Nappe v. Anschelewitz, Barr, Ansell & Bonello ( 1984 )

The opinion of the Court was delivered by

SCHREIBER, J.

The primary issue raised by this case is whether a cause of action for legal fraud exists in the absence of compensatory damages.¹ A related issue is whether punitive damages may be awarded in the absence of a compensatory damage award in an action for legal fraud. These issues arose when the jury awarded plaintiff $2 as nominal damages against the defendant Richard Bonello for fraud in each of two transactions and $50,000 in punitive damages for both frauds, without an allocation of the punitive award to either matter. These claims arose from two separate transactions — one involving plaintiff’s loan to furnish a model apartment for a high-rise condominium project, and the other, plaintiff’s purchase of an interest in an office building.

The Appellate Division reversed these judgments. It held that compensatory damages are a requisite element of a cause of action for legal fraud, that nominal damages were impermissible, and that punitive damages could not lie in the absence of compensatory damages. It dismissed the claim of fraud in the office building purchase because plaintiff failed, among other things, to prove actual damages. It remanded for a new trial plaintiff’s claim of fraud regarding the high-rise condominium loan on the issues of liability, compensatory damages, and punitive damages, holding that the jury could award compensatory damages for loss of interest, contrary to the trial court’s instruction, if the jury found that plaintiff was fraudulently induced to make a loan that was interest-free over an extended period of time. 189 N.J.Super. 347, 358-60 (1983). Moreover, the Appellate Division held that the punitive damage determination could not stand because the jury had not allocated the punitive damage award between the two transactions. Id. at 357.

We granted plaintiffs petition and defendants’ cross-petition for certification, 95 N.J. 200 (1983), limited to the following two questions:

A. Is compensable damage a requisite element of legal fraud or may nominal and punitive damages be awarded in the absence of compensatory damages?

B. Does the seller of real property have a duty to disclose to the buyer the existence of “sweetheart” leases?

After considering and examining the record in detail and the oral arguments of counsel, we are satisfied that there existed sharply disputed factual contentions concerning the existence of “sweetheart” leases. That being so, we are of the opinion that certification of the question of “sweetheart” leases was improvidently granted and hereby vacate certification of that issue. We need consider only the high-rise condominium loan.

The jury could reasonably have made the following factual findings on the basis of the evidence adduced at the trial. In May, 1973 plaintiff tentatively agreed to loan Avenel Boulevard, Inc. (Avenel) $200,000 to build and furnish a model condominium for a high-rise apartment complex Avenel was building in Monmouth Beach. Defendant Bonello, the attorney for Avenel and trustee for the disbursement of the construction mortgage funds, told plaintiff that in exchange for the $200,000 loan for the model apartment, plaintiff would receive ten percent of the profits from the entire project. He stated that projected profits were $1,800,000. Bonello had a personal interest in ensuring that his client obtain the loan because a successful completion of the enterprise would have enhanced the value of his right to purchase two of the condominium units at cost.

In June, 1973 plaintiff entered into two written agreements providing that he would loan Avenel $200,000 in exchange for ten percent of the net profits from the condominium complex. Neither agreement expressly restricted Avenel’s use of the $200,000.

Prior to the loan closing, plaintiff had advanced $75,000 to Avenel after its principals represented that Avenel needed that amount for the model ap'artment’s furnishings, which were being delivered C.O.D. Plaintiffs check for $75,000 was not deposited in Avenel’s account, but instead was deposited in the account of Driftwood, Inc. (Driftwood), a corporation controlled by Avenel’s principals.

Bonello deposited plaintiffs check for the remaining $125,000 of the loan in the trust account of Bonello’s law firm, defendant Anschelewitz, Barr, Ansell & Bonello. Within the next two days, Bonello issued five checks disbursing $128,250, including $3,250 previously deposited in the account, in the following manner: $69,500 to a principal of Avenel individually; $50,000 to an unsecured creditor of Avenel; $8,000 in two checks to Molly Company, a theatrical venture; and $750 to his law firm for legal fees. None of the money was used to build and furnish a model apartment.

Plaintiff apparently learned shortly afterwards that construction of the model apartment had stopped because of lack of funds. Plaintiff did not learn of the diversion of his loan until November, 1973. Plaintiff failed to show any loss of profits due to diversion of his $200,000 loan to purposes other than the model apartment or the high-rise project.

