NICHOLAS DiBENEDETTO et al. v. SPARTA TRANSMISSIONS & AUTO REPAIR, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0899-06T10899-06T1

NICHOLAS DiBENEDETTO and JEAN ANN

DiBENEDETTO,

Plaintiffs-Respondents,

v.

SPARTA TRANSMISSIONS & AUTO REPAIR,

INC.,

Defendant-Appellant.

___________________________________

 

Submitted September 5, 2007 - Decided September 10, 2007

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Sussex County, DC-3448-05.

Debra Lynn Nicholson, attorney for appellant (Daniel A. Colfax, of counsel and on the brief).

Nicholas and Jean Ann DiBenedetto, respondents pro se.

PER CURIAM

Plaintiffs, Nicholas and Jean Ann DiBenedetto, filed a pro se Consumer Fraud Act (Act), N.J.S.A. 56:8-1 to -166, action in the Special Civil Part, alleging that defendant, Sparta Transmissions & Auto Repair, Inc., violated the Act respecting repairs performed on the plaintiffs' 1997 Dodge Dakota truck. Following a bench trial, the judge found that defendant violated N.J.A.C. 13:45A-26C.2, and entered a $7500 judgment for plaintiffs, representing a trebling of the $2500 plaintiffs paid defendant.

On August 4, defendant filed a motion for reconsideration seeking a reduction in the damage award, arguing that plaintiffs suffered no ascertainable loss under the Act, and that they failed to present sufficient evidence to support the $7500 judgment. Defendant also asserted that it was entitled to an "offset" in the damage award under the doctrine of quantum meruit. Granting defendant's motion, the judge entered an order reducing the damage award to $6660, representing treble the $1800 amount plaintiffs paid toward the transmission repair and treble $420, an amount estimated by the court as the cost plaintiffs would have had to pay for a two-week rental of a vehicle, which was not supplied by defendant as promised.

Defendant appeals and we affirm the order trebling the $1800 out-of-pocket expense paid by plaintiffs for the transmission repair, but we reverse the order insofar as it awarded damages for the cost of a rental vehicle.

Plaintiffs purchased the Dodge truck from a private owner in early 2004. In December 2004, they experienced problems with the transmission. Defendant did repair work and advertised that it would provide free towing and a free loaner car. Charles Wohlleb, defendant's owner-operator, quoted a price of between $1500 and $1800 to fix the transmission, $500 to fix the rear differential, and $195 to install new ball joints, for a total estimate of $2495. Wohlleb told Jean Ann that the cost included a twelve-month or 12,000-mile guarantee, towing to defendant's garage, and a free loaner car. According to Jean Ann, defendant was chosen because they "had another vehicle, but it needed to go in the shop." She explained that they "needed a free loaner car to have that [repair work] done within the guarantee time on [the] other vehicle."

Plaintiffs orally agreed to have defendant repair the transmission, rear differential, and ball joint. No written agreement or estimate was provided by defendant. On January 4, 2005, Wohlleb towed the truck to defendant's garage and indicated that plaintiffs could pick up the loaner car the next day. However, the next morning, Wohlleb called plaintiffs and advised that the loaner car was not available because it was being used by another customer.

Jean Ann told Wohlleb they needed the loaner car and called defendant concerning its availability every day for approximately two-and-a-half weeks. Eventually, on January 23, Wohlleb rented a car for plaintiffs' use while he finished repairing the truck. Jean Ann explained that she used her car for transportation during the time she was waiting for the loaner. She testified that her car was supposed to go into the shop before the guarantee was up, "but it couldn't go in" because they did not have use of the free loaner car. Jean Ann explained that with only one vehicle, "it was very inconvenient because . . . we both go in two different directions [to work]."

While the truck was in the shop, Wohlleb advised that he "had to drop the [fuel] tank" to install a fuel pump because without a working fuel pump, the truck would not start, and therefore could not be diagnosed and repaired. When Nicolas inquired why Wohlleb installed a fuel pump without getting authorization, Wohlleb replied that the cost of the fuel pump was $500, and if Nicholas did not want the work performed, Wohlleb could remove the new pump and reinstall the old pump. Nicholas explained that he did not have money for a new fuel pump and reiterated that he never authorized a fuel pump installation. According to Wohlleb, Nicholas authorized the installation of the fuel pump, at a cost of $500, over the phone and declined to come to defendant's garage to sign a written estimate.

