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Slavick v. McKinney

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 3, 2007

HARRIS D. SLAVICK, M.D., P.A., PLAINTIFF-APPELLANT,
v.
MICHAEL MCKINNEY, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, L-480-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 28, 2007

Before Judges Payne and Messano.

In an action instituted pursuant to the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -166, plaintiff, Harris Slavick, M.D., sought the treble damages authorized by N.J.S.A. 56:8-19 from defendant, Michael McKinney, as the result of McKinney's alleged fraudulent sale to him of a used Mercedes automobile. Although the trial judge granted Dr. Slavick's unopposed motion for summary judgment, awarding him damages in the amount of $18,000,*fn1 the judge declined to treble those damages, finding that although McKinney perpetrated a "real good scam," the CFA was inapplicable because the "defendant is not in the business of selling cars, he just sells his car to people." Dr. Slavick appeals from the court's order declining to treble his consequential damages. Upon review of the record and Dr. Slavick's legal arguments, we reverse.

N.J.S.A. 56:8-2 declares as unlawful "[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise [or] misrepresentation . . . in connection with the sale or advertisement of any merchandise." The unrebutted facts in this case, derived from requests for admissions served by Dr. Slavick upon McKinney, to which no response was proffered,*fn2 and from McKinney's September 21, 2005, statement to the Evesham Township Police Department, disclose as background that, after negotiating the purchase of a Mercedes 300E from a person named Ken Norcott, McKinney was offered the opportunity to sell cars on Norcott's behalf. McKinney agreed to work on a part-time basis and, in a period of three to four months, he sold at least three cars, offered two additional vehicles for sale, and placed eight to ten used car advertisements for Norcott. McKinney received a ten percent commission on his sales.

On August 16, 2005, Dr. Slavick responded to an advertisement for the sale of a 1995 SL 500 Mercedes Benz, placed by McKinney in Cherry Hill's Courier Post newspaper. After inspecting the vehicle, Dr. Slavick offered to pay $18,000 for its purchase, and his offer was accepted. On August 24, 2005, Dr. Slavick met with McKinney to consummate the purchase at leased office space in Marlton, New Jersey. At that time, Dr. Slavick proffered the purchase price of $18,000 in cash, which McKinney accepted. However, McKinney failed to deliver either the car or its title, and instead, proceeded to offer the same car for sale in Brigantine and Hammonton to a father and son, receiving the sum of $12,500 for its purchase while, again, failing to deliver the car. The car in question was in fact stolen.

These facts unquestionably establish deception or fraud on the part of McKinney in the sale of merchandise. Further, the facts establish that McKinney was not an occasional seller, potentially exempted from the provisions of the CFA. See, e.g., Strawn v. Canuso, 140 N.J. 43, 60 (1995); DiBernardo v. Mosely, 206 N.J. Super. 371, 376 (App. Div. 1986) (limiting the applicability of the CFA to professional sellers), certif. denied, 103 N.J. 503 (1986). Nor did McKinney merely engage, as the motion judge found, in the repeated sale of a single vehicle. By McKinney's own admission, he entered into a business relationship with Norcross for the purpose of offering used cars for sale, he placed numerous advertisements for those cars, and he personally offered at least five vehicles to potential purchasers, selling three and receiving a ten-percent commission on each sale. As such, McKinney's activities met the requirements set forth by the CFA for a used car "Dealer," consisting of selling or offering for sale three or more used motor vehicles in the previous twelve-month period. See N.J.S.A. 56:8-67. The CFA was thus applicable to McKinney's activities, and the damage award against him should have been trebled pursuant to N.J.S.A. 56:8-19.

The portion of the order of judgment awarding damages in the amount of $18,000 is therefore vacated, and the matter remanded for entry of an amended order properly assessing damages of $54,000, plus attorney's fees and costs.

Reversed and remanded for further proceedings in accordance with this opinion.


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