The trial court charged the jury that if it found that there was actionable fraud² and the plaintiff sustained damages that were not computable, the jury should award nominal damages, such as a dollar. The trial court also charged that if the jury decided to award compensatory or nominal damages, it could then consider punitive damages. The trial court submitted interrogatories to the jury. In its answers, the jury found that defendant Bonello had committed an actionable fraud with respect to the high-rise condominium investment loan and that plaintiff was entitled to nominal damages of $1. In response to the final interrogatory, the jury made a single award of $50,000 .in punitive damages for the frauds in the high-rise condominium loan and the office building sale.

I

The initial question to be considered is whether compensatory damages are an essential element of legal fraud. If compensatory damages are an essential element of the cause of action, the claim must be dismissed despite the fact that the plaintiff has proved all the other elements. On the other hand, if the cause of action is deemed effective even though the plaintiff had not proved his entitlement to compensatory damages, the viability of the cause of action may be the basis of an award of punitive damages. This is because punitive damages may lie provided there is a valid underlying cause of action.

Compensatory damages historically have been considered an essential element of some torts, but not others. It is well established that the plaintiff must show a breach of duty and resulting damage to prevail in a negligence action. See Stanley Co. of Am. v. Hercules Powder Co., 16 N.J. 295, 315 (1954); Ochs v. Public Serv. Ry., 81 N.J.L. 661, 662 (E. & A. 1911); Muller Fuel Oil Co. v. Insurance Co. of N. Am., 95 N.J.Super. 564, 579 (App.Div.1967). On the other hand, some torts are actionable without proof of a compensable injury. Thus a trespass on property, whether real or personal, is actionable, irrespective of any appreciable injury. Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90, 93-94 (Sup.Ct.1936); Wartman v. Swindell, 54 N.J.L. 589, 590 (E. & A. 1892). The general rule is that whenever there is a breach of contract, see cases cited in G. Harris, Pleading and Practice in New Jersey 316 n. 33 (rev. ed. 1939), or an invasion of a legal right, the law ordinarily infers that damage ensued, and, in the absence of actual damages, the law vindicates the right by awarding nominal damages. Spiegel v. Evergreen Cemetery Co., supra, 117 N.J.L. at 93.

The difference in the treatment of these torts is attributable to the historical distinction between the common-law writs of trespass and trespass on the case. In early English common law, both writs were available to redress tortious harm. Trespass, as distinguished from trespass on the case, was considered quasi-criminal in nature and was the remedy for forcible, direct, and immediate injuries to persons or property. It had a basic criminal character since it was directed at breaches of the King’s peace and it was on this ground that the royal courts assumed jurisdiction. Damages were first awarded to the injured plaintiff as an incidental aspect of the criminal proceeding. 1 F. Harper & F. James, The Law of Torts § 1.3, at 7-8 (1956); W. Prosser, Handbook on the Law of Torts § 7, at 28-29 (4th ed. 1971). Proof of actual damage was not required because invasion of the plaintiff’s rights was regarded as the tort in itself. W. Prosser, supra, § 7, at 29.

Trespass on the case, on the other hand, developed as a supplement to trespass to afford a remedy for injury resulting indirectly. The classic illustration of the difference involves that of a log thrown onto a highway. If a person were struck by the log, trespass would lie. If he fell over the log as it lay on the road, the action would be on the case. Leame v. Bray, 102 Eng.Rep. 724, 726 (1803); Reynolds v. Clarke, 92 Eng.Rep. 410, 413 (1725). The distinction was not between intentional and negligent conduct, but was based instead on the causal sequence and the directness of the harm. In trespass on the case there could ordinarily be no liability unless actual damage was proven. 2 W. Wait, Actions and Defenses 99-102 (1877); see also W. Prosser, supra, § 7, at 28-30.

