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Truex v. Ocean Dodge Inc.

Decided: July 15, 1987.

DONNA TRUEX, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
OCEAN DODGE, INC., DEFENDANT-APPELLANT AND CROSS-RESPONDENT



On appeal from the Superior Court Special Civil Part, Monmouth County.

Furman, Dreier and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

[219 NJSuper Page 46] Defendant appeals from a judgment entered against it in the Special Civil Part, Monmouth County. Defendant contends that the trial judge correctly determined that the parties had not entered into a contract, but erred in finding that defendant nevertheless violated the Consumer Fraud Act. Defendant, therefore, seeks reversal of the award of damages, costs and counsel fees. Plaintiff cross-appeals "only from that portion of the decision finding that no binding contract existed between Plaintiff

and Defendant" and awarding damages in the amount of only $90.

The critical facts are set out in the trial judge's letter opinion of July 1, 1986:

[P]laintiff appeared at defendant's car dealership on May 24, 1985, in response to an advertisement in "The Auto Shopper." Plaintiff observed defendant's ad in five consecutive weekly circulars. Included was a Dodge van price at $4,985.

Plaintiff and a representative of defendant negotiated the sale of the van for a purchase price of $2,985, plus two trade-in vehicles. Plaintiff signed a written agreement evidencing the purchase price and the trade-ins. In addition, plaintiff paid $30 as a deposit. Defendant's representative did not sign the agreement.

Plaintiff returned with her trade-ins on May 29, 1985. At this time plaintiff was informed that there had been a mistake in the advertisement and that the price was not $4,985 as advertised but was $7,165.

Defendant's representative stated that the van could not be sold for the advertised price of $4,985 and further that plaintiff's trade-ins were not satisfactory.

The parties attempted re-negotiation of the sale for a price of $5,695 without trade-ins. However, this agreement was not finalized because plaintiff refused to sign a release as to defendant's potential liability for the erroneous advertising.

Plaintiff filed this suit alleging a violation of the Consumer Fraud Act on the basis of false advertising, attempted repudiation of an alleged contract and capricious rejection of plaintiff's trade-ins. Plaintiff claims entitlement to treble damages, costs and fees under N.J.S.A. 56:8-19.

I

The trial judge concluded "that defendant in fact engaged in unconscionable business practices in violation of N.J.S.A. 56:8-1, et seq.," but did not find "that the parties entered a binding agreement." Therefore the court assessed damages at $30, the amount of the deposit, and trebled that amount, thus entering judgment in the amount of $90, "plus costs ...


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