QUENTIN COOPER VS. ELIAS BALADI (L-10034-14, BERGEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-1507-16T2
QUENTIN COOPER,
Plaintiff-Respondent,
v.
ELIAS BALADI, individually
and t/a E&S Auto,
Defendant-Appellant.
_______________________________
Submitted May 1, 2018 – Decided August 7, 2018
Before Judges Sumners and Natali.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
10034-14.
Elias Baladi, appellant pro se.
The Wolf Law Firm, LLC, attorneys for
respondent (Matthew S. Oorbeek, on the brief).
PER CURIAM
This appeal comes to us following a bench trial and a post-
trial application before Judge James J. DeLuca that resulted in a
judgment in favor of plaintiff, arising from the purchase of a
used vehicle from defendant, for treble damages of $28,235.44,
plus attorney's fees and costs of $28,903.50, for violations of
the New Jersey Used Vehicle Lemon Law (Lemon Law), N.J.S.A. 56:8-
67 to -80, the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-
1 to -20, and the New Jersey Truth In Consumer Contract Warranty
and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18. Because we
conclude that the judge's rulings were supported by credible
evidence and a proper application of the law, we affirm
substantially for the reasons he stated in his oral opinion on
August 5, 2016, and his written decision dated November 2, 2016.
In his merits brief,1 defendant contends Judge DeLuca made
incorrect factual findings and misapplied the law. Specifically,
he argues that he did not violate the Lemon Law because plaintiff
failed to allow him to repair the vehicle. He further argues that
he did not violate the CFA because plaintiff, an "experienced
mechanic," waived his rights under the Lemon Law by negotiating
the vehicle's purchase price. We disagree.
It is long settled that we do "not disturb the factual
findings and legal conclusions of the trial judge unless we are
convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible
1
We note that defendant did not comply with Rule 2:6-2(a)(5) by
citing to the transcript in his statement of facts. However, we
are able to discern the substance of his contentions, which are
minimal.
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evidence as to offend the interests of justice." Seidman v.
Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (citation
omitted). Thus, our review "does not consist of weighing evidence
anew and making independent factual findings; rather, our function
is to determine whether there is adequate evidence to support the
judgment rendered at trial." Cannuscio v. Claridge Hotel & Casino,
319 N.J. Super. 342, 347 (App. Div. 1999) (citation omitted). We
owe particular deference to the judge's evaluation of witness
credibility, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and thus
review the judge's evidentiary rulings for abuse of discretion,
Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369,
374 (2010). However, we owe no deference to the judge's
"interpretation of the law and the legal consequences that flow
from established facts." Manalapan Realty, Ltd. P'ship v. Twp.
Comm., 140 N.J. 366, 378 (1995) (citations omitted). We review
such decisions de novo. 30 River Court E. Urban Renewal Co. v.
Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citation
omitted).
During the half-day trial, plaintiff, defendant, and the
operator of E&S Auto Sales Repairs, testified, revealing the
following. For $10,420, defendant sold plaintiff a six-year old
Lincoln MKZ with 84,100 miles and an expired manufacturer's
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warranty. In the retail order for the vehicle, defendant checked
the box titled "Vehicle Sold As Is," above the statement:
THIS VEHICLE IS SOLD "AS IS", AND THE SELLING
DEALER HEREBY EXPRESSLY DISCLAIMS ALL
WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. ANY LIABILITY IN THE SELLING DEALER
WITH RESPECT TO THE DEFECTS OR MALFUNCTIONS
OF THIS VEHICLE INCLUDING, WITHOUT LIMITATION
THOSE WHICH PERTAIN TO THE PERFORMANCE OR
SAFETY WHETHER BY WAY OF "STRICT LIABILITY"
BASED UPON THE SELLING DEALER'S NEGLIGENCE,
OR OTHERWISE, IS EXPRESSLY EXCLUDED, AND
PURCHASER HEREBY ASSUMES ANY SUCH RISKS.
Right below that box was another box, which defendant also checked,
titled "Waiver of Dealer Obligations" above a statement identical
to the "Vehicle Sold As Is" provision. Plaintiff, however, did
receive a warranty service contract covering the vehicle, which
entitled him to a maximum reimbursement of up to $2000 less a $100
deductible per authorized repair.
