On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1101-03.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Stern, Wecker and Graves.
Plaintiff Fredric J. Gross appeals from orders of the Law Division entered on July 25, 2003, dismissing counts five and six of plaintiff's complaint alleging violations of the Consumer Fraud Act (CFA)*fn1 and the regulations promulgated thereunder, and its order of May 7, 2004, dismissing counts seven (alleging common law fraud) and eight (alleging unconscionability).*fn2 We are told that the remaining counts were settled resulting in a final judgment.
On August 31, 2001, plaintiff purchased a 2002 Jaguar X Type 2.5 automobile from defendant Cherry Hill Classic Cars for $35,220.00, and was charged a "registration/title fee" of $113.50 and a "documentary fee" of $135.00. He challenges the two components of the latter, a "clerical expense" fee and an "MV messenger service" fee of $67.50 each, claiming they violate consumer protection regulations (counts five and six), and asserts that the "messenger service" fee constitutes common law fraud (count seven) and is unconscionable (count eight). He specifically contends that "the trial court erred when it dismissed counts five and six for failure to state a claim" because the "clerical expense" disclosure on the vehicle order form was not sufficiently detailed and "the practice of charging for services not actually rendered violates" administrative regulations. He also challenged the dismissal of counts seven and eight because the motor vehicle "messenger service" charge is "unconscionable" in violation of N.J.S.A. 56:8-2. Plaintiff further contends that "defendants' expert report was inadmissible and should have been excluded," plaintiff proved an "ascertainable loss and damages" and "the court erred when it denied plaintiff's motion to extend the discovery period to allow for class wide discovery period."
In February 2003 plaintiff filed an eight-count complaint "as a class action pursuant to R. 4:32-1(b)(3)," on behalf of all persons who purchased or leased vehicles from defendants over a six-year period and who were charged a "documentary fee" or similar fee. Plaintiff alleged fraudulent misrepresentation with respect to a "registration/title fee" charged by defendants'-related corporations (count one); violation of the CFA with respect to the "registration/title fee" (counts two and four); conversion with respect to the "registration/title fee" (count three); violation of the CFA with respect to the "documentary service" fee charged by defendants because of their failure to itemize the service being performed (count five); violation of the CFA because the "clerical expense" for which a corresponding fee was charged was not actually performed (count six); fraudulent misrepresentation with respect to the "messenger service fee" (count seven); and violation of the CFA based on the excessive nature of the "messenger service fee" (count eight).
Defendants "share common ownership with Cherry Hill Classic Cars." Their names all appear on the top of the sales agreement plaintiff executed when he purchased the Jaguar from defendant Cherry Hill Classic Cars. The purchase price was $35,220. The price had been agreed upon the prior day, at which time plaintiff was permitted to test drive the vehicle and drove the car to his home. Plaintiff was presented with a sales agreement on which was listed a "Registration/Title Fee" of $113.50 and a "Documentary Fee" of $135.00, comprised of $67.50 representing a "M.V. Messenger Service" and $67.50 representing a "Clerical Expense." Plaintiff believed that the "documentary fee" was merely "a way of boost[ing] the sales price" and complained about the fee, telling the salesman that he "felt very strongly about it." In response, plaintiff was given a copy of a document entitled "DEALER DOC FEE," which included thirteen items covered, including preparation of paperwork for registration and transfer of title, document recording, notarization and postage and handling. The bottom of the document indicated that "for deals that do not require the entire amount of the fee to cover the . . . listed items, the balance will be credited as additional dealer income." Plaintiff also objected to the "clerical fee" on the basis that his purchase did not involve a trade-in and required no document preparation related to financing or warranties.
Plaintiff also objected to the "messenger fee" as an "after-the-fact" fee and offered to take the relevant documents to the Division of Motor Vehicles (DMV) himself. Michelle Condo, defendants' comptroller, conceded that while on occasion, defendants have permitted other customers to title and register their vehicles, she asserted that plaintiff's request was denied because he was not considered to be "sincere." He "would have had to agree" to do various things to complete the transaction and have the vehicle registered at DMV before he could have taken possession of the car.
Plaintiff signed the purchase agreement. Next to the disputed fees, however, plaintiff wrote the word "outrageous." He also wrote a separate check for the $135.00 "documentary fee" and suggested that the sales manager not cash the check, the implication being that plaintiff would take legal action if the check was cashed. At the time, plaintiff only objected to the amount of the "clerical expense" portion, but subsequently objected to the amount of the "messenger fee" portion as well.
According to Condo, Cherry Hill's runner took the relevant documents associated with plaintiff's purchase to the DMV on September 4, 2001. Documents relating to license, title and registration for five other customers were delivered from Cherry Hill to the DMV at the same time. All completed documents for the three dealerships are consolidated at Condo's office, where the documents are processed to ensure they are accurate and that they meet any special customer-related needs. Each defendant employs a driver, or "runner," who is responsible for providing the messenger service. Defendants also use a courier service to transfer title to trade-ins at local DMV offices and in Trenton. The courier also picks up blank registration forms from the DMV and brings them back to the dealerships.
With each vehicle purchased, defendants prepare a "sold and trade pack" which contains at least one odometer statement in compliance with federal law, a power of attorney form permitting "the dealership to efficiently process [the] paperwork on behalf of [the] customers," and an agreement that the customer will "provide insurance on the vehicle while the vehicle is being driven with a temporary tag." In addition, defendants provided a detailed list of "labor" and "costs/expenses" which comprised the "messenger fee." These included pick-up or delivery of the necessary paperwork, obtaining or transferring license plates and tags, transferring completed motor vehicle work, and the cost of maintaining and utilizing the vehicles and office equipment used in providing the service. Keith Camiolo, manager of Cherry Hill Classic Cars, determined that $67.50 "was a competitive and appropriate rate for the [messenger] service provided."
Defendants offered an expert report prepared jointly by Elliot J. DeSanto, a certified public accountant, and Louis Young, a specialist in "automotive dealership financial information and . . . operating procedures for automotive retailers." The report examined the messenger fees charged by other dealers in defendants' geographic area as well as the actual cost of the fee. Young and DeSanto determined that the "average [messenger service] fee" in the Cherry Hill area was $56.32, ranging from $30.00 to $120.00. Based on their own analysis, Young and DeSanto determined the actual cost of the messenger service fee to be in a "range between" $30.40 and $45.24 for each vehicle sold. The report further analyzed the time defendants' comptroller and general managers spend on a daily basis in overseeing, supervising and coordinating the messenger service for the three dealerships. It conducted the same analysis with respect to the comptroller's administrative staff and runners. The report also considered various costs associated with the vehicles used in providing the service, including "depreciation," "maintenance, parts and labor," fuel, tolls and insurance and registration.
Plaintiff contends that counts five and six, regarding the "clerical expense" fee, should not have been dismissed because the "clerical expense" fee set forth on the sales agreement did not comply with N.J.A.C. 13:45A-26B.2(a)(2)(i), and thus constituted a violation of the CFA. Specifically, plaintiff maintains that the clerical expense fee charged by defendants did not contain the itemization envisioned by the regulation and that, as ...