NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1358-24
JASON WRIGHT,
Plaintiff-Appellant,
and
KAREEM JEFFRESS, ANDREA BROOKS, and MELISSA CHOULOUTTE, on their own behalf and on behalf of a class of similarly situated persons,
Plaintiff,
v.
FENIX TOWING LLC and JONNATHAN G. REIBAN,
Defendants-Respondents. _______________________________
Submitted November 3, 2025 – Decided November 19, 2025
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7225-21. Lessie Hill, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Plaintiff Jason Wright appeals from an order of the Special Civil Part
entered after a proof hearing, awarding plaintiff $350 as compensation for a
vehicle he sold to defendant Fenix Towing LLC. Before us, he raises three
challenges to the court's final judgment. First, he maintains the court erred in
refusing to award him treble damages and attorney's fees under the New Jersey
Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -227. Second, he argues the
court mistakenly failed to impose personal liability upon the owner of Fenix
Towing, defendant Jonathan Reiban, solely for the CFA violations. Finally, he
contends the court improperly permitted defendants' counsel to conduct a more
fulsome cross-examination of plaintiff at the proof hearing in light of the
suppression of defendants' answer and the attendant limited scope of that
proceeding. After considering all of defendants' arguments against the record
and the applicable legal principles, we remand for further factual findings with
respect to plaintiff's CFA claim and Reiban's potential personal liability for any
damages related to that cause of action.
A-1358-24 2 We discern the following facts from the parties' pleadings and the
transcript of the proof hearing. Plaintiff, and three other individuals, filed a
multi-count class action complaint against Fenix and Reiban sounding in
common law fraud, unjust enrichment, and alleged violations of the CFA.
Defendants retained counsel and filed an answer, in which they denied all of
plaintiff's material allegations but admitted Reiban "controlled, directed[,] and
participated in the management and operation of [Fenix Towing]."
The court issued an order suppressing defendants' answer without
prejudice based on their failure to produce discovery and gave them forty-five
days to comply with those obligations and seek reinstatement of his answer.
After defendants failed to comply with the court's order, it suppressed
defendants' answer with prejudice. The matter then proceeded to a proof
hearing.
At that proceeding, plaintiff explained how he contacted defendant Fenix
Towing after seeing one of its flyers, which offered "to come and take [his] car
. . . because . . . [defendant] give[s] money for junk cars." Plaintiff testified
during his initial contact, the representative from Fenix Towing never mentioned
the offer was contingent on the car containing a catalytic converter. After
agreeing to have his car towed for $500, plaintiff stated a tow truck operator on
A-1358-24 3 behalf of defendant Fenix Towing arrived to collect his vehicle and loaded it
onto the tow truck. Plaintiff testified the operator, at that point, told him that
the car was missing its catalytic converter and that, contrary to their prior
agreement, he would only receive $150 instead of the agreed-upon $500.
Plaintiff stated he informed the operator to release his car but was informed it
would cost him $150 to lower the vehicle back in his driveway.
Plaintiff testified that at this point in the exchange, he identified the
catalytic converter himself and asked the tow truck operator to call his
supervisor. Plaintiff stated he knew the car had a catalytic converter because he
had owned the car for over three years, had the car recently examined by a
mechanic, and noted that you "can't drive a car without a catalytic converter."
Plaintiff stated the tow truck operator then called the owner of Fenix, who
plaintiff understood to be Reiban. Plaintiff testified when he spoke with Reiban,
Reiban stated because the car did not contain a catalytic converter Fenix would
pay plaintiff only $150. After the phone call, plaintiff agreed to take the $150
because it was a "lose-lose situation" for him.
