May 9, 2012
THOMAS GALLI, PLAINTIFF-APPELLANT,
KEY MOTORCARS, LLC, DEFENDANT, AND RONALD A. MARKEY AND RUSSELL WILLIAMS,*FN1 DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4473-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 16, 2012
Before Judges Axelrad and Ostrer.
Plaintiff Thomas Galli appeals from summary judgment dismissal of his complaint alleging violation of the Consumer Fraud Act against individual defendants, Russ Williams, a salesman, and Ronald A. Markey, owner and manager of defendant Key Motorcars, LLC (Key Motorcars), and denial of his motion for reconsideration. We affirm as to Williams and reverse as to Markey.
On September 17, 2007, plaintiff filed a complaint against Key Motorcars, Markey, and Williams alleging breach of contract and violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. Defendants filed an answer to the complaint and asserted a counterclaim for frivolous litigation. Plaintiff filed a responsive pleading. On May 5, 2009, Williams filed an amended answer to plaintiff's complaint and a cross-claim against Key Motorcars and Markey for contribution and indemnification.
Plaintiff filed an amended complaint on July 27, 2009, adding three additional claims: breach of implied covenant of good faith and fair dealing, negligent performance of a contract, and fraud and fraudulent inducement. Williams filed an answer and restated his cross-claim against Markey and Key Motorcars. Markey filed an answer to the amended complaint and restated his counterclaim.
On August 13, 2010, Williams filed a motion for summary judgment. Markey filed a cross-motion for summary judgment. Plaintiff opposed the motions, and voluntarily dismissed all counts against Williams and Markey, except the count for violation of the CFA.*fn2
Following oral argument on October 15, 2010, the court granted summary judgment to Williams and Markey.*fn3 Plaintiff moved for reconsideration. Following oral argument on January 21, 2011, memorialized in an order of the same date, the court granted reconsideration, but denied reinstatement of plaintiff's CFA claims against Williams and Markey.
Plaintiff appealed. Williams filed a motion to dismiss the appeal, which we denied by order of August 9, 2011. On that date, we also denied plaintiff's motion to supplement the record. Plaintiff and Williams filed timely briefs for this appeal, but Markey did not, and by order of September 29, 2011, his brief was suppressed.
We view the facts in the light most favorable to plaintiff, the non-moving party under Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This case arises from plaintiff's attempt to purchase a 2004 Mercedes-Benz S-Class S500 W4 black opal sedan from Key Motorcars. He saw the car advertised on Ebay for $38,999. Plaintiff's brother, Michael Galli, then contacted Markey at Key Motorcars. They negotiated a price at the dealership and on July 19, 2007, Markey and plaintiff's brother, on behalf of plaintiff, executed an agreement for the purchase of the vehicle, for $34,000. Plaintiff's brother placed a $1000 deposit on the vehicle and signed plaintiff's signature on the purchase agreement.
Within a few days, plaintiff called Key Motorcars to confirm that the vehicle would be ready for pickup, and he spoke with Williams for the first time. Plaintiff testified in his deposition that Williams "seemed surprised at the call and told me that he would have to get back to me." According to plaintiff, when Williams called back, he informed plaintiff that "he had sold the car the day before to someone else. That there was a gap in communication between he and  Markey."
Williams offered to sell plaintiff a silver Mercedes S500 and a black Mercedes S500. The silver Mercedes S500 was also a 2004 and was offered at the same price as the black opal Mercedes S500. However, plaintiff testified he was only interested in the black opal color because that was the most important feature for him. Plaintiff searched for another black opal Mercedes online, in newspapers and at other dealerships, with no success. Key Motorcars refunded the $1000 deposit by check dated July 23, 2007.
Plaintiff filed this lawsuit, claiming he had a purchase agreement to buy the Mercedes for $34,000 but defendants subsequently sold the vehicle to another customer for a higher price. He sought damages of approximately $16,000, the difference between the amount he would have paid under the contract and the $50,000 he claimed the car was worth. In their joint answer, defendants contended that Williams sold the vehicle the day before Markey sold it to plaintiff, and Markey had been unaware of the prior sale.
