                                NOT FOR PUBLICATION WITHOUT THE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-1820-16T1

CYNTHIA TOPOLESKI AND
EUGENE W. TOPOLESKI,

           Plaintiffs-Appellants,

v.

OLIGERT VESHI,

           Defendant-Respondent,

and

DEBORAH DAVIS,

     Defendant.
______________________________

                    Argued February 5, 2018 – Decided January 8, 2019

                    Before Judges Accurso and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. DC-000171-16.

                    Amit Deshmukh argued the cause for appellants (Desh
                    Law, LLC, attorneys; Amit Deshmukh, of counsel and
                    on the brief).
             Amy E. Lefkowitz argued the cause for respondent
             (Law Offices of Curt J. Geisler, LLC, attorneys; Amy
             E. Lefkowitz, of counsel and on the brief).

      The opinion of the court was delivered by

DeALMEIDA, J.A.D.

      Plaintiffs Cynthia Topoleski and Eugene W. Topoleski appeal the August

28, 2016 order of the Special Civil Part dismissing their complaint for damages

arising from their purchase of a used car, and the November 14, 2016 order

denying their motion for reconsideration. We reverse and remand for a new

hearing.

                                         I.

      The following facts are derived from the record. Defendant Oligert Veshi

listed a 2001 Volkswagen Jetta for sale on Craigslist, a classified advertisement

website. The car was fourteen years old with 103,000 miles on its odometer.

The advertisement stated that the vehicle "runs and drives without a problem"

with "engine and transmission 100%" and "[n]o [c]heck engine light." Veshi

offered to sell the car for $5000, or best offer.




                                                                         A-1820-16T1
                                         2
      In response to the advertisement, Eugene 1 contacted Veshi to express

interest in the car. On June 11, 2014, Eugene inspected the car and took it for a

test drive, during which it operated without incident. The check engine light

was not illuminated during the test drive, which, according to Eugene, was

limited to a single block because Veshi informed him that the car was

unregistered and was displaying license plates from another vehicle . The trial

court found that Eugene negotiated with Veshi, who agreed to sell the car to him

for $3200.

      Two days later, on June 13, 2014, Eugene purchased the car with money

from Cynthia, his mother.     Cynthia intended to have her daughter use the

vehicle. According to Eugene, he headed home with the vehicle, and after

driving for five minutes, the check engine light illuminated, as did several other

warning lights. In addition, the car began to malfunction, had little power, and

would not go above approximately thirty miles per hour.

      On June 17, 2014, four days after purchase, Cynthia arranged for an auto

mechanic to examine the car. The mechanic noted that the check engine light

was illuminated, as were several other warning lights, including the air bag,



1
  Because plaintiffs share a last name, we refer to them by their first names. No
disrespect is intended.
                                                                          A-1820-16T1
                                        3
"ABS," and "TRAC" lights. The mechanic also found that an air flow sensor

had been installed backwards. When the sensor was reinstalled, it became

apparent that it was the wrong size for the car. Finally, the mechanic determined

that the vehicle was missing light bulbs and a timing cover, and had connectors

that were unwired. He also made a notation about the camshaft circuit, although

the nature of his finding is unclear. No repairs were done to the vehicle at that

time. Plaintiffs were charged $96.30 for the inspection.

      Three months later, on September 11, 2014, a second mechanic evaluated

the car. At that point, the car had 104,488 miles on the odometer. He found

activated fault codes, and replaced several sensors and components, including

the camshaft sensor, crankshaft sensor, catalytic convertor, and flex pipe joint.

After performing his work, the second mechanic test drove the vehicle, during

which the car performed poorly. Plaintiffs were charged $1,813.26 for the

repairs.

      On or about December 29, 2015, plaintiffs filed a complaint in the Special

Civil Part against Veshi. Plaintiffs sought damages for breach of contract,

negligence, and unconscionable commercial practices under the New Jersey

Consumer Fraud Act, N.J.S.A. 56:8-1 to -210 (CFA or the Act). They allege

Veshi, in his advertisement and communications with Eugene, deliberately


                                                                         A-1820-16T1
                                       4
concealed material facts concerning the poor condition of the car, and that they

relied on Veshi's misrepresentations to their detriment.        Plaintiffs sought

$5,560.53 in actual damages, and costs of suit, with pre- and post-judgment

interest. In addition, on their CFA count, plaintiffs sought treble damages, as

well as attorney's fees. After service of the complaint, the clerk entered default

against Veshi.

      The trial court held a proof hearing on August 25, 2016, at which Veshi's

participation was limited to the opportunity to cross-examine plaintiffs'

witnesses. See Jugan v. Pollen, 253 N.J. Super. 123, 129-31 (App. Div. 1992).