For the most part, these procedural distinctions between trespass and trespass on the case have disappeared. However, a vestige of the distinction between the two has remained with respect to the requirement of proving actual damage. As Dean Prosser has observed: “[Wjhether such damage is essential to the existence of a cause of action for a particular tort may depend very largely upon its ancestry in terms of the old procedure.” W. Prosser, supra, § 7, at 30; see 1F. Harper & F. James, supra, § 1.3, at 7-11. Some “case” actions that have continued to require proof of actual damage are slander of title, disparagement of goods, and slander that is not per se. C. McCormick, Handbook on the Law of Damages § 22, at 89 (1935). However, in other actions on the case, courts have not adhered to the common-law distinction and have sustained actions in the absence of proof of compensatory damage. These include libel, slander per se, nuisance, and malicious prosecution. Id. at 90.

We have not hesitated to modify the common law when it is no longer fair and equitable or does not serve a useful purpose. Justice Jacobs, in striking down a common-law rule requiring unanimity of arbitrators’ awards, stated in La Stella v. Garcia Estates, 66 N.J. 297, 305 (1975):

Whatever validity the common law rule may originally have had, it is clear to us that it has no proper place in current times. This Court has not hesitated to reject common law doctrines which have outlived their usefulness and which no longer serve justice or the interests of society. See Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29 (1958); Smith v. Brennan, 31 N.J. 353 (1960); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (1960); France v. A.P.A. Transport Corp., 56 N.J. 500 (1970).

See also Canino v. New York News, Inc., 96 N.J. 189, 192 (1984); Kearny PBA Local #21 v. Town of Kearny, 81 N.J. 208, 220 (1979).

Although distinctions based on common-law writs may once have been appropriate, the requirement of actual damage to sustain a cause of action for intentional torts no longer serves a useful purpose, at least where a victim of an intentional wrong has suffered some loss, detriment, or injury but is unable to prove that he is entitled to compensatory damages. His rights have been invaded and he should be entitled to vindication in an award of nominal damages.³ Indeed, it is difficult to justify permitting nominal damages in a trespass action and not in a case of a wilful and malicious intentional tort. We hold, therefore, that compensatory damages are not an essential element of an intentional tort committed wilfully and without justification when there is some loss, detriment, or injury, and that nominal damages may be awarded in such cases in the absence of compensatory damages.

II

The three basic types of legal damages are compensatory, nominal, and punitive. Compensatory damages are designed to compensate a plaintiff for an actual injury or loss. Nominal damages, unlike compensatory damages, do not attempt to compensate the plaintiff for an actual loss. D. Dobbs, Handbook on the Law of Remedies § 3.1, at 135, and § 3.8, at 191 (1973). Rather, they are a trivial amount “awarded for the infraction of a legal right, where the extent of the loss is not shown, or where the right is one not dependent upon loss or damage * * *. The award of nominal damages is made as a judicial declaration that the plaintiffs right has been violated.” C. McCormick, supra, § 20, at 85. Finally, punitive damages are awarded as punishment or deterrence for particularly egregious conduct. Leimgruber v. Claridge Assocs., 73 N.J. 450, 454 (1977); DiGiovanni v. Pessel, 55 N.J. 188, 190 (1970).

As early as 1791, this Court recognized that damages may appropriately be awarded “for example’s sake, to prevent such offences in future * * * [and] as would mark [the jury’s] disapprobation * * *.” Coryell v. Colbaugh, 1 N.J.L. 90, 91 (Sup.Ct.) (emphasis in original). Subsequent cases reaffirmed our commitment that punitive or exemplary damages can be awarded to punish aggravated misconduct by the defendant and to deter him and others from repeating it. E.g., Leimgru-ber, supra, 73 N.J. at 454; DiGiovanni v. Pessel, supra, 55 N.J. at 190-91; Berg v. Reaction Motors Div., 37 N.J. 396, 413-14 (1962); Magee v. Holland, 27 N.J.L. 86, 97-98 (Sup.Ct. 1858); Cabakov v. Thatcher, 37 N.J.Super. 249, 259 (App.Div. 1955). As Chief Justice Gummere observed many years ago in Dreimuller v. Rogow, 93 N.J.L. 1, 3 (Sup.Ct.1919):

The purpose of the award being to punish the wrongdoer, no reason is perceived for holding that the power to inflict punishment is dependent to any extent upon the form of the action by which the injured party seeks redress for the wrong done him by the malicious or wanton trespass committed against his property.

