SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3242- 22 BRITTANY McHUGH and CINDY OZIEGBE, Plaintiffs-Appellants,

v. CARLOS ORTIZ and ORTIZ TRANSMISSIONS, LLC, Defendants-Respondents.

___________________________

Submitted April 23, 2024

– Decided May 16, 2024 Before Judges Sumners and Torregrossa-O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. DC

- 000129

- 20. Brittany McHugh and Cindy Oziegbe, appellants pro se. Respondents have not filed a brief.
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3242

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Plaintiffs, Brittany McHugh and Cindy Oziegbe, app eal the Special Civil Part judge's May 9, 2023 order denying their claims against defendants, Ortiz Transmissions, LLC, and its owner Carlos Ortiz, for relief under the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20 and fo r additional damages. Because the judge failed to make adequate findings of fact and conclusions of law supporting denial of the CFA claims or the dete rmination of damages, we reverse and remand for further proceedings in accor dance with this opinion.
I.
A. We draw the relevant facts and procedural history from our prior decision remanding this matter, McHugh & Oziegbe v. Ortiz, N o. A- 2788 -20 (App. Div. June 1, 2022), and the record. In July 2019, plain tiffs delivered their car for repairs to defendants, providing a downpayment to O rtiz. Months passed and defendants did not repair or return plaintiffs' car , despite repeated requests and inquiries. On December 30, plaintiffs filed their first self-represented complaint against Ortiz seeking the car's return and monetary damages; Ortiz failed to

answer. On June 1, 2020, the judge granted plaintiffs' "ord er to show cause seeking temporary injunctive relief against defendant" for return of the car. McHugh &3 A- 3242

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Oziegbe, slip op. at 2. Plaintiffs recovered the c ar only to find it damaged and inoperable. Plaintiffs next filed a motion "to 're open' [the] case and amend the complaint . . . . to add defendant's limited liabil ity company, Ortiz Transmission, LLC, as a defendant and to seek monetary damages fo r breach of contract and violations of the Consumer Fraud Act, N.J.S.A. 56:8 -1 to -20." Id. at 2-3. Defendants failed to respond. Id. at 3. Despite the lack of opposition, the judge nonetheless denied plaintiffs' motion and opined th at "[p]laintiff[s] [have] not provided any authority to the [c]ourt to support [t heir] motion." Ibid. (all but first alteration in original). Plaintiffs successfully appealed that decision and, on June 1, 2022, we reversed and remanded "with the direction that the trial court consider plaintiffs' contentions anew, and make detailed findings of fac t and conclusions of law on all the issues raised." Id. at 4. We concluded th e judge's decision was unclear as to whether the case concluded with the June 1, 2 020 order or the judge "merely granted temporary injunctive relief . . . . " Id. at 2. Finding "the judge did not make any findings of fact concerning plaint iffs' contentions, state what specific arguments she considered, or explain her c onclusions of law in connection with her terse ruling," we held that "th e resolution of this matter4 A- 3242

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'required a careful analysis and the requisite find ings to insure a just result.'" Id

. at 3-4 (quoting Bailey v. Bd. of Rev., 339 N.J. Sup er. 29, 33 (App. Div. 2001)).
B. On remand, on July 15, 2022, the judge granted plai ntiffs' motion to amend the complaint adding defendant Ortiz Transmis sions, LLC, as well as claims for a breach of contract and violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to - 20. The judge identified the amended complaint attached to plaintiffs' motion, which plaintiffs fi led along with a certification in support of default judgment after the complaint onc e again went unanswered. Plaintiffs' amended complaint alleged thirty paragr aphs of facts, spanning from the parties' first repair agreement through pl aintiffs' retrieval of the inoperable car from defendants in further disrepair . The first count alleged breach of contract, claiming damages "including but not limited to costs to clean and repair the car, parking fees incurred . . . and the value of the time that [p]laintiffs were without the car." Count two expr essly claimed "an unconscionable business practice under the [CFA]" s eeking "triple damages, costs of suit, attorneys' fees . . . and any other relief the court deems equitable and just." Count three alleged specific violation of "the [CFA] Auto Repair Deceptive Practices Regulations," specifically citi ng N.J.A.C. 13:45A-26C.2.5 A- 3242