The court first determined plaintiff was a "very credible person" who was
"very forthright when answering all of the questions." The Court accordingly
found the plaintiff "was [promised] $500 and he was only paid $150" and entered
A-1358-24 4 judgment in his favor for $350 "against . . . defendants." The court, however,
dismissed plaintiff's request to proceed as a class action because plaintiff never
requested class certification, and none of the other named plaintiffs appeared at
the proof hearing to testify. The court also dismissed plaintiff's CFA claim.1
The court found plaintiff's testimony insufficient to establish consumer
fraud, because he did not produce any written documentation from Fenix. It
further characterized plaintiff's testimony related to the CFA claim as
"potentially hearsay" to the extent it identified the "alleged tow truck operator
he spoke to on the phone." The court further explained there was "no testimony
regarding who [defendant] . . . Reiban[] is" and "no proof [defendant] Fenix
Towing was involved . . . ." The court accordingly issued a judgment for $350
against only Fenix Towing without awarding attorney's fees or trebling that
amount as permitted by N.J.S.A. 56:8-19.2
1 In support of the CFA claim, plaintiff's counsel also provided the court with a certification of services. 2 Plaintiff has not challenged the court's decision dismissing his class action claims, nor has the plaintiff contended the proofs supported a judgment based on his common law fraud cause of action. We accordingly consider any claimed error in the manner in which the court disposed of those matters waived. See Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2025) ("[A]n issue not briefed is deemed waived."). A-1358-24 5 We affirm the court's $350 award against Fenix Towing. After deeming
plaintiff credible, the court clearly credited his testimony that he received an
offer to sell his vehicle for $500 but was paid only $150 resulting in damages
based on plaintiff's unjust enrichment claim in the amount of $350. As the
court's factual findings are fully supported by "adequate, substantial and credible
evidence," they are binding on us. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. Of
Am., 65 N.J. 474, 484 (1974) (citing N.J. Turnpike Authority v. Sisselman, 106
N.J. Super. 358 (App. Div. 1969), certif. denied 54 N.J. 565 (1969)). Further,
we defer to the court's credibility-based factual findings because it was the court
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1358-24
JASON WRIGHT,
Plaintiff-Appellant,
and
KAREEM JEFFRESS, ANDREA BROOKS, and MELISSA CHOULOUTTE, on their own behalf and on behalf of a class of similarly situated persons,
Plaintiff,
v.
FENIX TOWING LLC and JONNATHAN G. REIBAN,
Defendants-Respondents. _______________________________
Submitted November 3, 2025 – Decided November 19, 2025
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7225-21. Lessie Hill, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Plaintiff Jason Wright appeals from an order of the Special Civil Part
entered after a proof hearing, awarding plaintiff $350 as compensation for a
vehicle he sold to defendant Fenix Towing LLC. Before us, he raises three
challenges to the court's final judgment. First, he maintains the court erred in
refusing to award him treble damages and attorney's fees under the New Jersey
Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -227. Second, he argues the
court mistakenly failed to impose personal liability upon the owner of Fenix
Towing, defendant Jonathan Reiban, solely for the CFA violations. Finally, he
contends the court improperly permitted defendants' counsel to conduct a more
fulsome cross-examination of plaintiff at the proof hearing in light of the
suppression of defendants' answer and the attendant limited scope of that
proceeding. After considering all of defendants' arguments against the record
and the applicable legal principles, we remand for further factual findings with
respect to plaintiff's CFA claim and Reiban's potential personal liability for any
damages related to that cause of action.
A-1358-24 2 We discern the following facts from the parties' pleadings and the
transcript of the proof hearing. Plaintiff, and three other individuals, filed a
multi-count class action complaint against Fenix and Reiban sounding in
common law fraud, unjust enrichment, and alleged violations of the CFA.
Defendants retained counsel and filed an answer, in which they denied all of
plaintiff's material allegations but admitted Reiban "controlled, directed[,] and
participated in the management and operation of [Fenix Towing]."
The court issued an order suppressing defendants' answer without
prejudice based on their failure to produce discovery and gave them forty-five
days to comply with those obligations and seek reinstatement of his answer.
After defendants failed to comply with the court's order, it suppressed
defendants' answer with prejudice. The matter then proceeded to a proof
hearing.