To warrant a punitive award, the defendant’s conduct must have been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense of an “evil-minded act” or an act accompanied by a wanton and wilful disregard of the rights of another. DiGiovanni v. Pessel, supra, 55 N.J. at 191. In Berg v. Reaction Motors Div., supra, 37 N.J. at 414, this Court said:

Professor McCormick suggests that in order to satisfy the requirement of willfulness or wantonness there must be a "positive element of conscious wrongdoing.” See McCormick, supra, at p. 280. Our cases indicate that the requirement may be satisfied upon a showing that there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences. See King v. Patrylow, 15 N.J. Super. 429, 433 (App.Div. 1951); cf. Krauth v. Israel Getter and Buckingham Homes, Inc., 31 N.J. 270, 277 (1960); Egan v. Erie R. Co., 29 N.J. 243, 255 (1959); Tidewater Oil Co. v. Camden Securities Co., 49 N.J. Super. 155, 164 (Ch.Div. 1958). See also Staub v. Public Service Railway Co., 97 N.J.L. 297, 300 (E. & A. 1922).

The key to the right to punitive damages is the wrongfulness of the intentional act. “The right to award exemplary damages primarily rests upon the single ground — wrongful motive * * Dreimuller v. Rogow, supra, 93 N.J.L. at 3; see also Trainer v. Wolff, 58 N.J.L. 381 (E. & A. 1895). Or, as Dean Prosser has said:

Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton. Lacking this element, mere negligence, however “gross,” is generally held not to be enough. [Di-Giovanni v. Pessel, supra, 55 N.J. at 190 (quoting W. Prosser, Handbook on the Law of Torts § 2, at 9-10 (2d ed. 1955).]

Because of the fortuitous circumstance that an injured plaintiff failed to prove compensatory damages, the defendant should not be freed of responsibility for aggravated misconduct. People should not be able with impunity to trench wilfully upon a right. Moreover, it is especially fitting to allow punitive damages for actions such as legal fraud, since intent rather than mere negligence is the requisite state of mind.

The punitive award is not required to have a fixed proportional relationship to the amount of compensatory damages. Instead, to further the punishment and deterrent goals in assessing punitive damages,

the trier of fact should take into consideration all of the circumstances surrounding the particular occurrence including the nature of the wrongdoing, the extent of harm inflicted, the intent of the party committing the act, the wealth of the perpetrator, as well as any mitigating circumstances which may operate to reduce the amount of the damages. [Leimgruber, supra, 73 N.J. at 456.]

Our courts have held that punitive damages could be awarded for egregious conduct in the absence of compensatory damages. See, e.g., Singer Shop-Rite, Inc. v. Rangel, 174 N.J. Super. 442, 448 (App.Div.1980) (punitive damages upheld despite lack of compensatory award for a-ssault and battery), certif. denied, 85 N.J. 148 (1980); Winkler v. Hartford Accident & Indem. Co., 66 N.J.Super. 22, 29 (App.Div.) (the better view is to allow punitive damages in action for conversion even if plaintiff is unable to prove compensatory damages), certif. denied, 34 N.J. 581 (1961); Barber v. Hohl, 40 N.J.Super. 526, 534-35 (App.Div.1956) (affirming punitive damage award for removal of lateral support to plaintiffs land but remanding for retrial for amount, if any, of compensatory damages); see also Westfield Centre Serv., Inc. v. Cities Serv. Oil Co., 158 N.J.Super. 455, 485-87 (Ch.Div.1978) (“[W]here a legal right has been violated, the law will infer nominal damages even in the absence of actual loss [and] punitive damages may be awarded.”) (citations omitted), supp. 162 N.J.Super. 114 (Ch.Div.1978), aff’d on other grounds 172 N.J.Super. 196 (App.Div.1980), aff'd, 86 N.J. 453 (1981); cf. O’Connor v. Harms, 111 N.J.Super. 22, 29-30 (App.Div.) (recognizing that some authorities hold that nominal damages can support an award of punitive damages, but striking down punitive award because no nominal damages awarded), certif. denied, 57 N.J. 137 (1970). But see Annot., 17 A.L.R.M 527 (1951) (majority of jurisdictions require an award of compensatory damages as predicate to punitive damages).

