On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Sussex County, DC-3448-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 5, 2007
Before Judges Cuff and Lintner.
Plaintiffs, Nicholas and Jean Ann DiBenedetto, filed a pro se Consumer Fraud Act (Act), N.J.S.A. 56:8-1 to -166, action in the Special Civil Part, alleging that defendant, Sparta Transmissions & Auto Repair, Inc., violated the Act respecting repairs performed on the plaintiffs' 1997 Dodge Dakota truck. Following a bench trial, the judge found that defendant violated N.J.A.C. 13:45A-26C.2, and entered a $7500 judgment for plaintiffs, representing a trebling of the $2500 plaintiffs paid defendant.
On August 4, defendant filed a motion for reconsideration seeking a reduction in the damage award, arguing that plaintiffs suffered no ascertainable loss under the Act, and that they failed to present sufficient evidence to support the $7500 judgment. Defendant also asserted that it was entitled to an "offset" in the damage award under the doctrine of quantum meruit. Granting defendant's motion, the judge entered an order reducing the damage award to $6660, representing treble the $1800 amount plaintiffs paid toward the transmission repair and treble $420, an amount estimated by the court as the cost plaintiffs would have had to pay for a two-week rental of a vehicle, which was not supplied by defendant as promised.
Defendant appeals and we affirm the order trebling the $1800 out-of-pocket expense paid by plaintiffs for the transmission repair, but we reverse the order insofar as it awarded damages for the cost of a rental vehicle.
Plaintiffs purchased the Dodge truck from a private owner in early 2004. In December 2004, they experienced problems with the transmission. Defendant did repair work and advertised that it would provide free towing and a free loaner car. Charles Wohlleb, defendant's owner-operator, quoted a price of between $1500 and $1800 to fix the transmission, $500 to fix the rear differential, and $195 to install new ball joints, for a total estimate of $2495. Wohlleb told Jean Ann that the cost included a twelve-month or 12,000-mile guarantee, towing to defendant's garage, and a free loaner car. According to Jean Ann, defendant was chosen because they "had another vehicle, but it needed to go in the shop." She explained that they "needed a free loaner car to have that [repair work] done within the guarantee time on [the] other vehicle."
Plaintiffs orally agreed to have defendant repair the transmission, rear differential, and ball joint. No written agreement or estimate was provided by defendant. On January 4, 2005, Wohlleb towed the truck to defendant's garage and indicated that plaintiffs could pick up the loaner car the next day. However, the next morning, Wohlleb called plaintiffs and advised that the loaner car was not available because it was being used by another customer.*fn1
Jean Ann told Wohlleb they needed the loaner car and called defendant concerning its availability every day for approximately two-and-a-half weeks. Eventually, on January 23, Wohlleb rented a car for plaintiffs' use while he finished repairing the truck. Jean Ann explained that she used her car for transportation during the time she was waiting for the loaner. She testified that her car was supposed to go into the shop before the guarantee was up, "but it couldn't go in" because they did not have use of the free loaner car. Jean Ann explained that with only one vehicle, "it was very inconvenient because . . . we both go in two different directions [to work]."
While the truck was in the shop, Wohlleb advised that he "had to drop the [fuel] tank" to install a fuel pump because without a working fuel pump, the truck would not start, and therefore could not be diagnosed and repaired. When Nicolas inquired why Wohlleb installed a fuel pump without getting authorization, Wohlleb replied that the cost of the fuel pump was $500, and if Nicholas did not want the work performed, Wohlleb could remove the new pump and reinstall the old pump. Nicholas explained that he did not have money for a new fuel pump and reiterated that he never authorized a fuel pump installation. According to Wohlleb, Nicholas authorized the installation of the fuel pump, at a cost of $500, over the phone and declined to come to defendant's garage to sign a written estimate.
On January 27, plaintiffs were informed that the truck was repaired and ready to be picked up. Wohlleb testified that he road-tested the vehicle and found that the transmission was working fine and in working condition. Plaintiffs arrived with a bank check in the amount of $2500. Wohlleb presented a total bill of $3820.76 consisting of $2069 for the transmission, $555 for the rear differential, $224 for the ball joints, and $655 for the fuel pump. Wohlleb would not release the truck until plaintiffs agreed to pay $3820.76. After Jean Ann called the police, Wohlleb eventually agreed to accept the $2500 bank check, although no written agreement was executed indicating the $2500 was accepted as full payment for the repairs.
As Nicholas drove the truck home, it felt "sluggish" and the transmission was "skipping" and making the car jerk. Nicholas called Wohlleb and described the problem. Wohlleb said it sounded as if the car was in four-wheel drive and he should take it out of four-wheel drive, which Nicholas did. That ostensibly resolved the problem, however, plaintiffs observed fuel leaking from the tank, and the truck smelled like gasoline.
The following day, while driving the truck, Jean Ann experienced problems shifting it into gear. After placing the truck in reverse and backing out of a parking lot, Jean Ann shifted into gear, but the vehicle did not move forward. As Jean Ann tried to get it in gear to avoid oncoming traffic, the vehicle lurched forward into the parking lot. When Jean Ann called Wohlleb, Wohlleb told her the work was not guaranteed and she ...