DONNA MARIE GIAIME v. DISCOUNT AUTO
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1539-16T2
DONNA MARIE GIAIME,
Plaintiff-Respondent,
v.
DISCOUNT AUTO,
Defendant-Appellant.
____________________________
Argued April 16, 2018 – Decided June 5, 2018
Before Judges Sabatino and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Hunterdon County, Docket No.
L-0512-11.
Kendall S. Murphy argued the cause for
appellant.
D. Andrew Walheim argued the cause for
respondent (Kent & McBride, PC, attorneys; D.
Andrew Walheim, on the brief).
PER CURIAM
Defendant Discount Auto appeals from an August 3, 2016 Law
Division order granting default judgment and counsel fees to
plaintiff Donna Marie Giaime; an October 31, 2016 order denying
its motion for reconsideration; and an order suppressing its answer
and affirmative defenses.1 We affirm.
I.
This case arises from the sale of a used 2002 Toyota Camry
Solara convertible ("Solara") from defendant automobile dealership
to plaintiff. Defendant advertised the car on its website, which
indicated it provided a free CARFAX Vehicle History Report 2 for
all vehicles sold. Defendant furnished plaintiff with a CARFAX
report that did not reveal any accidents or damage history for the
Solara.
On May 31, 2011, plaintiff purchased the Solara from
defendant. On her way home from the dealership, plaintiff noticed
the "the whole front end was wobbling and shaky." She immediately
returned the vehicle to the dealership. Although initially denying
1
Defendant did not provide the trial court's orders (1) entering
default, and (2) denying its motion to reinstate its answer and
affirmative defenses in its appendix, nor in response to our
request at the conclusion of oral argument. In its merits brief,
defendant did not address the court's denial of its motion to
reinstate its pleading and, as such, this issue is deemed waived.
See Gormley v. Wood-El,
218 N.J. 72, 95 n.8 (2014); see also,
Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2018).
2
CARFAX is an electronic database compiling vehicle history
information from "thousands of sources." A typical CARFAX report
may include, for example, odometer readings, number of owners, and
prior accidents or damages.
2 A-1539-16T2
anything was wrong with the car, defendant's representative
brought plaintiff to Team Toyota of Langhorne's ("Toyota") service
center to have the car "checked out." Defendant's representative
advised Toyota's service person to do "what needs to be done to
fix the car." Toyota's invoice listed defendant as the customer.
Defendant, however, refused to pay the invoice.
Plaintiff paid Toyota's bill for $1,743. Dissatisfied with
defendant's refusal to remit payment to Toyota, and suspicious of
the circumstances of the vehicle's front-end issues, plaintiff
purchased a report directly from CARFAX ("second CARFAX report").
The "Additional History" section of the second CARFAX report
indicated: "Damage reported on 10/16/2009." Included within the
"Detailed History" section, the entry dated October 16, 2009
stated:
Parts requested for repair:
Front bumper
CARFAX recommends checking these repairs
during your pre-purchase inspection.
In response to plaintiff's inquiry, CARFAX confirmed the
report provided by defendant "ha[d] been altered from the form in
which it was provided by CARFAX." When plaintiff confronted
defendant with the second CARFAX report, defendant offered to pay
3 A-1539-16T2
half of Toyota's invoice, and advised her to file a lawsuit if
she was not satisfied with that offer.
Plaintiff filed a complaint against defendant in August 2011,
alleging violations of the New Jersey Consumer Fraud Act,
N.J.S.A.
56:8-1 to -210 ("CFA"), common law fraud, and unjust enrichment.
In November 2011, defendant filed an answer, neither admitting
nor denying plaintiff's allegations, and asserting seventeen
separate defenses. Apparently, the court held several settlement
conferences in this matter, but ultimately entered default against
defendant for failure to attend one such conference. Defendant's
motion to reinstate its answer and affirmative defenses was
unsuccessful.
