakes and
rotors, was not evidence of negligence on the part of defendants.
Plaintiff moved for reconsideration, which was denied on
March 15, 2016. On appeal, plaintiff argues the judge erred in
dismissing plaintiff's 2007 CFA claim and denying her motion for
summary judgment regarding the 2013 allegations. In addition,
plaintiff asserts the judge abused his discretion in refusing to
2
This invoice is missing from the appendices.
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grant her numerous motions for discovery and sanctions against
defendants.
We disagree and affirm substantially for the reasons set
forth in Judge Gibson's January 6, 2016 opinion. We add only the
following brief comments.
We review a ruling on a motion for summary judgment de novo,
applying the same standard governing the trial court. Templo
Fuente De Vida Corp. v. National Union Fire Ins. Co., 224 N.J.
189, 199 (2016) (citation omitted). Thus, we consider, as the
motion judge did, "whether the competent evidential materials
presented, when viewed in the light most favorable to the non-
moving party, are sufficient to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-moving
party." Brill, supra, 142 N.J. at 540. If there is no genuine
issue of material fact, we must then "decide whether the trial
court correctly interpreted the law." DepoLink Court Reporting &
Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.
Div. 2013) (citation omitted). We review issues of law de novo
and accord no deference to the trial judge's legal conclusions.
Nicholas v. Mynster, 213 N.J. 463, 478 (2013). "[F]or mixed
questions of law and fact, [we] give[] deference . . . to the
supported factual findings of the trial court, but review[] de
novo the lower court's application of any legal rules to such
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factual findings." State v. Pierre, 223 N.J. 560, 577 (2015)
(citations omitted). This standard compels the grant of summary
judgment "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to
a judgment or order as a matter of law." R. 4:46-2(c). Applying
the above standards, we discern no reason to reverse the grant of
summary judgment.
Our Supreme Court has recently reaffirmed how a court should
construe the CFA. D'Agostino v. Maldonado, 216 N.J. 168, 183
(2013). "We construe the CFA in light of its objective 'to greatly
expand protections for New Jersey consumers.' As this Court has
noted, the CFA's original purpose was to combat 'sharp practices
and dealings' that victimized consumers by luring them into
purchases through fraudulent or deceptive means." Ibid. (citing
Cox v. Sears Roebuck & Co., 138 N.J. 2, 16 (1994) (internal
citations omitted).
In a 1971 amendment to the CFA, the
Legislature supplemented the statute's
original remedies available to the Attorney
General with a private cause of action. The
CFA's private cause of action is an efficient
mechanism to: (1) compensate the victim for
his or her actual loss; (2) punish the
wrongdoer through the award of treble damages;
and (3) attract competent counsel to
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counteract the community scourge of fraud by
providing an incentive for an attorney to take
a case involving a minor loss to the
individual.
[D'Agostino, supra, 216 N.J. at 183-84
(internal quotations and citations omitted).]
To prevail in a cause of action asserting a violation of the
CFA, a plaintiff must prove: "1) unlawful conduct by defendant;
2) an ascertainable loss by plaintiff; and 3) a causal relationship
between the unlawful conduct and the ascertainable loss." Id. at
184 (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557
(2009)). The CFA defines the term "unlawful practice or conduct"
as:
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; provided, however, that nothing
herein contained shall apply to the owner or
publisher of newspapers, magazines,
publications or printed matter wherein such
advertisement appears, or to the owner or
operator of a radio or television station
which disseminates such advertisement when the
owner, publisher, or operator has no knowledge
of the intent, design or purpose of the
advertiser.
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[N.J.S.A. 56:8-2].
Here, it is undisputed that at the time plaintiff first
brought her car in for repairs in 2007, defendants performed the
necessary repairs and complied with the requirements of the CFA
in effect at that time. Following the repairs, plaintiff had no
apparent issues until she returned seeking a repainting of the
car's hood in 2013. Defendants repainted the hood, without charge,
despite noting that the warranty on work performed in 2007 had
expired. The repainting, apparently performed for good will, is
not actionable under the CFA as plaintiff suffered no ascertainable
loss, and there is no evidence of unlawful conduct as required
under N.J.S.A. 56:8-19. We find no error in the trial court's
dismissal of plaintiff's CFA claim as to the 2007 repairs, or the
granting of summary judgment with regard to the 2013 allegations.
Likewise, we find no abuse of discretion in the judge's refusal
to enter sanctions against defendants.
In light of the record and applicable legal principles, we
conclude plaintiff's remaining arguments are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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