On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-3-00.
Before Judges Newman, Axelrad and Holston, Jr.
The opinion of the court was delivered by: Holston, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2005
Defendants, Robert E. Trout, Sr. (Trout) and Bridgeton Spring and Welding (BSW), appeal the August 9, 2002 judgment in favor of plaintiff, Troy Sprenger, entered upon a jury verdict. The jury verdict determined that defendants violated the Consumer Fraud Act (CFA or Act) by failing to comply with the regulations pertaining to automotive repairs in the performance of customization and repair work to plaintiff's 1989 Jeep Wrangler. The jury awarded no monetary damages, finding plaintiff had not suffered an ascertainable loss proximately caused by defendants' violation of the regulations enacted pursuant to the Act. Defendants appealed the judgment to this court. However, the July 17, 2003 opinion of this court dismissed the appeal as interlocutory, since the trial court had not yet entered an award of counsel fees or an order for the return of the vehicle to plaintiff. On April 30, 2004, an order was entered releasing plaintiff's vehicle to plaintiff's possession and awarding plaintiff's counsel attorneys' fees in the amount of $7,992 and costs in the amount of $220.*fn1 This appeal followed. We affirm.
In September 1997, plaintiff brought his 1989 Jeep Wrangler and an engine for installation into the Jeep Wrangler to defendants for customization and repair work. The purpose of defendants' work, according to defendants, was to provide plaintiff with a show-quality, off-the-road vehicle able to be entered in car shows. Plaintiff testified that although he expected the vehicle to be"show quality," he also wanted the vehicle for personal use and believed that as customized, it would be legal to do so.
Defendants contend that the vehicle as customized was not legally drivable on the highways because the pollution control system had been removed, and the vehicle's height was substantially in excess of legal requirements. Defendants claim that the customization work was undertaken with the understanding that as completed, the vehicle could not be driven on the streets. Defendants assert they would not have taken the job if they had been advised plaintiff wanted to use the vehicle on the public streets.
Plaintiff testified that the oral estimate with defendants, as initially quoted, was to install an engine, transmission and suspension system. Plaintiff was to supply most of the required parts, the bulk of which plaintiff would obtain from his employer, an auto parts dealership. Defendants gave a verbal estimate of $1,800 and four weeks to complete the work. Plaintiff accepted. During the course of the work, the scope of the work changed as plaintiff requested that defendants install additional parts. The additional parts, which totaled twenty- three different items, included an exhaust manifold, carburetor, valve cover, camshaft, timing chain, and a shackle reversion kit. Additional work included customizing the motor mount brackets, installing spacers and shock absorbers, extending brake lines, modifying the engine with high performance racing parts, sandblasting parts, including the axle and rear, and the cleaning and painting of parts. Many parts had to be fabricated or newly created to custom create an entirely new vehicle.
Defendants did not provide plaintiff, either at the time of the initial estimate or at any time thereafter, with a written estimate of costs or a written statement by which plaintiff waived his right to a written estimate. However, time records were kept and presented to plaintiff on a regular basis as the quality and the scope of the work increased. Because many parts had to be added, plaintiff was verbally informed by Trout almost immediately after the engine and initial parts were presented for installation that"this had to be a time and material job, because a lot of this work nobody's done before." Trout testified that because"this was all custom work," there was no way to come up with an accurate cost estimate. According to Trout and George Mazzoli (Mazzoli), the BSW office manager, every time plaintiff came into the shop, the time records log folder would be shown to him. The hours worked on the vehicle were recorded daily. Additionally, the repair shop's hourly rate of $45 was posted.
In November, plaintiff requested that defendants also replace all the bushings on the vehicle. Defendants agreed but never delivered a written estimate for the additional work. On November 14, 1997, plaintiff made a payment of $2,000. Plaintiff contends that defendants advised him that the cost necessary to complete the work would be an additional $3,000 for a total of $5,000. Plaintiff claims he was not given a written bill for the work already performed nor a written estimate for additional work. Plaintiff testified that he advised defendants he could afford no more than an additional $2,000 and that he believed defendants agreed to limit the cost of additional work to $4,000. Defendants contend plaintiff indicated he was going to seek a bank loan to finance the remainder of the repairs. On December 1, 1997, plaintiff made an additional $1,000 payment for a total of $3,000. Plaintiff's final bill for parts and 244 labor hours expended was in the amount of $11,461.49. After crediting plaintiff for $3,000 paid on account, defendants demanded that the balance be paid before returning the vehicle to plaintiff. Defendants kept possession of the vehicle for siX years.