On January 27, plaintiffs were informed that the truck was repaired and ready to be picked up. Wohlleb testified that he road-tested the vehicle and found that the transmission was working fine and in working condition. Plaintiffs arrived with a bank check in the amount of $2500. Wohlleb presented a total bill of $3820.76 consisting of $2069 for the transmission, $555 for the rear differential, $224 for the ball joints, and $655 for the fuel pump. Wohlleb would not release the truck until plaintiffs agreed to pay $3820.76. After Jean Ann called the police, Wohlleb eventually agreed to accept the $2500 bank check, although no written agreement was executed indicating the $2500 was accepted as full payment for the repairs.

As Nicholas drove the truck home, it felt "sluggish" and the transmission was "skipping" and making the car jerk. Nicholas called Wohlleb and described the problem. Wohlleb said it sounded as if the car was in four-wheel drive and he should take it out of four-wheel drive, which Nicholas did. That ostensibly resolved the problem, however, plaintiffs observed fuel leaking from the tank, and the truck smelled like gasoline.

The following day, while driving the truck, Jean Ann experienced problems shifting it into gear. After placing the truck in reverse and backing out of a parking lot, Jean Ann shifted into gear, but the vehicle did not move forward. As Jean Ann tried to get it in gear to avoid oncoming traffic, the vehicle lurched forward into the parking lot. When Jean Ann called Wohlleb, Wohlleb told her the work was not guaranteed and she should contact his attorney if she had a problem with the work. Wohlleb denied that conversation ever took place.

The next day, Nicholas drove the truck to a friend's garage where it was placed on a lift. He observed gasoline leaking where the tank meets the overflow tank. Nicholas also observed that the ball joints were not greased, which he surmised could account for "the shimmy." Wohlleb, however, testified that he personally greased the ball joints. Plaintiffs could not afford to fix the fuel tank. However, they continued to use the truck, never fully filling the gas tank in order to avoid the leak. According to Nicholas, they only drive the vehicle "locally," and can no longer pull their cargo trailer. They testified that the truck still shakes "[w]hen you got up a little bit of speed," and "bucks" when shifting from first to second gear. Plaintiffs have not had the transmission repaired but have continued to use the truck.

Finding plaintiffs' testimony credible and Wohlleb's testimony incredible, the trial judge held that defendant violated the provisions of N.J.A.C. 13:45A-26C.2 pertaining to deceptive practices in automotive repairs, by failing to obtain proper authorization to install the fuel pump, N.J.A.C. 13:45A-26C.2(a)(2), by commencing work without a proper estimate, N.J.A.C. 13:45A-26C.2(a)(3), by making deceptive or misleading statements, N.J.A.C. 13:45A-26C.2(a)(5), by attempting to charge more than the estimate provided, N.J.A.C. 13:45A-26C.2(a)(6), and by failing to provide a written invoice itemizing the terms of any guarantee related to the work, N.J.A.C. 13:45A-26C.2(a)(9).

Addressing defendant's argument that plaintiffs did not suffer any ascertainable loss under the Act, the judge explained:

[Sparta], through . . . counsel, argues that there has to be an ascertainable loss. There is an ascertainable loss. The reason for the Consumer Fraud Act and specifically these regulations is so that there isn't the difference of opinion as to what the price should be and what work is supposed to be done. It's supposed to be clear and in writing. And the ascertainable loss becomes that amount of money that the Plaintiff has paid to the Defendant when they have not complied with the regulations.

I find that the ascertainable loss is $2,500 and that under the Consumer Fraud Act they're entitled to [treble] damages. So they're entitled to a judgment of $7,500 plus costs.

Reducing the award on defendant's motion for reconsideration, the judge provided the following reasoning:

The testimony presented to the Court, which the Court found credible, was that almost immediately upon leaving defendant Sparta Transmissions' premises with the ostensibly repaired vehicle, Plaintiff Jean DiBenedetto experienced serious transmission problems. It was the transmission which was to be repaired. Ms. DiBenedetto testified, and the Court found her credible, she was unable to get the vehicle into gear and experienced a terrifying moment when she could not get the vehicle to move from its position jutting out into the roadway. That is sufficient to find that plaintiffs did not receive the benefit of the $1,800 they paid for the transmission work, and [an] expert witness was not required with those sets of facts. The $1,800 (of the total $2,500 they paid) was specifically targeted for the transmission repairs and is an ascertainable loss.