Three days after the purchase, plaintiff noticed a smell
coming from the vehicle, so he took the vehicle to defendant's
mechanic at DMS Auto Repairs as directed by defendant. Plaintiff
testified that the mechanic stated the car's power transfer unit
had "blown seals." Plaintiff declined the offer to leave the
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vehicle with the mechanic because there was a disagreement over
who would pay for the repairs.2
Twenty-nine days after the purchase, defendant received a
letter from plaintiff stating that the vehicle was deficient – a
material defect of the power train/transfer case – and referencing
the Lemon Law, demanded that defendant make repairs at no cost
other than the $50 deductible stated in the warranty service
contract, or alternatively, take the vehicle back and refund him
the purchase price minus sales tax, title and registration fees,
and a reasonable allowance for the vehicle's use. Plaintiff
further advised defendant that the vehicle was available to him
for whatever option defendant chose. Defendant testified that he
did not respond to the letter because under the warranty service
contract plaintiff was obligated to contact a third party to make
the repairs.
In his reserved oral decision, Judge DeLuca determined that
under N.J.S.A. 56:8-69,
it shall be an unlawful practice for a dealer
to sell a used motor vehicle [with 60,000
miles or more] to a consumer without giving
the consumer a written warranty which shall
have at least . . . [a minimum warranty of]
30 days or 1,000 miles, whichever comes first,
except that a consumer may waive the right to
2
In addition, plaintiff obtained a second opinion from a Ford
Lincoln Mercury dealership estimating repair costs of $2298.
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a warranty as provided for in N.J.S.A. 56:8-
73.
The judge further stated that under N.J.S.A. 56:8-73,
the waiver of a warranty shall be in writing
and separately stated in the agreement of
retail sale or in an attachment thereto, and
shall be separately signed by the consumer.
The waiver shall state that the dealer's
obligation to provide a warranty on used motor
vehicles, and shall indicate that the consumer
having negotiated the purchase price of the
used motor vehicle obtained a price
adjustment, and is electing to waive the
dealer's obligation to provide the warranty,
and is buying the vehicle as is.
The judge found that since defendant did not comply with
these requirements, he violated the Lemon Law. Hence, defendant
was obligated to provide plaintiff's vehicle with a limited
warranty under N.J.S.A. 56:8-69. The judge rejected defendant's
assertion that plaintiff's refusal of his mechanic's offer to
repair the vehicle satisfied the limited warranty requirements of
N.J.S.A. 56:8-69. The judge reasoned that since defendant refused
to comply with plaintiff's demand letter, defendant violated his
obligations under the statute. Consequently, the judge determined
plaintiff's compensatory damages were $9,378.48,3 which were
3
The vehicle purchase price of $10,420 minus $225 for sale tax,
$665 for registration fees, and $121.52 for a reasonable allowance
for the 217 miles that plaintiff drove the vehicle.
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trebled under the CFA to $28,135.44. He further added $100 for
statutory damages under the TCCWNA.
After defendant was found liable for damages under the Lemon
Law, CFA, and TCCWNA, plaintiff made an application for attorney's
fees and costs under the latter two statutes. After argument, the
judge rendered a written decision in which he declined plaintiff's
attorney's fees demand of $45,256, but allowed fees of $27,559,
plus costs of $1,344.50, for a total of $28,903.50. Final judgment
was entered in the total amount of $57,138.94.
After reviewing the record, we conclude there is no basis to
disturb Judge DeLuca's factual findings. Based on the facts as
he found them to be, his legal conclusions on the issues of
liability and damages are unassailable.4 We further conclude that
defendant's arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
4
We do not address the reasoning behind the fees award because,
despite defendant's Notice of Appeal stating that he is challenging
the final judgment, he fails to present any argument contesting
the award. See Pressler & Verniero, Current N.J. Court Rules,
cmt. 4 on R. 2:6-2 (2018); see also Sklodowsky v. Lushis, 417 N.J.
Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal
is deemed waived.").
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