JUSTIN R. DOYLE v. NASH PARK AUTO BODY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4776-03T34776-03T3

JUSTIN R. DOYLE,

Plaintiff-Respondent,

v.

NASH PARK AUTO BODY

and LOU BORBAS,

Defendants-Appellants.

_____________________________________________________________

 

Argued December 7, 2005 - Decided March 29, 2006

Before Judges Wecker and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Passaic

County, DC-8172-03.

William Goldberg argued the cause for appellants.

Donald A. Kessler argued the cause for respondent

(Schwartz Simon Edelstein Celso & Kessler,

attorneys; Mr. Kessler, on the brief).

PER CURIAM

Defendants Nash Park Auto Body (Nash Park) and Lou Borbas, the owner and operator of Nash Park, appeal from a final judgment, following a non-jury trial, awarding plaintiff Justin R. Doyle treble damages in the amount of $12,086.37, together with counsel fees and costs of suit, pursuant to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -91. Defendants also appeal the March 26, 2004, order denying defendants' motion for reconsideration.

Defendants present the following arguments:

POINT I

THERE WAS NO CONSUMER FRAUD AS DEFINED BY THE ACT WHEN BORBAS TOLD PLAINTIFF THAT NASH PARK WOULD USE ORIGINAL TOYOTA PARTS TO REPAIR [PLAINTIFF'S] AUTOMOBILE.

POINT II

THE TRIAL COURT'S AWARD OF TREBLE DAMAGES TOGETHER WITH LEGAL FEES FOR THE ENTIRE AMOUNT OF THE JUDGMENT WAS IN ERROR.

After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm in part, reverse in part, and remand for entry of a judgment consistent with this opinion.

Three witnesses testified at the trial on November 3, 2003: plaintiff Doyle, defendant Borbas, and plaintiff's expert witness, Kurt Lauer. Plaintiff testified that his 2001 Toyota Tacoma pickup truck sustained damage to its passenger side quarter panel, front bumper and grill, and hood in an accident on December 7, 2002. After speaking with his insurance company, plaintiff drove his truck to Nash Park on December 10, 2002, and he spoke with Lou Borbas about having his truck repaired. Plaintiff left his vehicle at Nash Park on December 10, 2002, with the understanding that the repair work would be performed by defendants after his insurance company inspected the damage and authorized repairs.

After leaving his truck at Nash Auto, plaintiff contacted his insurance company "on a couple of occasions." He testified, however, that he believed Nash Park was going to follow up with his insurance company. On the other hand, Borbas testified that it was not his responsibility to contact plaintiff's insurance company, and he denied that he had agreed to do so. According to Borbas, he could not order repair parts or begin the repair work without authorization from plaintiff's insurance company, and he told plaintiff on December 10, 2002, to "get the insurance company down here, so we can get the ball rolling." Borbas testified as follows:

Q. Did you . . . ever in your twenty-five years as the owner of Nash Auto Body [ever] order parts under any circumstances unless there's an insurance company authorization?

A. Not until there's an inspection.

Q. Not until somebody inspects it.

A. Correct.

Q. And why is that?

A. Many things can happen. Their policy could be after-market parts, their policy could be used parts. We may disagree on what parts have to be changed and what could be repaired.

Q. So was it your impression . . . that the plaintiff was aware that he had to contact his insurance company?

A. Absolutely.

When plaintiff returned to Nash Park on or about January 7, 2003, he thought that the repair work would be completed, but he learned that his insurance company had neither inspected his truck nor authorized any repair work. "Within a day or two," however, plaintiff's insurance company inspected the damaged vehicle, and plaintiff testified that he received a copy of the inspection report prepared by his insurance company:

Q. [A]fter [your insurance company] inspected the vehicle, did anyone from Nash Park give you an estimate of the cost of repairing the vehicle?

A. No, all I received was the insurance appraisal or the insurance adjustment record.

Q. Up to that point in time, did you have any other information, other than the insurance adjustment record, as to the repairs that would be necessary in order to fix your car?

A. At that point, no, I did not.

Q. And when you received the insurance adjustment information, were you led to believe that genuine Toyota parts would be used for the purpose of repairing your hood and the grill and the other damaged -- the bumper and other damaged areas of the car?