At that proceeding, plaintiff explained how he contacted defendant Fenix
Towing after seeing one of its flyers, which offered "to come and take [his] car
. . . because . . . [defendant] give[s] money for junk cars." Plaintiff testified
during his initial contact, the representative from Fenix Towing never mentioned
the offer was contingent on the car containing a catalytic converter. After
agreeing to have his car towed for $500, plaintiff stated a tow truck operator on
A-1358-24 3 behalf of defendant Fenix Towing arrived to collect his vehicle and loaded it
onto the tow truck. Plaintiff testified the operator, at that point, told him that
the car was missing its catalytic converter and that, contrary to their prior
agreement, he would only receive $150 instead of the agreed-upon $500.
Plaintiff stated he informed the operator to release his car but was informed it
would cost him $150 to lower the vehicle back in his driveway.
Plaintiff testified that at this point in the exchange, he identified the
catalytic converter himself and asked the tow truck operator to call his
supervisor. Plaintiff stated he knew the car had a catalytic converter because he
had owned the car for over three years, had the car recently examined by a
mechanic, and noted that you "can't drive a car without a catalytic converter."
Plaintiff stated the tow truck operator then called the owner of Fenix, who
plaintiff understood to be Reiban. Plaintiff testified when he spoke with Reiban,
Reiban stated because the car did not contain a catalytic converter Fenix would
pay plaintiff only $150. After the phone call, plaintiff agreed to take the $150
because it was a "lose-lose situation" for him.
The court first determined plaintiff was a "very credible person" who was
"very forthright when answering all of the questions." The Court accordingly
found the plaintiff "was [promised] $500 and he was only paid $150" and entered
A-1358-24 4 judgment in his favor for $350 "against . . . defendants." The court, however,
dismissed plaintiff's request to proceed as a class action because plaintiff never
requested class certification, and none of the other named plaintiffs appeared at
the proof hearing to testify. The court also dismissed plaintiff's CFA claim.1
The court found plaintiff's testimony insufficient to establish consumer
fraud, because he did not produce any written documentation from Fenix. It
further characterized plaintiff's testimony related to the CFA claim as
"potentially hearsay" to the extent it identified the "alleged tow truck operator
he spoke to on the phone." The court further explained there was "no testimony
regarding who [defendant] . . . Reiban[] is" and "no proof [defendant] Fenix
Towing was involved . . . ." The court accordingly issued a judgment for $350
against only Fenix Towing without awarding attorney's fees or trebling that
amount as permitted by N.J.S.A. 56:8-19.2
1 In support of the CFA claim, plaintiff's counsel also provided the court with a certification of services. 2 Plaintiff has not challenged the court's decision dismissing his class action claims, nor has the plaintiff contended the proofs supported a judgment based on his common law fraud cause of action. We accordingly consider any claimed error in the manner in which the court disposed of those matters waived. See Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2025) ("[A]n issue not briefed is deemed waived."). A-1358-24 5 We affirm the court's $350 award against Fenix Towing. After deeming
plaintiff credible, the court clearly credited his testimony that he received an
offer to sell his vehicle for $500 but was paid only $150 resulting in damages
based on plaintiff's unjust enrichment claim in the amount of $350. As the
court's factual findings are fully supported by "adequate, substantial and credible
evidence," they are binding on us. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. Of
Am., 65 N.J. 474, 484 (1974) (citing N.J. Turnpike Authority v. Sisselman, 106
N.J. Super. 358 (App. Div. 1969), certif. denied 54 N.J. 565 (1969)). Further,
we defer to the court's credibility-based factual findings because it was the court
who saw and heard the witnesses testify and it "has a better perspective than a
reviewing court in evaluating the veracity of witnesses." Seidman v. Clifton
Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting Cesare v. Cesare, 154 N.J.
394, 412 (1998)). Finally, we discern no legal error in the court's $350 award
to compensate plaintiff for Fenix's unjust enrichment. See EnviroFinance Grp.,
LLC v. Env't Barrier Co., LLC, 440 N.J. Super. 325, 350 (App. Div. 2015)
(quoting VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994)) (To
demonstrate unjust enrichment, "'a plaintiff must show both that defendant
received a benefit and that retention of that benefit without payment would be
A-1358-24 6 unjust' and that the plaintiff 'expected remuneration' and the failure to give
remuneration unjustly enriched the defendant.").
