ERMINA M. RADONCIC v. AUTO HOLDING

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1051-19T1

ERMINA M. RADONCIC,

          Plaintiff-Appellant,

v.

AUTO HOLDING,

     Defendant-Respondent.
_____________________________

                   Submitted December 16, 2020 – Decided January 19, 2021

                   Before Judges Rose and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Docket No. L-4016-17.

                   Lueddeke Law Firm, attorneys for appellant (Ronald L.
                   Lueddeke, on the brief).

                   Jardim, Meisner & Susser, PC, attorneys for respondent
                   (Michael V. Gilberti, on the brief).

PER CURIAM
      Following a one-day bench trial, plaintiff Ermina Radoncic appeals from

a September 27, 2019 Law Division order dismissing her complaint and entering

judgment in favor of defendant Auto Holding, Inc. We affirm.

                                       I.

      For purposes of our review, we accept as true the facts set forth in

plaintiff's five-count complaint and derive the following facts adduced at trial.

On January 12, 2017, plaintiff, a college graduate, purchased from defendant

used-car dealership a 2 016 Land Rover with 6921 miles on it.            She was

concerned about safety after recently being involved in a car accident.

According to plaintiff, defendant represented to her that the Land Rover was in

"excellent condition." At trial, plaintiff testified the salespersons from the

dealership advised her it was "like brand new." She signed a contract, made a

down payment of $15,000, and financed the $27,215.38 balance, agreeing to

make seventy-two monthly payments of $427.66. After entering the transaction,

plaintiff obtained a CarFax report indicating that the Land Rover was part of a

corporate fleet and not a personal lease. After noticing scratches following her

purchase, defendant's employees agreed to give the vehicle a "deep cleaning."

      In the months that followed, plaintiff experienced mechanical problems

with the vehicle, including a faulty headlamp, water leaks, rusty wheels, and


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doors not opening. Plaintiff took the vehicle to Land Rover of Parsippany where

it was repaired under warranty terms at no cost to her.

      Still having concerns about the safety of the vehicle, on May 1, 2019,

plaintiff returned the Land Rover to defendant and requested a refund. The

finance manager told plaintiff "we are going to make you happy." Defendant

agreed to allow plaintiff to trade-in the Land Rover for a Mercedes-Benz C-

Class sedan with 45,892 miles on it, which cost $33,000, and gave her a $31,000

trade-in credit for the Land Rover. 1       Plaintiff was advised by defendant's

salesperson that the Mercedes was worth $43,000. She financed the amount of

$32,600. The document fee charged for the Mercedes was $497.88.

      Plaintiff purchased an extended service contract for the Mercedes

covering thirty-six months or 30,000 miles for $2995, which she claims was an

"unconscionable amount," since the cost to defendant was only $1544.

Defendant did not disclose its profit or "upcharge" was $1455 on the extended

service contract to plaintiff.

      In her complaint, plaintiff contended that defendant committed fraud by

not informing her that the Land Rover was a fleet vehicle and failing to disclose



1
   The complaint states that defendant later marketed the Land Rover for
$35,795.
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its mechanical problems. She also alleged she was deprived of $7800 when she

returned the Land Rover because it was undervalued when she purchased the

Mercedes. Plaintiff also alleged defendant failed to disclose the $1455 profit it

made on the extended service warranty, and she was improperly charged the

$497.88 document fee. According to plaintiff, defendant's conduct constituted

a violation of the New Jersey Consumer Fraud Act (CFA),  N.J.S.A. 56:8-1 to -

20 because:

              (1) there is an affirmative representation on the buyer's
              order and Retail Installment Contract that the entire
              amount is paid to the provider, which is false;

              (2) there is a non-disclosure of a material fact;

              (3) the Automotive, Pre-Delivery Services regulations
              require disclosure, N.J.A.C. 13:45A-25B.2;

              (4) the New Jersey Used Car Lemon Law, N.J.S.A.
              56:8-68(g) requires profit disclosure; and

              (5) the profit is unconscionable as to its amount.

      Plaintiff also claimed she was told there would be "no dealer fee," but was

charged a $497.88 documentation fee, and she was "overcharged" for the

Mercedes by $1000. Under the New Jersey Used Car Lemon Law, plaintiff

alleged defendant violated that statute by "misrepresenting" the mechanical




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condition of the Land Rover and stating it was free from "defects," in violation

of  N.J.S.A. 56:8-68(a) and 56:8-68(c).

