CANDACE M. SABO, RICHARD WM. SABO, JAY M. SABO, et al. v. CAREN M. SABO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3378-06T33378-06T3

CANDACE M. SABO,

RICHARD WM. SABO,

JAY M. SABO, and

CAREN M. SABO,

Plaintiffs-Appellants,

v.

PRINCETON MEMORIAL PARK,

Defendant-Respondent,

and

LAURA JAMES, and

DAVID B. WENDRZYCKI,

Defendants.

_____________________________________

 

Argued January 23, 2008 - Decided

Before Judges S. L. Reisner, Gilroy and King.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-651-04.

James P. Manahan argued the cause for appellants (Bernstein & Manahan, L.L.C., attorneys; Mr. Manahan, of counsel and on the brief).

Brian J. Duff argued the cause for respondent (Szaferman, Lakind, Blumstein, Blader & Lehmann, P.C., attorneys; Mr. Duff and Colleen M. Crocker, on the brief).

PER CURIAM

Plaintiff Candace M. Sabo is the surviving spouse of Richard A. Sabo, who died on August 8, 2003. Plaintiffs Richard Wm. Sabo, Jay M. Sabo, and Caren M. Sabo are the adult children of Candace and her deceased husband. Plaintiffs appeal from the May 31, 2006, order, which granted partial summary judgment, dismissing all claims of the children and Candace's claims for breach of the implied covenant of good faith and fair dealing and emotional distress. Candace also appeals from the January 18, 2007, judgment in the amount of $71,610.99. We affirm.

I.

On August 9, 2003, Candace, together with her children, met with defendant Laura James, a sales representative of defendant Princeton Memorial Park Association (the Association), at the office of the Association, to discuss and potentially purchase mausoleum crypts for her deceased husband and for the future needs of her children and their spouses. Because Candace desired that all the crypts be in a single mausoleum, she agreed to purchase four vaults, containing two crypts each, for a total of eight crypts, in a new mausoleum to be constructed by the Association. James not only represented to Candace and her children that the Association had obtained all governmental approvals and permits necessary for the construction of the new mausoleum, but also that the new mausoleum would be fully constructed by the end of the 2003 calendar year. Relying on that representation, Candace purchased the eight crypts in the proposed new mausoleum at a price of $38,571. Pending completion of the new mausoleum, the Association agreed to place the remains of Candace's husband in a temporary crypt located outside of an existing mausoleum. On August 12, 2003, Candace paid in full for the eight crypts. On August 14, 2003, the remains of Candace's husband were entombed in the temporary crypt as had been agreed. On September 3, 2003, the Association sent Candace the certificates of ownership to the eight crypts.

Throughout the fall of 2003, Candace voiced concerns regarding her late husband's entombment in the temporary crypt. Her concerns included: a missing "rosette" on the corner of the crypt; unsatisfactory quality of workmanship of the letters of her husband's name on the crypt's plaque; and, the slow pace of construction of the new mausoleum. In response to Candace's concerns, David B. Wendrzycki, the Association's vice president, offered to move Mr. Sabo's remains to an inside vault. Candace agreed, and the transfer was made on or around November 11, 2003.

On October 30, 2003, Wendrzycki sent a letter to Candace informing her that according to the contractor construction of the new mausoleum was delayed, and its expected completion was the spring of 2004. Because Candace remained dissatisfied, she moved her husband's remains to Colonial Park Cemetery, after obtaining a disinterment permit from the New Jersey State Department of Health. The Association charged Candace $500 to disentomb her husband's body before its move to Colonial.

Due to the stress of the events surrounding her husband's entombment, Candace sought solace from her current and former ministers on three occasions. However, Candace did not seek treatment from a health-care provider. Richard Wm. had also consulted his pastor, but only on one occasion, about the distress of his father's burial, but like Candace, he did not seek medical attention. Likewise, Jay did not seek medical attention, but had spoken with his pastor about his father's death once, apart from his pre-marriage counseling. Lastly, Caren did not seek medical attention as a result of the emotional distress arising from her father's entombment.