We reject, however, plaintiff's argument that the court improperly
expanded the scope of defendants' counsel's cross-examination as without
sufficient merit to warrant discussion in a written opinion. See R. 2:11-
3(e)(1)(E), adding only the following brief comments. First, plaintiff never
lodged any objection to the scope or manner of defendants' cross-examination
before the court, and we therefore consider the issue waived. See Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Second, we discern no error,
let alone plain error, in the court's decision to permit defendants' counsel to
briefly cross-examine plaintiff to explore not only the alleged damages but the
asserted bases of his CFA claim, for the reasons detailed at pp. 7-9, infra.
We next address plaintiff's challenge to the court's dismissal of his CFA
claim, noting the applicable standard of review that guides our analysis on that
issue. As the court's determination involved mixed questions of law and fact,
we apply a de novo review of the court's resolution of that issue. See Manalapan
Realty, L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995).
We also consider plaintiff's arguments in the context of his status as a non-
defaulting party. "It is axiomatic that where, following the entry of a default, a
A-1358-24 7 plaintiff seeks unliquidated damages, judgment should not ordinarily be entered
without a proof hearing . . . ." Chakravarti v. Pegasus Consulting Group, Inc.,
393 N.J. Super. 203, 210 (App. Div. 2007) (citations omitted). At such a
hearing, it is "strictly a discretionary matter for [the] court to determine and
delineate the extent of defendant's participation." Scott v. Scott, 190 N.J. Super.
189, 196 (Ch. Div. 1983).
The process for entry of default with respect to Special Civil Part cases is
detailed in Rule 6:6-3(c) and parallels Rule 4:43-2(b). The Rules grant a court
the discretion to require proof of the quantum of damages as well as entitlement
to relief, prior to entry of default judgment. EnviroFinance Grp., LLC, 440 N.J.
Super. at 350 (internal citations omitted); see also Kolczycki v. City of E.
Orange, 317 N.J. Super. 505, 514 (App. Div. 1999) ("[T]he trial court has the
discretionary power to require proof of liability."). However, "[w]here the trial
court, undertakes to exercise such discretion, the court should ordinarily apply
the prima facie standard to plaintiff's proofs, thus not weighing evidence or
finding facts but only determining bare sufficiency." Kolczycki, 317 N.J. Super.
at 514 (citing Heimbach v. Mueller, 229 N.J. Super. 17, 20-24 (App. Div.
1988)). "[P]rima facie [evidence is evidence] that, if unrebutted, would sustain
a judgment in the proponent's favor." Baures v. Lewis, 167 N.J. 91, 118 (2001).
A-1358-24 8 The court clearly has authority to refuse to enter judgment if the complaint
on its face fails to state a cause of action even if the defendant is in default. See
Prickett v. Allard, 126 N.J. Super. 438, 440 (App. Div. 1974) (citations omitted).
Further, a court may dispose of a case at a proof hearing if the evidence
presented is so "inherently incredible that the trial judge is justified in refusing
to believe it." Heimbach, 229 N.J. Super. at 24 n.3. With that said, as we noted
in Heimbach, it has been long settled in this state, that:
[a] defendant's default admit[s] every allegation of fact in the complaint which was susceptible of proof by legitimate evidence except:
(1) allegations which were made indefinite or erroneous by other allegations of the complaint,
(2) allegations which were contrary to facts of which the court would take judicial notice, or
(3) allegations which were contrary to uncontroverted material in the file of the case.
[Id. at 22-23. (citations omitted).]
We next address the elements of a prima facie CFA claim. "The CFA
provides a remedy for any consumer who has suffered an ascertainable loss of
moneys or property as a result of an unlawful commercial practice and allows
him or her to recover treble damages, costs, and attorney['s] fees." Heyert v.