A. Without a question because the car was relatively new.

THE COURT: Who told you that? You learned that as a result of talking to somebody?

THE WITNESS: Through the insurance company, yes.

Plaintiff also testified that his "insurance company replaces all parts with factory parts," and plaintiff testified that he had a discussion with Borbas regarding the type of parts defendants would use to repair his vehicle:

Q. Did you discuss with Mr. Borbas the kind of parts that you wanted to have installed in your car?

A. I would -- yes, OEM [original equipment manufacturer] factory.

Q. When did you have the discussion with him that you wanted factory parts?

A. All along I'd been asking . . . when the parts would be coming in. I looked at the insurance statement and it said OEM.

Q. But did you have a -- was there a place where you could get Toyota parts yourself?

A. Yes, I had a --

Q. What place was that?

A. Prestige Toyota.

Q. And how could you get parts from Prestige Toyota?

A. My neighbor worked there at the time.

Q. And did you tell Mr. Borbas how long it would take you to get Toyota parts from Prestige?

A. No longer than five days.

Q. And what did Mr. Borbas say about you ordering the parts from Toyota?

A. At that time he did say that he can't guarantee the parts because they'd be coming from an outside source.

Q. Did he say he wouldn't order the parts from Prestige?

A. Yes.

[Emphases added.]

Plaintiff testified that the repairs were completed sometime during the first week in February, and, from what he could see at the time, the repairs seemed satisfactory. When he picked up his truck, he paid defendants $500, which was his insurance deductible. After driving the truck for five or six weeks, plaintiff noticed various problems, and he took the truck back to Nash Park. Plaintiff testified that Borbas agreed "the bumper was an issue and the paint coming off was an issue," and he said that "he would attempt to realign the bumper and touch up the paint on the bumper." Plaintiff also testified that Borbas told him: "On a repair of this magnitude, it's hard to make sure everything aligns . . . perfectly."

The trial court made comprehensive findings, which included the following:

The plaintiff picked up his car on 2/3/03 and made no complaint about it until about 3/18/03 when the weather started to break and he cleaned his car and he saw for the first time that there was a misaligned hood and bumper and front of the grill and that paint had dripped; that the fender on the passenger side was tight against the door, whereas the other door had space between the door and fender; that there were several bolts loose from the hood and that the hood rattled; that paint was chipping on the bumper; that paint was chipping on the radiator support; that the air conditioner was not blowing correctly; and that the hood was not a Toyota part; and further that the cowl -- and I don't know what -- "c-o-w-l" is how I wrote it, "cowl" was an eyesore. Plaintiff had no problem driving the car in March of 2003. Plaintiff took the car back to defendant and complained about everything but the air conditioner. Plaintiff testified that he complained about the air conditioner at a later date.

Defendant offered to touch up the paint and align the bumper, but plaintiff did not accept that as a settlement because there were the other issues as just noted. Plaintiff says that defendant said that a repair of that size was difficult to do. Again, with respect to that, I find that plaintiff was credible.

Plaintiff got three estimates that are close in price. He did that because the first two would not go to court. The third estimator is the one who testified in this case.

. . . .

[Mr.] Lauer testified as an expert on behalf of plaintiff. He's the fifty-percent owner of RPM Auto Body. He's an employee. He says there are three other employees. He's also a mechanic. He has done mechanic work for twenty years and body work for the last fourteen years. He's familiar with the Toyota model in question. He inspected the car at the end of September of '03 or beginning of October of '03. He reviewed the other two estimates. He used them as a reference. He's the one who wrote P-22 in evidence. P-22 is his estimate of repairs needed to be done. The total including tax is $3,891.23. The repair estimate includes the hood work which was done. . . . Lauer testified that the work performed by the defendant at the premises of the defendant by employees, agents, and servants of defendants was not done properly; . . . that there were parts that were not lined up; that an under-the-hood inspection showed there were areas not welded which should have been welded; that the vehicle was not properly painted; further, that the hood is not a Toyota hood; that it does not align with the chassis; that there may be slight deviations with the chassis if the work was done properly, but not the lack of alignment that exists in the [instant] case. The standard of care, he said, would be to bring back the vehicle to a pre-loss condition.

Lauer reviewed Exhibits P-3 to P-20, which was eighteen photographs, and testified as to what repairs were not done in accordance with the applicable standard.