It should be noted that the punishment aspect is for the private wrong to the individual, rather than the wrong to the public. It is settled that if the wrong constitutes a criminal act, the punitive damage award may effectively supplement the criminal law in punishing the defendant. Morris v. MacNab, 25 N.J. 271, 281 (1957); see 4 Restatement (Second) of Torts § 908 comment a (1979).

The principle that punitive damages may be awarded in the absence of compensatory damages in actions for intentional torts furthers desirable policy goals. “[T]he nominal-damage cases are peculiarly appropriate for exemplary damages. If no compensable harm is done even though the defendant’s conduct is very wrongful, the normal admonitory function of tort law is not brought into play unless exemplary damages are assessed.” Note, “Exemplary Damages in the Law of Torts,” 70 Harv.L. Rev. 517, 529 (1957).

We therefore hold that punitive damages may be assessed in an action for an intentional tort involving egregious conduct whether or not compensatory damages are awarded, at least where some injury, loss, or detriment to the plaintiff has occurred.

III

Legal fraud has generally been defined as “a material representation of a presently existing or past fact, made with knowledge of its falsity and with the intention that the other party rely thereon, resulting in reliance by that party to his detriment.” Jewish Center v. Whale, 86 N.J. 619, 624 (1981); see also Louis Schlesinger Co. v. Wilson, 22 N.J. 576, 585-86 (1956); Foont-Freedenfeld, Corp. v. Electro-Protective Corp., 126 N.J.Super. 254, 257 (App.Div.1973), aff’d, 64 N.J. 197 (1974).

The majority rule of law is that actual loss or injury and compensatory damages are necessary to maintain a cause of action for legal fraud and that, in the absence of an award of compensatory damages, a cause of action has not been made out and nominal and punitive damages may not lie. See, e.g., Day v. Avery, 548 F.2d 1018, 1029 (D.C.Cir.1976), cert. denied, 431 US. 908, 97 S.Ct. 1706, 52 L.Ed.2d 394 (1977); Monteleone v. Trail Pontiac, Inc., 395 So. 2d 1003, 1004 (Ala.Civ.App.1980), writ denied, 395 So. 2d 1005 (Ala.1981); Beik v. Thorsen, 169 Conn. 593, 594, 363 A. 2d 1030, 1031 (1975); Zeliff v. Sabatino, 15 N.J. 70, 77 (1954) (Burling, J., dissenting); Mumphord v. First Victoria Nat’l Bank, 605 S.W.2d 701, 704-05 (Tex.Civ.App.1980); D. Dobbs, supra, § 3.8, at 191-93; W. Prosser, supra, § 110, at 731-32; 37 Am.Jur.2d, “Fraud and Deceit” § 283, at 377-79 (1968). Our research has not disclosed, and counsel have not brought to our attention, any New Jersey decision holding that nominal damages may not be awarded in a case of legal fraud. However, that such has been our rule might be inferred from the language in some opinions that include in the definition of legal fraud not only reliance but also resultant injury or detriment. See, e.g., Jewish Center v. Whale, supra, 86 N.J. at 624; Racanati v. Black Diamond Stevedoring Co., 132 N.J.L. 250, 251-53 (E. & A. 1944). This rule is the product of the historical concept that actual damages were an essential ingredient of a cause of action based on a trespass on the case.

In the case of legal fraud the plaintiff, as we have seen, in addition to proving damage, must prove scienter, meaning knowledge of the falsity of the representation, with an intent that the other party rely thereon. Such fraudulent conduct constitutes unfair dealing whether or not actual damages are shown. Even if the person relying on the falsehood were unable to establish actual damages, he should be entitled to vindicate his rights through an award of nominal damages and in appropriate cases to punish the defendant through an award of punitive damages.