Plaintiffs also testified that defendant failed to fulfill its advertisement representation that a loaner would be provided. In fact, plaintiffs did not obtain a loaner until almost two weeks after the date they should have had one. Plaintiffs were inconvenienced in having to make do with one vehicle where the family unit was accustomed to two vehicles. Plaintiff made daily calls to defendant's shop, inquiring about the loaner, thereby experiencing frustration and angst. Plaintiff[s] need not actually expend money for a substitute rental car to prove an ascertainable loss. The Court finds a reasonable rental cost would be $30 per day, which multiplied by 14 days, equals $420 ascertainable loss.

. . . .

Therefore, the Court finds the ascertainable losses of the plaintiffs are $1,800 for the transmission repair, plus $420 for loaner expenses, for a total of $2,220, which trebled totals $6,660.

On appeal, defendant contends that the ascertainable loss amounted to only five dollars, the difference between the $2495 estimate and the $2500 paid by plaintiffs. Defendant essentially argues that plaintiffs did not have to pay for the additional repairs and there was no testimony that the repairs originally agreed upon were not performed. Defendant also asserts that there was no testimony provided by an expert indicating the work was not properly performed and that it is entitled to a $2495 offset in quantum meruit for those repairs that it performed.

The purpose of the Act is "'to combat the increasingly widespread practice of defrauding the consumer.'" Cox v. Sears Roebuck & Co., 138 N.J. 2, 14 (1994) (quoting Senate Committee Statement, Senate Bill No. 199 (1960)). To effect its purpose, courts have liberally construed the Act in favor of consumers. Id. at 15. N.J.S.A. 56:8-2 delineates prohibited actions under the Act:

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 . . . .

Three general categories of unlawful practices that violate the Act and give rise to a cause of action are: (1) affirmative acts; (2) knowing omissions; and (3) regulation violations. Cox, supra, 138 N.J. at 17; see also Fenwick v. Kay Am. Jeep, Inc., 72 N.J. 372, 377-78 (1977). Relevant to this appeal, the Court in Cox explained:

The third category of unlawful acts consists of violations of specific regulations promulgated under the Act. In those instances, intent is not an element of the unlawful practice, and the regulations impose strict liability for such violations. The parties subject to the regulations are assumed to be familiar with them, so that any violation of the regulations, regardless of intent or moral culpability, constitutes a violation of the Act.

[Cox, supra, 138 N.J. at 18-19 (citation omitted).]

"Any 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] act" may bring an action to recover damages for violation of the Act. N.J.S.A. 56:8-19. To recover, a private plaintiff must prove (1) an unlawful practice, (2) an ascertainable loss, and (3) causation between the unlawful practice and the ascertainable loss. Dabush v. Mercedes-Benz USA, LLC, 378 N.J. Super. 105, 114 (App. Div.), certif. denied, 185 N.J. 265 (2005). A successful claimant shall be "award[ed] threefold the damages sustained by any person in interest . . . [and] reasonable attorneys' fees, filing fees and reasonable costs of suit." N.J.S.A. 56:8-19.

Defendant does not challenge the judge's findings that it committed a prohibited unlawful practice under the Act by violating N.J.A.C. 13:45A-26C.2. The trial judge's findings that plaintiffs suffered an ascertainable loss by not receiving the benefit of a proper transmission repair, as promised by defendant, is supported by sufficient credible evidence in the record as a whole. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); In re Will of Liebl, 260 N.J. Super. 519, 523 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993). Credibility is always for the factfinder to determine, Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 492 (1956), and we will not make independent credibility determinations unless the trial judge's reasoning was not articulated and cannot be inferred from the record. State v. Locurto, 157 N.J. 463, 472-75 (1999). Moreover "[i]n cases involving breach of contract or misrepresentation . . . out-of-pocket loss . . . will suffice to meet the ascertainable loss hurdle." Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005); see also Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 13 (2004). The amount paid to defendant for transmission repairs is a "quantifiable or measurable" loss, Thiedemann, supra, 183 N.J. at 249, and plaintiffs were not required to incur the expense of having the transmission properly repaired before seeking recovery from Sparta under the Act. See, e.g., Cox, supra, 138 N.J. at 22-23 (to demonstrate a "loss," the victim need not actually expend money to fix a defendant's improperly performed repairs).