. . . .

Plaintiff's expert testified that to repair these items would cost, as I said, $3,891.23, of which $1,545 was for parts, $1,170 for 26.6 hours of labor at $44 an hour, and $638 for paint, which he estimated would take about 14.5 hours. The cost of the paint is $304. He said that those costs are reasonable. Taxes are added to that.

. . . .

I should note at this point that I found that the expert Lauer called on behalf of the plaintiff was completely credible. He said he was paid $50 an hour for his court appearance. He said that experts can differ on the number of hours it takes to repair. He found that the deviations were blatantly obvious and that the deviations he testified to were visible.

. . . .

[P]laintiff has proven by a preponderance of the evidence that the defendants did not meet the standard of care required of them in doing the repairs required. As I said, Mr. Lauer was credible. He covered all the items in his testimony that are covered in his estimate marked P-22. He testified as to all the items that were not up to standard as done by Mr. Borbas and agents and employees of Nash Park, and . . . he covered everything in P-22.

Plaintiff is entitled to damages of [$]3,891.23, $3,891.23 less [$]220.71 which I talked about before, or $3,670.52 plus $358.27 for the rental while the hood [is] being repaired for a total of $4,028.79 in damages for the improper repair and failure to repair.

The defendants also violated the Consumer Fraud Act. I find that the violations of the Consumer Fraud Act by defendants did proximately cause the damages which I have enumerated and which total $4,028.79. The violations of the Consumer Fraud Act consist of violations of Chapter 45A, Subchapter 26C which deals with automotive repairs; Section 13:45A-26A.2(a) in the following respects:

The defendants stated that repairs would be made using Toyota parts. While I did not find that defendants committed common-law fraud and that was not proved by clear and convincing evidence, I do find that this violation of the [C]onsumer [F]raud [A]ct arises from affirmative acts by defendants that violate the act:

The plaintiff offered to have those parts supplied by Prestige Toyota for whom plaintiff's neighbor worked. Defendant did not use Toyota parts. Defendant therefore made an untrue -- the defendant did not use some Toyota parts. Defendant therefore made an untrue statement and this violated the regulation cited and that would be Section (a)1 of the cited regulation.

. . . .

The plaintiff is therefore entitled to treble damages. It's a severe act. I have already found that the damages sustained by the plaintiff were proximately caused by the violations of the Consumer Fraud Act by the defendant. Treble damages total $12,086.37. A judgment will be entered against defendants in that amount.

Additionally, the plaintiff will submit an affidavit for those services that were performed by the attorneys for plaintiff as a proximate result of the defendant's violations of the Consumer Fraud Act.

[Emphasis added.]

The trial court also found that defendant violated CFA regulation N.J.A.C. 13:45A-26C.2(a)(3) by commencing work without providing plaintiff with a written estimate and without obtaining a written waiver or authorization from plaintiff to proceed with repairs not in excess of a specific dollar amount. See N.J.A.C. 13:45A-26C.2(a)(3)(i).

To sustain a claim under the CFA a private plaintiff must demonstrate unlawful conduct by defendant, an ascertainable loss on the part of the plaintiff, and a causal relationship between the defendant's unlawful conduct and the plaintiff's ascertainable loss. Dabush v. Mercedes Benz USA, LLC, 378 N.J. Super. 105, 114 (App. Div.), certif. denied, 185 N.J. 265 (2005); N.J.S.A. 56:8-2; N.J.S.A. 56:8-19.

The unlawful conduct prohibited by the CFA is defined 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[.] . . .

[N.J.S.A. 56:8-2.]

In the present case, there is ample evidence to support the trial court's finding that defendants breached their oral contract with plaintiff by performing a deficient repair job. A breach of contract or breach of warranty, however, is not per se unfair or unconscionable and does not alone violate the CFA. Palmucci v. Brunswick Corp., 311 N.J. Super. 607, 616 (App. Div. 1998); Gennari v. Weichert Co. Realtors, 288 N.J. Super. 504, 533 (App. Div. 1996), aff'd as modified, 148 N.J. 582 (1997). As the Court has observed:

Because any breach of warranty or contract is unfair to the non-breaching party, the law permits that party to recoup remedial damages in an action on the contract; however, by providing that a court should treble those damages and should award attorneys' fees and costs, the Legislature must have intended that substantial aggravating circumstances be present in addition to the breach. DiNicola v. Watchung Furniture's Country Manor, 232 N.J. Super. 69, 72 (App. Div.) (finding that breach of warranty in supplying defective furniture and denying that defect existed was not unconscionable), certif. denied, 117 N.J. 126 (1989); D'Ercole Sales, [Inc. v. Fruehauf Corp., 206 N.J. Super. 11, 31 (App. Div. 1985)], (holding that breach of warranty for malfunctioning tow truck and refusal to repair was not unconscionable practice).

