STATE OF NEW JERSEY VS. JOHN HELLERÂ Â (06-04-0336, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5891-13T1
DIEUSEUL SYLINCE,
Plaintiff-Appellant,
v.
THRIFT AUTO SALES, INC. and
TINO RODRIGUES,
Defendants-Respondents.
____________________________________
Submitted May 20, 2015 – Decided October 14, 2015
Before Judges Fuentes, Kennedy and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Morris
County, Docket No. DC-2187-14.
Pinilis Halpern, LLP, attorneys for appellant
(William J. Pinilis, on the brief).
Respondents have not filed a brief.
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Plaintiff Dieuseul Sylince filed a one count civil
complaint against defendants Thrift Auto Sales, Inc. and Tino
Rodrigues alleging violation of the Consumer Fraud Act (CFA),
N.J.S.A. 56:8-1 to -20. Plaintiff’s complaint sought treble
damages and counsel fees as provided by the CFA under N.J.S.A.
56:8-19. After a bench trial, the judge found in plaintiff's
favor and entered judgment against defendants in the amount of
$2,355.60. Despite these undisputed facts, the trial judge
denied plaintiff's counsel's motion to treble the damage award
and denied his application for counsel fees, finding the CFA did
not apply based on what the judge characterized as "an error" on
defendants' part.
We now reverse and remand for the trial court to enter
judgement against defendants trebling the award of monetary
damages which constituted an "ascertainable loss" under the CFA.
The court shall also award plaintiff’s counsel reasonable fees
in connection with his representation of plaintiff in this case,
including the time counsel spent in connection with this appeal
as provided by N.J.S.A. 56:8-19. The record shows plaintiff
proved: (1) he was the victim of defendants' unconscionable
commercial practices in the form of knowing misrepresentations
concerning the sale of an extended service contract; (2)
demonstrated an ascertainable loss; and (3) established a causal
relationship between the unlawful conduct and the ascertainable
loss. Under these circumstances, treble damages and counsel
fees under N.J.S.A. 56:8-19 are mandatory. D'Agostino v.
Maldonado, 216 N.J. 168, 185 (2013).
The following facts are undisputed. On January 11, 2014,
defendants sold plaintiff a 2006 Chrysler 300 for $8,500. In
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connection with the purchase of this car, defendants also sold
plaintiff a third-party extended service contract for an
additional $1000. Defendants represented to plaintiff that
under this extended service contract Chrysler would pay certain
repairs for a period of three months from the date of sale,
regardless of the number of miles driven during this three-month
period.1
Within the ninety-day extended service period plaintiff
experienced certain mechanical problems with the car and noticed
the "check engine" light had activated. Plaintiff immediately
brought the car to defendants' mechanic for an evaluation.
Defendants' mechanic told plaintiff they were unable to find
anything wrong with the car. Defendants reset the "check
engine" light to ensure this signal was no longer activated when
plaintiff took possession of the car.
Shortly thereafter, plaintiff's "check engine" light again
activated. This time, plaintiff brought the car to an
independent mechanic employed by Beyer Chrysler Jeep Dodge, a
local Chrysler dealership. The mechanic at Beyer Chrysler
1 The "Car's Protection Plus" extended service contract
defendants purportedly sold to plaintiff for $1000 was intended
to cover repairs to the "engine/fuel system, automatic
transmission/transfer case, manual transmission/transfer case,
suspension, seals, gaskets, & fluids, steering components, brake
components, air conditioning and Freon, engine cooling system,
electrical components, labor, (at a rate of $60 per hour),
rental benefits, and 24-hour roadside service."
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informed plaintiff that the car's intake manifold needed repair
at an estimated cost in excess of $2000. Beyer Chrysler
repaired the car, ultimately charging plaintiff $2,289.60.
Plaintiff proved, and the trial judge found as a matter of fact,
that defendants did not transmit plaintiff's $1000 to the
company that offered the extended service contract. In fact,
defendant Tino Rodrigues admitted at trial he did not attempt to
purchase the extended service contract on plaintiff's behalf
until after Beyer Chrysler had already completed the repairs on
plaintiff's car. As a result, plaintiff ended up having to pay
Beyer Chrysler the $2,289.60 charge for repairing the car.
