NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5891-13T1
DIEUSEUL SYLINCE,
Plaintiff-Appellant,
v.
THRIFT AUTO SALES, INC. and TINO RODRIGUES,
Defendants-Respondents. ____________________________________
Submitted May 20, 2015 – Decided October 14, 2015
Before Judges Fuentes, Kennedy and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-2187-14.
Pinilis Halpern, LLP, attorneys for appellant (William J. Pinilis, on the brief).
Respondents have not filed a brief.
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Plaintiff Dieuseul Sylince filed a one count civil
complaint against defendants Thrift Auto Sales, Inc. and Tino
Rodrigues alleging violation of the Consumer Fraud Act (CFA),
N.J.S.A. 56:8-1 to -20. Plaintiff’s complaint sought treble
damages and counsel fees as provided by the CFA under N.J.S.A. 56:8-19. After a bench trial, the judge found in plaintiff's
favor and entered judgment against defendants in the amount of
$2,355.60. Despite these undisputed facts, the trial judge
denied plaintiff's counsel's motion to treble the damage award
and denied his application for counsel fees, finding the CFA did
not apply based on what the judge characterized as "an error" on
defendants' part.
We now reverse and remand for the trial court to enter
judgement against defendants trebling the award of monetary
damages which constituted an "ascertainable loss" under the CFA.
The court shall also award plaintiff’s counsel reasonable fees
in connection with his representation of plaintiff in this case,
including the time counsel spent in connection with this appeal
as provided by N.J.S.A. 56:8-19. The record shows plaintiff
proved: (1) he was the victim of defendants' unconscionable
commercial practices in the form of knowing misrepresentations
concerning the sale of an extended service contract; (2)
demonstrated an ascertainable loss; and (3) established a causal
relationship between the unlawful conduct and the ascertainable
loss. Under these circumstances, treble damages and counsel
fees under N.J.S.A. 56:8-19 are mandatory. D'Agostino v.
Maldonado, 216 N.J. 168, 185 (2013).
The following facts are undisputed. On January 11, 2014,
defendants sold plaintiff a 2006 Chrysler 300 for $8,500. In
2 A-5891-13T1 connection with the purchase of this car, defendants also sold
plaintiff a third-party extended service contract for an
additional $1000. Defendants represented to plaintiff that
under this extended service contract Chrysler would pay certain
repairs for a period of three months from the date of sale,
regardless of the number of miles driven during this three-month
period.1
Within the ninety-day extended service period plaintiff
experienced certain mechanical problems with the car and noticed
the "check engine" light had activated. Plaintiff immediately
brought the car to defendants' mechanic for an evaluation.
Defendants' mechanic told plaintiff they were unable to find
anything wrong with the car. Defendants reset the "check
engine" light to ensure this signal was no longer activated when
plaintiff took possession of the car.
Shortly thereafter, plaintiff's "check engine" light again
activated. This time, plaintiff brought the car to an
independent mechanic employed by Beyer Chrysler Jeep Dodge, a
local Chrysler dealership. The mechanic at Beyer Chrysler
1 The "Car's Protection Plus" extended service contract defendants purportedly sold to plaintiff for $1000 was intended to cover repairs to the "engine/fuel system, automatic transmission/transfer case, manual transmission/transfer case, suspension, seals, gaskets, & fluids, steering components, brake components, air conditioning and Freon, engine cooling system, electrical components, labor, (at a rate of $60 per hour), rental benefits, and 24-hour roadside service."
3 A-5891-13T1 informed plaintiff that the car's intake manifold needed repair
at an estimated cost in excess of $2000. Beyer Chrysler
repaired the car, ultimately charging plaintiff $2,289.60.
Plaintiff proved, and the trial judge found as a matter of fact,
that defendants did not transmit plaintiff's $1000 to the
company that offered the extended service contract. In fact,
defendant Tino Rodrigues admitted at trial he did not attempt to
purchase the extended service contract on plaintiff's behalf
until after Beyer Chrysler had already completed the repairs on
plaintiff's car. As a result, plaintiff ended up having to pay
Beyer Chrysler the $2,289.60 charge for repairing the car.