About one and one-half years later, Williams, represented by separate counsel, individually filed an amended answer to the complaint and a cross-claim against Key Motorcars and Markey. Williams took a different position, claiming he negotiated a sale of the Mercedes to Raymond Purdon the day after plaintiff executed the purchase agreement, not the day before, at which time he was unaware of the agreement with plaintiff. Williams further asserted that at the time of the sale to Purdon, Markey was advised by Williams that plaintiff had already paid a deposit; however, Markey told him "not to worry about the agreement with plaintiff" and advised the car would be sold to Purdon. Williams further alleged that Markey had accepted service on his behalf, did not advise him about the lawsuit, and the law firm originally handling the case had not contacted him in answering the complaint.
Plaintiff filed an amended complaint to which Markey and Williams responded separately. Markey reiterated the allegations that the vehicle was sold to Purdon the day before he executed the sales agreement with plaintiff's brother, at which time he was unaware of the prior sale. Williams repeated the allegations that Markey had told him not to worry about the agreement with plaintiff and to sell the vehicle to Purdon the following day.
The purchase agreement with Purdon, provided in discovery, indicated the vehicle was sold to Purdon for $37,000 by Williams on July 18, 2007, the day before plaintiff's agreement. Depositions of Williams and Markey were also submitted with the summary judgment motions.
Williams testified in his deposition that the day Purdon came to buy the car, he went into Markey's office and said, "I have a gentleman who wants this car. What price do you want me to sell it at?" According to Williams, Markey responded that he had a "thousand dollar deposit on that car," to which Williams asked if Markey wanted him to "get [Purdon] into another one?" Williams testified that Markey told him "[n]o" and directed him to "take care" of Purdon and "[s]ell him that car" and Markey would "take care of [his] customer."
Williams further testified that he prepared the purchase agreement for Purdon, which Markey signed; however, Markey produced in discovery an agreement that falsely appeared to be prepared by Williams. Williams explained that this agreement was not in his handwriting and his first name was misspelled. He further testified he was not authorized to sign any document on behalf of Key Motorcars and had never done so. Moreover, to his knowledge, every agreement for the sale of a car during his employment at Key Motorcars had been signed by Markey.
Although Williams could not recall the exact date he sold the car to Purdon, he testified that his dealings with Purdon were after Markey's dealings with plaintiff. Williams testified, however, that when Purdon came to the dealership, he was unaware the car had been sold because protocols to identify that a car had been sold had not been taken as the car was still on the lot rather than in the garage and there was a blank purchase agreement in the designated folder rather than completed paperwork.
Williams also stated that Markey had to have known that Purdon's purchase price was more than plaintiff's purchase price but Williams did not know that fact. Williams also was unaware of whether Markey "took care of his customer." After Markey apprised him of the situation, however, Williams helped him search for a replacement vehicle for plaintiff. He testified that he presented roughly six vehicles to plaintiff that were the same make and model as the original car but not the same color, but plaintiff rejected them unless Markey sold them to him for $4000 to $5000 less.
Markey testified in his deposition that Williams prepared the agreement with Purdon. Markey testified that Williams was authorized to sign the sales agreement, but that Markey was not aware of the agreement until the day after he entered into the purchase agreement with plaintiff's brother. According to Markey, the day after he executed the agreement with plaintiff's brother, he told Williams about his sale and Williams informed him that "he had a contract on the same car that came first." Markey also testified he then offered plaintiff approximately six potential vehicle selections at the same price or in a similar price range.
In granting summary judgment, the court noted the "conflicting testimony between Markey and Williams" but was "not so certain" it created a material fact. Noting that even though some conflict existed in the testimony of Williams and Markey as to when the vehicle was sold, the court found "there's no question that the vehicle was sold to somebody else and that [plaintiff] was informed of the mistake and the miscommunication immediately, as soon as it was learned, and was immediately made whole." The court concluded that even if the conduct could be considered unconscionable, plaintiff suffered no ascertainable loss under the CFA. The court explained that although plaintiff did not get the particular vehicle he wanted and claimed he lost the "benefit of the bargain" as the car was worth about $16,000 more than he was going to pay, plaintiff's actual out-of pocket losses were $1000 and he was "made whole" when the deposit was returned. The court also noted it had no information as to the Blue Book value of the car as of the date of sale to support plaintiff's $50,000 figure.
