ALAN ALONGE v. SPEEDWELL AUTO SERVICE, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ALAN ALONGE,

Plaintiff-Appellant,

v.

SPEEDWELL AUTO SERVICE, INC.

and JOSEPH MARICONDA,

Defendants-Respondents.

________________________________

June 20, 2014

Submitted June 4, 2014 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-9423-12.

Sedita, Campisano, & Campisano, LLC, attorneys for appellant (Frank R. Campisano, on the brief).

Niedweske, Barber, Hager, LLC, attorneys for respondents (Kevin E. Barber, of counsel; Peter J. Heck, on the brief).

PER CURIAM

Plaintiff Alan Alonge appeals from a judgment for defendants Speedwell Auto Service, Inc., and owner Joseph Mariconda following trial in the Special Civil Part and from a limited award of attorney's fees. We affirm.

Plaintiff owns a 1975 Chevrolet Corvette Stingray. The car, which has a fiberglass body, is a second car driven for pleasure in nice weather. The car is stored during the winter months. Following a minor accident in which the Corvette sustained a cracked fender, plaintiff sought out defendants to make the repair. Defendants provided plaintiff with a written estimate of $2458.97 for the fender repair, which was within the $2500 plaintiff's insurance company had agreed to pay to repair the damage.

After receiving that estimate, plaintiff asked defendants to "clean up" the car, that is, to address issues with the paint which was flaking and peeling in spots. Plaintiff testified that Mariconda told him the price would be $3000. Mariconda testified that the cost to fully restore the car, which would entail stripping the finish to the gel coat, chemically washing the surface, block sanding it by hand, making any necessary repairs and then priming, sealing, painting, clear coating, sanding and buffing the car, would be over $10,000. According to Mariconda, he said he could "clean up" the car, that is fix the peeling and damaged areas, sand, prime and paint it, for between $1500 and $2000. The parties agree that Speedwell was engaged to repair the fender in accordance with the written estimate and "clean up" the car pursuant to the oral estimate Mariconda provided. Defendants do not dispute that no written estimate for the painting was ever prepared.

The parties further agree that defendants advised plaintiff to purchase a new fender to be incorporated into the repair and that plaintiff did so. They also acknowledge that defendants did not make use of that new fender. Plaintiff claims that he only learned of that fact after retaking possession of the car. Mariconda testified that he informed plaintiff's wife, whose car defendants also serviced, and asked her to relay the information to her husband. According to Mariconda, he explained to plaintiff's wife that the damage to the front end of the car was worse than originally thought, affecting the Corvette's flip-up head lights. He advised her that defendants had determined that they would be better off realigning and gluing the pieces back together rather than trying to incorporate a new fender.

Although acknowledging that she had spoken to Mariconda about the Corvette on various occasions, plaintiff's wife testified that she did not recall a discussion about the fender. Defendant presented the testimony of the man who referred plaintiff and his wife to Mariconda. He testified that he arranged to drive plaintiff's wife to work one day when she was leaving her car with defendants and heard Mariconda explain the problem with the fender.

Plaintiff dropped off the car in September 2010, testifying that he expected to pick it up the following March. Plaintiff acknowledged that March was his estimate. He did not testify that defendants ever promised the car would be ready by that date or any other.

The car was not ready for pick up until January 2012, fifteen months after plaintiff dropped it off. Plaintiff testified that after several months had passed without word from defendants, he began regularly calling Speedwell to ask for updates on the status of the car. Mariconda testified that restorations of pleasure vehicles can typically take years to complete. He didn't recall "being inundated by calls" from plaintiff, although he admitted that plaintiff "became anxious near the end." He claimed that plaintiff told him he "wasn't in a hurry to get it back," that he "just wanted it done." Mariconda testified he took plaintiff at his word. One of defendants' employees testified that defendants ordinarily gave priority to "big collision job[s] where someone has 15 days to get back into that car." Paint jobs on second cars not requiring the customer to rent a car were not treated similarly.