Before the submission of proofs, Veshi, who appeared without counsel, testified

that he was not served with the complaint because plaintiffs sent it to an

incorrect address. Plaintiffs' counsel countered that after an initial attempt to

serve Veshi at an incorrect address, the complaint was sent to Veshi's correct

address. The court declined to consider vacating the default against Veshi in the

absence of a motion. Plaintiffs elected to proceed with the proof hearing.

      Both Cynthia and Eugene testified. Veshi declined to cross-examine the

Topoleskis. In addition, James R. Momana testified as an expert witness in the

repair and appraisal of Volkswagens. He testified that in March 2015, he

attached the car to a "reader," which reported that the components replaced in


                                                                          A-1820-16T1
                                        5
September 2014 continued to produce fault codes, despite their recent repair.

Although he cleared the fault codes while the engine was off, the codes

reappeared as soon as the car was restarted. The expert opined that the car had

serious deficiencies that were not corrected by the prior mechanic's

interventions. He further opined that the amount plaintiffs paid to repair the car

was reasonable. Veshi declined to cross-examine Momana.

      On August 26, 2016, the trial court issued a written opinion, in which it

concluded plaintiffs had not proven that Veshi misrepresented the condition of

the car in his advertisement or verbally to Eugene at the time of the sale. The

court found that when Eugene took the car for a test drive, it operated properly

and the check engine light was not illuminated. In addition, the court noted that

plaintiffs waited until September 2014, three months after the purchase, to have

the car serviced by a mechanic. The court held that

            Cars break. They break at the most inopportune times.
            Owners and operators of cars sometimes get stranded
            on our highways because they do not anticipate that the
            cars they drive will brea[k] down.

            Is it a coincidence? Was the 14[-]year[-]old car with
            103,000 miles ready to break? Did the defendant know
            this? Is it not equally likely that the defendant did not
            know?

            These are the questions that this Court is left with.
            They stem from the significant delay in acquiring the

                                                                          A-1820-16T1
                                        6
            initial diagnostic work done by Dave's Friendly
            Service[.] [Eugene's] testimony that the check engine
            light did not come on until after he test-drove the car
            and while he was driving home; and Mr. Momana's
            testimony that if a fault existed, if on[e] were to have
            used the reader to clear the codes, once the car started
            again, the fault would re-occur and the check engine
            light would come on.

            This Court cannot conclude that the plaintiff proved, by
            the simple preponderance of the evidence that the
            defendant misrepresented the condition of his car when
            he sold it to [Eugene.]

            [(footnote omitted).]

      The court also rejected plaintiffs' negligence and breach of contract

claims, concluding that

            [t]he sale of a used car is generally regarded as an "as-
            is" sale. The Court is unaware of any authority for the
            proposition that the seller of a used automobile has a
            duty to inspect his automobile before selling it and to
            warn a potential purchaser of the conditions of an
            automobile. Absent such a duty there is no negligence
            claim to consider.

            The plaintiffs' breach of contract claim obligates the
            plaintiffs to prove that they did not receive the
            consideration that they bargained for.

            They bought a 14[-]year[-]old car with 103,000 miles
            on it. [Eugene] negotiated the price from $5,000 to
            $3,200. He received what he bargained for. He did not
            bargain for a guaranty or a warranty. The plaintiffs did
            not prove breach of contract.


                                                                        A-1820-16T1
                                       7
      On September 16, 2016, plaintiffs moved for reconsideration of the trial

court's order. The motion was supported by certifications from Cynthia and

Eugene. For the first time, Cynthia certified that shortly after the purchase, she

contacted Veshi and demanded that he accept return of the vehicle and refund

her money. When he refused, she filed suit against Thomas Ruiz, who she

thought was the person who sold her the vehicle because he was listed as the

owner on the title given to Eugene at the time of the sale. According to Cynthia,

she obtained a default judgment against Ruiz, who, when contacted by Cynthia,

told her that in 2011 he donated the vehicle to "1-800-JUNK-CAR" because it

had been flooded during Hurricane Irene and was unusable. Ruiz stated that he

turned the title to the vehicle over to the junk yard to which the car was hauled.

      Realizing that Ruiz was not the person from whom she purchased the

vehicle, Cynthia filed a fraud report with the Lodi Police Department on January

8, 2015. She attached to her certification a police report in which a detective

detailed his investigation into the sale of the vehicle. In the report, the detective

stated the day after Cynthia filed her report, Ruiz filed a report of identity theft,

alleging that someone had represented himself as Ruiz when selling a vehicle to

plaintiffs in Lodi in 2014.       Through subpoenas, and other investigative

techniques, the detective determined that the telephone number listed in the


                                                                             A-1820-16T1
                                         8
advertisement for the car, and to which Eugene had sent text messages about the

vehicle, was assigned to Veshi. In addition, the detective determined that Veshi

was a tenant at the address in Lodi at which Eugene test drove and took delivery

of the vehicle.

