Before Judges Long, Kestin and Wefing.
The opinion of the court was delivered by: Long, P.j.a.d.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Ocean County.
This appeal *fn1 arises out of the sale of a l994 Mitsubishi Galant to plaintiff Saul Wanetick by defendants Gateway Mitsubishi and its employees, Glenn Swenson and Larry Evans. Wanetick filed a complaint in December of l994, alleging that defendants' tactics in connection with the transaction, including knowing misrepresentations as to the nature of the contract as well as the price, violated the New Jersey Consumer Fraud Act (N.J.S.A. 56:8-l to -91), the Uniform Commercial Code (N.J.S.A. 12A:2-101 to -725) and the Magnuson-Moss Warranty Act (15 U.S.C.A. §230l to §2312). The complaint also alleged common law fraud, breach of contract and negligence; and sought compensatory as well as punitive damages. In August of l995, Wanetick filed an Amended Complaint alleging the same facts, but adding claims for intentional and negligent infliction of emotional distress.
Defendants answered, denying the allegations of the complaint. All claims except those relating to the New Jersey Consumer Fraud Act, breach of contract and common law fraud were dismissed at trial. Plaintiff does not challenge those dismissals. The jury returned a verdict which held defendants liable based upon breach of contract and a violation of the Consumer Fraud Act. No common law fraud was found. The jury awarded compensatory damages in the amount of $7,300. The Judge thereafter trebled the damages pursuant to N.J.S.A. 56:8-19 and awarded Wanetick $21,900. She also awarded attorneys' fees totaling $23,648.59. The total award, thus, was $45,548.59.
Defendants appeal, contending that the following errors warrant reversal: the jury instruction as to the Consumer Fraud Act was erroneous in that it did not reveal that treble damages and attorneys' fees would be awarded and because it stated that "the law does not provide for punitive damages on a . . . consumer fraud action"; the trial Judge improperly admitted parol evidence and complaint letters sent by plaintiff to various agencies of government; and there was insufficient evidence to warrant submitting the common law fraud issue to the jury.
We have carefully reviewed this record in light of these contentions and have concluded that our intervention is warranted, but only on the issue of the jury charge on the Consumer Fraud Act. Other than that, there was ample evidence from plaintiff and his wife to submit plaintiff's consumer fraud, breach of contract and common law fraud claims to the jury. They testified that they were told they were buying the car for $l3,000 ($7000 down plus $250 a month for 24 months), but were essentially tricked into signing a lease with a $23,000 tab. Ultimately, they paid over $20,000 for the car. To be sure, defendants recounted a markedly different version of the transaction, but plaintiff's version, if believed by the jury, was more than adequate to sustain verdicts in his favor on all counts. Further, as to defendants' particular contention that there was insufficient evidence to submit the common law fraud claim to the jury, we note that in addition to rejecting this claim on its merits, we view the issue as moot in any event because the jury returned a verdict in defendants' favor on this count.
Defendants' parol evidence argument was not raised below and is thus subject to a plain error review under R. 2:l0-2. The issue is whether the alleged error was clearly capable of producing an unjust result. Here, it was not. Plaintiff's version of the events, which is what defendants seek to interdict, falls squarely within the exception to the parol evidence rule for evidence which establishes that the execution of the contract was procured by fraud. Filmlife, Inc. v. Mal "Z" Ena, Inc., 25l N.J. Super. 570, 573 (App. Div. l99l). That was the very purpose of plaintiff's testimony and it was not parol evidence at all.
We agree with defendants that the letters of complaint written by plaintiff had no probative value on any issue in the case. However, because they were not admitted into evidence but merely referred to in passing to recount what steps plaintiff took to remedy the situation, we are satisfied that their mention was, at worst, harmless.
We turn finally to the jury instruction on the treble damages and attorneys' fees provision of the Consumer Fraud Act, N.J.S.A. 56:8-19, which provides:
"Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act or the act hereby amended and supplemented may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In ...