Contrary to defendant's contention, the trial judge correctly determined that an expert was not required to establish the amount of ascertainable loss suffered by plaintiffs respecting the transmission repair costs of $1800. See, e.g., Furst, supra, 182 N.J. at 13-14 (retailer's advertised price was acceptable evidence to establish the replacement value, i.e., the ascertainable loss, to a consumer delivered non-conforming goods); Cox, supra, 138 N.J. at 22-23 (loss measured by the cost of repairing improperly performed work). Likewise, an expert was not required to establish the deficiency in the repairs. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450-51 (1993). A properly working transmission was promised. Plaintiffs' testimony, which was found to be credible by the judge, established that after defendant performed transmission work, the truck did not properly shift and still shook and bucked in low gears while being driven. The subject was not "'so esoteric'" that the factfinder, using "'common judgment and experience cannot form a valid conclusion.'" Id. at 450 (quoting Wyatt by Caldwell v. Wyatt, 217 N.J. Super. 580, 591 (App. Div. 1987)).

Defendant's violation of N.J.A.C. 13:45A-26C.2 caused plaintiffs ascertainable loss. N.J.A.C. 13:45A-26C.2(a)(5) prohibits "[m]aking deceptive or misleading statements or false promises of a character likely to influence, persuade or induce a customer to authorize the repair, service or maintenance of a motor vehicle." Defendant made false promises that induced plaintiffs to have their truck repaired, including the offer of a free loaner car, and the promise to properly repair the transmission, thus resulting in an $1800 out-of-pocket loss.

Although there was ample evidence to support a finding that defendant made false promises regarding the availability of a loaner car, we agree with defendant that plaintiffs failed to establish that they suffered an ascertainable loss in connection with that promise. Plaintiffs had the burden of producing evidence and proving a loss related to the use of the loaner car. See Furst, supra, 182 N.J. at 18-19. Plaintiffs did not rent a vehicle during the two-week period that they were without a loaner car nor did they suffer any damage as a result of the delay in having their second vehicle repaired. Indeed, according to Jean Ann's own testimony, she and Nicholas suffered inconvenience because they had two different directions to go to work.

A plaintiff is required to "produce evidence from which a factfinder could find or infer that the plaintiff suffered an actual loss." Thiedemann, supra, 183 N.J. at 248. Ascertainable loss must be "quantifiable or measurable." Ibid. While we have no doubt that plaintiffs were inconvenienced by having to use one vehicle, they produced no evidence of an out-of-pocket loss. See id. at 251-52. Nor did they provide evidence of the cost of a comparable rental vehicle in an effort to establish damages for loss of use. Instead, the judge sua sponte assigned thirty dollars a day as a hypothetical estimation of a reasonable ascertainable loss, thus relieving plaintiffs of their burden of proof.

Finally, defendant's argument that it was entitled to an offset under the doctrine of quantum meruit is legally and factually unsupported and does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). As we have previously indicated, plaintiffs' proofs were sufficient to establish that defendant did not repair the transmission as promised.

 
Affirmed in part and reversed in part. The matter is remanded for entry of judgment in the amount of $5400. We do not retain jurisdiction.

Wohlleb testified that the loaner car is available on a "[f]irst come, first serve[d]" basis and indicated that he told Jean Ann about that policy. Sparta's advertisement regarding the free loaner offer does not relay the first come, first served policy.

On cross-examination, Nicholas admitted, referring to two receipts for work performed on the truck in July 2005, that between July 7 and July 9 the truck odometer went from 106,000 to 107,439. The odometer read 91,902 when it was serviced by Sparta in January 2005. Nicholas admitted that he has been able to use the truck on a "few" long distance trips since the repairs by Sparta were performed, but explained that the truck is okay for long distance trips because the problem arises when the truck is in low gears at low speeds, as opposed to high gears.

(continued)

(continued)

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A-0899-06T1

September 10, 2007