DALE HARRIS et al. v. LIBERTY TRAVEL et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3738-05T33738-05T3

DALE HARRIS and

EVELINE AROCHO,

Plaintiffs-Respondents,

v.

LIBERTY TRAVEL and

BERKELY GROUP,

Defendants-Appellants.

________________________________________________________

 

Submitted October 31, 2006 - Decided December 4, 2006

Before Judges R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County DC-10020-05.

Peter A. Ouda, attorney for appellants.

Dale Harris, respondent pro se.

PER CURIAM

Defendants, Liberty Travel and the Berkely Group, appeal from the jury verdict entered in the Special Civil Part, Middlesex County, determining that defendants had violated the Consumer Fraud Act and awarding plaintiffs, Dale Harris Jr. and Eveline Arocho, $1,709.50; and from the trial court's order of March 3, 2006, denying their motion for a judgment notwithstanding the verdict, or for a new trial.

Plaintiffs booked a vacation to Punta Cana, Dominican Republic, with Liberty Travel. As part of their vacation package, plaintiffs also paid $59 each for trip cancellation/interruption coverage, through the Liberty Travel Protection Plan administered by Berkely Care, Ltd. Plaintiffs' vacation was planned for September 13, 2004 through September 20, 2004. While at the resort in the Dominican Republic, their trip was interrupted by a hurricane, causing them to be evacuated from the island. Plaintiffs returned to New Jersey on September 19, 2004.

Upon their return, plaintiffs made a claim for reimbursement of their hotel expenses and lost luggage, based on the travel protection plan they had purchased. Plaintiffs received a credit against their credit card account in the amount of $937.50. Plaintiffs claimed that the credit was from Liberty Travel to reimburse them for the loss of their personal belongings not covered by insurance, over and above the $200 each received for the lost luggage. Defendants argued that the credit was a refund for hotel expenses for three nights of the trip. In addition, defendants offered trip interruption reimbursement for two nights at $320.86 per plaintiff. Plaintiffs were not satisfied with that offer and never cashed the checks tendered to them. Instead, they instituted pro se a claim in the Special Civil Part seeking reimbursement for five nights of interrupted travel.

The only witness to testify at the trial of the matter was plaintiff Eveline Arocho. At the end of plaintiffs' case, defendants moved to dismiss the complaint, arguing that plaintiffs had already received full reimbursement for five nights of the vacation, based on the credit card credit plus the check for two nights of hotel expenses and, in the alternative, for dismissal of the Consumer Fraud Act claim. The judge denied both motions. The jury returned its verdict, finding that defendants had violated the Consumer Fraud Act and awarding plaintiffs $1,709.50. The court trebled the award.

On appeal, defendants argue that the damage award was against the weight of the evidence and that the judge erred in denying their motion under R. 4:37-2(b) for involuntary dismissal of plaintiffs' claim under the Consumer Fraud Act.

"Whether the action is tried with or without a jury, [a] motion [for involuntary dismissal] shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b). See also R. 4:40. The judicial function on a motion for involuntary dismissal "is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). A jury's factual determinations will be disturbed only if a reviewing court finds that the jury could not have reasonably used the evidence to reach its verdict. Sons of Thunder v. Borden, Inc., 148 N.J. 396, 415 (1997). A determination that defendants had breached their agreement to reimburse plaintiffs for trip interruption was not against the weight of the evidence; nor was the amount of the verdict. The jury could reasonably accept plaintiffs' evidence that the $937.50 credit paid by Liberty Travel was a matter of good will, because plaintiffs had been using Liberty Travel for their vacations for over five years.

On the other hand, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). In this case, there was no evidence of consumer fraud. The purpose of the Consumer Fraud Act is to address "sharp practices and dealings . . . whereby the consumer could be victimized by being lured into a purchase through fraudulent, deceptive or other similar kinds of selling or advertising practices." D'Ercole Sales, Inc. v. Fruehauf Corp. 206 N.J. Super. 11, 23 (App. Div. 1985). Plaintiffs were not lured into purchasing their vacation; they willingly paid the purchase price and the cost of the cancellation/interruption coverage. There is no evidence in the record that defendants engaged in any fraud or deception in this transaction.

Instead, this is a dispute concerning the amount of monies that plaintiffs were entitled to receive under their trip cancellation/interruption insurance plan. Defendants assert that plaintiffs were entitled to only two days' reimbursement, contending that for several of the days the weather was not so bad that it interrupted the trip. By contrast, plaintiffs claimed reimbursement for five days of vacation that were interrupted. This was a legitimate dispute about the severity of the weather, its impact upon the trip and the amount of money, if any, plaintiffs were entitled to receive under their trip cancellation/interruption plan. The evidence provided a rational basis for the jury to determine whether defendants breached the parties' contract. Without more, however, that dispute cannot be considered the basis for a consumer fraud violation. Id. at 25 ("a breach of warranty alone does not violate a consumer protection statute").

A finding of consumer fraud requires that "substantial aggravating factors were present." Id. at 31. In this case, there were no aggravating factors to support a claim of consumer fraud. Therefore, the award of treble damages under the Consumer Fraud Act is reversed. We remand the matter to the trial court to enter an amended judgment in the amount awarded by the jury for breach of contract.

Affirmed in part; reversed and remanded in part.

 

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A-3738-05T3

December 4, 2006