When plaintiff picked up the car in January 2012, the only problem he noted was a scratch on the "T top," which Mariconda immediately buffed out. Defendants billed plaintiff a total of $4943.39 for repairs to the fender and painting. Plaintiff paid the invoice without complaint.

After taking delivery of the car in January 2012, plaintiff put it in storage for two months, uncovered. When he retrieved the car at the end of March, he found blotches and bubbles on the surface of the paint, which he had repaired at a cost of over $2200. Plaintiff sued defendants for breach of contract and consumer fraud, alleging that the delay, failure to use the purchased fender, and workmanship defects amounted to unconscionable business practices.

After hearing all of the testimony, Judge Brennan dismissed both the contract and the consumer fraud claims alleging defects in the paint work. He found that without an expert to testify to what caused the paint to bubble, plaintiff could "not ma[k]e out his cause of action for defective painting work." Specifically, the judge found that

[t]his doesn't speak for itself, if you will. Just because the car came out of storage . . . at the end of March in 2012, . . . in the condition . . . depicted in the photographs . . . does not establish that the defendant was negligent, unprofessional, or otherwise careless in the application of the paint, without supporting testimony of an expert.

It could have . . . had something to do with the car itself. It could have had something to do with the storage. I don t know without the guidance of expert testimony on the quality of the paint job.

The judge similarly rejected plaintiff's claims that the time required to repair the car was unconscionable. Taking note of the defense testimony that jobs of this nature "commonly take[] a considerable period of time," the judge concluded that expert testimony was required to establish what a reasonable period of time would be to accomplish the repairs.

As to the claims regarding the fender, the judge weighed the testimony and concluded that defendants did tell plaintiff's wife of the decision not to use the new fender. The judge found that

[plaintiff's wife] candidly and frankly acknowledged that she couldn't remember everything she was told. She thought not that. But this, as everybody pointed out, this was a number of years ago. And I find that was adequate communication of the change and the scope of the work to the spouse of the plaintiff, even though, I acknowledge, [plaintiff's wife] was technically not the owner of the car, however, she was a customer of [defendant].

Although rejecting plaintiff's claims of unconscionable business practices, the judge found that defendants' failure to provide plaintiff with a written estimate for the painting violated N.J.A.C. 13:45A-26C.2. Concluding that defendants' "technical violation of the Consumer Fraud Act" entitled plaintiff to reasonable attorney's fees, the judge permitted plaintiff to file a fee application. Plaintiff sought $7425 in fees, based on an hourly rate of $275, and $208.46 in costs. The judge found the rate reasonable but that counsel's practice of "block billing," assigning one time entry for multiple tasks, made "it impossible for the court to analyze the reasonableness of counsel's time spent on any given function for the days in question." The court rejected fees of $2915 for services that had been block billed and further reduced the remaining $5510 for plaintiff's limited success. The judge wrote

After deducting $2,915, the fee application amounts to $5,510. That is an excessive amount for an action that succeeded only in proving that defendant did not provide an updated estimate, a claim that would have taken little time for pretrial discovery or trial. The court awards one sixth of plaintiff's claimed amount of attorney fees, that is, $918.33 ($5,501 [divided by] 6 = $918.33).

The cost application is not documented. The court limits the cost award to $66.00, the cost to file the complaint, which is a known sum.

The court awards a total of $984.33 to plaintiff for attorney fees and costs.

Plaintiff appeals.

We reject plaintiff's claim that the judge erred in ruling that plaintiff needed an expert to prove causation on the facts presented. Our review of final determinations of a trial court sitting in a non-jury case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "'[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting In re Trust Created By Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)).

In the absence of an express contractual provision as to workmanship, "the law implies a covenant that the contract will be performed in a reasonably good and workmanlike manner." Aronsohn v. Mandara, 98 N.J. 92, 98 (1984). To succeed on such a claim, a plaintiff must prove that the work was defective when completed and that this defect proximately caused plaintiff's injury. See Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 92 (1965) (applying an implied warranty of workmanlike building to the sale of a prefabricated home).