The record shows that before filing this suit, plaintiff
requested defendants to pay for the cost of the repairs.
Defendants refused. Furthermore, although defendants charged
plaintiff $1000, the actual premium for this extended service
was $250. Despite these uncontested facts, the trial judge
concluded defendants' conduct had not violated the CFA. The
judge gave the following explanation in support of this
conclusion.
But I don't find that there's sufficient
evidence for the Court to conclude that
somehow this was intentional action by
Thrift Auto Sales from its inception. And I
understand the Consumer Fraud Act does not
require intentional conduct. I'm just
responding to what I perceive counsel's
arguments to be.
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I don't think there's sufficient evidence
that the Court can draw an inference that at
the time of the purchase of the car it was
the intent of Thrift Auto Sales not to send
in the service contract.
If that were their intent and they made
representations to the plaintiff that he
would be covered and he paid for a service
contract and all along the defendant had no
intent of actually sending it in, which
would cause their account to be debited
$249, that would certainly be a violation of
the Consumer Fraud Act.
But I think the facts here are a little bit
different. I don't think I can draw an
inference that that was the conduct of the
defendant here. Certainly they didn't send
the contract in to be activated for whatever
reason. And as I said it's unclear to the
Court what that reason was, whether they
just failed to do it.
But I do note that the plaintiff testified,
Mr. Sylince, that he had a conversation with
the representative of Thrift Auto Sales and
during that conversation he said the
representative told Mr. Sylince that
somebody screwed up, or words to that
effect.
And from that I can draw the inference that
someone at Thrift Auto Sales failed to fax
the contract. It seems to me you're at a
routine function of Thrift Auto Sales, but
for whatever reason they didn't do it in
this case. And the warranty wasn't covered.
And Mr. Sylince should certainly be
compensated for the amount that he expended,
$2,289.60. And I will find in his favor in
that amount.
But the issue as addressed by counsel is
whether the facts in this case warrant a
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violation of the Consumer Fraud Act. And I
don't find that they do in this case.
We review the trial court's legal conclusion de novo.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995) ("A trial court's interpretation of the law and the
legal consequences that flow from established facts are not
entitled to any special deference.") Our Supreme Court has
recently reaffirmed how a court should construe the CFA.
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.
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 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. 183-184
(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
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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.
[N.J.S.A. 56:8-2 (Emphasis added)].
Here, it is undisputed that at the time plaintiff first
brought his car in for repairs, defendants misrepresented and
knowingly concealed from plaintiff that they had not purchased
the third-party extended service contract. It is equally clear
defendants misrepresented and concealed the condition of
plaintiff's car when they returned the vehicle to plaintiff.
Specifically, defendants (1) failed to perform the necessary
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repairs; (2) deactivated the "check engine" warning light; and
(3) failed to disclose to plaintiff that he did not have the
extended service protection he had paid $1000 to acquire. These
material knowing misrepresentations and omissions constitute the
type of unconscionable commercial practices the CFA was intended
to deter by awarding the victims of such practices treble
damages.
The record shows plaintiff established the
unconscionability of defendants' conduct, demonstrated an
ascertainable loss in the form of $2,289.60 in repair costs and
$750 in excess premium, and proved a causal relationship between
defendants' conduct and that ascertainable loss. Under these
circumstances, plaintiff is entitled to treble damages and an
award of counsel fees under N.J.S.A. 56:8-19 as a matter of law.
The trial court has no discretion to deny this relief because
the CFA makes both of these things mandatory. D'Agostino,
supra, 216 N.J. at 185.
We thus reverse the trial court's ruling denying the
applicability of the CFA, and remand for the trial court to
amend the judgment entered against defendants by trebling the
ascertainable loss sustained by plaintiff and awarding plaintiff
"reasonable attorneys' fees, filing fees and reasonable costs of
suit." N.J.S.A. 56:8-19. The court must determine the award of
counsel fees by applying the methodology established by our
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Supreme Court in Rendine v. Pantzer, 141 N.J. 292, 337 (1995),
as reaffirmed in Walker v. Giuffre, 209 N.J. 124, 131-132
(2012).
Reversed and remanded. We do not retain jurisdiction.
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