Cross v. Giuffre
| Citation | 415 N.J.Super. 597,2 A.3d 1165 |
| Parties | May L. WALKER, on behalf of herself and all others similarly situated, Plaintiff-Respondent/Cross-Appellant, v. Carmelo GIUFFRE, individually, Carmelo Giuffre, d/b/a Bay Ridge Automotive Management Corp., Route 22 Auto Sales, Inc., Route 22 Automobiles, Inc., Hudson Auto Sales, Inc., Freehold Auto Sales, Inc., Freehold Automotive Limited, Inc., and Freehold Jeep/Eagle, Inc., Defendants, and Route 22 Nissan, Inc., Defendant-Appellant/Cross-Respondent. |
| Decision Date | 31 August 2010 |
| Court | New Jersey Superior Court |
415 N.J.Super. 597
2 A.3d 1165
May L. WALKER, on behalf of herself and all others similarly situated, Plaintiff-Respondent/Cross-Appellant,
v.
Carmelo GIUFFRE, individually, Carmelo Giuffre, d/b/a Bay Ridge Automotive Management Corp., Route 22 Auto Sales, Inc., Route 22 Automobiles, Inc., Hudson Auto Sales, Inc., Freehold Auto Sales, Inc., Freehold Automotive Limited, Inc., and Freehold Jeep/Eagle, Inc., Defendants,
and
Route 22 Nissan, Inc., Defendant-Appellant/Cross-Respondent.
Superior Court of New Jersey,Appellate Division.
Argued April 20, 2010.
Decided Aug. 31, 2010.
COPYRIGHT MATERIAL OMITTED.
Salvatore A. Giampiccolo argued the cause for appellant/cross-respondent (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Giampiccolo and Lisbeth W. Cload, Ridgewood, of counsel and on the briefs).
Steven A. Skalet (Mehri & Skalet), Washington, DC, of the District of Columbia bar, admitted pro hac vice, argued the cause for respondent/cross-appellant (Galex Wolf, attorneys; Andrew R. Wolf, of counsel; Mr. Wolf and Henry P. Wolfe, North Brunswick, on the briefs).
Before Judges SKILLMAN, FUENTES and GILROY.
The opinion of the court was delivered by
FUENTES, J.A.D.
In December 2001, plaintiff Mary L. Walker purchased a new 2002 Nissan from defendant Route 22 Nissan, Inc. 1 She filed a class action suit against defendant and other car dealerships claiming that they had committed regulatory violations contrary to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and the
Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18.
At the time plaintiff filed this suit, defendant was also named in a similar class action suit filed in Bergen County. Although plaintiff was included within that class, she decided to opt out of it and to proceed individually against defendant. Thus, although the trial court initially certified this class, it later decertified it after the Bergen County matter settled.
Ultimately, the court granted plaintiff's motion for summary judgment in the action before us, finding that defendant had violated the CFA and the TCCWNA; the court awarded plaintiff $654.50 in damages, $99,252.50 in attorney's fees, and $5431.14 in costs.
Defendant now appeals challenging the trial court's ruling in all respects. Plaintiff cross-appeals from the court's decision to decertify the class. We affirm the trial court's ruling as to liability and its decision to decertify the class. We reverse and
vacate the award of counsel fees, however, and remand for the court to reconsider the amount of counsel fees plaintiff is entitled to under prevailing legal standards.
The following facts will inform our discussion of the legal issues raised by the parties.
Plaintiff purchased a 2002 Nissan from defendant in December 2001. The sales contract contained the following language in size eight font: “YOU HAVE THE RIGHT TO A WRITTEN ITEMIZED PRICE FOR EACH SPECIFIC DOCUMENTARY AND PRE-DELIVERY SERVICE WHICH IS TO BE PERFORMED.” The size of the font violated the provisions of N.J.A.C. 13:45A-26B.2(a)2, which requires statements concerning pre-delivery services to be written in size ten font on the sales contract.
The sales contract included an itemized charge of $199.00 for a “documentary fee”; this figure was further subdivided to reflect charges for messenger, clerical, and computer fees. Additionally, the contract included a $140.00 charge for motor vehicle registration and the transfer of license plates (the registration fee). Plaintiff also signed a power of attorney appointing defendant as her attorney-in-fact for transferring title and registration.
