CYNTHIA TOPOLESKI VS. OLIGERT VESHI (DC-000171-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1820-16T1
CYNTHIA TOPOLESKI AND
EUGENE W. TOPOLESKI,
Plaintiffs-Appellants,
v.
OLIGERT VESHI,
Defendant-Respondent,
and
DEBORAH DAVIS,
Defendant.
______________________________
Argued February 5, 2018 – Decided January 8, 2019
Before Judges Accurso and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. DC-000171-16.
Amit Deshmukh argued the cause for appellants (Desh
Law, LLC, attorneys; Amit Deshmukh, of counsel and
on the brief).
Amy E. Lefkowitz argued the cause for respondent
(Law Offices of Curt J. Geisler, LLC, attorneys; Amy
E. Lefkowitz, of counsel and on the brief).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
Plaintiffs Cynthia Topoleski and Eugene W. Topoleski appeal the August
28, 2016 order of the Special Civil Part dismissing their complaint for damages
arising from their purchase of a used car, and the November 14, 2016 order
denying their motion for reconsideration. We reverse and remand for a new
hearing.
I.
The following facts are derived from the record. Defendant Oligert Veshi
listed a 2001 Volkswagen Jetta for sale on Craigslist, a classified advertisement
website. The car was fourteen years old with 103,000 miles on its odometer.
The advertisement stated that the vehicle "runs and drives without a problem"
with "engine and transmission 100%" and "[n]o [c]heck engine light." Veshi
offered to sell the car for $5000, or best offer.
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In response to the advertisement, Eugene 1 contacted Veshi to express
interest in the car. On June 11, 2014, Eugene inspected the car and took it for a
test drive, during which it operated without incident. The check engine light
was not illuminated during the test drive, which, according to Eugene, was
limited to a single block because Veshi informed him that the car was
unregistered and was displaying license plates from another vehicle . The trial
court found that Eugene negotiated with Veshi, who agreed to sell the car to him
for $3200.
Two days later, on June 13, 2014, Eugene purchased the car with money
from Cynthia, his mother. Cynthia intended to have her daughter use the
vehicle. According to Eugene, he headed home with the vehicle, and after
driving for five minutes, the check engine light illuminated, as did several other
warning lights. In addition, the car began to malfunction, had little power, and
would not go above approximately thirty miles per hour.
On June 17, 2014, four days after purchase, Cynthia arranged for an auto
mechanic to examine the car. The mechanic noted that the check engine light
was illuminated, as were several other warning lights, including the air bag,
1
Because plaintiffs share a last name, we refer to them by their first names. No
disrespect is intended.
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"ABS," and "TRAC" lights. The mechanic also found that an air flow sensor
had been installed backwards. When the sensor was reinstalled, it became
apparent that it was the wrong size for the car. Finally, the mechanic determined
that the vehicle was missing light bulbs and a timing cover, and had connectors
that were unwired. He also made a notation about the camshaft circuit, although
the nature of his finding is unclear. No repairs were done to the vehicle at that
time. Plaintiffs were charged $96.30 for the inspection.
Three months later, on September 11, 2014, a second mechanic evaluated
the car. At that point, the car had 104,488 miles on the odometer. He found
activated fault codes, and replaced several sensors and components, including
the camshaft sensor, crankshaft sensor, catalytic convertor, and flex pipe joint.
After performing his work, the second mechanic test drove the vehicle, during
which the car performed poorly. Plaintiffs were charged $1,813.26 for the
repairs.
On or about December 29, 2015, plaintiffs filed a complaint in the Special
Civil Part against Veshi. Plaintiffs sought damages for breach of contract,
negligence, and unconscionable commercial practices under the New Jersey
Consumer Fraud Act, N.J.S.A. 56:8-1 to -210 (CFA or the Act). They allege
Veshi, in his advertisement and communications with Eugene, deliberately
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concealed material facts concerning the poor condition of the car, and that they
relied on Veshi's misrepresentations to their detriment. Plaintiffs sought
$5,560.53 in actual damages, and costs of suit, with pre- and post-judgment
interest. In addition, on their CFA count, plaintiffs sought treble damages, as
well as attorney's fees. After service of the complaint, the clerk entered default
against Veshi.
The trial court held a proof hearing on August 25, 2016, at which Veshi's
participation was limited to the opportunity to cross-examine plaintiffs'
witnesses. See Jugan v. Pollen, 253 N.J. Super. 123, 129-31 (App. Div. 1992).
Before the submission of proofs, Veshi, who appeared without counsel, testified
that he was not served with the complaint because plaintiffs sent it to an
incorrect address. Plaintiffs' counsel countered that after an initial attempt to
serve Veshi at an incorrect address, the complaint was sent to Veshi's correct
address. The court declined to consider vacating the default against Veshi in the
absence of a motion. Plaintiffs elected to proceed with the proof hearing.