On reconsideration, plaintiff argued that the court had sua sponte raised the ascertainable loss issue, and requested the court consider his expert report, which valued the subject vehicle on July 19, 2007 at more than $50,000. The court reconsidered, but again granted summary judgment for defendants because it was satisfied plaintiff had not shown an ascertainable loss. The court found "[t]here can be no benefit of the bargain lost on the sale of chattel to another when the chattel, such as a vehicle, has economic value that is, in part, subjective. Even reviewing the expert report, there's no ascertainable loss such that a violation of the [CFA] occurred."
The court found this was not a "deceptive practice" or "fraudulent." Instead, the court found as a result of a "mistake," plaintiff did not get the car he sought, stating:
I believe that this was a simple mistake between the two individuals not communicating that the car had been sold already to another individual. And unfortunately, [Markey] didn't know it because . . . the other had previously . . . sold the car the day before; didn't tell him, didn't take it off the inventory, you know, it just wasn't there.
As to damages, the court found benefit-of-the-bargain damages to be "highly speculative" and "subjective." It found plaintiff did not lose anything because "[t]his isn't a situation where they took his deposit, tried to give him a different car and kept pushing that on him." Instead, "[t]hey said, we screwed up, I didn't know my partner sold the car the day before, I'm sorry, here's your money back." The court concluded this is not the type of transaction the CFA meant to punish because defendants did not "take advantage of the consuming public." Rather, the court found this was merely a mistake and plaintiff was made whole, so summary judgment should be granted. This appeal ensued.
On appeal, plaintiff argues the court erred in granting summary judgment to defendants as there were genuine of material fact and the court improperly afforded all favorable inferences to defendants rather than to plaintiff. Plaintiff also contends the court erred in concluding defendants did not violate the CFA, arguing defendants acted unconscionably in connection with their execution of a purchase agreement for the sale of the Mercedes to plaintiff and subsequently knowingly entering into a purchase agreement with another customer so as to realize a greater profit, resulting in plaintiff suffering an ascertainable loss of the benefit-of-the-bargain damages.
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge under Rule 4:46. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We first address whether the moving party has demonstrated there were no genuine disputes as to material facts, viewed in the light most favorable to the non-moving party. Brill, supra, 142 N.J. at 523. We then decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we accord no deference to the motion judge's conclusions on issues of law, which we review de novo. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
To establish that a defendant is liable under the CFA, New Jersey courts have interpreted a CFA claim to include three elements: "'(1) unlawful conduct . . .; (2) an ascertainable loss . . .; and (3) a causal relationship between the defendants' unlawful conduct and the plaintiff's ascertainable loss.'" Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., 192 N.J. 372, 389 (2007) (quoting N.J. Citizen Action v. Schering-Plough Corp., 367 N.J. Super. 8, 12-13 (App. Div.), certif. denied, 178 N.J. 249 (2003)).
Further defining what constitutes the unlawful conduct element, the CFA provides:
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation . . . in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid . . . is declared to be an unlawful practice . . . . [N.J.S.A. 56:8-2.]
We note that the CFA is "one of the strongest consumer protection laws in the nation." Cox v. Sears Roebuck & Co., 138 N.J. 2, 15 (1994) (internal quotation marks and citation omitted). As we recently reiterated in In re Johnny Popper, Inc., 413 N.J. Super. 580, 585 (App. Div. 2010) (citing Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255, 263-64 (1997)), "[a] core purpose of the CFA is to protect consumers from sharp practices and dealings in the marketing of merchandise [and it] should be liberally construed to accomplish its remedial purpose of rooting out consumer fraud."
Violations of the CFA can occur as a result of an affirmative act, a knowing omission, or a regulatory violation. Int'l Union, supra, 192 N.J. at 389. When the alleged consumer fraud violation arises out of an affirmative act, "intent is not an essential element[,]" so the plaintiff does not need to prove that the defendant intended to commit the unlawful act. Cox, supra, 138 N.J. at 17-18. However, when the alleged consumer fraud consists of an omission, intent is an essential element and the plaintiff must show the defendant acted with knowledge. Id. at 18.