      On August 26, 2019, the matter was tried. Plaintiff testified on her own

behalf and presented no other witnesses. Steven Chepovetsky, who is employed

as the general sales manager for defendant, was the only witness who testified

on behalf of the defense. Documentary evidence was received by the court.

Following closing arguments, the trial court reserved decision.

      On September 6, 2019, the trial court gave a comprehensive oral decision

on the record. In dismissing plaintiff's complaint, the court ruled:

                  According to plaintiff the Land Rover sale is
            fraudulent because she was not told it was a fleet
            vehicle and because it had a multitude of problems.
            There was no testimony however as to how many
            people actually drove the car when it was [a] fleet
            vehicle and there was also no proof, expert or
            otherwise, as to how a fleet vehicle affects the quality
            of a car or the value of a car.

            [. . .] plaintiff needed to repair the Land Rover, it was
            covered by warranty as indicated by the April 7, 2017
            invoice from Land Rover of Parsippany. Concededly,
            plaintiff cites to an article reporting a case where a
            court in Morris County purportedly concluded that it
            was a consumer fraud when "plaintiff thought it was a
            lease[d] vehicle traded by its owner when in fact it was
            a loaner car."

            Plaintiff does not provide a copy of that case or a
            citation let alone any analysis of the facts and how they

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compare to the case at bar. Nor does plaintiff explain
the difference in value or quality between a loaner car
and a leased vehicle. Therefore, the [c]ourt declines to
rely on the Law Journal article citing to a case.

As noted by plaintiff, however, there is case law that
recognizes that a matter is material if a responsible
person would attach importance to its existence when
deciding upon a course of action. Although plaintiff
claims that she would not have bought the vehicle had
she known it was a fleet vehicle the [c]ourt does not
find her testimony to be credible for several reasons.

First, if it was so important it's not clear why she did
not raise her concern with the dealer as soon as she
received the CarFax report; (2) there was no indication
that she ever stated her preference for a non-fleet
vehicle; (3) she could have refused to proceed with the
transaction until a CarFax was received; (4) she waited
[four]-and-a-half months to complain about the car. If
all of the problems were so important and disconcerting
why didn't she bring them to the dealer's attention
sooner.

Finally, there is no proof that a fleet vehicle is less
valuable than a leased vehicle and [in] light of the
foregoing the [c]ourt does not find that there was any
violation of the CFA related to the Land Rover
purchase.

As for fraud related to the purchase of the Benz or the
return of the Land Rover, that exchange took place on
April 17, 2017, and as stated above plaintiff
characterized the Mercedes as a replacement or
exchange whereas defendant referred to it as a trade-in.
In other words, plaintiff's first claim essentially is that
she was duped into a trade-in when she believed she
was exchanging the vehicle.

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            First, plaintiff addresses the difference in mileage,
            noting that the Land Rover used only [2800] miles since
            she had it resulting in an odometer reflecting in a total
            of approximately [6900]. In contrast the Mercedes she
            eventually purchased had 45,397 miles on the odometer
            and was a sedan when she had stated she wanted an
            SUV for safety. In light of the difference she believes
            the Mercedes was worth less.

            Likewise, when plaintiff purchased the Land Rover in
            January 2017, she paid $38,800. When she gave it back
            to the dealership in May 2017 and purchased the
            Mercedes Benz however she only received $31,000,
            resulting in a difference of [$7800]. Meanwhile
            monthly payments of $427.65 increased to $489.20
            under the Mercedes Benz.

            According to plaintiff, the $31,000 trade-in allowance
            for the Land Rover was not reviewed with her. She
            contends that had she known she was receiving [$7800]
            less than she paid in that short of a time span she would
            not have bought the Mercedes. Plaintiff also asserts
            that she should have been paid more for the Land Rover
            because it was advertised for approximately $35,000 a
            few weeks later as indicated by one of the exhibits.
            There is no evidence regarding what price it ultimately
            sold at.

      The trial court found plaintiff was not credible in her testimony claiming

she did not know the Land Rover was a "trade-in" rather than an "exchange" and

concluded there was no CFA violation regarding the trade-in. As to plaintiff's

theory that defendant was not permitted to make a profit on the extended service

warranty, the trial court rejected the claim and found no CFA violation. The

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court noted plaintiff failed "to tie in . . . how a failure to disclose a profit

regarding a warranty constitute[d] a misrepresentation of a warranty."            In

conclusion, the trial court found plaintiff failed to establish her burden that any

fraudulent act or omission was attributable to defendant, and she failed to prove

ascertainable loss. A memorializing order was entered on September 27, 2019.

This appeal ensued.

                                        II.