      The detective reported that, at first, Veshi denied any knowledge of the

transaction, or the vehicle.     A few days later, Veshi appeared at police

headquarters and admitted to having sold the car to plaintiffs, represented

himself as Ruiz, and falsely signed the title as Ruiz. According to the report,

Veshi offered to return the purchase price of the vehicle to Cynthia, who agreed

that she would be satisfied with this result. Veshi, however, did not follow

through on his promise.

      In his certification in support of the motion for reconsideration, Eugene,

for the first time, certified that Veshi unilaterally reduced the purchase price

without negotiation. He submitted copies of text messages supporting this

assertion. In addition, he certified for the first time that Veshi instructed him to

give the money for the vehicle to a person he identified as his brother "A.J." at

a rehabilitation center in Saddle Brook where "A.J." worked as a valet. After he

turned the money over to "A.J.," Eugene picked up the vehicle at the Lodi

residence where he conducted the test drive.


                                                                            A-1820-16T1
                                         9
      In their supporting brief, plaintiffs argued, among other things, that the

trial court overlooked the covenant of good faith and fair dealing inherent in

every contract, failed to find an implied warranty of fitness in the sales

agreement, and mistakenly determined that the vehicle was sold "as is."

      The trial court denied plaintiffs' motion.       The court concluded that

plaintiffs' certifications contained information not provided at the trial, despi te

having been available to plaintiffs at that time. In addition, the court held that

plaintiffs identified no facts adduced at trial overlooked by the court, and cited

no precedent warranting reconsideration.

      This appeal followed.

                                        II.

      Following 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. 1998). 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


                                                                            A-1820-16T1
                                        10
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 evidence supporting the trial court's

findings of fact and conclusions of law. Ibid.

      "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). The Act "is aimed basically at unlawful

sales and advertising practices designed to induce consumers to purchase

merchandise or real estate." Daaleman v. Eilzabethtown Gas Co., 77 N.J. 267,

270 (1978). The statute is intended to "be applied broadly in order to accomplish

its remedial purpose." Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J.

255, 264 (1997). It is, therefore, liberally construed in favor of the consumer.

Cox v. Sears Roebuck & Co., 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) (citations omitted).

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




                                                                           A-1820-16T1
                                       11
relief, treble damages, and reasonable attorneys' fees." Lee v. Carter-Reed Co.,

LLC, 203 N.J. 496, 521 (2010) (citing N.J.S.A. 56:8-19).

      Among the proscriptions in the Act are the

            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 . . . .

            [N.J.S.A. 56:8-2.]

The Act applies to casual sellers of automobiles. Real v. Radir Wheels, Inc.,

198 N.J. 511 (2009).

      Having reviewed the transcript of the proof hearing, we are constrained to

conclude the trial court's findings of fact with respect to plaintiffs' CFA claim

are not supported by substantial evidence. The trial court found that Veshi's

advertisement stated that the vehicle "runs and drives without a problem," had

"[n]o [c]heck engine light" and its "engine and transmission" was "100%." In

addition, the court adopted Eugene's testimony that the check engine light

illuminated, along with a number of other warning lights, and the car began to

malfunction five minutes into his drive home from the sales transaction. Yet,



                                                                         A-1820-16T1
                                      12
the court concluded that plaintiffs had not established that Veshi's

representations in the advertisement were false or misleading.

      The court's conclusion was, in part, based on the fact that the check engine

light did not illuminate, and the car did not malfunction, during Eugene's short

test drive of the vehicle. Although the performance of the car on the test drive

is undisputed, it is also immaterial. It is the condition of the vehicle at the time

of sale, and not at the time of the test drive, that is at issue here. Regardless of

how the vehicle may have performed during Eugene's short drive prior to the

purchase, plaintiffs' reliance on Veshi's representations in the advertisement

took place at the time of the sale.

      In addition, attributing the car's performance on the ride home to plaintiffs'

bad luck, as opposed to Veshi's misrepresentations about its condition , ignores

other evidence in the record the court accepted as established. According to the

testimony adopted by the court, the car malfunctioned in multiple, significant

ways five minutes after the purchase.         The car's many deficiencies were

documented just four days after the sale, when a mechanic noted that the check

engine light was illuminated, along with several other warning lights, that a

component was installed backwards and was the wrong size, and that the car

was missing light bulbs and a timing cover.


