                        NOT FOR PUBLICATION WITHOUT THE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-1539-16T2

DONNA MARIE GIAIME,

        Plaintiff-Respondent,

v.

DISCOUNT AUTO,

     Defendant-Appellant.
____________________________

              Argued April 16, 2018 – Decided June 5, 2018

              Before Judges Sabatino and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Hunterdon County, Docket No.
              L-0512-11.

              Kendall S.       Murphy    argued     the   cause    for
              appellant.

              D. Andrew Walheim argued the cause for
              respondent (Kent & McBride, PC, attorneys; D.
              Andrew Walheim, on the brief).

PER CURIAM

        Defendant Discount Auto appeals from an August 3, 2016 Law

Division order granting default judgment and counsel fees to

plaintiff Donna Marie Giaime; an October 31, 2016 order denying
its   motion     for    reconsideration;     and   a   March    10,    2015     order

suppressing its answer and affirmative defenses.1                We affirm.

                                      I.

      This case arises from the sale of a used 2002 Toyota Camry

Solara convertible ("Solara") from defendant automobile dealership

to plaintiff.      Defendant advertised the car on its website, which

indicated it provided a free CARFAX Vehicle History Report 2 for

all vehicles sold.         Defendant furnished plaintiff with a CARFAX

report that did not reveal any accidents or damage history for the

Solara.

      On   May    31,    2011,   plaintiff    purchased        the    Solara      from

defendant.     On her way home from the dealership, plaintiff noticed

the "the whole front end was wobbling and shaky."                She immediately

returned the vehicle to the dealership. Although initially denying



1
  Defendant did not provide the trial court's orders entering
default, and denying its motion to reinstate its answer and
affirmative defenses in its appendix, but did so following our
request at the conclusion of oral argument. In its merits brief,
however, defendant did not address the court's denial of its motion
to reinstate its pleading and, as such, this issue is deemed
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 (2018).

2
  CARFAX is an electronic database compiling vehicle history
information from "thousands of sources." A typical CARFAX report
may include, for example, odometer readings, number of owners, and
prior accidents or damages.

                                       2                                      A-1539-16T2
anything   was   wrong   with   the   car,   defendant's   representative

brought plaintiff to Team Toyota of Langhorne's ("Toyota") service

center to have the car "checked out."        Defendant's representative

advised Toyota's service person to do "what needs to be done to

fix the car."    Toyota's invoice listed defendant as the customer.

Defendant, however, refused to pay the invoice.

     Plaintiff paid Toyota's bill for $1,743.         Dissatisfied with

defendant's refusal to remit payment to Toyota, and suspicious of

the circumstances of the vehicle's front-end issues, plaintiff

purchased a report directly from CARFAX ("second CARFAX report").

The "Additional History" section of the second CARFAX report

indicated:    "Damage reported on 10/16/2009."      Included within the

"Detailed History" section, the entry dated October 16, 2009

stated:

             Parts requested for repair:
             Front bumper

             CARFAX recommends checking these         repairs
             during your pre-purchase inspection.

     In response to plaintiff's inquiry, CARFAX confirmed the

report provided by defendant "ha[d] been altered from the form in

which it was provided by CARFAX."            When plaintiff confronted

defendant with the second CARFAX report, defendant offered to pay




                                      3                           A-1539-16T2
half of Toyota's invoice, and advised her to file a lawsuit if

she was not satisfied with that offer.

      Plaintiff filed a complaint against defendant in August 2011,

alleging violations of the New Jersey Consumer Fraud Act, N.J.S.A.

56:8-1 to -210 ("CFA"), common law fraud, and unjust enrichment.

In November 2011, defendant filed an answer, neither admitting

nor   denying   plaintiff's   allegations,   and   asserting   seventeen

separate defenses.    Apparently, the court held several settlement

conferences in this matter, but ultimately entered default against

defendant for failure to attend one such conference.       Defendant's

motion to reinstate its answer and affirmative defenses was

unsuccessful.