The record shows that before filing this suit, plaintiff
requested defendants to pay for the cost of the repairs.
Defendants refused. Furthermore, although defendants charged
plaintiff $1000, the actual premium for this extended service
was $250. Despite these uncontested facts, the trial judge
concluded defendants' conduct had not violated the CFA. The
judge gave the following explanation in support of this
conclusion.
But I don't find that there's sufficient evidence for the Court to conclude that somehow this was intentional action by Thrift Auto Sales from its inception. And I understand the Consumer Fraud Act does not require intentional conduct. I'm just responding to what I perceive counsel's arguments to be.
4 A-5891-13T1 I don't think there's sufficient evidence that the Court can draw an inference that at the time of the purchase of the car it was the intent of Thrift Auto Sales not to send in the service contract.
If that were their intent and they made representations to the plaintiff that he would be covered and he paid for a service contract and all along the defendant had no intent of actually sending it in, which would cause their account to be debited $249, that would certainly be a violation of the Consumer Fraud Act.
But I think the facts here are a little bit different. I don't think I can draw an inference that that was the conduct of the defendant here. Certainly they didn't send the contract in to be activated for whatever reason. And as I said it's unclear to the Court what that reason was, whether they just failed to do it.
But I do note that the plaintiff testified, Mr. Sylince, that he had a conversation with the representative of Thrift Auto Sales and during that conversation he said the representative told Mr. Sylince that somebody screwed up, or words to that effect.
And from that I can draw the inference that someone at Thrift Auto Sales failed to fax the contract. It seems to me you're at a routine function of Thrift Auto Sales, but for whatever reason they didn't do it in this case. And the warranty wasn't covered.
And Mr. Sylince should certainly be compensated for the amount that he expended, $2,289.60. And I will find in his favor in that amount.
But the issue as addressed by counsel is whether the facts in this case warrant a
5 A-5891-13T1 violation of the Consumer Fraud Act. And I don't find that they do in this case.
We review the trial court's legal conclusion de novo.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5891-13T1
DIEUSEUL SYLINCE,
Plaintiff-Appellant,
v.
THRIFT AUTO SALES, INC. and TINO RODRIGUES,
Defendants-Respondents. ____________________________________
Submitted May 20, 2015 – Decided October 14, 2015
Before Judges Fuentes, Kennedy and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-2187-14.
Pinilis Halpern, LLP, attorneys for appellant (William J. Pinilis, on the brief).
Respondents have not filed a brief.
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Plaintiff Dieuseul Sylince filed a one count civil
complaint against defendants Thrift Auto Sales, Inc. and Tino
Rodrigues alleging violation of the Consumer Fraud Act (CFA),
N.J.S.A. 56:8-1 to -20. Plaintiff’s complaint sought treble
damages and counsel fees as provided by the CFA under N.J.S.A. 56:8-19. After a bench trial, the judge found in plaintiff's
favor and entered judgment against defendants in the amount of
$2,355.60. Despite these undisputed facts, the trial judge
denied plaintiff's counsel's motion to treble the damage award
and denied his application for counsel fees, finding the CFA did
not apply based on what the judge characterized as "an error" on
defendants' part.
We now reverse and remand for the trial court to enter
judgement against defendants trebling the award of monetary
damages which constituted an "ascertainable loss" under the CFA.
The court shall also award plaintiff’s counsel reasonable fees
in connection with his representation of plaintiff in this case,
including the time counsel spent in connection with this appeal
as provided by N.J.S.A. 56:8-19. The record shows plaintiff
proved: (1) he was the victim of defendants' unconscionable
commercial practices in the form of knowing misrepresentations
concerning the sale of an extended service contract; (2)
demonstrated an ascertainable loss; and (3) established a causal
relationship between the unlawful conduct and the ascertainable
loss. Under these circumstances, treble damages and counsel
fees under N.J.S.A. 56:8-19 are mandatory. D'Agostino v.
