                  NOT FOR PUBLICATION WITHOUT THE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



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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.




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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




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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.




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