Courts in several other states have refused to be constrained by the outmoded common-law requirement and have sustained actions for legal fraud when the plaintiffs injury was not compensable. See, e.g., Pihakis v. Cottrell, 286 Ala. 579, 243 So.2d 685 (1971); O’Brien v. Small, 101 Ohio App. 408, 122 N.E.2d 701 (1954); Beavers v. Lamplighters Realty, 556 P.2d 1328 (Okla.Ct.App.1976); Sands v. Forrest, 290 Pa.Super. 48, 434 A.2d 122 (1981); Collier v. Bankston-Hall Motors, 267 S.W.2d 898(Tex.Civ.App.l954);see also37 C.J.S.,'“Fraud”§ 139, at 465 (1943). Some courts have also determined that punitive damages may be awarded for fraud when there has been some loss, injury, or detriment, even if the plaintiff does not recover any compensatory damages. Pihakis v. Cottrell, supra, 286 Ala. at 586, 243 So.2d at 691-92; Harris v. Wagshal, 343 A.2d 283, 288 n.13 (D.C.1975); United Sec. Corp. v. Franklin, 180 A.2d 505, 511 (D.C.1962); Beavers v. Lamplighters Realty, supra, 556 P.2d 1328; cf. Klein v. Spear, Leeds & Kellogg, 306 F.Supp. 743 (S.D.N.Y.1969) (actual damages must be shown but not necessarily awarded). But see Day v. Avery, supra, 548 F. 2d at 1029-30. We believe this is the sounder position. Our previous holding that nominal and punitive damages may be appropriately assessed in certain circumstances for intentional torts in the absence of a compensatory damage award is fully applicable in actions for legal fraud.

IV

In the present case, the trial court permitted the jury to award plaintiff nominal and punitive damages without compensatory damages. The trial court instructed the jury:

[I]f you find that there was actionable conduct [as previously defined by the court] on the part of the defendant and you reasonably believe that he sustained damages, but they are not computable, as I have already indicated [excluding consideration of lost interest on the high-rise loan transaction], but you feel that there has been sufficient evidence that he was damaged, you should in light of the questions I would submit if you so find, enter an award of nominal damages.

Under these instructions, a jury would need to find that the plaintiff suffered some harm as a result of his reliance on the defendant’s fraudulent conduct, even if he were unable to prove that he was entitled to compensatory damages. Here, the jury could have inferred that the defendant's diversion of plaintiff’s funds from the high-rise project delayed its construction and thereby reduced the plaintiff’s profits, although by an uncertain amount. Therefore, these instructions were correct in view of our holding that compensatory damage is not a requisite element of legal fraud.

In the absence of any other issues, we would reinstate the jury’s finding of liability and nominal damages for fraud in the high-rise condominium claim. However, the Appellate Division had remanded that cause for a new trial on liability and on plaintiff’s claim for compensatory damages predicated on loss of interest with respect to that loan. We did not certify the propriety of those issues and do not pass on them. Under these circumstances, the trial on remand should also include plaintiff’s claim for punitive damages.

Reversed in part and affirmed in part.

1 The terms “actual” and "compensatory” damages are used interchangeably herein to refer to a monetary amount awarded in court to compensate or indemnify a plaintiff for an actual loss or injury suffered as a result of defendant’s actions. The words “loss," “injury," and “detriment” are used interchangeably to describe the impairment of rights or interests that the plaintiff has actually suffered.

A loss or injury does not necessarily entitle the victim to an award of compensatory damages. The general rule in this state is that a plaintiff is entitled to recover compensatory damages if he has met his burden of proving that he has suffered some loss or injury and if he has given the jury some information from which to estimate the amount of damages, even if he is unable to prove the exact measure of his damages; "the approved practice [in such a situation] is to leave it to the good sense of the jury, as reasonable men, to form, from the evidence, the best estimate that can be made under the circumstances as a basis of compensatory damages * * *." Jenkins v. Pennsylvania R.R. Co., 67 N.J.L. 331, 334 (E. & A.1902). Accord Betenbaugh v. Princeton Hosp., 50 N.J. 390, 393 (1967) (malpractice action); Martin v. Bengue, Inc., 25 N.J. 359, 373 (1957) (negligence action for product defect); 2 F. Harper & F. James, The Law of Torts § 25.3, at 1306-07 (1956). On the other hand, a plaintiff would not be entitled to a compensatory damage award for his loss or injury if he failed to come forward with sufficient information to enable the jury to estimate the amount of money that would fairly compensate him for that loss. In such a situation, an award of nominal damages might be appropriate.

2 The court defined fraud in its traditional legal sense: a knowing false representation by the defendant with intent to deceive, reliance on that representation by the plaintiff, and resultant damage to the plaintiff.

3 Being a prevailing party may entitle the plaintiff to taxed costs. See R. 4:42-8(a).