Here, as Judge Brennan found, plaintiff failed to establish any such connection. The problems plaintiff complained of occurred months after defendants completed their repair of the car. Plaintiff admitted that the problem was not present when he took possession of the car from defendants in January 2012. Plaintiff failed to offer any testimony explaining what defendants did wrong and how the error resulted in the damage to the car. Without such testimony, plaintiff simply could not establish that the problems he found when he retrieved the car from storage resulted from some latent defect in the work defendants performed. See Phillips v. Gelpke, 190 N.J. 580, 591 (2007) (noting the requirement of expert testimony when a matter is so esoteric that jurors of common judgment and experience cannot form a valid judgment on the issue).

We likewise reject plaintiff's claim that the judge erred in finding that he failed to establish defendants committed an unconscionable commercial practice by taking over a year to repair his classic Corvette Stingray. To establish a claim under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -195, a plaintiff must prove that the defendant engaged in an unlawful practice, that the plaintiff suffered an "ascertainable loss," and that there is a causal connection between the unlawful practice and the ascertainable loss. Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 576 (2011). In considering what constitutes an unconscionable commercial practice under the Act, the Supreme Court has held it implies a lack of "good faith, honesty in fact and observance of fair dealing." Cox v. Sears Roebuck & Co., 138 N.J. 2, 18 (1994) (quoting Kugler v. Romain, 58 N.J. 522, 544 (1971)).

Plaintiff contends that one does not need expert testimony to establish that a sixteen-month delay in completing "a simple repair of a cracked front fender, together with a clean paint job" constituted an unconscionable business practice. But this was obviously not a standard car repair transaction. This repair was to an almost forty-year-old car with the original fiberglass body. Plaintiff made clear both to defendant and the court that his Corvette was a classic car driven solely for pleasure and then only in nice weather. The car was taken off the road in the winter and stored each year for several months. Plaintiff's own testimony that he expected the repairs to take seven months undercuts his claim that it should be viewed as a "simple repair."

Plaintiff provided nothing to establish a reasonable time for repairing such a car other than his own unexpressed sense that seven months was adequate. Further, the evidence established that defendants never promised the car on a particular date or that the parties ever discussed, much less agreed, how long the repairs would take. Given the state of the record, we cannot find the judge erred in deciding that expert testimony was necessary to establish a reasonable time for the repairs performed on this classic car. Seidman, supra, 205 N.J. at 169.

Plaintiff's argument that the judge erred in finding that defendant adequately informed him that the fender he purchased would not be used in repairing his Corvette, and that this constituted an unconscionable commercial practice under the Act does not merit any discussion. R. 2:11-3(e)(1)(E). The argument hinges entirely on plaintiff's contention that the court erred in finding that defendant had informed plaintiff's wife about the change. As that finding is supported by the credible evidence in the record, it is binding on appeal. Seidman, supra, 205 N.J. at 169.

Finally, we reject plaintiff's argument that the judge abused his discretion in limiting his fee award in an apparent effort "to dissuade attorneys from representing private litigants in consumer fraud actions within its vicinage." The judge reduced the fees requested to account for plaintiff's very limited success in this Special Civil Part matter. Plaintiff proved only a regulatory violation in the failure to provide a written estimate for the paint job. Plaintiff does not allege that defendants charged him more than the sum he orally agreed to pay. Indeed, plaintiff admits that defendants charged him less. We can discern no improper motive in the judge's decision.

Defendants note that after the trial court's decision was final, the Supreme Court issued Perez v. Professionally Green, LLC, 215 N.J. 388, 392-93 (2013), holding that the grant of a motion to dismiss a Consumer Fraud Act claim pursuant to Rule 4:37-2(b) on the basis that no rational factfinder could find an ascertainable loss, precluded any award of attorney's fees under the statute. They argue that Perez would have precluded any award of fees here.

Although defendants did not make a Rule 4:37-2(b) motion here, we acknowledge the logical force of their argument given the trial judge's findings. Nevertheless, we need not address the effect of the "time of decision" rule as defendants did not cross-appeal and we find no basis to remand to the trial court to reconsider the fee award. See S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002).

Affirmed.