On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4806-99.
Before Judges Pressler, Wallace, Jr. and Axelrad.
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Carlos Cuesta appeals from a judgment entered in connection with the complaint he filed against defendant Classic Wheels, Inc., alleging, in part, violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to 106 (the Act). The trial court found that, although defendant violated the Act, plaintiff failed to establish damages. Consequently, the trial court dismissed the complaint. On appeal, plaintiff essentially contends he revoked acceptance pursuant to the Uniform Commercial Code and defendant's violation of the Act entitled him to an award of damages. We reverse.
The parties waived a jury trial. The evidence before the trial court showed that plaintiff visited defendant's dealership concerning the purchase or lease of a vehicle in November 1993. Plaintiff ultimately agreed to acquire a 1988 Corvette. Defendant represented to plaintiff that the vehicle had been driven 59,586 miles and gave plaintiff a certified statement to that effect. Plaintiff discussed the financing and cost of the vehicle and was advised that defendant would provide him with financing through an automobile lease. Plaintiff made a deposit of $4,000 and agreed to make lease payments of $266 a month. The lease was actually between plaintiff, as lessee, and Onyx Leasing System, Inc., as lessor. *fn1
Four days later, plaintiff's Corvette would not start, and he had it towed to a repair shop. The mechanic showed plaintiff that by striking the top of the dashboard, the numbers in the odometer started moving, indicating a defect in the odometer. Plaintiff also noted scratches on the inside of the odometer. The mechanic informed him that an alternator was needed to repair the vehicle. Plaintiff agreed and paid for the repair.
Plaintiff immediately sought to return the vehicle to defendant. While returning the vehicle, plaintiff noticed that several of the odometer numbers moved backwards or did not move at all. Plaintiff returned the vehicle and requested a refund of his payment of $4,000 in exchange for defendant taking the car back. Defendant refused but stated he would sell plaintiff another vehicle. This was unacceptable to plaintiff. He eventually left with the Corvette.
Plaintiff attempted to testify concerning the amount of time he was unable to use the Corvette due to its condition, but the trial court sustained an objection to that line of testimony because the sole defect alleged in the complaint was the altered odometer. Plaintiff asserted that he used the vehicle for approximately two years and made the lease payments until he filed a petition in bankruptcy. The vehicle was then reclaimed by the lessor.
Plaintiff presented Gregory Kimbaris, a certified Class A mechanic, as his expert. Kimbaris testified he examined the odometer of plaintiff's Corvette in early 1994. He said the numbers moved when he tapped the dashboard. Kimbaris explained that detents in the odometer numbers hold them in place and that after he opened up the instrument cluster, he noticed a scratch on the odometer where somebody used a sharp instrument to move the numbers. The numbers could be moved up and down because the detents were no longer holding them in place. Kimbaris opined that the odometer was grossly tampered with by a non- professional and the degree of tampering would have been noticeable to a car dealer. Kimbaris also believed the car was a clip car, a term used in the industry to describe a car damaged to the extent that it cannot be repaired, so the vehicle is cut in half and joined with another vehicle. In his opinion, the vehicle had traveled over 100,000 miles.
John Patel, the owner of defendant, denied having any knowledge that someone tampered with the odometer. Patel recalled that plaintiff returned the car to have the alternator repaired, but he denied plaintiff complained about the odometer. On cross-examination, Patel acknowledged that it was possible he received a copy of a letter from Mr. Dinardi of Onyx Leasing with regard to plaintiff's complaints about the odometer.
The trial court credited Kimbaris's testimony and found that plaintiff amply demonstrated defendant violated the Act by misrepresenting the mileage on the vehicle with either actual or constructive knowledge that the mileage was other than as certified. The court found the statute of limitations had expired under the Federal Odometer Statute and turned to the issue of damages under the Act. The court found that plaintiff's proofs failed to show what, if any, mechanical problems in the vehicle were caused by the excess mileage. The court concluded that plaintiff's failure to produce evidence of the fair market value of a vehicle with more than 100,000 miles, as compared to a vehicle with 59,000 miles, was a failure to establish damages and, accordingly, dismissed plaintiff's complaint. Plaintiff moved for reconsideration. He argued he properly rejected the vehicle under the Uniform Commercial Code (Code), and it was defendant's obligation to take the vehicle back. He claimed damages in the total amount of payments he made under the lease. The court rejected this argument and denied reconsideration. This appeal followed.
Plaintiff asserts that he properly revoked acceptance of the vehicle and he is entitled to ...