JEFFREY CLIFFORD v. CLIFTON COLFAX AUTO MALL, LLC

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2126-19

JEFFREY CLIFFORD,
KIMBERLEE CLIFFORD,
and OWEN CLIFFORD,

         Plaintiffs-Respondents,

v.

CLIFTON COLFAX AUTO
MALL, LLC,
and MAHER KOUR,

         Defendants-Appellants

and

RLI INSURANCE COMPANY,

     Defendant.
___________________________

                   Submitted January 19, 2020 – Decided February 8, 2021

                   Before Judges Sabatino and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Passaic County, Docket No. DC-
                   000348-19.
            De Marco & De Marco, attorneys for appellants
            Clifton Colfax Auto Mall, LLC and Maher Kour
            (Michael P. De Marco, on the briefs).

            Richard A. Vrhovc, attorney for respondents (Richard
            A. Vrhovc, on the briefs).

PER CURIAM

      After a three-day bench trial in the Special Civil Part, the trial judge found

defendants had violated the Consumer Fraud Act ("CFA"),  N.J.S.A. 56:8-1 to -

20, in connection with their sale of a used 2004 Mazda Miata to plaintiffs. The

judge awarded treble damages to plaintiffs, plus counsel fees. Defendants now

appeal. We affirm.

      The proofs showed that defendants 1 Clifton Colfax Auto Mall, LLC and

Maher Kour advertised the car on Craigslist, without initially revealing they

operated a used car dealership. Plaintiffs Jeffrey Clifford, Kimberlee Clifford,

and Owen Clifford are family members who live in Mechanicsburg,

Pennsylvania. They responded to the posting and asked about the car. Because

they had a bad experience in the past with a rusted vehicle, they specifically




1
  RLI Insurance Company, which was named as a co-defendant in the lawsuit
because it had issued a bond relating to the transaction, ultimately was dismissed
from the appeal.
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asked defendants if the car had rust, and defendant Kour responded by text

message that the car had "no rust on it."

      Encouraged by this, plaintiffs drove over three hours from central

Pennsylvania to defendants' dealership in North Jersey and looked at the car.

They did not see the undercarriage of the car because it was low to the ground

and was not on a lift. They agreed to make the purchase on the spot.

      Plaintiffs paid defendants $7,998 for the car and took it back home to

Pennsylvania. When they got there, they noticed the tires were deflated, so they

brought it to a Firestone repair shop. Once the car was put on a lift at Firestone,

it was discovered to have massive rust underneath, making the car unsuitable to

pass inspection. To mitigate their damages, plaintiffs sold the car to Owen

Clifford's co-worker for $4,500, which was not documented but explained in

Owen's testimony.

      After considering written summations, the judge issued an opinion finding

that defendants violated the CFA by making false representations that the car

was rust-free. The judge awarded plaintiff net damages of $4,688.44, which,

when trebled pursuant to  N.J.S.A. 56:8-19 amounted to $14,065.32, plus

attorneys' fees of $17,125.82.




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                                        3
      On appeal, the defense argues the liability findings were against the

weight of the evidence and that the trial court failed to provide adequate reasons

for the damages award and the fee award. We disagree.

      Our scope of review of the trial court's decision in this non-jury matter is

limited. An appellate court shall "not disturb the factual findings and legal

conclusions of the trial judge unless [it is] 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[.]" Seidman v. Clifton

Sav. Bank,  205 N.J. 150, 169 (2011) (quoting In re Trust Created by Agreement

Dated December 20, 1961,  194 N.J. 276, 284 (2008)); see also Anderson v. City

of Bessemer City,  470 U.S. 564, 574 (1985) (noting the trial court's "major role

is the determination of fact"); Rova Farms Resort, Inc. v. Investors Ins. Co. of

Am.,  65 N.J. 474, 484 (1974). We only review de novo the trial court's legal

determinations. 30 River Court E. Urban Renewal Co. v. Capograsso,  383 N.J.

Super. 470, 476 (App. Div. 2006) (citing Rova Farms,  65 N.J. at 483-84).

      In conducting our review, we take particular note that the trial judge found

the testimony of the three plaintiffs generally more credible and persuasive than

that of defendant Kour. These first-hand credibility assessments deserve our

deference. We bear this in mind as we turn to the legal issues.


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      The law under the CFA that applies to this car sale is well established.

The CFA makes the following acts unlawful, in connection with the sale or

advertisement of merchandise or real estate:

            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 . . . .

            [ N.J.S.A. 56:8-2 (emphasis added).]

      Unlike the elements of a common law fraud claim, the CFA does not

require the plaintiff to have reasonably relied on the misrepresentation or that

the defendant have knowledge or belief of the statement's falsity. Cf. Jewish

Ctr. of Sussex Cnty. v. Whale,  86 N.J. 619, 624 (1981) (citations omitted)

(outlining the five elements required to prevail on a common law fraud claim).

      Violations of the CFA can arise under three different categories: (1) "[a]n

affirmative misrepresentation, even if unaccompanied by knowledge of its

falsity or an intention to deceive"; (2) "[a]n omission or failure to disclose a

material fact, if accompanied by knowledge and intent"; and (3) "violations of


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specific regulations promulgated under the [CFA]," which are reviewed under

strict liability. Monogram Credit Card Bank of Ga. v. Tennesen,  390 N.J. Super.
 123, 133 (App. Div. 2007) (third alteration in original) (emphasis added)

(citations omitted). The first category applies here.