The court held a proof hearing in May 2016. Plaintiff and
her expert in automobile sales and appraisals testified. Several
documents, including both CARFAX reports, Toyota's invoice, and
the transcript of the deposition of a CARFAX representative, were
admitted into evidence. Because defendant had defaulted, its
participation at the hearing was limited to cross-examination of
plaintiff's witnesses. See Jugan v. Pollen,
253 N.J. Super. 123,
129-31 (App. Div. 1992). Defense counsel appeared and exercised
that right.
On July 20, 2016, the trial judge issued an opinion entering
default judgment against defendant, awarding plaintiff $8,606 in
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treble damages and $15,725 in counsel fees. See
N.J.S.A. 56:8-
19. On August 3, 2016, the trial court entered a final judgment
memorializing the award set forth in its written opinion.
Defendant's subsequent motion for reconsideration was denied.
This appeal followed.
On appeal, defendant raises three claims for our
consideration: (1) plaintiff did not incur an "ascertainable
loss" pursuant to the CFA; (2) plaintiff's counsel fees were
unreasonable and excessive in light of the court's award of
damages; and (3) its answer and affirmative defenses should not
have been suppressed. We disagree.
II.
A.
Initially, our review has been hampered, to a degree, by the
failure of defendant to provide a complete record on appeal. Rule
2:5-4(a) states in relevant part:
The record on appeal shall consist of all
papers on file in the court or courts or
agencies below, with all entries as to matters
made on the records of such courts and
agencies, the stenographic transcript or
statement of the proceedings therein, and all
papers filed with or entries made on the
records of the appellate court . . . .
5 A-1539-16T
2 See also R. 2:5-3(b) ("the transcript shall include the entire
proceedings"); R. 2:6-1(a) (the appendix must contain parts of the
record "essential to the proper consideration of the issues").
Here, because defendant did not provide the trial court's
orders entering default and denying its motion to reinstate its
answers and affirmative defenses, we cannot determine the
viability of its claims that the trial court erred in failing to
recognize its alleged meritorious defense. Ordinarily, this
serious deficiency might prompt us simply to dismiss the appeal.
Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 2:5-3
(2018); see also Cipala v. Lincoln Tech. Inst.,
179 N.J. 45, 54-
55 (2004) (failing to provide the complete transcript may result
in dismissal of the appeal); In re Zakhari,
330 N.J. Super. 493,
495 (App. Div. 2000); R. 2:8-2 (providing that an appellate court
may, at any time and on its own motion, dismiss an appeal).
Alternatively, we may affirm the order under appeal, Soc'y Hill
Condo. Ass'n, Inc. v. Soc'y Hill Assocs.,
347 N.J. Super. 163,
177-78 (App. Div. 2002) ("Without the necessary documents . . .
we have no alternative but to affirm."). However, while we dismiss
defendant's claim that the court erred in suppressing its answer
and defenses on these procedural grounds, we are confident the
record provided to us is sufficient to undertake meaningful review
of its two remaining contentions.
6 A-1539-16T2
B.
Following the entry of default, a plaintiff seeking
unliquidated damages ordinarily is required to establish those
damages at a proof hearing. R. 4:43-2(b); Chakravarti v. Pegasus
Consulting Grp., Inc.,
393 N.J. Super. 203, 210 (App. Div. 2007).
As we have long recognized, after a default, a plaintiff is
entitled to "all of the damages" that can be "prove[d] by
competent, relevant evidence." Heimbach v. Mueller,
229 N.J.
Super. 17, 28 (App. Div. 1988).
A judgment entered after a contested proof hearing is subject
to limited review. See Seidman v. Clifton Sav. Bank, S.L.A.,
205 N.J. 150, 169 (2011) (explaining that "[f]inal determinations made
by the trial court sitting in a non-jury case are subject to a
limited and well-established scope of review"). The question on
appeal is whether there was substantial credible evidence to
support the damages and counsel fees set forth in the judgment.
Ibid.
