On appeal from Superior Court of New Jersey, Law Division, Passaic County, L-6311-02.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 2005*fn1
Before Judges Wefing, Fuentes*fn2 and Graves.
On August 5, 2000, plaintiff Zefkiser A. Sema (Sema)*fn3 agreed to purchase a 2000 Nissan Altima automobile from Automall 46, Inc. (Automall).*fn4 According to Sema, the Automall salesperson told her that the vehicle she ultimately purchased was a new car that had been driven for only ten miles. In addition, all the documents defendant provided to plaintiff at the time of sale, including an odometer statement, confirmed the vehicle had been driven for only ten miles. At trial, however, Automall agreed that the vehicle had been used as a "demo," and it had been driven approximately 9,800 miles prior to its sale to plaintiff.
Plaintiff's complaint sought breach of contract damages and treble damages, counsel fees, and costs of suit for violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -91. In addition, plaintiff charged defendant with violating the Federal Odometer Law (FOL), 49 U.S.C.A. §§ 32701-32711.
During his opening statement, plaintiff's attorney told the jury that plaintiff had been told "a blatant and deliberate lie. The proof will show that the dealership passed off the demo with 9,800 miles on it, as a new car . . . ." On the other hand, defendant's attorney told the jury that the odometer disclosure statement signed by defendant, which showed there were ten miles on the automobile when it was purchased by plaintiff, "was a clerical mistake, an honest mistake." Defendant's attorney also told the jury: "The mileage had been disclosed to her, and disclosed to her, and disclosed to her. The believable evidence shows that Ms. Sema knew from day one she was buying a demo."
Plaintiff paid $17,600 for the vehicle. In an order dated April 1, 2004, the trial court correctly stated that the measure of damages is the difference between the price plaintiff paid for the vehicle and the retail value of the vehicle with the excess mileage. See Cuesta v. Classic Wheels, Inc., 358 N.J. Super. 512, 519 (App. Div. 2003); see also McConkey v. AON Corp., 354 N.J. Super. 25, 52 (App. Div. 2002) (noting that in fraud cases "[t]he benefit-of-the-bargain rule allows recovery for the difference between the price paid and the value of the property had the representations been true." (emphasis and internal quotation marks omitted)), certif. denied, 175 N.J. 429 (2003).
Arthur Hoogmoed appeared as an expert witness on behalf of plaintiff. He testified that the retail value of the vehicle, with 9,800 miles, was only $14,800. According to Hoogmoed, it is important to consider the make, model, year, condition, mileage and damage, together with other factors, when pricing a vehicle for sale. He also acknowledged "[t]here's more than one way" to "value" a vehicle.
Daniel Galves testified as an expert witness for the defense regarding the value of the Nissan Altima. Galves explained to the jury that, in his opinion, the retail value of the vehicle at the time of sale was between $17,700 and $18,300. Galves agreed, however, that experts use "different methodologies" to determine the retail value of an automobile.
On June 17, 2004, the jury returned its verdict. The jury found: (1) that defendant had violated the CFA by committing "an unconscionable commercial practice, deception, fraud, false pretense, false promise or misrepresentation"; (2) that defendant violated the FOL; and (3) when defendant breached its contract with plaintiff, there "were substantial aggravating circumstances present which constitute[d] a violation of the consumer fraud statute." Nevertheless, the jury apparently concluded that the price plaintiff paid for the automobile was the fair market value of the vehicle, even with the additional mileage, because the jury determined that plaintiff failed to prove she suffered "an ascertainable loss."
Defendant appeals from a post-judgment order of September 30, 2004, awarding counsel fees and costs of suit to plaintiff, pursuant to the CFA, in the total amount of $28,153.65. The same order denied defendant's motion for judgment notwithstanding the verdict, or, in the alternative, a new trial. The order also denied defendant's motion for an award of counsel fees and costs pursuant to ...