On appeal from the Superior Court, Law Division, Monmouth County.
Petrella, Long and D'Annunzio. The opinion of the court was delivered by Long, J.A.D.
Defendant, Irwin Lincoln-Mercury, appeals from a judgment entered upon a jury verdict in favor of plaintiff, Performance Leasing Corp., in connection with the complaint plaintiff filed against defendant alleging, among other things, breach of contract, violation of the Consumer Fraud Act (N.J.S.A. 56:8-1 to -60), common law fraud and tortious interference with prospective economic advantage. Specifically, defendant contends that the trial Judge erred in denying its motion for a new trial because the verdict was against the weight of the evidence; that the trial Judge abused her discretion in awarding prejudgment interest; and that she erred in awarding counsel fees under the Consumer Fraud Act. We have carefully reviewed this record in light of these contentions and have concluded that an affirmance is in order.
Performance Leasing Corporation (plaintiff) is an automobile leasing company. Irwin Lincoln-Mercury, Inc. (defendant) is an automobile dealership. In 1987, plaintiff entered into a lease with a customer, Coated Sales, Inc., for a 1988 Lincoln Continental,
Signature Series with certain specified options. In December, 1987, plaintiff and defendant entered into an agreement under which plaintiff was to buy a new 1988 Lincoln Continental, Signature Series from defendant for $26,900 under a fleet-user arrangement with Ford Motor Company. This permitted plaintiff (a fleet-user) to buy a Ford automobile from a Ford franchise dealership (such as defendant) for $100 over the wholesale price charged by Ford to the dealership. In May, 1988, when Ford delivered the automobile to defendant, defendant refused to deliver it to plaintiff for the agreed-upon sale price.
Defendant claimed that plaintiff had only ordered a basemodel 1988 Lincoln Continental, not the up-graded (and higher-priced) Signature Series. Before it would deliver the automobile to plaintiff, defendant demanded a sum in addition to the contract price. Plaintiff refused and, after settlement negotiations broke down, defendant sold the car to a retail buyer for $30,328.00. Plaintiff then filed this action. A jury found that the contract between the parties was as plaintiff had claimed and awarded plaintiff $12,500 in compensatory damages.
Plaintiff moved for an award of prejudgment interest and submitted a certification in support of counsel fees. Defendant opposed both applications and moved for a new trial, challenging the damage award but not the underlying liability finding. Although the record is silent on that issue, the trial Judge apparently rejected defendant's new trial motion. On May 17, 1991, she entered an "order for judgment" against defendant "for the sum of $12,500.00, plus prejudgment interest in the sum of $2,587.33, plus attorneys fees in the sum of $6,000.00, plus costs of suit." Although defendant's notice of appeal indicates that it is from the judgment of May 17, 1991, because the motion for a new trial never addressed the underlying liability issue, (and as defendant conceded at oral argument) that issue is not cognizable on this appeal. R. 2:10-1. Battista v. Olson, 213 N.J. Super. 137, 516 A.2d 1117 (App.Div.1986).
Thus, this appeal is limited to damages, prejudgment interest and counsel fees.
We turn first to defendant's challenge to the damages award. The facts adduced at trial relevant to this issue are as follows: Bruce Blum testified that he was plaintiff's president and also the executive vice-president of Performance B.M.W. According to Blum, Performance Leasing Corp. and Performance B.M.W. were affiliated corporations, in that they did business as a B.M.W. dealership together with a leasing company. Blum stated that, before plaintiff entered into its sale contract with defendant, it had entered into a "lease" with Coated for a 1988 Lincoln Continental (Signature Series) with certain additional options. Based upon plaintiff's purchase price of dealer's cost plus $100 (i.e., about $26,900), plaintiff contracted with Coated for a 48-month lease which, over the 48-month period, would yield plaintiff an anticipated profit of about $3,000.00.
Blum also indicated that, "at the end of the [48-month] lease," plaintiff anticipated the car would be worth $3,500 more than was owed to the bank which meant an additional profit of about $3,500 to plaintiff on the lease. In other words, Blum indicated that it anticipated earning a total profit of about $6,500 had the 48-month lease gone to completion.
Blum went on to testify that, after plaintiff's sales agreement with defendant "blew up" in May, 1988, plaintiff was not able to purchase the specified automobile with the options required by Coated from another Ford dealer because, in May, 1988, this was a "hot" car (i.e., a very desirable car at the time). In addition, no other Ford dealer would sell such a car (even if it had one in its then-present stock) at a fleet-user purchase price for immediate delivery. In other words, to purchase the same type of car that defendant was supposed to sell to plaintiff in May, 1988 for about $26,900, plaintiff would have
had to place another fleet-user purchase order with a different Ford dealer and then wait another five months for delivery.
Plaintiff searched for alternatives to satisfy Coated and, finally, persuaded Coated to accept a comparable substitute vehicle (a luxury car with the options Coated specified) which was a 1988 B.M.W. 735. According to Blum, in May, 1988, the demand for a 1988 B.M.W. 735 was also large and this model was in relatively short supply. Also, unlike Ford, B.M.W. had no fleet-user sale ...