On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-1245-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Graves.
This case involves a series of transactions in which defendant Auto Wholesalers & Dealers Inc. (Wholesalers) wholesaled a 1996 Toyota Land Cruiser to Troby Motors,*fn1 which then retailed the vehicle to Naomi Nguyen. The Land Cruiser was later determined to have been stolen and was seized by the police. This case implicates the Consumer Fraud Act, N.J.S.A. 56:8-1 to -106 (CFA) and its policies.
On appeal, Troby contends that the judge erred in granting summary judgment in favor of Nguyen on her CFA claim and in limiting its contribution claim against Wholesalers to breach of contract damages. Troby also asserts that the award of counsel fees in favor of Nguyen on her CFA claim was excessive. We conclude the CFA is applicable to the transaction between Troby and Nguyen and inapplicable to the wholesale transaction. We, therefore, affirm the judgment of liability on Nguyen's CFA claim and the damage judgments entered against Wholesalers on Troby's cross-claim. We remand the issue of counsel fees for further proceedings because the award was entered without the benefit of the factual analysis required in Furst v. Einstein Moomjy, 182 N.J. 1, 24 (2004). We do not retain jurisdiction.
We restate the substantially undisputed facts. Wholesalers is in the business of selling used motor vehicles to dealers and other wholesalers. It does not sell vehicles on a retail basis to the public. In September 2003, Wholesalers sold the Land Cruiser to Troby for $13,300. Wholesalers had purchased the vehicle from Ira Lexus, a Massachusetts dealer. History searches performed by CARFAX for both Wholesalers and Troby failed to show that the vehicle had been stolen.*fn2
In November 2003, Troby sold the Land Cruiser to plaintiff for $16,063. Plaintiff paid $5000 in cash and financed the remainder of the purchase price. On May 28, 2004, the State Police seized the vehicle from plaintiff. The police report indicated that the Land Cruiser's VIN number plate had been changed and that the vehicle had been stolen in New York in 1999. The portion of the purchase price that had been financed was resolved by insurance, leaving plaintiff with actual damages of $5600.*fn3
When plaintiff's remaining claim for damages was not resolved by Troby and Wholesalers, plaintiff pressed her CFA claim.*fn4 Plaintiff moved for partial summary judgment on her CFA claim against Troby. On April 28, 2006, Judge Merkelbach entered summary judgment, finding Troby liable to plaintiff under the CFA.
On October 13, 2006, another motion judge entered an order assessing treble damages of $16,800 against Troby. The order also awarded plaintiff counsel fees of $7,442.50 and costs of $614.15. On November 22, 2006, plaintiff's counsel wrote the motion judge recounting his version of the procedural history and requesting that the judge "recalculate" the counsel fees to total $16,447.50. On December 18, 2006, Troby responded to plaintiff's request, pointing out that it had been trying to settle with plaintiff but was not receiving any cooperation from co-defendants, complaining that "[p]laintiff has continued to 'churn' this file." Troby asserted that the transaction would not have occurred had it not been for the sale from Ira Lexus to Wholesalers, that it had a default judgment against Ira Lexus, and "has already not only paid for the vehicle from . . . Wholesalers but also paid the plaintiff's auto loan already in the sum of $10,440.21 which should be taken into consideration when the plaintiff's settlement is distributed among the co-defendants."
On March 2, 2007, the judge wrote that, based upon his review of plaintiff counsel's letter of November 22, 2006, he was inclined to vacate the Order of October 13, and "to enter the Order upon consideration of the information, arguments and clarification set out in [counsel's] letter of November 22, 2006."*fn5 Plaintiff's counsel prepared and forwarded to the judge a proposed form of order on March 27, 2007. Troby responded by letter on April 4, 2007, objecting to the Order based upon his previous submissions filed by way of objection prior to entry of the October 13 Order.
On April 5, 2007, the judge signed the proposed order awarding additional counsel fees to plaintiff's counsel in the amount of $9005. Troby filed for interlocutory appeal. Plaintiff moved to enforce the order for counsel fees. The judge ordered "that enforcement of any future motion or order for the turnover of funds, relating to the April 5, 2007 Order . . . shall be stayed, pending resolution of . . . interlocutory appeal . . . ." The judge also noted that "he had not received [Troby's] letter in opposition dated April 4, 2007." Meanwhile on March 30, 2007, Judge Codey denied Troby's motion seeking contribution from Wholesalers in the full amount of the CFA claim. Instead, he limited Wholesalers' contribution on Troby's cross-claim to $5600.*fn6 In announcing his ruling, Judge Codey, concluded:
I'm going to enter summary judgment against . . . Wholesalers in the amount of the stipulated damages, [$]5600. They're not liable for any of the actions regarding Troby's contact with Miss Nguyen. It was a consumer fraud action solely as to them. They're in it up to the 5600-dollar stipulated base damage claim.
Because Judge Codey's Order disposed of the remaining issues, we transformed Troby's interlocutory appeal to ...