      The court held a proof hearing in May 2016.        Plaintiff and

her expert in automobile sales and appraisals testified.        Several

documents, including both CARFAX reports, Toyota's invoice, and

the transcript of the deposition of a CARFAX representative, were

admitted into evidence.       Because defendant had defaulted, its

participation at the hearing was limited to cross-examination of

plaintiff's witnesses.    See Jugan v. Pollen, 253 N.J. Super. 123,

129-31 (App. Div. 1992).      Defense counsel appeared and exercised

that right.

      On July 20, 2016, the trial judge issued an opinion entering

default judgment against defendant, awarding plaintiff $8,606 in

                                   4                             A-1539-16T2
treble damages and $15,725 in counsel fees.              See N.J.S.A. 56:8-

19.   On August 3, 2016, the trial court entered a final judgment

memorializing    the   award   set   forth    in   its    written   opinion.

Defendant's subsequent motion for reconsideration was denied.

This appeal followed.

      On   appeal,     defendant     raises   three       claims    for   our

consideration:       (1) plaintiff did not incur an "ascertainable

loss" pursuant to the CFA; (2) plaintiff's counsel fees were

unreasonable and excessive in light of the court's award of

damages; and (3) its answer and affirmative defenses should not

have been suppressed.     We disagree.

                                     II.

                                     A.

      Initially, our review has been hampered, to a degree, by the

failure of defendant to provide a complete record on appeal.              Rule

2:5-4(a) states in relevant part:

           The record on appeal shall consist of all
           papers on file in the court or courts or
           agencies below, with all entries as to matters
           made on the records of such courts and
           agencies, the stenographic transcript or
           statement of the proceedings therein, and all
           papers filed with or entries made on the
           records of the appellate court . . . .




                                      5                               A-1539-16T2
See also R. 2:5-3(b) ("the transcript shall include the entire

proceedings"); R. 2:6-1(a) (the appendix must contain parts of the

record "essential to the proper consideration of the issues").

     Here, because defendant did not provide the transcript of the

trial court's oral statement of reasons referenced in its order

entering default, we cannot fully determine the viability of its

claims that the trial court erred in failing to recognize its

alleged meritorious defense.   Ordinarily, this serious deficiency

might prompt us simply to dismiss the appeal. Pressler & Verniero,

Current N.J. Court Rules, cmt. 2 on R. 2:5-3 (2018); see also

Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 54-55 (2004) (failing

to provide the complete transcript may result in dismissal of the

appeal); In re Zakhari, 330 N.J. Super. 493, 495 (App. Div. 2000);

R. 2:8-2 (providing that an appellate court may, at any time and

on its own motion, dismiss an appeal).      Alternatively, we may

affirm the order under appeal, Soc'y Hill Condo. Ass'n, Inc. v.

Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002)

("Without the necessary documents . . . we have no alternative but

to affirm.").

     However, while we may dismiss defendant's claim that the

court erred in suppressing its answer and defenses on these

procedural grounds, we are satisfied from our review of the trial

court's statement of reasons annexed to its March 10, 2015 order

                                 6                         A-1539-16T2
denying defendant's motion to reinstate its answer that defendant

"fail[ed]   to    identify       any   meritorious         defense    to   plaintiff's

complaint."      Further, we are confident the record provided to us

is sufficient to undertake meaningful review of defendant's two

remaining contentions.

                                            B.

     Following      the        entry   of       default,    a      plaintiff   seeking

unliquidated damages ordinarily is required to establish those

damages at a proof hearing.            R. 4:43-2(b); Chakravarti v. Pegasus

Consulting Grp., Inc., 393 N.J. Super. 203, 210 (App. Div. 2007).

As we have long recognized, after a default, a plaintiff is

entitled    to   "all     of    the    damages"     that     can    be   "prove[d]    by

competent, relevant evidence."                   Heimbach v. Mueller, 229 N.J.

Super. 17, 28 (App. Div. 1988).

     A judgment entered after a contested proof hearing is subject

to limited review.        See Seidman v. Clifton Sav. Bank, S.L.A., 205

N.J. 150, 169 (2011) (explaining that "[f]inal determinations made

by the trial court sitting in a non-jury case are subject to a

limited and well-established scope of review").                       The question on

appeal is whether there was substantial credible evidence to

support the damages and counsel fees set forth in the judgment.