On March 11, 2004, plaintiffs filed a complaint, alleging that the Association, Laura James, and David B. Wendrzycki (collectively "Defendants"): 1) violated the Consumer Fraud Act (CFA) (Count One); 2) breached the implied covenant of good faith and fair dealing in the parties' contract (Count Two); 3) breached the contract between plaintiffs and the Association (Count Three); and 4) caused plaintiffs intentional or negligent infliction of emotional distress (Count Four). Plaintiffs alleged in the complaint that defendants had misrepresented the anticipated completion date of the new mausoleum because at the time of the representations the Association "did not possess the necessary building and other permits necessary to immediately proceed with the construction as promised." Plaintiffs contended that the building permits were not approved until September 19, 2003, and construction did not commence until on or about November 10, 2003, three months after the contract for the purchase of the crypts was signed. In addition, plaintiffs asserted that the temporary crypt was inadequate and poorly maintained.

On May 13, 2006, defendants filed a motion for summary judgment as to all counts of the complaint. On May 12, 2006, trial Judge Innes granted summary judgment, dismissing the children's complaint and dismissing Counts Two and Four of Candace's complaint. Candace's claims on Counts One and Three proceeded to a jury trial. Prior to commencement of testimony, the court dismissed the complaint as to James and Wendrzycki, after the Association acknowledged it was bound by any representations made by the two individual defendants in the course of their employment.

At the conclusion of trial, the issues of liability and damages were submitted to the jury on special interrogatories. The jury determined that the Association had violated the CFA and that Candace had not suffered an ascertainable loss therefrom. Because the jury determined that the Association had not proximately caused an ascertainable loss to Candace, the jury did not return a monetary verdict. Instead, the jury was asked to determine the amount of refund Candace was entitled to, pursuant to N.J.S.A. 56:8-2.11. The jury found that Candace was entitled to a refund in the amount of $50,000. Following trial, the trial judge molded the award to the amount paid, $38,571. On January 2, 2007, the trial judge entered a final judgment in the amount of $71,610.99, representing the refund amount of $38,571; legal fees pursuant to N.J.S.A. 56:8-19 in the amount of $31,413.73; and pre-judgment interest in the amount of $1,626.26.

On appeal, plaintiffs argue:

POINT I.

PLAINTIFFS SUFFERED AN "ASCERTAINABLE LOSS" UNDER THE NEW JERSEY CONSUMER FRAUD ACT AND ARE THEREFORE ENTITLED TO TREBLE DAMAGES IN ADDITION TO LEGAL FEES AND COURT COSTS.

POINT II.

PLAINTIFFS DEMONSTRATED THAT THEY EACH AND ALL SUFFERED NONECONOMIC AND OTHER INJURIES THAT SHOULD HAVE BEEN ALLOWED TO BE PRESENTED TO THE JURY.

POINT III.

DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT AND DEFENDANTS ARE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.

II.

We have considered each of the plaintiffs' arguments in light of the record and the applicable law. We are satisfied that none of the arguments are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Plaintiff Candace Sabo argues that the monies paid to the Association, but not returned to her until after judgment, constitute an "ascertainable loss" under the CFA and, as such, should have been trebled by the trial court following the verdict. Candace contends that she suffered "a lengthy[,] albeit not permanent[,] loss of her money" and, although she was able to obtain a refund of the monies paid to the Association following entry of judgment, "this does not mean that plaintiff has not suffered an ascertainable loss of monies as intended by N.J.S.A. 56:8-19." We disagree.

The CFA was enacted to protect the consumer against imposition and loss as a result of fraud and fraudulent practices by persons engaged in the sale of goods and services. Marascio v. Campanella, 298 N.J. Super. 491, 500 (App. Div. 1997). "Unlawful practices [under the CFA] fall into three general categories: affirmative acts, knowing omissions, and regulation violations." Cox v. Sears Roebuck & Co., 138 N.J. 2, 17 (1994). A private party may bring a cause of action under the CFA, and may recover if the party demonstrates that he or she suffered an "ascertainable loss," and that the defendant committed an unlawful practice. N.J.S.A. 56:8-19.