Defendants present the following issues for our consideration on appeal.
THE AUTO REPAIR REGULATIONS ARE INAPPLICABLE TO CUSTOM SHOW QUALITY WORK WITH RESPECT TO A VEHICLE WHICH IS NOT LEGAL FOR HIGHWAY USE.
THE TRIAL COURT ERRED IN REFUSING TO ALLOW THE DEFENDANTS TO ADDUCE EVIDENCE OF AND ARGUE TO THE JURY WITH RESPECT TO THE PLAINTIFF'S UNCLEAN HANDS AND TO ARGUE THAT EQUITABLE ESTOPPEL BARRED PLAINTIFF'S CLAIM.
THE TRIAL COURT ERRED IN FAILING TO DISMISS PLAINTIFF'S COMPLAINT WITH PREJUDICE AS A RESULT OF NON-COMPLIANCE WITH DISCOVERY ORDERS AND THE PROVISIONS OF R. 4:23-5.
Points I and II require this court to review the trial court's interpretation of the law and the legal consequences that flow from established facts. Therefore, our review is de novo. Manalapan Realty v. Manalapan Tp., 140 N.J. 366, 378 (1995).
Prior to trial, the trial court granted plaintiff's motion in limine, determining that CFA regulations, N.J.A.C. 13:45A- 26C.1 to -26C.2, applied to plaintiff's vehicle and defendants' car repair and customization business and to the customization and repair work between plaintiff and defendants.
[T]his act is to be construed liberally. It's designed to be to the benefit of the consumers. And although perhaps the defendant doesn't consider himself to be an automobile repair shop or to be a business that ought to come under these provisions, a reading of these provisions really leaves me no choice but to conclude that these regulations do apply, that this is work that is being done on the -- on the vehicle. That this does fit into all of the definitions of motor vehicle and it is registered. That's the definition under the regulations themselves. I really am hard pressed to see any conclusion but that this is an automobile repair situation and, therefore, the -- as that concept is elucidated through the case law. And so I can't come to any conclusion but that these regulations do apply.
Defendants point out that plaintiff's vehicle, when brought to them, had no engine, the vehicle and engine each having been delivered separately. No evidence produced at trial or argued in support of the motion in limine supports the position that this vehicle could have been legally operated on the highway or that the work on the vehicle constituted either maintenance or repair. Defendants argue that because the vehicle was not"roadworthy" and could not have been driven legally upon the public highways, the vehicle was not one subject to the registration requirements of N.J.S.A. 39:3-4 and, therefore, the CFA and the automotive repair regulations do not apply to this customized or refabricated vehicle.*fn2 We disagree.
N.J.S.A. 56:8-48 states,"The director [of consumer affairs] shall adopt... rules and regulations necessary to effectuate the purposes of [the] act."
The following definitions appear in N.J.A.C. 13:45A-26C.1:"Automotive repair dealer" means any person who, for compensation, engages in the business of performing or employing persons who perform maintenance, diagnosis or repair services on a motor vehicle or the replacement of parts including body parts[.]...."Repair of motor vehicles" means all maintenance and repairs of motor vehicles performed by an automotive repair dealer but excluding changing tires, lubricating vehicles, changing oil, installing light bulbs, batteries, windshield wiper blades and other minor accessories and services. [(emphasis added).]
Because"repair" is not specifically defined by N.J.A.C. 13:45A-26C.1, we examine the dictionary definition of"repair" to determine its ordinary and popular meaning. In Webster's Ninth New Collegiate Dictionary,"repair" is defined as"to restore by replacing a part[.]" Webster's Ninth New Collegiate Dictionary 998 (9th ed. 1984). A"repair dealer" is not dictionary-defined. However, a"repairman" is defined as"one whose occupation is to make repairs in a mechanism[.]" Ibid.
In this case, Trout testified as follows:"We also have an automotive machine shop that we've added. And as part of that, we do a lot of driveshaft work where we repair drive shafts, we rebuild new drive shafts, we can lengthen them, shorten them." (emphasis added).
Clearly, Trout's occupation and that of BSW is that of an"automotive repair dealer." Likewise, defendants' customization and refabrication work is encompassed in the ...