Ibid.



                                            7                                  A-1539-16T2
     "The [CFA] provides a private cause of action to consumers

who are victimized by fraudulent practices in the marketplace."

Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 576 (2011).                 It

is intended to "be applied broadly in order to accomplish its

remedial purpose," Lemelledo v. Beneficial Management Corporation

of America, 150 N.J. 255, 264 (1997), and thus, is liberally

construed in favor of the consumer, Cox v. Sears Roebuck & Company,

138 N.J. 2, 15 (1994).

     Pursuant   to   the   CFA,   a   plaintiff    must   establish     three

elements: "(1) unlawful conduct by defendant; (2) an ascertainable

loss by plaintiff; and (3) a causal relationship between the

unlawful conduct and the ascertainable loss."          Bosland v. Warnock

Dodge, Inc., 197 N.J. 543, 557 (2009) (citation omitted).                     A

consumer who can prove these elements "is entitled to legal and/or

equitable relief, treble damages, and reasonable attorneys' fees."

Lee v. Carter-Reed Co., L.L.C., 203 N.J. 496, 521 (2010) (citing

N.J.S.A. 56:8-19).

     Particularly relevant here, "implicit in the concept of an

'ascertainable' loss is that it is quantifiable or measurable."

Thiedemann v. Mercedes-Benz U.S., LLC, 183 N.J. 234, 248 (2005);

see also Cox, 138 N.J. at 22-23.          To demonstrate an ascertainable

loss, plaintiff must provide the court with an "estimate of

damages, calculated within a reasonable degree of certainty." Cox,

                                      8                               A-1539-16T2
138 N.J. at 22.            Examples include an out-of-pocket loss, the

replacement cost of a defective product, or a demonstrable loss

in value.      See Lee, 203 N.J. at 522; Thiedemann, 183 N.J. at 248.

     It is unrefuted that defendant engaged in "unlawful conduct"

by altering the Carfax report it provided to plaintiff which

excluded damages sustained in October 2009 to the Solara's front

bumper.    Instead, defendant challenges the trial court's award of

damages,       claiming:      (1)   plaintiff    has   not   demonstrated      an

ascertainable loss pursuant to the CFA; and (2) some of the repairs

performed by Toyota were unnecessary to the front-end damage on

the Solara.       Defendant's claims are dispelled by the record.

     Initially, the trial judge determined, that by concealing

damage    to    the   Solara's      front-end,   defendant    engaged    in    an

unconscionable commercial practice entitling plaintiff to the

diminution in value of the car.          The judge reasonably reduced the

valuation of the Solara determined by plaintiff's expert from

forty percent to fifteen percent less than the purchase price,

i.e., $1,125.         Although the judge found the expert's precise

calculation was unsupported by empirical data or documentation,

he nevertheless, found "as a matter of common sense and logic,

that an older used vehicle with a previous accident/damage history

is worth less than a vehicle without such a history."              Because a

trier of fact "may accept or reject all or part of an expert's

                                         9                              A-1539-16T2
opinion,"     Model Jury Charge (Civil), 1.13, "Expert Testimony"

(citing State v. Spann, 236 N.J. Super. 13, 21 (App Div. 1989)),

we discern no error in the judge's determination of reduced value.

     Secondly, the trial court found plaintiff reasonably relied

on defendant's representation that it would pay for the repairs

made by Toyota, entitling her to damages in the full amount of the

invoice, i.e., $1,743.          The trial court concluded "plaintiff would

not have suffered the out-of-pocket expense for repairs . . . but

for [] defendant's fraudulent sale of the vehicle and, therefore

. . . plaintiff suffered an actual loss that is causally connected

to [] defendant's initial unlawful conduct."                       As the trial judge

aptly determined, "[D]efendant's promise to pay for the repairs

without     any     intention     of        doing    so   constitutes     a     separate

unconscionable business practice or fraudulent misrepresentation."

     Our review of the testimony and evidence submitted during the

proof     hearing     satisfies        us     that    plaintiff      demonstrated       an

"ascertainable       loss"   within         the     meaning   of   the   CFA.     In    so

deciding, we emphasize the paramount goal of making an injured

party whole disfavors a mechanical, rigid approach to damage

calculation.      See, e.g., N.J. Power & Light Co. v. Mabee, 41 N.J.