Maldonado, 216 N.J. 168, 185 (2013).
The following facts are undisputed. On January 11, 2014,
defendants sold plaintiff a 2006 Chrysler 300 for $8,500. In
2 A-5891-13T1 connection with the purchase of this car, defendants also sold
plaintiff a third-party extended service contract for an
additional $1000. Defendants represented to plaintiff that
under this extended service contract Chrysler would pay certain
repairs for a period of three months from the date of sale,
regardless of the number of miles driven during this three-month
period.1
Within the ninety-day extended service period plaintiff
experienced certain mechanical problems with the car and noticed
the "check engine" light had activated. Plaintiff immediately
brought the car to defendants' mechanic for an evaluation.
Defendants' mechanic told plaintiff they were unable to find
anything wrong with the car. Defendants reset the "check
engine" light to ensure this signal was no longer activated when
plaintiff took possession of the car.
Shortly thereafter, plaintiff's "check engine" light again
activated. This time, plaintiff brought the car to an
independent mechanic employed by Beyer Chrysler Jeep Dodge, a
local Chrysler dealership. The mechanic at Beyer Chrysler
1 The "Car's Protection Plus" extended service contract defendants purportedly sold to plaintiff for $1000 was intended to cover repairs to the "engine/fuel system, automatic transmission/transfer case, manual transmission/transfer case, suspension, seals, gaskets, & fluids, steering components, brake components, air conditioning and Freon, engine cooling system, electrical components, labor, (at a rate of $60 per hour), rental benefits, and 24-hour roadside service."
3 A-5891-13T1 informed plaintiff that the car's intake manifold needed repair
at an estimated cost in excess of $2000. Beyer Chrysler
repaired the car, ultimately charging plaintiff $2,289.60.
Plaintiff proved, and the trial judge found as a matter of fact,
that defendants did not transmit plaintiff's $1000 to the
company that offered the extended service contract. In fact,
defendant Tino Rodrigues admitted at trial he did not attempt to
purchase the extended service contract on plaintiff's behalf
until after Beyer Chrysler had already completed the repairs on
plaintiff's car. As a result, plaintiff ended up having to pay
Beyer Chrysler the $2,289.60 charge for repairing the car.
The record shows that before filing this suit, plaintiff
requested defendants to pay for the cost of the repairs.
Defendants refused. Furthermore, although defendants charged
plaintiff $1000, the actual premium for this extended service
was $250. Despite these uncontested facts, the trial judge
concluded defendants' conduct had not violated the CFA. The
judge gave the following explanation in support of this
conclusion.
But I don't find that there's sufficient evidence for the Court to conclude that somehow this was intentional action by Thrift Auto Sales from its inception. And I understand the Consumer Fraud Act does not require intentional conduct. I'm just responding to what I perceive counsel's arguments to be.
4 A-5891-13T1 I don't think there's sufficient evidence that the Court can draw an inference that at the time of the purchase of the car it was the intent of Thrift Auto Sales not to send in the service contract.
If that were their intent and they made representations to the plaintiff that he would be covered and he paid for a service contract and all along the defendant had no intent of actually sending it in, which would cause their account to be debited $249, that would certainly be a violation of the Consumer Fraud Act.
But I think the facts here are a little bit different. I don't think I can draw an inference that that was the conduct of the defendant here. Certainly they didn't send the contract in to be activated for whatever reason. And as I said it's unclear to the Court what that reason was, whether they just failed to do it.
But I do note that the plaintiff testified, Mr. Sylince, that he had a conversation with the representative of Thrift Auto Sales and during that conversation he said the representative told Mr. Sylince that somebody screwed up, or words to that effect.
And from that I can draw the inference that someone at Thrift Auto Sales failed to fax the contract. It seems to me you're at a routine function of Thrift Auto Sales, but for whatever reason they didn't do it in this case. And the warranty wasn't covered.