Both Cynthia and Eugene testified. Veshi declined to cross-examine the
Topoleskis. In addition, James R. Momana testified as an expert witness in the
repair and appraisal of Volkswagens. He testified that in March 2015, he
attached the car to a "reader," which reported that the components replaced in
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September 2014 continued to produce fault codes, despite their recent repair.
Although he cleared the fault codes while the engine was off, the codes
reappeared as soon as the car was restarted. The expert opined that the car had
serious deficiencies that were not corrected by the prior mechanic's
interventions. He further opined that the amount plaintiffs paid to repair the car
was reasonable. Veshi declined to cross-examine Momana.
On August 26, 2016, the trial court issued a written opinion, in which it
concluded plaintiffs had not proven that Veshi misrepresented the condition of
the car in his advertisement or verbally to Eugene at the time of the sale. The
court found that when Eugene took the car for a test drive, it operated properly
and the check engine light was not illuminated. In addition, the court noted that
plaintiffs waited until September 2014, three months after the purchase, to have
the car serviced by a mechanic. The court held that
Cars break. They break at the most inopportune times.
Owners and operators of cars sometimes get stranded
on our highways because they do not anticipate that the
cars they drive will brea[k] down.
Is it a coincidence? Was the 14[-]year[-]old car with
103,000 miles ready to break? Did the defendant know
this? Is it not equally likely that the defendant did not
know?
These are the questions that this Court is left with.
They stem from the significant delay in acquiring the
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initial diagnostic work done by Dave's Friendly
Service[.] [Eugene's] testimony that the check engine
light did not come on until after he test-drove the car
and while he was driving home; and Mr. Momana's
testimony that if a fault existed, if on[e] were to have
used the reader to clear the codes, once the car started
again, the fault would re-occur and the check engine
light would come on.
This Court cannot conclude that the plaintiff proved, by
the simple preponderance of the evidence that the
defendant misrepresented the condition of his car when
he sold it to [Eugene.]
[(footnote omitted).]
The court also rejected plaintiffs' negligence and breach of contract
claims, concluding that
[t]he sale of a used car is generally regarded as an "as-
is" sale. The Court is unaware of any authority for the
proposition that the seller of a used automobile has a
duty to inspect his automobile before selling it and to
warn a potential purchaser of the conditions of an
automobile. Absent such a duty there is no negligence
claim to consider.
The plaintiffs' breach of contract claim obligates the
plaintiffs to prove that they did not receive the
consideration that they bargained for.
They bought a 14[-]year[-]old car with 103,000 miles
on it. [Eugene] negotiated the price from $5,000 to
$3,200. He received what he bargained for. He did not
bargain for a guaranty or a warranty. The plaintiffs did
not prove breach of contract.
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On September 16, 2016, plaintiffs moved for reconsideration of the trial
court's order. The motion was supported by certifications from Cynthia and
Eugene. For the first time, Cynthia certified that shortly after the purchase, she
contacted Veshi and demanded that he accept return of the vehicle and refund
her money. When he refused, she filed suit against Thomas Ruiz, who she
thought was the person who sold her the vehicle because he was listed as the
owner on the title given to Eugene at the time of the sale. According to Cynthia,
she obtained a default judgment against Ruiz, who, when contacted by Cynthia,
told her that in 2011 he donated the vehicle to "1-800-JUNK-CAR" because it
had been flooded during Hurricane Irene and was unusable. Ruiz stated that he
turned the title to the vehicle over to the junk yard to which the car was hauled.
Realizing that Ruiz was not the person from whom she purchased the
vehicle, Cynthia filed a fraud report with the Lodi Police Department on January
8, 2015. She attached to her certification a police report in which a detective
detailed his investigation into the sale of the vehicle. In the report, the detective
stated the day after Cynthia filed her report, Ruiz filed a report of identity theft,
alleging that someone had represented himself as Ruiz when selling a vehicle to
plaintiffs in Lodi in 2014. Through subpoenas, and other investigative
techniques, the detective determined that the telephone number listed in the
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advertisement for the car, and to which Eugene had sent text messages about the
vehicle, was assigned to Veshi. In addition, the detective determined that Veshi
was a tenant at the address in Lodi at which Eugene test drove and took delivery
of the vehicle.
The detective reported that, at first, Veshi denied any knowledge of the
transaction, or the vehicle. A few days later, Veshi appeared at police
headquarters and admitted to having sold the car to plaintiffs, represented
himself as Ruiz, and falsely signed the title as Ruiz. According to the report,
Veshi offered to return the purchase price of the vehicle to Cynthia, who agreed
that she would be satisfied with this result. Veshi, however, did not follow
through on his promise.
