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Ollendorf v. Monk

August 2, 2007

GLENN OLLENDORF, PLAINTIFF-APPELLANT,
v.
LACEL MONK, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County, Docket No. DC-3528-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 22, 2007

Before Judges Coburn and Gilroy.

Plaintiff Glenn Ollendorf appeals from the April 25, 2006, order of the Law Division, Special Civil Part, directing him to repay $216.50 to defendant Lacel Monk. We affirm in part; reverse in part; and remand to the trial court for further proceedings consistent with this opinion.

On July 22, 2004, plaintiff filed a complaint, alleging defendant had violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, when defendant failed to repair his car's engine in a proper and timely fashion. On September 8, 2004, plaintiff obtained a default judgment against defendant in the amount of $1,516.50, together with $54 in court costs. Because the trial court determined that defendant's activities as a part-time automobile repairman fell outside the scope of the CFA, the court refused to treble the damages, N.J.S.A. 56:8-19. On plaintiff's appeal, we reversed, determining that defendant's part-time automobile repair activities fell within the scope of the CFA. Ollendorf v. Monk, No. A-3924-04T5 (App. Div. December 21, 2005) (slip op. at 6). We remanded the matter to the trial court to resolve the issue of whether plaintiff's damages qualified as an ascertainable loss under the CFA, noting that we were not satisfied from the record that the repairs had been improperly performed. Id. at 7. We also expressed concern that the record failed to indicate that defendant had been served with the complaint, that defendant had been provided notice of the default judgment hearing, and that defendant had been served by plaintiff with a copy of the judgment after its entry. Id. at 7-8.

In the interim, plaintiff executed on the original judgment and obtained satisfaction on the full amount. On remand, after notice to both parties, another trial judge conducted a hearing as to whether defendant had been properly served with the complaint. Answering the inquiry in the affirmative, the judge proceeded with a second proof hearing, accepting plaintiff's testimony and allowing defendant to cross-examine plaintiff. After considering plaintiff's proofs, the judge entered default judgment in favor of plaintiff in the amount of $1,370,*fn1 together with court costs, and denied plaintiff's claims for: cost of automobile insurance incurred during the time that his automobile was being repaired ($176.50); damages for defendant's unauthorized use of the automobile while the vehicle was in defendant's possession ($228); and cost of obtaining a transcript from a prior municipal court proceeding, believing it necessary to establish defendant's liability ($80). In addition, the judge mistakenly denied plaintiff's claim for treble damages (believing that the Appellate Division had affirmed the original trial court's decision concerning the non-applicability of the CFA).

On plaintiff's motion for reconsideration, the judge acknowledged that he had misinterpreted the Appellate Division's decision and that the CFA applied to the matter. Determining that plaintiff's claim was one of rescission, as plaintiff was seeking a return of the monies that he had paid to defendant to effectuate the repairs, the judge awarded plaintiff $1,300, pursuant to N.J.S.A. 56:8-2.11. However, the judge did not treble the damages, concluding that the refund did not qualify as an ascertainable loss under the CFA, citing Artistic Lawn & Landscape Co., Inc. v. Smith, 381 N.J. Super. 75, 89 (Law Div. 2005). Lastly, having been made aware that plaintiff had obtained satisfaction of the original judgment, the judge netted the amount plaintiff had received under the original judgment against the amount awarded and directed that plaintiff repay defendant the difference of $216.50.

On appeal, plaintiff raises twenty-four issues for our consideration. We address the issues discussed infra and reject the remaining issues, determining that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In the context of a default judgment proof hearing, a trial court is obliged to view plaintiff's proofs indulgently, and the general practice is "to require only a prima facie case . . . ."

Heimbach v. Mueller, 229 N.J. Super. 17, 20 (App. Div. 1988). In the context of a default judgment, "the court should ordinarily apply the prima facie standard to plaintiff's proofs, thus not weighing evidence or finding facts, but only determining their sufficiency." Kolczycki v. City of East Orange, 317 N.J. Super. 505, 514 (App. Div. 1999). "[U]nless there is intervening consideration of public policy or other requirement of fundamental justice, the judge should ordinarily apply to plaintiff's proofs the prima facie case standard of R. 4:37-2(b) and R. 4:40-1." Pressler, Current N.J. Court Rules, comment 2.2 on R. 4:43-2 (2007).

Plaintiff testified as follows. Plaintiff was the owner of a 1984 Toyota Corolla automobile that had been driven between 100,000 and 110,000 miles when smoke began emanating from its exhaust system. Defendant operated an automobile repair shop from his home on a part-time basis. Plaintiff, who previously had motor vehicles repaired by defendant, brought the vehicle to defendant on or about November 20, 2002. After examining the automobile, defendant advised plaintiff that he would repair it by rebuilding the engine for the cost of $1,300, making the vehicle like new, with the engine outlasting the rest of the automobile. The verbal agreement was not only consummated by a handshake, but also by plaintiff's $600 down payment to defendant for the purchase of the necessary parts, including a new oil pump.

Upon receiving notification that the repairs had been completed, plaintiff retrieved his vehicle in mid-December 2002, paying defendant the $700 balance of the agreed repair price. Plaintiff immediately noticed that the heater was not working and returned the vehicle to defendant one or two days later, having only driven it the few miles from defendant's garage and plaintiff's home. In mid-February 2003, defendant informed plaintiff that "everything was fixed and plaintiff could pick up the automobile."

After obtaining his vehicle from defendant, plaintiff drove home, noticing the illumination of the oil pressure oil warning light. Plaintiff informed defendant by telephone of the oil pressure warning light, and defendant requested plaintiff to return the vehicle for re-inspection. Plaintiff complied within a couple of days. While the vehicle was in defendant's possession, defendant requested that plaintiff purchase a part from an automobile supply store, believing that it would cure the problem. After plaintiff purchased the part for $10 and was charged $30 by defendant to install the part, the problem with the oil pressure warning light continued. At that point, defendant "admitted that he made a ...


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