"The [CFA] provides a private cause of action to consumers
who are victimized by fraudulent practices in the marketplace."
Gonzalez v. Wilshire Credit Corp.,
207 N.J. 557, 576 (2011). It
is intended to "be applied broadly in order to accomplish its
remedial purpose," Lemelledo v. Beneficial Management Corporation
of America,
150 N.J. 255, 264 (1997), and thus, is liberally
7 A-1539-16T2
construed in favor of the consumer, Cox v. Sears Roebuck & Company,
138 N.J. 2, 15 (1994).
Pursuant to the CFA, a plaintiff must establish three
elements: "(1) unlawful conduct by defendant; (2) an ascertainable
loss by plaintiff; and (3) a causal relationship between the
unlawful conduct and the ascertainable loss." Bosland v. Warnock
Dodge, Inc.,
197 N.J. 543, 557 (2009) (citation omitted). A
consumer who can prove these elements "is entitled to legal and/or
equitable relief, treble damages, and reasonable attorneys' fees."
Lee v. Carter-Reed Co., L.L.C.,
203 N.J. 496, 521 (2010) (citing
N.J.S.A. 56:8-19).
Particularly relevant here, "implicit in the concept of an
'ascertainable' loss is that it is quantifiable or measurable."
Thiedemann v. Mercedes-Benz U.S., LLC,
183 N.J. 234, 248 (2005);
see also Cox,
138 N.J. at 22-23. To demonstrate an ascertainable
loss, plaintiff must provide the court with an "estimate of
damages, calculated within a reasonable degree of certainty." Cox,
138 N.J. at 22. Examples include an out-of-pocket loss, the
replacement cost of a defective product, or a demonstrable loss
in value. See Lee,
203 N.J. at 522; Thiedemann,
183 N.J. at 248.
It is unrefuted that defendant engaged in "unlawful conduct"
by altering the Carfax report it provided to plaintiff which
excluded damages sustained in October 2009 to the Solara's front
8 A-1539-16T2
bumper. Instead, defendant challenges the trial court's award of
damages, claiming: (1) plaintiff has not demonstrated an
ascertainable loss pursuant to the CFA; and (2) some of the repairs
performed by Toyota were unnecessary to the front-end damage on
the Solara. Defendant's claims are dispelled by the record.
Initially, the trial judge determined, that by concealing
damage to the Solara's front-end, defendant engaged in an
unconscionable commercial practice entitling plaintiff to the
diminution in value of the car. The judge reasonably reduced the
valuation of the Solara determined by plaintiff's expert from
forty percent to fifteen percent less than the purchase price,
i.e., $1,125. Although the judge found the expert's precise
calculation was unsupported by empirical data or documentation,
he nevertheless, found "as a matter of common sense and logic,
that an older used vehicle with a previous accident/damage history
is worth less than a vehicle without such a history." Because a
trier of fact "may accept or reject all or part of an expert's
opinion," Model Jury Charge (Civil), 1.13, "Expert Testimony"
(citing State v. Spann,
236 N.J. Super. 13, 21 (App Div. 1989)),
we discern no error in the judge's determination of reduced value.
Secondly, the trial court found plaintiff reasonably relied
on defendant's representation that it would pay for the repairs
made by Toyota, entitling her to damages in the full amount of the
9 A-1539-16T2
invoice, i.e., $1,743. The trial court concluded "plaintiff would
not have suffered the out-of-pocket expense for repairs . . . but
for [] defendant's fraudulent sale of the vehicle and, therefore
. . . plaintiff suffered an actual loss that is causally connected
to [] defendant's initial unlawful conduct." As the trial judge
aptly determined, "[D]efendant's promise to pay for the repairs
without any intention of doing so constitutes a separate
unconscionable business practice or fraudulent misrepresentation."