In his certification in support of the motion for reconsideration, Eugene,
for the first time, certified that Veshi unilaterally reduced the purchase price
without negotiation. He submitted copies of text messages supporting this
assertion. In addition, he certified for the first time that Veshi instructed him to
give the money for the vehicle to a person he identified as his brother "A.J." at
a rehabilitation center in Saddle Brook where "A.J." worked as a valet. After he
turned the money over to "A.J.," Eugene picked up the vehicle at the Lodi
residence where he conducted the test drive.
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In their supporting brief, plaintiffs argued, among other things, that the
trial court overlooked the covenant of good faith and fair dealing inherent in
every contract, failed to find an implied warranty of fitness in the sales
agreement, and mistakenly determined that the vehicle was sold "as is."
The trial court denied plaintiffs' motion. The court concluded that
plaintiffs' certifications contained information not provided at the trial, despi te
having been available to plaintiffs at that time. In addition, the court held that
plaintiffs identified no facts adduced at trial overlooked by the court, and cited
no precedent warranting reconsideration.
This appeal followed.
II.
Following entry of default, a plaintiff seeking unliquidated damages
ordinarily is required to establish those damages at a proof hearing. R. 4:43-
2(b); Chakravarti v. Pegasus Consulting Grp., Inc., 393 N.J. Super. 203, 210
(App. Div. 2007). As we have long recognized, after a default, a plaintiff is
entitled to "all of the damages" that can be "prove[d] by competent, relevant
evidence." Heimbach v. Mueller, 229 N.J. Super. 17, 28 (App. Div. 1998). A
judgment entered after a contested proof hearing is subject to limited review.
See Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (explaining
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that "[f]inal determinations made by the trial court sitting in a non-jury case are
subject to a limited and well-established scope of review."). The question on
appeal is whether there was substantial evidence supporting the trial court's
findings of fact and conclusions of law. Ibid."The [CFA] provides a private cause of action to consumers who are
victimized by fraudulent practices in the marketplace." Gonzalez v. Wilshire
Credit Corp., 207 N.J. 557, 576 (2011). The Act "is aimed basically at unlawful
sales and advertising practices designed to induce consumers to purchase
merchandise or real estate." Daaleman v. Eilzabethtown Gas Co., 77 N.J. 267,
270 (1978). The statute is intended to "be applied broadly in order to accomplish
its remedial purpose." Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J.
255, 264 (1997). It is, therefore, liberally construed in favor of the consumer.
Cox v. Sears Roebuck & Co., 138 N.J. 2, 15 (1994).
Pursuant to the CFA, a plaintiff must establish three elements: "1)
unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a
causal relationship between the unlawful conduct and the ascertainable loss."
Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009) (citations omitted).
A consumer who can prove these elements "is entitled to legal and/or equitable
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relief, treble damages, and reasonable attorneys' fees." Lee v. Carter-Reed Co.,
LLC, 203 N.J. 496, 521 (2010) (citing N.J.S.A. 56:8-19).
Among the proscriptions in the Act are the
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 . . . .
[N.J.S.A. 56:8-2.]
The Act applies to casual sellers of automobiles. Real v. Radir Wheels, Inc.,
198 N.J. 511 (2009).
Having reviewed the transcript of the proof hearing, we are constrained to
conclude the trial court's findings of fact with respect to plaintiffs' CFA claim
are not supported by substantial evidence. The trial court found that Veshi's
advertisement stated that the vehicle "runs and drives without a problem," had
"[n]o [c]heck engine light" and its "engine and transmission" was "100%." In
addition, the court adopted Eugene's testimony that the check engine light
illuminated, along with a number of other warning lights, and the car began to
malfunction five minutes into his drive home from the sales transaction. Yet,
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the court concluded that plaintiffs had not established that Veshi's
representations in the advertisement were false or misleading.
The court's conclusion was, in part, based on the fact that the check engine
light did not illuminate, and the car did not malfunction, during Eugene's short
test drive of the vehicle. Although the performance of the car on the test drive
is undisputed, it is also immaterial. It is the condition of the vehicle at the time
of sale, and not at the time of the test drive, that is at issue here. Regardless of
how the vehicle may have performed during Eugene's short drive prior to the
purchase, plaintiffs' reliance on Veshi's representations in the advertisement
took place at the time of the sale.