439, 441 (1964); 525 Main St. Corp. v. Eagle Roofing Co., Inc.,

34 N.J. 251, 255 (1961); Premier XXI Claims Mgmt. v. Rigstad, 381



                                             10                                  A-1539-16T2
N.J. Super. 281, 284-85 (App. Div. 2005); Hyland v. Borras, 316

N.J. Super. 22, 25 (App. Div. 1998).

                                C.

    We review a trial court's award of counsel fees for a clear

abuse of discretion and will disturb that determination "only on

the rarest of occasions[.]"    Litton Indus., Inc. v. IMO Indus.,

Inc., 200 N.J. 372, 386 (2009) (quoting Packard-Bamberger & Co.,

Inc. v. Collier, 167 N.J. 427, 444 (2001)); see also Rendine v.

Pantzer, 141 N.J. 292, 317 (1995).      A prevailing party may only

seek attorney's fees "if they are expressly provided for by

statute, court rule, or contract."     Id. at 385 (quoting Packard-

Bamberger, 167 N.J. at 440).

    Where, as here, a "plaintiff proves both an unlawful practice

under the [CFA] and an ascertainable loss[,]" an award of treble

damages and reasonable attorneys' fees is mandated pursuant to

N.J.S.A. 56:8-19.   Cox, 138 N.J. at 24.     Although the amount of

the counsel fees awarded exceeds plaintiff's damages, six-fold,

"there need not be proportionality between the damages recovered

and the attorney-fee award itself[,]"     Furst v. Einstein Moomjy,

Inc., 182 N.J. 1, 23 (2004) (citation omitted); see also Walker

v. Giuffre, 209 N.J. 124, 132 (2012).    As the Court recognized in

Furst:



                                11                          A-1539-16T2
            The Legislature undoubtedly was aware that in
            consumer fraud cases involving minor losses,
            attorneys' fees frequently would exceed the
            damages    suffered.       Nevertheless,    the
            Legislature intended plaintiffs to have access
            to the court system to pursue relatively small
            claims against deceptive retailers. In that
            respect, the provision for attorneys' fees is
            one   of   the   deterrent   aspects   of   the
            legislation,    and    therefore,    fraudulent
            retailers should beware.

            [Id. at 23.]

     We are also satisfied the fee award was reasonable in rate

and time expended.     See Monogram Credit Card Bank of Georgia v.

Tennesen, 390 N.J. Super. 123, 134 (App. Div. 2007) (citations

omitted).    The trial judge considered the detailed certification

of counsel, submitted on behalf of plaintiff in support of the fee

application.    Scrutinizing the factors set forth in RPC 1.5(a),

the court found the hourly rate is "reasonable and customary for

the type of legal services performed in the Hunterdon area."              RPC

1.5(a)(3); see also Litton Indus., 200 N.J. at 386 (the calculation

of attorneys' fees requires the trial court to determine the

"lodestar," i.e., the "number of hours reasonably expended by the

successful party's counsel in the litigation, multiplied by a

reasonable hourly rate.").

     The judge continued his analysis, determining "the amount of

time expended was reasonable and that plaintiff's counsel was

precluded   from   working   on   other   matters   during   the   time    he

                                   12                               A-1539-16T2
represented plaintiff."    RPC 1.5(a)(4) and (5).       Considering "the

issues in dispute and the results obtained" the judge determined

"the legal fees were reasonable."         RPC 1.5(a)(4).   Further, the

judge considered "the length of the professional relationship

between plaintiff's counsel and plaintiff and the fact the fees

charged were at a fixed rate."         RPC 1.5(a)(6) and (8).    Finally

the court "'considered the experience, reputation and ability' of

plaintiff's counsel."     (quoting RPC 1.5(a)(7)).

     Based   on   the   trial   court's    meticulous   review   of   the

certification of services, and the prevailing law, we detect no

"clear abuse of discretion" here that would compel us to set aside

the fee award.    Rendine, 141 N.J. at 317.

     Affirmed.




                                  13                             A-1539-16T2
