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Garcia v. L&R Realty

February 07, 2002

OLGA GARCIA, PLAINTIFF-APPELLANT
v.
L&R REALTY, INC., DEFENDANT-RESPONDENT, AND BUDGET RENT A CAR CORPORATION, DEFENDANT



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. A-DC-1084-00

Before Judges Pressler,*fn1 Wefing and Landau.

The opinion of the court was delivered by: Landau, J.A.D.

As amended February 27, 2002.

OLGA GARCIA, PLAINTIFF-APPELLANT
v.
L&R REALTY, INC., DEFENDANT-RESPONDENT, AND BUDGET RENT A CAR CORPORATION, DEFENDANT

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. A-DC-1084-00

Robert J. Stack argued the cause for appellant Olga Garcia (Scura, Mealey & Scura, attorneys; Mr. Stack on the brief). Vincent P. Trovini argued the cause for respondent L&r Rental, Inc. (Mr. Trovini, of counsel and on the brief).

Before Judges Pressler,*fn1 Wefing and Landau.

The opinion of the court was delivered by: Landau, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 18, 2001

Plaintiff Olga Garcia appeals from part of a final order of judgment entered in the Law Division, Special Civil Part, following a bench trial on her complaint filed against "Budget Car & Truck Rental" (Budget)*fn2 and respondent-defendant L&R Rental, Inc. (L&R) a foreign corporation. The complaint contained the following counts: consumer fraud under N.J.S.A. 56:8-2; unlawful practice under N.J.S.A. 56:8-2.22; negligent misrepresentation; common-law fraud; and breach of contract. Treble damages and counsel fees were demanded under the New Jersey Consumer Fraud Act counts.

After hearing the proofs, the judge confirmed his preliminary view that the facts presented required application of Massachusetts law. Chapter 93A of the Massachusetts Statutes, regulating business practices for consumer protection, was addressed by counsel during summation and upon plaintiff's motion for reconsideration.

The judge concluded that there was "carelessness" on the part of defendant but no animus or intentional misconduct. Construing the Massachusetts statute to require such intent in order to establish a statutory violation, he ruled that it was not violated and that no award of attorney's fees could be made under Chapter 93A. Nonetheless, based upon his findings that the defendant's actions were improper, unreasonable, and in violation of a duty to correctly inform plaintiff to return the car to a specific Massachusetts location and the consequences associated with its return to another Budget location, the judge entered judgment for plaintiff in the amount of $600.52. This primarily represented return of the additional drop-off surcharges that had been made by L&R against plaintiff's credit card. Plaintiff's motion for reconsideration was denied.

On appeal, plaintiff contends that the court erred in ruling that defendant's actions did not violate the consumer protections afforded by Chapter 93A of the Massachusetts Statutes. In consequence, she also urges that it was error to deny an award of counsel fees. The amount of the ...


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