Our review of the testimony and evidence submitted during the
proof hearing satisfies us that plaintiff demonstrated an
"ascertainable loss" within the meaning of the CFA. In so
deciding, we emphasize the paramount goal of making an injured
party whole disfavors a mechanical, rigid approach to damage
calculation. See, e.g., N.J. Power & Light Co. v. Mabee,
41 N.J.
439, 441 (1964); 525 Main St. Corp. v. Eagle Roofing Co., Inc.,
34 N.J. 251, 255 (1961); Premier XXI Claims Mgmt. v. Rigstad,
381 N.J. Super. 281, 284-85 (App. Div. 2005); Hyland v. Borras,
316 N.J. Super. 22, 25 (App. Div. 1998).
C.
We review a trial court's award of counsel fees for a clear
abuse of discretion and will disturb that determination "only on
the rarest of occasions[.]" Litton Indus., Inc. v. IMO Indus.,
Inc.,
200 N.J. 372, 386 (2009) (quoting Packard-Bamberger & Co.,
10 A-1539-16T2
Inc. v. Collier,
167 N.J. 427, 444 (2001)); see also Rendine v.
Pantzer,
141 N.J. 292, 317 (1995). A prevailing party may only
seek attorney's fees "if they are expressly provided for by
statute, court rule, or contract." Id. at 385 (quoting Packard-
Bamberger,
167 N.J. at 440).
Where, as here, a "plaintiff proves both an unlawful practice
under the [CFA] and an ascertainable loss[,]" an award of treble
damages and reasonable attorneys' fees is mandated pursuant to
N.J.S.A. 56:8-19. Cox,
138 N.J. at 24. Although the amount of
the counsel fees awarded exceeds plaintiff's damages, six-fold,
"there need not be proportionality between the damages recovered
and the attorney-fee award itself[,]" Furst v. Einstein Moomjy,
Inc.,
182 N.J. 1, 23 (2004) (citation omitted); see also Walker
v. Giuffre,
209 N.J. 124, 132 (2012). As the Court recognized in
Furst:
The Legislature undoubtedly was aware that in
consumer fraud cases involving minor losses,
attorneys' fees frequently would exceed the
damages suffered. Nevertheless, the
Legislature intended plaintiffs to have access
to the court system to pursue relatively small
claims against deceptive retailers. In that
respect, the provision for attorneys' fees is
one of the deterrent aspects of the
legislation, and therefore, fraudulent
retailers should beware.
[Id. at 23.]
11 A-1539-16T2
We are also satisfied the fee award was reasonable in rate
and time expended. See Monogram Credit Card Bank of Georgia v.
Tennesen,
390 N.J. Super. 123, 134 (App. Div. 2007) (citations
omitted). The trial judge considered the detailed certification
of counsel, submitted on behalf of plaintiff in support of the fee
application. Scrutinizing the factors set forth in RPC 1.5(a),
the court found the hourly rate is "reasonable and customary for
the type of legal services performed in the Hunterdon area." RPC
1.5(a)(3); see also Litton Indus.,
200 N.J. at 386 (the calculation
of attorneys' fees requires the trial court to determine the
"lodestar," i.e., the "number of hours reasonably expended by the
successful party's counsel in the litigation, multiplied by a
reasonable hourly rate.").
The judge continued his analysis, determining "the amount of
time expended was reasonable and that plaintiff's counsel was
precluded from working on other matters during the time he
represented plaintiff." RPC 1.5(a)(4) and (5). Considering "the
issues in dispute and the results obtained" the judge determined
"the legal fees were reasonable." RPC 1.5(a)(4). Further, the
judge considered "the length of the professional relationship
between plaintiff's counsel and plaintiff and the fact the fees
charged were at a fixed rate." RPC 1.5(a)(6) and (8). Finally
12 A-1539-16T2
the court "'considered the experience, reputation and ability' of
plaintiff's counsel." (quoting RPC 1.5(a)(7)).
Based on the trial court's meticulous review of the
certification of services, and the prevailing law, we detect no
"clear abuse of discretion" here that would compel us to set aside
the fee award. Rendine,
141 N.J. at 317.
Affirmed.
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