And Mr. Sylince should certainly be compensated for the amount that he expended, $2,289.60. And I will find in his favor in that amount.
But the issue as addressed by counsel is whether the facts in this case warrant a
5 A-5891-13T1 violation of the Consumer Fraud Act. And I don't find that they do in this case.
We review the trial court's legal conclusion de novo.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995) ("A trial court's interpretation of the law and the
legal consequences that flow from established facts are not
entitled to any special deference.") Our Supreme Court has
recently reaffirmed how a court should construe the CFA.
We construe the CFA in light of its objective to greatly expand protections for New Jersey consumers. As this Court has noted, the CFA's original purpose was to combat sharp practices and dealings that victimized consumers by luring them into purchases through fraudulent or deceptive means.
In a 1971 amendment to the CFA, the Legislature supplemented the statute's original remedies available to the Attorney General with a private cause of action. The CFA's private cause of action is an efficient mechanism to: (1) compensate the victim for his or her actual loss; (2) punish the wrongdoer through the award of treble damages; and (3) attract competent counsel to counteract the community scourge of fraud by providing an incentive for an attorney to take a case involving a minor loss to the individual.
[D'Agostino, supra, 216 N.J. 183-184 (quotations and citations omitted)].
To prevail in a cause of action asserting a violation of
the CFA a plaintiff must prove: "'1) unlawful conduct by
defendant; 2) an ascertainable loss by plaintiff; and 3) a
6 A-5891-13T1 causal relationship between the unlawful conduct and the
ascertainable loss.'" Id. at 184 (quoting Bosland v. Warnock
Dodge, Inc., 197 N.J. 543, 557 (2009)). The CFA defines the
term "unlawful practice or conduct" as:
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice; provided, however, that nothing herein contained shall apply to the owner or publisher of newspapers, magazines, publications or printed matter wherein such advertisement appears, or to the owner or operator of a radio or television station which disseminates such advertisement when the owner, publisher, or operator has no knowledge of the intent, design or purpose of the advertiser.
[N.J.S.A. 56:8-2 (Emphasis added)].
Here, it is undisputed that at the time plaintiff first
brought his car in for repairs, defendants misrepresented and
knowingly concealed from plaintiff that they had not purchased
the third-party extended service contract. It is equally clear
defendants misrepresented and concealed the condition of
plaintiff's car when they returned the vehicle to plaintiff.
Specifically, defendants (1) failed to perform the necessary
7 A-5891-13T1 repairs; (2) deactivated the "check engine" warning light; and
(3) failed to disclose to plaintiff that he did not have the
extended service protection he had paid $1000 to acquire. These
material knowing misrepresentations and omissions constitute the
type of unconscionable commercial practices the CFA was intended
to deter by awarding the victims of such practices treble
damages.
The record shows plaintiff established the
unconscionability of defendants' conduct, demonstrated an
ascertainable loss in the form of $2,289.60 in repair costs and
$750 in excess premium, and proved a causal relationship between
defendants' conduct and that ascertainable loss. Under these
circumstances, plaintiff is entitled to treble damages and an
award of counsel fees under N.J.S.A. 56:8-19 as a matter of law.
The trial court has no discretion to deny this relief because
the CFA makes both of these things mandatory. D'Agostino,
supra, 216 N.J. at 185.
We thus reverse the trial court's ruling denying the
applicability of the CFA, and remand for the trial court to
amend the judgment entered against defendants by trebling the
ascertainable loss sustained by plaintiff and awarding plaintiff
"reasonable attorneys' fees, filing fees and reasonable costs of
suit." N.J.S.A. 56:8-19. The court must determine the award of
counsel fees by applying the methodology established by our
8 A-5891-13T1 Supreme Court in Rendine v. Pantzer, 141 N.J. 292, 337 (1995),
as reaffirmed in Walker v. Giuffre, 209 N.J. 124, 131-132
(2012).
Reversed and remanded. We do not retain jurisdiction.
9 A-5891-13T1