An "unconscionable commercial practice" satisfies the unlawful act requirement under N.J.S.A. 56:8-2. Although the term "unconscionable commercial practice" is not defined in the CFA, the Supreme Court has held it to be an "'amorphous concept obviously designed to establish a broad business ethic.'" Cox, supra, 138 N.J. at 18 (quoting Kugler v. Romain, 58 N.J. 522, 543 (1971)). The word "unconscionable" is generally interpreted liberally to "effectuate the public purpose of the CFA." Assocs. Home Equity Servs., Inc. v. Troup, 343 N.J. Super. 254, 278 (App. Div. 2001) (citing Kugler, supra, 58 N.J. at 543). It implies a "lack of 'good faith, honesty in fact and observance of fair dealing.'" Cox, supra, 138 N.J. at 18 (quoting Kugler, supra, 58 N.J. at 544). Moreover, an unconscionable commercial practice or conduct under the CFA "is not limited to the initial transaction but extends to 'the subsequent performance of such person [involved in the transaction].'" D'Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J. Super. 11, 25 (App. Div. 1985) (alteration in original) (quoting N.J.S.A. 56:8-2). "Whether a particular practice is unconscionable must be determined on a case-by-case basis." Troup, supra, 343 N.J. Super. at 278 (citing Kugler, supra, 58 N.J. at 543).
A breach of contract is not per se unconscionable and does not alone violate the CFA. Cox, supra, 138 N.J. at 18.
Instead, in order to state a claim for breach of contract under the CFA, "substantial aggravating circumstances" must be present. Ibid. The Supreme Court reasoned that any breach of contract is unfair to a non-breaching party, but contract law already provides remedial damages in those circumstances. Ibid. See also D'Ercole Sales, supra, 206 N.J. Super. at 31 (noting that "unfairness inheres in every breach of contract when one of the contracting parties is denied the advantage for which he contracted, but this is why remedial damages are awarded on contract claims" (internal quotation marks and citation omitted)). Therefore, in order to justify the much larger treble damages provided under the CFA, "the [L]egislature must have intended that substantial aggravating circumstances be present" in addition to the breach. D'Ercole Sales, supra, 206 N.J. Super. at 31 (internal quotation marks and citation omitted).
Here, the court erred in failing to view the facts presented at summary judgment in the light most favorable to plaintiff, and in finding on the record that "this was a simple mistake" and that the car was sold to Purdon before Markey entered into the purchase agreement with plaintiff. The court noted, but appeared to ignore as immaterial, the "conflicting testimony between Markey and Williams" and Williams' challenge to the authenticity of the July l8 Purdon purchase agreement, focusing instead on the fact that plaintiff was promptly informed of the "mistake" and was "made whole" by the return of his deposit.
Viewing the facts in the light most favorable to plaintiff, plaintiff's brother executed the purchase agreement with Markey on July 19, 2007, paying a $1000 deposit, thereby entering into a binding contract with Key Motorcars to purchase the specifically-advertised black opal Mercedes for $34,000. After the contract was executed, but before plaintiff came to pick up the car and pay the balance, Williams, unaware of the previous sale, negotiated with and received an offer to purchase the Mercedes from another buyer, Purdon. He informed Markey, who acknowledged there was already a contract with plaintiff, but told Williams to sell Purdon the car and Markey would "take care of [his] customer." Williams' customer, Purdon, paid $37,000. Williams prepared the purchase agreement for Purdon, which Markey signed, as Williams was not authorized to sign any document on behalf of Key Motorcars and, to the best of his knowledge, every agreement for the sale of a car during his employment at Key Motorcars was signed by Markey.
Markey knew plaintiff's purchase price was less than Purdon's, but Williams did not know anything about the terms of plaintiff's contract with Markey other than that plaintiff had given Markey a $1000 deposit. Williams was unaware that Markey had sold plaintiff's car, as opposed to taking a good faith deposit, until their conversation when plaintiff called Key Motorcars to make arrangements to pick up his car. Plaintiff testified that was the first time he spoke with Williams, who "seemed surprised at the call[.]" Williams then spoke with Markey who told him to look for similar cars for plaintiff.
Again, viewing the facts in the light most favorable to plaintiff, Markey forged another purchase agreement for Purdon, misspelling Williams' first name, and back-dated it to July 18, 2007, the day before plaintiff's purchase agreement was signed. He then presented that document to his attorney in place of the actual purchase agreement that Williams completed on or about July 20, 2007.
