JONATHAN E. LONG v. ENTERPRISE MOTORS, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7016-03T17016-03T1

JONATHAN E. LONG,

Plaintiff-Respondent-

Cross-Appellant,

v.

ENTERPRISE MOTORS, INC.,

LENNY CIMO, and LENNY CIMO, JR.,

Defendants-Appellants-

Cross-Respondents.

________________________________________________________________

 

Argued October 12, 2005 - Decided

Before Judges Stern and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County. Docket No. DC-24021-03.

Kevin G. Roe argued the cause for defendants-appellants-cross-respondents.

Gabriel M. Ambrosio argued the cause for plaintiff-

respondent-cross-appellant (John T. Ambrosio,

on the brief).

PER CURIAM

In these cross-appeals, defendant Enterprise Motors, Inc. (Enterprise) appeals from a judgment entered against it in the amount of $6,996 in trebled damages and $12,478.55 in counsel fees and costs for violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -106, specifically N.J.S.A. 56:8-2. Plaintiff cross-appeals from the amount of attorney's fees awarded.

The facts pertinent to this appeal are as follows. Enterprise is owned by codefendants Lenny Cimo, Sr. and his son, Lenny Cimo, Jr. The complaint arose out of plaintiff's purchase of a 1996 Volkswagen Jetta that was advertised for sale by defendants. The advertisement did not refer to Enterprise or indicate that the sale was by a dealer. It stated that the Jetta had 42,000 miles and was listed at $4,300.

Accordingly to plaintiff, when he called the telephone number in the advertisement, he spoke to Lenny, Sr. and was told that the Jetta belonged to Lenny, Jr. and was still available for the advertised price. When plaintiff went to the Cimo's home to inspect the car, however, he was told that there was a typo in the advertisement and that the vehicle had 65,000 miles instead of 42,000. Plaintiff could not test drive the car because it had no license plates, but he was assured that it was in good running order. Plaintiff left a $200 deposit with Lenny, Sr. and returned two days later with the remainder of the sales price plus 6% sales tax. At no time during their discussions did either of the Cimos tell plaintiff that the car was being sold by used car dealers.

Lenny, Sr. delivered the Jetta to plaintiff's home. A few days later, plaintiff discovered a transmission problem. He called Lenny, Jr. who told plaintiff to bring the car back to the Cimos' residence for repairs. Plaintiff took the Jetta to defendants' home. About a week later, when plaintiff drove by defendants' home, however, the Jetta was no longer there. Lenny, Sr. was in front of the house and told plaintiff the Jetta had been towed to a dealer for repair. Plaintiff then learned the car was not at the dealer's, but was at a transmission repair shop in Paterson. Plaintiff took it upon himself to have the vehicle towed from that repair shop to a shop of his choice. The transmission work cost him $2,332.

Defendants disputed plaintiff's version of the story. They claimed that when plaintiff called in response to the advertisement, they told him that the 1996 Jetta was no longer available, but they had a similar car with more miles for less money. Defendants maintained they told plaintiff they were used car dealers and owned Enterprise. When plaintiff complained about the transmission problem, defendants took it to be repaired, but plaintiff towed the vehicle away before the repairs were completed.

After the bench trial, Judge Estela De La Cruz rendered a lengthy written decision in which she set forth her findings of fact. She determined that defendants' testimony lacked credibility and concluded that defendants violated the Consumer Fraud Act, specifically N.J.S.A. 56:8-2, the Administrative Rules of the Division of Consumer Affairs applying to sales of automobiles by dealers, and N.J.A.C. 13:45A-26B, the New Jersey Administrative Code governing advertisements for the sale of motor vehicles, N.J.A.C. 13:45A-26A. She awarded plaintiff treble damages pursuant to the Consumer Fraud Act. N.J.S.A. 56:8-19. In a supplemental opinion, Judge De La Cruz addressed the issue of counsel fees and awarded plaintiff $12,478.55 in counsel fees and court costs pursuant to N.J.S.A. 56:8-19.

In this appeal, defendants argue that (1) the trial court's findings of fact were not supported by the evidence; (2) the trial court improperly prevented defendants from presenting evidence about payment of repairs; and (3) "the outrageous demand for $12,478.55 by counsel for the plaintiff is not reasonable."

We have carefully considered the record in light of defendants' arguments and we are satisfied that the findings of fact and conclusions of law made by Judge De La Cruz in her two written opinions are more than adequately supported by the evidence. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons stated by Judge De La Cruz in her well-reasoned opinions dated May 6, 2004 and September 7, 2004. Nevertheless, we make the following observation.

Defendants insisted in their arguments, both written and oral, that they always intended to pay for the transmission repairs and offered to do so until trial began. Defendants' argument overlooks the premise of N.J.S.A. 56:8-2 and regulations governing the advertisement and sale of motor vehicles. It was defendants' advertisement that violated N.J.S.A. 56:8-2 and the regulations from the outset. The advertisement and "front yard" transaction at defendants' home constituted the "unconscionable commercial practice, deception, fraud, false pretense, false promise, [and] misrepresentation" by a used car dealer. N.J.S.A. 56:8-2. The advertisement did not list Enterprise as the seller, the phone number was that of defendants' home and the transaction occurred in defendants' residential "front yard" rather than a commercial establishment. Although defendants claimed to have told plaintiff they were used car dealers, Judge De La Cruz found them lacking credibility. The evidence more than adequately supports her findings.

With respect to plaintiff's cross-appeal of the counsel fee award, we find the argument lacks sufficient merit to warrant consideration in our written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

N.J.S.A. 56:8-2 provides in pertinent part:

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 . . . whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice . . . .

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A-7016-03T1

November 2, 2005