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Bishop v. Richard Catena Auto Wholesalers, Inc.

Superior Court of New Jersey, Appellate Division

May 28, 2013

JAMES S. BISHOP, III, Plaintiff-Respondent,
v.
RICHARD CATENA AUTO WHOLESALERS, INC., Defendant-Appellant, and JAMES HALLIK, Defendant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2013

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4601-10.

Methfessel & Werbel, attorneys for appellant (Paul J. Endler, Jr., of counsel and on the brief).

Brach Eichler L.L.C., attorneys for respondent (Anthony M. Rainone, of counsel and on the brief; Jason T. Watson, on the brief).

Before Judges Sabatino and Maven.

PER CURIAM

This case arises out of the interstate sale of a used 1989 Rolls Royce Silver Spur by defendant Richard Catena Auto Wholesalers ("Catena Auto"), [1] a New Jersey company, to plaintiff James S. Bishop, III. Plaintiff alleged that defendant James Hallik, the Catena Auto sales manager who facilitated the sale, misrepresented the quality and condition of the car in order to persuade plaintiff to buy it. Numerous problems with the car were discovered when the car was delivered to plaintiff in North Carolina.

After a one-day bench trial, the court found that defendants were liable to plaintiff for violations of the Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -20, because of those misrepresentations. The court awarded plaintiff $45, 620.25 in treble damages under the CFA, plus counsel fees.

On appeal, defendant Catena Auto[2] argues that the trial court's finding of liability was against the weight of the evidence. Catena Auto further contends that the court improperly admitted expert testimony from a lay witness; that the court erroneously disregarded a warranty refusal document allegedly signed by plaintiff; and that the award of counsel fees was excessive and should be reduced. For the reasons that follow, we affirm.

I.

We derive the following pertinent facts from the record and the trial judge's comprehensive written opinion on the merits dated December 6, 2011.

In early 2010, plaintiff, a car enthusiast, saw an online advertisement from Catena Auto offering the used Rolls Royce for sale. The ad stated as follows:

Congratulations! On finding another Premium Vehicle offered by rcatena.[c]om. This 1989 Rolls-Royce Silver Spur has 84[, ]653 miles and is Carfax [c]ertified. There are no warning lights on, the motor runs strong and the transmission shifts seamlessly. The exterior is clean and has been well maintained. The upholstery is firm, tear and smoke free while the carpeting and mats are clean. When driving the car, there is no vibration, shake or shimmy. Call today to get our low Wholetail Price Today! Not Retail, Not Wholesale but a Quality Car Somewhere In-between! The paint is in excellent condition and it is apparent that this car was garaged and meticulously-maintained. . . . This vehicle's interior does show very minimal signs of wear, but it is in far better condition than what is expected for a vehicle of this age. It seems that this vehicle was owned by a non-smoker. Very smooth ride! All electronic components in working condition.
RICHARD CATENA AUTO WHLSRS

Plaintiff recalled that there were photographs of the car on Catena Auto's website, but the photos did not reveal anything problematic about the car.

Plaintiff first contacted Catena Auto regarding the car in early March 2010, speaking with Hallik by phone. According to plaintiff, Hallik informed him that "[i]t was a great car, it was meticulously maintained, there was nothing wrong with the car, it rode wonderfully, there [were] no lights that were on, [and that] it was very clear and obvious that this car had been garaged and maintained perfectly." Plaintiff asked Hallik how he would rate the car on a scale of one to ten. In reply, Hallik allegedly "g[a]ve it a [rating of] seven, " because it was used. Plaintiff understood the seven rating to mean that the car "was significantly above average, and it confirmed [to plaintiff] in that conversation that [he] should go ahead and expect to believe what was in the print ad."

In addition, Hallik allegedly told plaintiff that the only deficiency with the car was "a piece of electrical tape on the steering wheel, " but it was "perfect" otherwise. Hallik did not mention any rust on the body of the car.

Plaintiff claimed that Hallik also assured him that Catena Auto "consistently" works with out-of-state clients, and so they have a "three-day, money-back, no-questions-asked . . . guarantee[.]" In that regard, Catena Auto's website described its "Buyback Guarantee" as follows:

Here's how the Program Works:

We know that every car can't be perfect and furthermore that every car or truck may not be perfect for every person, and that people [sometimes] don't make the right decision the first time for any number ...

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