Because she was financing part of the purchase price, plaintiff signed a separate retail installment contract that identified certain charges as “amounts paid to others on your behalf.” Written in smaller type, the contract read: “To the extent permitted by applicable law, [we] may retain a portion of these amounts.” The $140.00 registration fee was included within that category of charges. Defendant conceded before the trial court that the amount charged by the New Jersey Motor Vehicle Commission for transferring the license plates and registration was only $88.50, leaving a surplus of $51.50.
On April 25, 2003, plaintiff filed this class action suit against defendant, also naming six other car dealerships under common ownership with defendant, the individual who owned the dealerships, and a New York corporation, alleging that the registration fee violated the CFA and the TCCWNA.
After joinder of issue and preliminary motion practice, plaintiff moved for class certification. While this motion was pending, a Bergen County class action suit alleging similar deceptive practices was in settlement negotiations. That case, Cerbo v. Ford of Englewood, Inc., No. BER-L-2871-03, 2006 WL 177586 (Law Div. Jan. 25, 2006), identified defendant as a responsible party. The Cerbo case, however, named approximately 550 defendants, consisting of virtually all of the automotive dealers in New Jersey, and the class encompassed more than two million purchasers. Although plaintiff had opted out of this class, the judge presiding over the Cerbo case permitted defendant to participate in settlement discussions that took place in May 2005.
On June 24, 2005, the court in the matter before us preliminarily approved the class, but clarified that class certification would only take effect in the event that the Cerbo case did not settle. If Cerbo settled, as was expected, plaintiff's class would not be certified. On July 1, 2005, the court granted plaintiff's application for class certification, limited to only Route 22 Nissan, Inc. On January 25, 2006, the Bergen County court approved the Cerbo settlement. On May 15, 2006, the trial court granted defendant's motion to decertify this class.
Plaintiff's counsel was awarded $119,862.00 in fees as part of the Cerbo
settlement. The record is not clear, however, whether this payment was for work performed in the Cerbo case or to settle a dispute between the Cerbo attorneys. On August 3, 2006, plaintiff moved for partial summary judgment predicated on defendant's violation of the CFA and the TCCWNA. Defendant cross-moved for summary judgment, arguing that plaintiff's claims were preempted by the Federal Truth in Lending Act, 15 U.S.C.A. §§ 1601-1667f (TILA).
The court granted plaintiff's motion for partial summary judgment, finding that defendant had violated the CFA by overcharging plaintiff for the registration fee. The court found that plaintiff suffered an ascertainable loss of $51.50, then trebled that amount pursuant to N.J.S.A. 56:8-19. The court did not find, however, an ascertainable loss based on the violation of N.J.A.C. 13:45A-26B.2(a)2 for the font size used in the sales contract. Consequently, the trial court denied plaintiff any relief on that basis. As to liability under the TCCWNA, the court imposed a $500 civil penalty. Finally, the court denied defendant's cross-motion for summary judgment, holding that plaintiff's claims were not precluded by the TILA.
Plaintiff's counsel then submitted a certification in support of his motion for attorney's fees. In response, defendant argued that the counsel fee award in the Cerbo case covered the same work,
rendering this application moot, or alternatively, substantially duplicative. In order to assess the merits of defendant's claims, the court directed plaintiff's counsel to submit the Cerbo fee agreements (the agreements) for in camera inspection.
As a threshold issue, overruling plaintiff's counsel's objections, the court determined that the agreements were discoverable. In response, plaintiff's counsel and their co-counsel in Cerbo filed motions to quash defendant's subpoenas seeking copies of the agreements. After considering oral argument, the court ordered that unless plaintiff's counsel credited defendant with the amount of fees paid to them in Cerbo, defendant would be permitted limited discovery of redacted versions of the agreements. Plaintiff's counsel opted to credit defendant with the amount they had received in the Cerbo case.
Notwithstanding this limited relief, defendant continued to request discovery of the agreements. The court held, however, that in light of the credit awarded, the agreements were no longer relevant. Nevertheless, the court permitted limited deposition testimony of plaintiff's counsel regarding the breakdown of time spent preparing various aspects of the case. The court thus allowed limited discovery concerning the amount of hours plaintiff's counsel spent addressing the case's merits, class certification, and standing issues. Plaintiff's counsel rejected this approach, claiming that they were unable to segregate their billing records into those categories.
The court issued a comprehensive written opinion in which it explained the basis for finding defendant liable under both the CFA and the TCCWNA. As to...
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