      An affirmative misrepresentation in the context of the CFA is "one which

is material to the transaction and which is a statement of fact, found to be false,

made to induce the buyer to make the purchase." Gennari v. Weichert Co.

Realtors,  288 N.J. Super. 504, 535 (App. Div. 1996) (emphasis added), aff'd,

 148 N.J. 582 (1997). A showing of mere inducement is sufficient . Reasonable

reliance by a plaintiff—although it appears palpable in this record—does not

have to be demonstrated to prevail on a CFA claim.

      Defendants contend their "no rust" representation to plaintiffs was not

material to the sale of the Miata.        The trial judge soundly rejected this

contention.

      A statement is material under New Jersey law if:

              (a) a reasonable person would attach importance to its
              existence in determining a choice of action . . . ; or (b)
              the maker of the representation knows or has reason to
              know that its recipient regards or is likely to regard the
              matter as important in determining his choice of action,
              although a reasonable man would not so regard it.



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            [Ji v. Palmer,  333 N.J. Super. 451, 462 (App. Div.
            2000) (quoting Restatement (Second) of Torts §
            538(2) (1977)).]

      The trial court judge correctly applied this concept of materiality in her

written post-trial decision:

            This Court finds that Mr. Kour's statement in the text
            message "no rust" was a material misrepresentation of
            fact, relied upon by the [p]laintiffs, found to be false
            and was made to induce the buyer to come to New
            Jersey to make the purchase. Mr. Kour was the person
            who set up the advertisement, using his personal cell
            phone number and who either responded to the texts or
            directed his sons to respond at his direction. This Court
            believes that he was unaware that there was rust on the
            underside of the vehicle as this Court believes he never
            actually looked. Nevertheless, the Court can still find
            that he violated the CFA and does so.

            [(Emphasis added).]

The court's finding is well supported, and we affirm it.

      The untrue representation was clearly intended to induce plaintiffs to go

from Pennsylvania to Northern New Jersey to buy this car. Defendants are in

the business of selling cars and sell between seventy-five and one hundred of

them each year. They advertise their cars on Craigslist by putting Kour's

personal cell phone number on the internet. Kour's contention that his response

to Owen's inquiry about rust was not intended to encourage Owen's family to

buy the car is untenable.

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      The "as is" provision in the sale contract did not waive these consumers'

statutory rights under the CFA.      Nor did it matter that plaintiffs allegedly

declined a seller's warranty for $200.

      Next, we are satisfied the court reasonably determined the amount of

damages, as illuminated by the written Addendum the judge issued after her

original decision on liability.

      In order to have standing to sue under the CFA, a consumer must prove

an "ascertainable loss of moneys or property."  N.J.S.A. 56:8-19; see also Laufer

v. U.S. Life Ins. Co.,  385 N.J. Super. 172, 186 (App. Div. 2006).              "The

ascertainable loss requirement operates as an integral check upon the balance

struck by the CFA between the consuming public and sellers of goods."

Thiedemann v. Mercedes-Benz USA, LLC,  183 N.J. 234, 251 (2005).

      The loss does not have to have been paid out of pocket by the consumer,

although it must be "quantifiable or measurable."         Ibid.   "An 'estimate of

damages, calculated within a reasonable degree of certainty,' will suffice . . . ."

Id. at 249 (quoting Cox v. Sears Roebuck & Co.,  138 N.J. 2, 22 (1994)). As the

Court explained in Thiedemann, "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 of damages." Id. at 248 (emphasis added).


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                                         8
      Although plaintiffs did not present expert testimony as to the fair market

value of the Miata at the time of its resale, Owen testified that he conducted

research as to the value of the vehicle before selling it to his co-worker. The

sum of $4,500, more than half the sales price, appears to be a reasonable price

for a rusted used car that apparently could not be registered to drive in

Pennsylvania.    Plaintiffs manifestly acted with due diligence in mitigating

damages. See Premier XXI Claims Management v. Rigstad,  381 N.J. Super.
 281, 284-86 (App. Div. 2005). The damages were rationally calculated.

      Lastly, we adopt the trial court's award of reasonable counsel fees to

plaintiffs pursuant to  N.J.S.A. 56:8-19. Our scope of review of such counsel fee

awards is deferential. See, e.g., Litton Indus., Inc. v. IMO Indus., Inc.,  200 N.J.
 372, 386 (2009) (noting the deference owed on appeal in reviewing a trial court's

fee awards); Packard-Bamberger & Co., Inc. v. Collier,  167 N.J. 427, 444 (2001)

(same). The amount of fees shifted need not be proportional to the amount of

damages awarded. Furst v. Einstein Moomjy, Inc.,  182 N.J. 1, 23 (2004). We

are satisfied the court's calculation of fees was not overly generous, and that the

risks of litigation and the degree of success obtained were especially taken into

account.




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                                        9
      All other points raised on appeal lack sufficient merit to be worthy of

discussion. R. 2:11-3(e)(1)(E).

      Affirmed.




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