In addition, attributing the car's performance on the ride home to plaintiffs'
bad luck, as opposed to Veshi's misrepresentations about its condition , ignores
other evidence in the record the court accepted as established. According to the
testimony adopted by the court, the car malfunctioned in multiple, significant
ways five minutes after the purchase. The car's many deficiencies were
documented just four days after the sale, when a mechanic noted that the check
engine light was illuminated, along with several other warning lights, that a
component was installed backwards and was the wrong size, and that the car
was missing light bulbs and a timing cover.
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While it may be true that one can expect a vehicle to experience a
mechanical issue with little or no warning, it strains credibility to conclude that
a vehicle with a "100%" "engine and transmission" and "no engine light" would,
five minutes after a sale, display an engine light and numerous other warning
lights, have little power, and be unable to exceed thirty miles per hour. It was
not, as the trial court concluded, equally likely as not that Veshi was unaware of
the grave condition of the vehicle when he made the relevant statements in the
advertisement. Veshi was limited in his ability to introduce evidence because
of a default and elected not to cross-examine the witnesses. As a result, there is
no evidence in the record with respect to Veshi's familiarity with the vehicle, or
the steps he took to verify the accuracy of the representations he made in the
advertisement. At the very least, it is impossible to conclude on this record that
Veshi undertook a good faith inspection of the vehicle prior to representing that
its engine was "100%" when a component part was the wrong size and installed
backwards.
We understand the trial court's reluctance to consider the new evidence
submitted in support of plaintiffs' motion for reconsideration. There are,
however, several factors that warranted granting the motion for reconsideration:
(1) the unusual procedural history of this matter, in which the proof hearing
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proceeded despite Veshi's challenge to the entry of default against him; (2)
counsel's focus on submitting evidence establishing damages rather than
liability during the proof hearing; and (3) the strong evidence challenging
Veshi's veracity submitted in support of plaintiffs' motion for reconsideration.
We, therefore, reverse the trial court's judgment dismissing plaintiffs' CFA
claims, and remand for a new hearing on those claims.
We also reverse the trial court's judgment dismissing plaintiffs' breach of
contract claims. The trial court's legal analysis of these claims was based on its
conclusion that the vehicle was sold to plaintiffs "as is." The court's
characterization of the contract is not supported by its findings of fact. It is
undisputed that Veshi made several representations about the condition and
operability of the vehicle. His representations negate a conclusion that the car
was sold "as is."
Under New Jersey law, in order to state a claim for
breach of express warranty, Plaintiffs must properly
allege: (1) that Defendant made an affirmation, promise
or description about the product; (2) that this
affirmation, promise or description became part of the
basis of the bargain for the product; and (3) that the
product ultimately did not conform to the affirmation,
promise or description.
[In re Azek Bldg. Prods., Inc., 82 F. Supp. 3d 608, 614
(D.N.J. 2015) (quoting Snyder v. Farnam Cos., Inc.,
792 F. Supp. 2d 712, 721 (D.N.J. 2011)).]
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The court found that Veshi represented the vehicle "runs and drives
without a problem," had a "100%" "engine and transmission" and no illuminated
warning lights. In addition, Cynthia and Eugene testified that they read those
representations and relied on them when deciding to purchase the vehicle. In
the absence of cross-examination by Veshi, this testimony was undisputed.
There is, therefore, a lack of substantial evidence supporting the trial court's
conclusion that Veshi's warranties were not incorporated in the contract of sale.
Moreover, "every contract in New Jersey contains an implied covenant of
good faith and fair dealing." Kalogeras v. 239 Broad Ave., LLC, 202 N.J. 349,
366 (2010) (quoting Sons of Thunder v. Borden, Inc., 148 N.J. 396, 420 (1997)).
"That is, 'neither party shall do anything which will have the effect of destroying
or injuring the right of the other party to receive the fruits of the contract [.]'"
Kalogeras, 202 N.J. at 366 (quoting Palisades Props., Inc. v. Brunetti, 148 N.J.
396, 420 (1997)). The trial court did not address this covenant, the breach of
which is alleged in the complaint. The new hearing shall also address plaintiffs'
breach of contract claims.
Plaintiffs' negligence claims were not addressed in detail by the trial court.
It appears that the court concluded that plaintiffs' allegations that Veshi breached
a duty to them were obviated by their breach of contract claims. We offer no
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opinion with respect to plaintiffs' negligence claims, which shall be addressed
by the trial court on remand. Finally, we note that should Veshi elect to move
to vacate the default entered against him, the trial court should entertain his
motion prior to holding the proof hearing.
Reversed and remanded for proceedings consistent with this opinion.
Because the judge who heard this matter has already conscientiously engaged in
weighing the evidence and rendered an opinion on the credibility of the parties,
the hearing should take place before a different judge. See N.J. Div. of Youth
& Family Servs. v. A.W., 103 N.J. 591, 617 (1986). We do not retain
jurisdiction.
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