Taddese, 431 N.J. Super. 388, 411 (App. Div. 2013) (citations omitted). The
A-1358-24 9 elements of a CFA claim are: (1) an unlawful practice, (2) an ascertainable loss,
and (3) a causal relationship between the unlawful conduct and the ascertainable
loss. Lee v. Carter-Reed Co., 203 N.J. 496, 521 (2010).
"An 'unlawful practice' contravening the CFA may arise from (1) an
affirmative act; (2) a knowing omission; or (3) a violation of an administrative
regulation." Dugan v. TGI Fridays, Inc., 231 N.J. 24, 51 (2017) (quoting
Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 245 (2005)). "The
language of the CFA specifically identifies a variety of affirmative acts,
including 'deception, fraud, false pretense, false promise, [and]
misrepresentation,' and it also identifies as actionable 'the knowing[ ]
concealment, suppression or omission of any material fact,' if intentional."
Allen v. V & A Bros., Inc., 208 N.J. 114, 131 (2011) (alterations in original)
(quoting N.J.S.A. 56:8-2).
"[W]hen the alleged consumer fraud consists of an omission, the plaintiff
must show that the defendant acted with knowledge, and intent is an essential
element of the fraud." Cox v. Sears Roebuck & Co., 138 N.J. 2, 17-18 (1994)
(citing Chattin v. Cape May Greene, Inc., 124 N.J. 520, 522 (1991)). However,
if "the alleged consumer-fraud violation consists of an affirmative act, intent is
A-1358-24 10 not an essential element and the plaintiff need not prove that the defendant
intended to commit an unlawful act." Ibid.
We initially note the following factual findings which do not appear
supported by the record. Specifically, the court found the absence of any
evidence connecting defendant Fenix to plaintiff's CFA claim, in part, because
plaintiff did not know "the name of the person . . . he spoke to on the phone"
during the exchange. The court's findings ignored, however, plaintiff's
testimony, which the court found credible, that he contacted Fenix based on the
flyer he received and a tow truck operator from Fenix came to tow his car. We
also observe plaintiff testified he spoke to the owner of Fenix, who he
understood to be Reiban, and no contrary proof was presented by way of cross-
examination by defendants. In addition, we note: 1) Reiban admitted in his
suppressed answer that he controlled, directed, and participated in Fenix's
operations, and 2) the court's findings are inconsistent with its determination
that Fenix is responsible for the $350 owed to plaintiff. Nor did the court
address each of the elements of the CFA claim and make necessary factual
findings and legal conclusions accordingly.
We are therefore convinced a remand is necessary for the court to make
necessary factual findings and legal conclusions with respect to plaintiff's CFA
A-1358-24 11 claim. Upon remand the matter shall be assigned to a different judge. The judge
here weighed the evidence and formed an opinion as to its adequacy. In fairness
to the judge and the parties, we believe it prudent in such a scenario to have the
matter heard by a different judge. See R.L. v. Voytac, 199 N.J. 285, 306 (2009)
("Because the trial court previously made credibility findings, we deem it
appropriate that the matter be assigned to a different trial court.").
On remand, the newly assigned judge shall convene a new proof hearing
within forty-five days and consider all proofs and testimony in light of the
standard described. Notice of the hearing must be served on the defendant s. If
the court concludes that the plaintiff has not made out a prima facie case as to
the CFA claim, then the court must specifically state why as to that claim,
considering the proofs offered and the elements of the cause of action, consistent
with Kolczycki, Heimbach, and Prickett.
Specifically, the judge should determine whether defendants' conduct
qualified as an unlawful practice resulting in an ascertainable loss, and address
the causal relationship between the unlawful conduct and the ascertainable loss.
Lee, 203 N.J. at 521. If the judge determines that plaintiff established a CFA
claim, the judge should award all relief permitted under the statute, including
trebling of any damages and reasonable attorney's fees.
A-1358-24 12 Finally, on remand the court should also decide whether Reiban should be
held personally responsible for any violation of the CFA. Nothing in our opinion
should be interpreted as a reflection of our views in the remanded proceeding.
Affirmed in part and remanded in part. We do not retain jurisdiction.
A-1358-24 13