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Wildy v. M&R Auto Sales

June 18, 2010

HARRY WILDY, PLAINTIFF-RESPONDENT,
v.
M&R AUTO SALES, INC., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-705-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 12, 2010

Before Judges Baxter and Alvarez.

Defendant M&R Auto Sales, Inc. (M&R) appeals from a judgment issued after a bench trial awarding plaintiff Harry Wildy damages of $21,265.50 plus attorney's fees. For the reasons that follow, we reverse and remand only as to the calculation of damages.

The following facts were developed during the trial on plaintiff's complaint alleging violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -184. On August 15, 2007, plaintiff took possession of a 1997 silver, four-door Cadillac he purchased for $6500 from M&R, a used car dealership. Prior to delivery, the vehicle had been serviced as per the parties' agreement. As plaintiff drove home, the oil light came on and the car began to overheat. Since the Cadillac was under warranty, M&R instructed plaintiff to return the car. It was towed to the dealership, and two days later M&R reported to plaintiff that he could retrieve the vehicle as it was repaired. On the way home, the oil light came on again and plaintiff returned the Cadillac to the dealership. This time, Anthony Masi, Jr., one of M&R's owners, personally told plaintiff to leave the car at M&R a second time so it could be repaired.

Masi took the car first to Roth Brothers Auto Repair where the problem could not be corrected and then to Automotive Degree. While Masi was testifying, the judge ruled sua sponte that Masi could not describe the specific repairs made by Automotive Degree or the paid receipt for the work on the grounds that the testimony was inadmissible hearsay. Masi was only permitted to testify that Automotive Degree was unable to fix the problem. In any event, the Cadillac was sent to a third repair shop, Crown Cadillac. Crown Cadillac was able to correct the oil light problem, however, the trial judge prohibited Masi from testifying further as to those repairs or the cost based on her previously expressed concern that such statements were hearsay.

The Cadillac was returned to plaintiff approximately six weeks later on September 28, 2007, but the car continued to have problems. The engine overheated if plaintiff drove it more than twenty-five to thirty miles at a time. The car lost a significant amount of anti-freeze, even though there did not appear to be a leak in the cooling system. When plaintiff notified M&R this time, Masi told him that there was nothing wrong with the vehicle. As a result, plaintiff decided "there wasn't any sense in going back again."

In December 2007, plaintiff hired Robert Maggio, a retired automotive technician who acts as a consultant for car dealerships. His inspection revealed the Cadillac's head gaskets were leaking. He instructed plaintiff to only drive the car locally for short periods of time. Plaintiff then contacted M&R in the hopes of returning the vehicle, but because the warranty had expired, his request was refused. At trial, Maggio was qualified as plaintiff's expert "[i]n the field of automotive repair, specifically [] Cadillacs . . . ."

In April 2008, the Cadillac stopped running completely. Prior to this point, plaintiff had driven approximately 5420 miles, using the Cadillac only for short trips at slow speeds as Maggio had advised. He rented a car whenever he needed to make longer trips.

On April 24, 2008, Maggio inspected the Cadillac in order to prepare a report for litigation. The Cadillac was towed to Clairmont Auto Group (Clairmont) for the necessary testing and Maggio's diagnosis of a blown head gasket was confirmed. The court allowed Maggio to testify regarding the results of the testing done by Clairmont because "experts like" Maggio rely on such documents when "reaching an opinion" and rendering a report.

Nonetheless, the trial judge barred M&R's expert, Terry Shaw, from testifying about previous work done on the vehicle even though she allowed Maggio to testify about Clairmont's diagnosis. Shaw did state that in his opinion the car could not have passed New Jersey emissions inspections and been driven for over 5000 miles, "with discernable leaking head gaskets or combustion chamber leaks." He theorized that the Cadillac exhibited symptoms of a combustion chamber leak in the cooling system, indicating other mechanical problems.

The judge concluded that "[t]here were material misrepresentations" made to plaintiff and consequently determined that M&R violated the CFA, "after being given an opportunity to correct the defects, and provide [Wildy] with what he had paid for, . . . a motor vehicle which was road worth[y] and operable, without defects." The trial judge awarded plaintiff $242.15 for work performed by Clairmont, $30 for towing on July 15, 2007, $315.35 for the cost of rental vehicles, and the $6500 purchase price of the Cadillac. She then trebled the $7088.50 total and awarded plaintiff damages of $21,265.50 "plus reasonable attorney's fees."

We are bound by the trial judge's findings of fact "when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). See also Metuchen Sav. Bank v. Pierini, 377 N.J. Super. 154, 161 (App. Div. 2005). The court's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted). Thus, "our review of ...


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