The intentional sale of merchandise already promised to another in order to get a higher price, coupled with preparation of a fraudulent purchase order, would appear to establish "substantial aggravating circumstances" beyond a mere breach of contract, constituting an unconscionable act under the CFA. See, e.g., Performance Leasing Corp. v. Irwin Lincoln-Mercury, 262 N.J. Super. 23 (App. Div. 1993). Such behavior implies lack of good faith, honesty in fact and observance of fair dealing constituting an unconscionable business practice by Markey under the CFA. See Cox, supra, 138 N.J. at 18; Troup, supra, 343 N.J. Super. at 278.
While the record clearly presents a debatable issue as to unconscionable conduct by Markey, it is devoid of any basis for finding an unconscionable action by Williams. Under Williams' version, he did not know and would have had no way of knowing about plaintiff's contract when he negotiated the sale to Purdon as none of the routine protocols for a sale had been followed -- the black opal Mercedes was still on the lot and there was no paperwork in the designated envelope. When he told Markey he had a buyer for the car and was informed about plaintiff's contract, Williams asked Markey whether he should put Purdon in a different car and was told "[n]o," he should "[s]ell the car" to Purdon. Furthermore, Williams had no idea of the amount of plaintiff's contract so he could not have had the intent to sell the Mercedes for more to another customer. There is also no claim of forgery or fraudulent practice by Williams in connection with Purdon's purchase agreement; in accordance with routine procedure, Williams completed it and gave it to Markey to finalize and sign on behalf of the dealership. Even Markey's version of Williams having sold the car to Purdon the day before Markey unknowingly entered into the contract with plaintiff did not implicate Williams in any unconscionable commercial practice, fraud or misrepresentation under the CFA. As the evidence is so one-sided that Williams must prevail as a matter of law, summary judgment was appropriately granted to him.
Plaintiff also challenges the court's finding that he was unable to raise a genuine issue that he suffered an ascertainable loss under the CFA. Specifically, he asserts error by the court in finding that loss of benefit-of-the-bargain damages could not constitute an ascertainable loss under the CFA and in finding plaintiff's expert report did not establish the vehicle's value with sufficient certainty to withstand summary judgment. We agree.
In order to make a claim under the CFA, the second element that a defendant must establish is an "ascertainable loss." Int'l Union, supra, 192 N.J. at 389 (quoting N.J. Citizen Action, supra, 367 N.J. Super. at 12-13). A person who makes a successful claim under the CFA by demonstrating an unlawful practice and an ascertainable loss is awarded treble damages. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 12 (2004).
Specifically, the CFA provides:
Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act . . . may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable remedies, award threefold the damages sustained by any person in interest. In all actions under this section . . . the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit. [N.J.S.A. 56:8-19 (emphasis added).]
The purpose of these remedies is "not only to make whole the victim's loss, but also to punish the wrongdoer and to deter others from engaging in similar fraudulent practices." Furst, supra, 182 N.J. at 12. In ordinary breach of contract cases, the function of damages is to make the injured party whole. Id. at 13. However, at times, in order to make a party whole, "the innocent party must be given the 'benefit of his bargain' and placed in 'as good a position as he would have been in had the contract been performed.'" Ibid. (quoting Scully v. US WATS, Inc., 238 F.3d 497, 512 (3d Cir. 2001)).
In CFA cases, the rule governing the measurement of damages should be "flexible" depending on the circumstances, but "where the damages under the benefit-of-the-bargain rule are proved with sufficient certainty, that rule will be employed." Zeliff v. Sabatino, 15 N.J. 70, 75 (1954) (internal quotation marks and citation omitted). See also Gardner v. Rosecliff Realty Co., 41 N.J. Super. 1, 10-11 (App. Div. 1956) (noting "the court will award damages equal to that which [the] plaintiffs would have received if the representation had been true[,]" but damages cannot be awarded "unless the amount of that benefit can be established by the proofs with sufficient certainty").
In benefit-of-the-bargain cases, the "replacement cost" is often the proper measure of damages, but sufficient evidence must exist to determine the replacement value. Furst, supra, 182 N.J. at 13-14. The regular price advertised on the sales sticker is "a relevant benchmark from which to impute replacement value." Id. at 18-19. A product's regular price is "the price at which the merchant has openly and actively tendered the product for sale, for a reasonably substantial period of time, in the recent, regular course of his [or her] business, honestly and in good faith . . . ." Id. at 16 (internal quotation marks and citations omitted).