                                                                            A-1820-16T1
                                        13
      While it may be true that one can expect a vehicle to experience a

mechanical issue with little or no warning, it strains credibility to conclude that

a vehicle with a "100%" "engine and transmission" and "no engine light" would,

five minutes after a sale, display an engine light and numerous other warning

lights, have little power, and be unable to exceed thirty miles per hour. It was

not, as the trial court concluded, equally likely as not that Veshi was unaware of

the grave condition of the vehicle when he made the relevant statements in the

advertisement. Veshi was limited in his ability to introduce evidence because

of a default and elected not to cross-examine the witnesses. As a result, there is

no evidence in the record with respect to Veshi's familiarity with the vehicle, or

the steps he took to verify the accuracy of the representations he made in the

advertisement. At the very least, it is impossible to conclude on this record that

Veshi undertook a good faith inspection of the vehicle prior to representing that

its engine was "100%" when a component part was the wrong size and installed

backwards.

      We understand the trial court's reluctance to consider the new evidence

submitted in support of plaintiffs' motion for reconsideration.        There are,

however, several factors that warranted granting the motion for reconsideration:

(1) the unusual procedural history of this matter, in which the proof hearing


                                                                           A-1820-16T1
                                       14
proceeded despite Veshi's challenge to the entry of default against him; (2)

counsel's focus on submitting evidence establishing damages rather than

liability during the proof hearing; and (3) the strong evidence challenging

Veshi's veracity submitted in support of plaintiffs' motion for reconsideration.

We, therefore, reverse the trial court's judgment dismissing plaintiffs' CFA

claims, and remand for a new hearing on those claims.

      We also reverse the trial court's judgment dismissing plaintiffs' breach of

contract claims. The trial court's legal analysis of these claims was based on its

conclusion that the vehicle was sold to plaintiffs "as is."           The court's

characterization of the contract is not supported by its findings of fact. It is

undisputed that Veshi made several representations about the condition and

operability of the vehicle. His representations negate a conclusion that the car

was sold "as is."

            Under New Jersey law, in order to state a claim for
            breach of express warranty, Plaintiffs must properly
            allege: (1) that Defendant made an affirmation, promise
            or description about the product; (2) that this
            affirmation, promise or description became part of the
            basis of the bargain for the product; and (3) that the
            product ultimately did not conform to the affirmation,
            promise or description.

            [In re Azek Bldg. Prods., Inc., 82 F. Supp. 3d 608, 614
            (D.N.J. 2015) (quoting Snyder v. Farnam Cos., Inc.,
            792 F. Supp. 2d 712, 721 (D.N.J. 2011)).]

                                                                          A-1820-16T1
                                       15
      The court found that Veshi represented the vehicle "runs and drives

without a problem," had a "100%" "engine and transmission" and no illuminated

warning lights. In addition, Cynthia and Eugene testified that they read those

representations and relied on them when deciding to purchase the vehicle. In

the absence of cross-examination by Veshi, this testimony was undisputed.

There is, therefore, a lack of substantial evidence supporting the trial court's

conclusion that Veshi's warranties were not incorporated in the contract of sale.

      Moreover, "every contract in New Jersey contains an implied covenant of

good faith and fair dealing." Kalogeras v. 239 Broad Ave., LLC, 202 N.J. 349,

366 (2010) (quoting Sons of Thunder v. Borden, Inc., 148 N.J. 396, 420 (1997)).

"That is, 'neither party shall do anything which will have the effect of destroying

or injuring the right of the other party to receive the fruits of the contract [.]'"

Kalogeras, 202 N.J. at 366 (quoting Palisades Props., Inc. v. Brunetti, 148 N.J.

396, 420 (1997)). The trial court did not address this covenant, the breach of

which is alleged in the complaint. The new hearing shall also address plaintiffs'

breach of contract claims.

      Plaintiffs' negligence claims were not addressed in detail by the trial court.

It appears that the court concluded that plaintiffs' allegations that Veshi breached

a duty to them were obviated by their breach of contract claims. We offer no

                                                                            A-1820-16T1
                                        16
opinion with respect to plaintiffs' negligence claims, which shall be addressed

by the trial court on remand. Finally, we note that should Veshi elect to move

to vacate the default entered against him, the trial court should entertain his

motion prior to holding the proof hearing.

      Reversed and remanded for proceedings consistent with this opinion.

Because the judge who heard this matter has already conscientiously engaged in

weighing the evidence and rendered an opinion on the credibility of the parties,

the hearing should take place before a different judge. See N.J. Div. of Youth

& Family Servs. v. A.W., 103 N.J. 591, 617 (1986).           We do not retain

jurisdiction.




                                                                        A-1820-16T1
                                      17