To prove a private claim under the CFA, a "plaintiff must [establish] each of three elements: (1) unlawful conduct by the defendant[]; (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendant['s] unlawful conduct and the plaintiff's ascertainable loss." N.J. Citizen Action v. Schering-Plough Corp., 367 N.J. Super. 8, 12-13 (App. Div.), certif. denied, 178 N.J. 249 (2003). "A private plaintiff victimized by any unlawful practice under the [CFA] is entitled to 'threefold the damages sustained' by way of 'any ascertainable loss of [monies] or property . . . .'" Cox, supra, 138 N.J. at 21 (quoting N.J.S.A. 56:8-19).

Treble damages are not awarded unless the private plaintiff can show that he or she suffered an ascertainable loss as a result of the unlawful conduct. Thiedemann v. Mercedes-Benz U.S.A., 183 N.J. 234, 246 (2005); Weinberg v. Sprint Corp., 173 N.J. 233, 251 (2002). "In cases involving breach of contract or misrepresentation, either out-of-pocket loss or a demonstration of loss in value will suffice to meet the ascertainable loss hurdle and will set the stage for establishing the measure for damages." Id. at 248; see also Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 13 (2004). However, simply showing a violation of the CFA is not sufficient to entitle a private plaintiff to damages because "'[t]he [CFA] does not provide for recovery of statutory damages where a plaintiff cannot show actual harm.'" Dabush v. Mercedes-Benz USA, LLC, 378 N.J. Super. 105, 116 (App. Div.) (second alteration in original) (quoting Cannon v. Cherry Hill Toyota, Inc., 161 F. Supp. 2d 362, 373 (D.N.J. 2001)), certif. denied, 185 N.J. 265 (2005). "[A] claim of loss in value must be supported by sufficient evidence to get to the factfinder." Thiedemann, supra, 183 N.J. at 248. "[T]he plaintiff must proffer evidence of loss that is not hypothetical or illusionary." Ibid. The loss must be quantifiable or measurable. Ibid.

Here, although there was ample evidence to support a determination that the Association, through its agents, had made false representations concerning the completion date of the new mausoleum, we conclude that Candace did not suffer an ascertainable loss in connection with those misrepresentations. Candace paid $38,571 for the purchase of four vaults, each containing two crypts, in a mausoleum to be constructed. Candace received title to the eight crypts, and the mausoleum was subsequently constructed. The record is devoid of any evidence that Candace suffered either an out-of-pocket loss or a loss in the crypts' value caused by the Association's misrepresentations. To the contrary, the trial record contains competent evidence that the crypts had increased in value from when they were purchased. The failure to present adequate proofs of loss defeats Candace's claim that she suffered a loss of the benefit-of-the-bargain. Id. at 252-53. While we have no doubt that Candace was inconvenienced by having to relocate her husband's remains because the mausoleum was not completed within the timeframe promised, inconvenience does not constitute a quantifiable or measurable loss under the CFA. Id. at 248.

Because the Association did not cross-appeal from the jury's determination that Candace was entitled to a "refund," under N.J.S.A. 56:8-2.11, we need not determine whether that issue was correctly submitted to the jury, that is, whether Candace was entitled to a refund pursuant to that statute under the facts of this case. We only hold that Candace did not prove an ascertainable loss proximately caused by the misrepresentations of the Association as required by N.J.S.A. 56:8-19. Although there may be some incidents where a plaintiff, having proven a loss in value or an out-of-pocket loss caused by a defendant's unconscionable commercial practice, may claim all or part of a refund received back under a contract for the purchase of goods as an ascertainable loss, this is not such a case.

Affirmed.

Incorrectly designated in the complaint as Princeton Memorial Park.

N.J.S.A. 56:8-1 to -20.

Plaintiff Candace Sabo presently retains ownership of the eight crypts, the Association not having counterclaimed in the Law Division for the return of the certificates of ownership to the crypts. We were advised at oral argument that the Association has satisfied the judgment in full and has no intention in the future to seek the return of the certificates of ownership.

Although plaintiff Candace Sabo originally claimed that the $500 paid to the Association to disentomb her husband's body in order to relocate his remains to the Colonial Memorial Park Cemetery constituted an ascertainable loss under the CFA, we were informed at oral argument that plaintiff has abandoned this claim. Accordingly, the sole issue concerning the CFA, is whether the $38,571 refund constitutes an ascertainable loss pursuant to N.J.S.A. 56:8-19.

(continued)

(continued)

12

A-3378-06T3

February 20, 2008