RODNEY TAYLOR v. FOULKE MANAGEMENT CORP.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6307-08T2

RODNEY TAYLOR,

Plaintiff-Appellant,

v.

FOULKE MANAGEMENT CORP.

t/a CHERRY HILL TRIPLEX,1

Defendant-Respondent.

________________________________

October 14, 2010

Submitted September 7, 2010 - Decided

Before Judges Grall and Alvarez.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Docket No. L-1502-08.

Carton & Rudnick, attorneys for

appellant (Jennifer Krabill, on the

brief).

Montgomery, Chapin & Fetten, P.C.,

attorneys for respondent (John S.

Fetten and Charone S. Frankel, on

the brief).

PER CURIAM

Plaintiff Rodney Taylor appeals from an order dismissing his complaint on motion for summary judgment filed by defendant Foulke Management Corp., trading as Cherry Hill Triplex (Triplex). He contends that the trial court erred in concluding that he could not establish an ascertainable loss essential to a private cause of action under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. We agree.

The facts drawn from the materials submitted on the motion, viewed in the light most favorable to plaintiff and affording him the benefit of all favorable inferences, are as follows. Plaintiff went to Triplex to purchase a Kia because of Triplex's television advertisement offering to give a $8000 credit against the price of a new Kia for any used car regardless of its condition. The car plaintiff proposed to trade in was a 1999 Ford Explorer. It was owned by Patsy and Lincoln Taylor, plaintiff's parents, and was subject to a financing agreement on which the Taylors owed $12,070. With the $8000 credit advertised by Triplex, the price of the Kia would be raised by $4070 to account for Triplex's payment of the loan on the Explorer. Neither plaintiff nor his wife qualified for financing, but Triplex's representative did not send plaintiff away. Instead, Triplex's agent told plaintiff that if the Taylors purchased the Kia and plaintiff made the payments on their loan for eight months plaintiff would be permitted to transfer the loan to his name.

The following day plaintiff returned to the dealership with his parents. The Taylors signed the contract of sale, tendered their 1999 Ford and acknowledged in a separate document that their Ford had negative equity, in an amount not specified, that was included and reflected in the purchase price. Triplex's general manager admitted that the Taylors agreed to pay $31,995 for a Kia that was priced between $16,700 and $16,900. The costs included in the final price were an unspecified amount for the negative equity, a $20 filing fee, $2200 for service contracts, and $89 for the dealer's preparation of the Taylors' new car. Assuming the top end of the Kia's price range, the dealer assigned in excess of $12,070 in negative equity to the Explorer, which does not reflect any value for the trade-in.

After the purchase, plaintiff and his wife took possession of the car, and they made eight monthly payments of $527.05 on the Taylors' loan by check. Thereafter, plaintiff went to Triplex to have the loan transferred to his name and was told that it could not be done. Consequently, plaintiff continued to make payments on the loan until it was refinanced. He then paid the new loan until his mother paid it in full and transferred title to him.

The CFA provides protection from unlawful practices in connection with the sale of merchandise. In pertinent part, N.J.S.A. 56:8-2 provides that "[t]he act, use or employment by any person of any . . . misrepresentation . . . in connection with the sale or advertisement of any merchandise or real estate, . . . 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. Unlawful practices include, among other things, deception, false pretense and false promise. Ibid. The term "sale" is defined to include any "'attempt directly or indirectly to sell, rent or distribute.'" Perth Amboy Iron Works, Inc. v. Am. Home Assurance Co., 226 N.J. Super. 200, 210 (App. Div. 1988) (quoting N.J.S.A. 56:8-1), aff'd, 118 N.J. 249 (1990).

The private cause of action provided in the CFA is available to "[a]ny person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under" the CFA. N.J.S.A. 56:8-19. Thus, a claim under the CFA raised by a private party has three elements: "1) unlawful conduct by defendant; 2) an ascertainable loss by [the claimant]; and 3) a causal relationship between the unlawful conduct and the ascertainable loss." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009). "Each of the elements of the prima facie case is found within the plain language of the statute itself; each is, without any question, a prerequisite to suit." Ibid.

The question in this case is whether plaintiff can establish an ascertainable loss as the indirect purchaser of the Kia. The trial judge concluded that the CFA can not be construed to provide a cause of action to a person who could not have qualified to purchase the car and did not sign the papers effectuating the transaction. That conclusion is not supported by the law.

Our courts construe the CFA to "appl[y] broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud." Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255, 264 (1997). Absence of privity of contract between plaintiff and defendant is not determinative if the plaintiff can establish an ascertainable loss caused by an unlawful practice. Neveroski v. Blair, 141 N.J. Super. 365, 376 (App. Div. 1976), superceded by statute on other grounds, N.J.S.A. 56:8-2; Levy v. Edmund Buick-Pontiac, Ltd., 270 N.J. Super. 563, 567 (Law Div. 1993).

We recognize that a plaintiff who has accepted an assignment of the rights, title and interest of a consumer defrauded by an unlawful practice in the initial sale of a vehicle has no standing to assert the consumer's rights under the CFA. Levy, supra, 270 N.J. Super. at 565, 567. Here, plaintiff's allegation of unlawful practices in connection with an indirect sale by Triplex to plaintiff through parents acting on his behalf distinguishes his claim from that of the plaintiff in Levy. It is more analogous to Jones v. Sportelli, 166 N.J. Super. 383, 390 (Law Div. 1979), a case in which the trial court recognized that the manufacturer of an IUD who provided the device to a gynecologist constituted an "indirect attempt to sell the IUD to a wanting patient with the concomitant expectation of monetary return" and a "sale" within the meaning of the CFA. It is noteworthy that the Supreme Court cited to this proposition in Jones when directing courts to apply the CFA broadly to effectuate the Legislature's purpose. Lemelledo, supra, 150 N.J. at 264.

The statute and the decisions construing it preclude a grant of summary judgment to Triplex. By plaintiff's account, he went to Triplex believing that he would receive $8000 on a trade-in and was told that if his parents made the purchase and he made the payments on the loan for eight months he would be permitted to assume their obligations. Although he fulfilled these conditions, he was not permitted to assume the loan, and he continued to perform under the agreement he made with his parents to make the payments.

A jury believing plaintiff's description of the events could find that agents of Triplex sold a new car to plaintiff indirectly, through his parents who were acting as his agents, by falsely advertising the value of a trade-in and falsely promising to recast the loan if he paid the loan for eight months. The jurors could also find that as a consequence of Triplex's false pretense and promise, plaintiff sustained an ascertainable loss equivalent to the difference between the $8000 credit advertised by Triplex and the value Triplex gave for the 1999 Ford. On these facts Triplex is not entitled to summary judgment as a matter of law simply because plaintiff did not sign the loan agreement and was not legally obligated to pay the amount due. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (discussing the showing required for a grant of summary judgment).

We recognize that Triplex made other arguments in support of its motion for summary judgment, but Triplex has not advanced those arguments on appeal as an alternative basis for affirmance. Accordingly, we do not address them.

Reversed and remanded for further proceedings.

1 Plaintiff improperly pled defendant as Cherry Hill Triplex Jeep Kia and Cherry Hill Triplex.