[Cox v. Sears Roebuck & Co., 138 N.J. 2, 18 (1994).]

In this case, it is clear that plaintiff's insurance company authorized repairs in accordance with its inspection and appraisal. Moreover, the documentation that Borbas submitted to the insurance company revealed that the hood panel was a replacement part, or after-market part, that was less expensive than an original Toyota hood panel. Based on these undisputed facts, we find as a matter of law that defendants' conduct in using a replacement hood panel, authorized and approved by plaintiff's insurance company, does not exhibit the substantial aggravating circumstances that would permit recovery under the CFA.

We are also satisfied that defendants' failure to provide a written estimate or to obtain a written waiver or authorization to proceed constituted an "unlawful practice" or a "deceptive practice," but it had nothing to do with the negligent repair work performed by defendants and it was not the cause of any ascertainable loss to plaintiff. Plaintiff's financial obligation for the repair work was limited to his deductible in the amount of $500, and defendants' failure to provide a written estimate for repairs did not result in any additional costs or charges for the repair work performed by defendants. See Sprenger v. Trout, 375 N.J. Super. 120, 131 (App. Div. 2005) ("the significance of the automotive repair regulations is to prevent a situation where the consumer is presented with a final bill that far exceeds the anticipated cost of repairs.").

While the record supports the judge's findings that defendants are liable for the cost to remedy their deficient repair work, the CFA violation does not, by itself, establish a sufficient basis to recover treble damages in the absence of an ascertainable loss attributable to the consumer fraud violation. Cox v. Sears Roebuck Co., supra, 138 N.J. at 23. Because plaintiff's breach of contract damages did not result from defendants' consumer fraud violation, plaintiff is not entitled to treble damages pursuant to N.J.S.A. 56:8-19.

This brings us to defendants' final argument: "It is suggested that in cases like this, the [c]ourt could defer a ruling on legal fees until such time as counsel for [p]laintiff submits a [c]ertification of [s]ervices [r]endered which relates only to that part of the case involving consumer fraud." We do not agree. The provision for treble damages and an award of counsel fees under the CFA are independent of each other. As to fee-shifting, "[i]n all actions under this section, . . . the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit." N.J.S.A. 56:8-19. These fees are mandated where "plaintiff can prove that defendant committed an unlawful practice, even if the victim cannot show any ascertainable loss and thus cannot recover treble damages." Cox v. Sears Roebuck & Co., 138 N.J. 2, 24 (1994) (citing Performance Leasing Corp. v. Irwin Lincoln-Mercury, 262 N.J. Super. 23, 31, 34 (App. Div.), certif. denied, 133 N.J. 443 (1993)); accord Weinberg v. Sprint Corp., 173 N.J. 233, 252-53 (2002); see also Thiedemann v. Mercedes-Benz, USA, 183 N.J. 234, 247 (2005).

As noted by the Court, plaintiffs should be able to pursue consumer-fraud claims without experiencing financial hardship. Cox v. Sears Roebuck & Co., supra, 138 N.J. at 24-25. Moreover, as to counsel fees, "the Consumer Fraud Act makes no distinction between 'technical' violations and more 'substantive' ones." BJM Insulation & Constr., Inc. v. Evans, 287 N.J. Super. 513, 517-18 (App. Div. 1996); accord Roberts v. Cowgill, 316 N.J. Super. 33, 45 (App. Div. 1998). Therefore, plaintiff is entitled to reasonable counsel fees and costs of suit even though defendants' CFA violation did not result in an ascertainable loss to plaintiff.

In view of the foregoing, we affirm except for the award of treble damages, and we remand for entry of a judgment consistent with this opinion.

 

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A-4776-03T3

March 29, 2006