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Cloud v. Michael Dodge

October 26, 2007


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-11249-04.

Per curiam.


Argued October 15, 2007

Before Judges Weissbard and Baxter.

Defendant Michael Dodge, Inc. appeals from an August 16, 2006, order denying its motion for a new trial and/or remittitur after a jury returned a verdict in favor of plaintiff in the amount of $13,500. In accordance with the provisions of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, those damages were trebled and judgment was entered against defendant in the amount of $40,500.

On appeal, defendant argues that the trial court erred when it denied defendant's motion for a new trial because no reasonable jury could conclude that plaintiff had taken reasonable steps to mitigate his damages. Defendant further argues that its motion should have been granted because its conduct during the sale of a vehicle to plaintiff did not violate the CFA. We disagree, and affirm.

Plaintiff purchased a Dodge Caravan vehicle from defendant on October 15, 1999. When he went to the dealership to purchase the vehicle, he brought with him a newspaper advertisement in which defendant promised low-interest financing at a rate of 1.9%. Plaintiff, whose reading skills were poor, signed the contract documents after being assured by the salesman that the car loan had been issued at the advertised 1.9% rate. Plaintiff did not agree to purchase either credit life insurance or an extended warranty, nor did the salesman ever mention those items to him or explain that they would become part of the sale.

A few weeks after purchasing the vehicle, plaintiff received in the mail the coupon book for payment of the loan. Upon reviewing it, he realized that the loan was for five years, rather than the three years the salesman had promised. Plaintiff also discovered that instead of the low-interest financing he had been promised, the interest rate on the loan was 13.5%, and that an extended warranty and credit life insurance had been added. These latter two items added $3,000 to the loan. Defendant went to the dealership in an effort to resolve the problem, but when he got there "it seemed like no one wanted to speak to [him], [and] everybody was fibbing." In response to plaintiff's complaint, the salesman said that "it's out of [our] hand[s] now and [you] have to speak to the finance company to resolve the problem."

Unable to resolve the problem with either the dealership or later with the finance company, plaintiff sent a check in the amount of $17,350 to the finance company in full payment of the remaining balance. After plaintiff sent that check to the finance company, he periodically received letters from the finance company demanding payment of an additional $3,000, but plaintiff ignored those letters because he believed he had paid the remaining balance in full. Three years after plaintiff purchased the vehicle, the finance company repossessed it.

The only witness to testify on defendant's behalf was Mark Zavist, the owner of the dealership. Zavist denied that the 1.9% financing rate was applicable to the Dodge Caravan model. He also explained that if plaintiff had visited the dealership when he first received the payment coupon book and other documents in the mail and had requested the cancellation of the extended warranty and credit life insurance, the dealership would have acquiesced; however, because, as Zavist claimed, plaintiff never came to the dealership and never asked for the cancellation of those charges, the additional $3,000 remained.

At the conclusion of the trial, Judge Toskos instructed the jury that plaintiff had a duty to mitigate damages. The judge submitted three questions to the jury: (1) did defendant engage in an unconscionable practice in violation of the CFA (2) did defendant engage in deception in violation of the CFA, and (3) did defendant breach any contract or agreement with plaintiff? The jury answered the first and third questions in the negative. A unanimous jury, however, concluded that defendant did engage in deception in violation of the CFA and awarded damages in the amount of the Kelly Blue Book value of the vehicle at the time of repossession, $13,500. Those damages were trebled pursuant to the CFA.

Defendant subsequently moved for a new trial and/or remittitur. In support of the motion, defendant argued that plaintiff did not attempt to mitigate damages but instead allowed the car to be repossessed when there was $3,000 owed to the finance company. Defendant further argued that if plaintiff had responded to the finance company's repeated letters, he would not have lost his vehicle and would have suffered only minimal damages. Consequently, defendant argued, the jury's verdict was a miscarriage of justice that the judge should have addressed by granting a remittitur or a new trial.

In a thorough and well-reasoned opinion, Judge Toskos explained his reasons for denying that motion. We affirm substantially for the reasons expressed by Judge Toskos in his written ...

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