In the case of a defective carpet, the Supreme Court determined a rebuttable presumption existed that the regular price on the sales sticker was the replacement value. Id. at 19. The Court explained that the burden would then shift to the defendants to produce alternative evidence of the replacement value, and if the defendants did produce evidence, the trier of fact would decide the issue based on all the evidence with the burden of persuasion resting on the plaintiff. Ibid. The plaintiff was also allowed to call witnesses and produce other evidence to prove the replacement value. Ibid.
The court erred in finding no ascertainable loss as a matter of law simply because plaintiff was refunded his $1000 deposit. The measurement of damages under the CFA should be flexible, employing the out-of-pocket rule or the benefit-ofthe-bargain rule depending on the circumstances. See Zeliff, supra, 15 N.J. at 75. Here, although plaintiff did not lose any out-of-pocket costs, he can demonstrate an ascertainable loss on losing the benefit of the bargain, and he can prove it with sufficient certainty, as required. See ibid.
At the very least, the vehicle was worth $37,000, because Key Motorcars found a willing purchaser for that amount. Plaintiff's benefit-of-the-bargain damages would therefore be at least $3000, which would be trebled under the CFA.
Alternatively, as explained in Furst, the "replacement cost" is often the proper measure of damages, and the regular price advertised on a sales sticker is a "relevant benchmark" to prove replacement value with sufficient certainty. Supra, 182 N.J. at 13, 18-19. Here, the Ebay advertisement for the Mercedes stated the vehicle was $38,999. Plaintiff signed a purchase agreement to buy the car at $34,000. Thus, plaintiff was receiving a bargain of approximately $5,000. Furthermore, Williams sold the car to Purdon for $37,000, further demonstrating that plaintiff had negotiated a bargain price. Regardless of the amount plaintiff claimed the vehicle was worth, he can present to the jury with sufficient certainty that the replacement value of the vehicle is $38,999, the price advertised. As in Furst, supra, 182 N.J. at 19, plaintiff can argue there should be a rebuttable presumption that the approximately $39,000 price on the sales sticker and Ebay advertisement was the replacement value.
Plaintiff could also demonstrate some ascertainable loss based on his expert's opinion that the retail value of the car at the time of sale was "just over $50,000." Under that theory, plaintiff's benefit-of-the-bargain damages would be $16,000, trebled. Based on our review of the record, we are convinced the court erred in perfunctorily concluding that plaintiff's report was insufficient to demonstrate an ascertainable loss.
In the motion for reconsideration, plaintiff submitted the expert report of Jan van der Baan, an automobile appraiser and "[a]ppraisal judge" for the Mercedez-Benz Club of America, consisting of a letter written to plaintiff containing the expert opinion, a copy of plaintiff's purchase agreement, and a copy of the Ebay advertisement for the Mercedes. In the letter containing the opinion, the expert stated the Mercedes was worth just over $50,000, and explained:
I took several items into consideration, including the Ebay advertisement . . . and the retail book value for the Mercedes Benz.
The NADA guide for July 2007 showed the retail value for the Mercedes described in the Ebay advertisement to be in excess of $49,000 with adjustments for condition, mileage, color, equipment and remaining manufacturers warranty for that car in the Ebay advertisement, bringing the retail value [of] the Mercedes . . . to over $50,000 as of July 19, 2007. This value was supported by several other retail guides including Kelly Blue Book and Consumers Guide (which reflected a value on the Mercedes well over $50,000.) The value was strongly enhanced by the then existing (as of July 19, 2007) manufacturer's warranty.
The court found, "So I have an advertised price of a vehicle for . . . [$]39,000, still [$]11,000 less than what your -- your expert says, and he doesn't give me anything other than well, NADA says it's [$]50,000." Overall, it appears the judge did not find plaintiff's expert report established the vehicle's value with sufficient certainty. We are satisfied van der Baans' report, though sparse, contained a sufficient factual basis and appropriately relied upon recognized authorities in the industry for appraising used cars to be presented to the jury, who can assess its weight. See Rosenberg v. Tavorath, 352 N.J. Super. 385, 401-04 (App. Div. 2002).
Summary judgment is reversed as to Markey and affirmed as to Williams. We remand this case to the trial court for trial on plaintiff's CFA claim against Markey only.