      On appeal, plaintiff raises a single point arguing the trial court erred in

ruling defendant's conduct in connection with the sale of the extended service

contract did not violate the CFA.       We conclude the argument is without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The trial court had reviewed and considered the evidence plaintiff proffered at

trial. Accordingly, the trial court did not overlook or fail to appreciate the

significance of the evidence. D'Atria v. D'Atria,  242 N.J. Super. 392, 401 (Ch.

Div. 1990). However, we add the following remarks.

      Factual determinations "made by the trial court sitting in a non-jury case

are subject to a limited and well-established scope of review." Seidman v.

Clifton Sav. Bank, S.L.A.,  205 N.J. 150, 169 (2011) (citing In re Trust Created

by Agreement Dated Dec. 20, 1961, ex. rel. Johnson,  194 N.J. 276, 284 (2008)).


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We will 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,  194 N.J. at 284).

            The general rule is that findings by the trial court are
            binding on appeal when supported by adequate,
            substantial, credible evidence. Deference is especially
            appropriate when the evidence is largely testimonial
            and involves questions of credibility. Because a trial
            court hears the case, sees and observes the witnesses,
            and hears them testify, it has a better perspective than a
            reviewing court in evaluating the veracity of witnesses.

            [Seidman,  205 N.J. at 169 (quoting Cesare v. Cesare,
             154 N.J. 394, 411-12 (1998)).]

      The trial court's decision on issues of law are, however, subject to plenary

review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366,

378 (1995). "A trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special deference." Ibid.

(citations omitted).

      To establish a prima facie case of common law fraud, a plaintiff must

show that the defendant: (1) made a material representation of a presently

existing or past fact; (2) made the representation with knowledge of its falsity;

(3) made the representation with the intention that the other party would rely


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thereon; and (4) that the other party relied upon the representation to his or her

detriment. Jewish Ctr. of Sussex Cty. v. Whale,  86 N.J. 619, 624-25 (1981).

      In contrast to common law fraud, 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).

"When the alleged consumer-fraud violation consists of an affirmative act, intent

is not an essential element and the plaintiff need not prove that the defendant

intended to commit an unlawful act." Id. at 17-18. Indeed, where there is an

affirmative act, the plaintiff "need not even show reliance on the violation of the

[CFA]." Leon v. Rite Aid Corp.,  340 N.J. Super. 462, 468 (App. Div. 2001).

Nor must the plaintiff prove that the misrepresentation was of a material fact.

Id. at 469. "However, when the alleged consumer fraud consists of an omission,

the plaintiff must show that the defendant acted with knowledge, and intent is

an essential element of the fraud." Cox,  138 N.J. at 18.

      To prove a prima facie CFA claim, a plaintiff must present evidence

establishing: "(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.




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Citizen Action v. Schering-Plough Corp.,  367 N.J. Super. 8, 12-13 (App. Div.

2003).

      To satisfy the ascertainable loss prong of the prima facie standard, the

plaintiff "must suffer a definite, certain and measurable loss, rather than one that

is merely theoretical." Bosland v. Warnock Dodge, Inc.,  197 N.J. 543, 558

(2009). "The certainty 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).           "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 . . . ." Ibid.

      Here, plaintiff only made "conclusory assertions" that it was improper for

defendant to earn a $1455 profit from the sale of its extended service contract.

Moreover, plaintiff relied upon non-precedential and unpublished decisions to

support her cause of action. 2 Because plaintiff cannot prove defendant made

any misrepresentations of fact to her with regard to the extended service

contract, the trial court correctly determined that plaintiff failed to establish a



2
  "No unpublished opinion shall constitute precedent or be binding upon any
court." R. 1:36-3. Unreported decisions "serve no precedential value, and
cannot reliably be considered part of our common law." Trinity Cemetery v.
Wall Twp.,  170 N.J. 39, 48 (2001) (Verniero, J. concurring).
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prima facie case of common law fraud or consumer fraud against defendant. See

Cox,  138 N.J. at 18; Jewish Ctr. of Sussex Cty.,  86 N.J. at 624-25; Cole v.

Laughrey Funeral Home,  376 N.J. Super. 135, 144 (App. Div. 2005).

      Moreover, plaintiff failed to establish an ascertainable loss and a causal

relationship between the purported unlawful conduct and the ascertainable loss.

Bosland,  197 N.J. at 557. We agree with the trial court that plaintiff "does not

identify what statement is false," and she failed to prove an unconscionable

practice as defined by the CFA. The trial court's decision was based upon

substantial credible evidence in the record, and plaintiff's complaint was

properly dismissed.

      Affirmed.




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