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The complaint itemized prohibited conduct under the CFA and enumerated facts claiming that defendants engaged in such behavior. Plaintiffs submitted supporting documentation including what appear to b e receipts, estimates, and handwritten calculations of repair costs from a dif ferent repair shop. Apparently considering the complaint without a proo f hearing or argument, the judge entered a May 9, 2023 order wit h a brief statement of reasons granting in part and denying in part plaint iffs' requested relief. Specifically, the judge granted plaintiffs' damages against defendants in the amount of $669.71 stating only that the amount represented t he "towing charge, mechanical work, parking tickets, and toll charge p er R[ule] 4:43 -2(b) and R[ule] 6:6 -3(c) because the proofs were competent and persuas ive." The judge did not specify the "mechanical work" she reference d or the proof of that loss. The judge denied damages for mileage, opining that the proofs were not "'reasonably certain and definite,' 'as distinguish ed from mere quantitative uncertainty.' Schwartz v. Menas, 251 N.J. 556, 571 (2022) (citing Weiss v. Revenue Bldg. & Loan Ass'n, 116 N.J.L. 208, 209-[]1 0 (E. & A. 1936)." Without further discussion, the judge found plaintiffs' proofs were "insufficient to quantify the damages of travelling while the veh icle was in the [d]efendants' possession."6 A- 3242

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The judge denied entirely plaintiffs' requested rel ief under the CFA, finding without specific reference to the pleadings that plaintiffs "did not plead a CFA claim in their [c]omplaint" and "fail[ed] to establi sh unlawful conduct as defined by the CFA" pursuant to N.J.S.A. 56:8-2. R ecognizing viable CFA claims allege "(1) unlawful conduct . . .; (2) an a scertainable loss . . .; and (3) a causal relationship between the defendants' unlawfu l conduct and the plaintiff's ascertainable loss," the judge without further expl anation viewed plaintiffs' "claim[s] against [d]efendant [a]s more like a brea ch of contract . . . ." The judge accordingly determined: "[Plaintiffs] assert that they had a contract with [d]efendants to repair the vehicle, and [d]efendant breached that contract by failing to perform. Accordingly, they are not enti tled to an award of treble damages available under the CFA." Plaintiffs raise the following issue on appeal: The [d]efendant[s'] actions constitute[] an unconscionable business practice under the Consumer Fraud Act. The [d]efendants['] violation of the Consumer Fraud Act entitle the plaintiff[s] to an a ward of triple damages up to the jurisdictional limit of the Special Civil Part of $20,000. The default judgmen t is against the weight of the evidence.

II.7 A- 3242

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"The scope of appellate review of a trial court's fact-finding function is limited." In re D.L.B., 468 N.J. Super. 397, 416 ( App. Div. 2021) (quoting Cesare v. Cesare, 154 N.J. 394, 411 (1998)). Ordin arily, the trial court's findings "are binding on appeal when supported by adequate, substantial, credible evidence." Ibid. (quoting Cesare, 154 N.J. at 411- 12). Such deference "is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Ibid. (quoting Cesare, 154 N.J. at 412). The "court's interpretation of the law and the legal consequence s that flow from established facts," however, "are not entitled to any special deference ” and are subject to de novo review on appeal. Accounteks.Net, Inc. v. CKR L., LLP, 475 N.J. Super. 493, 503 (App. Div. 2023) (quoting Manalapan Realty , L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Moreover, ou r ability to resolve an appeal is largely dependent upon the trial court's compliance with its obligation to state its findings of fact and conclusions of la w as required by Rule 1:7 -4. To comply, the court must articulate factual findings and correlate them with the principles of law. Curtis v. Finneran, 83 N.J. 563 , 570 (1980). Applying these standards to the Special Civil Part judge's finding s, and viewing the judge's decision against the backdrop of the applicable law and the plain language of8 A- 3242

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plaintiffs' amended complaint, we cannot discern a basis for the judge's denial of plaintiffs' claims. "Construe[d] liberally to accomplish its broad pu rpose of safeguarding the public," Furst v. Einstein Moomjy, Inc., 182 N. J. 1, 11-12 (2004), the CFA "establishes 'a broad business ethic' applied 'to b alance the interests of the consumer public and those of the sellers,'" D'Agost ino v. Maldonado, 216 N.J. 168, 184 (2013) (quoting Kugler v. Romain, 58 N.J. 522, 543-44 (1971)).

" There is no precise formulation for an 'unconsciona ble' act that satisfies the statutory standard for an unlawful practice." Ibi d. The CFA recognizes three broad categories of consumer fraud violations: "af firmative acts, knowing omissions, and regulatory violations." Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., Inc., 192 N.J. 372, 389 (2007) (quoting Cox v. Sears Roebuck & Co., 138 N.J. 2, 17 (1994)). To state a claim pursuant to the CFA, a plaintiff mu st allege "three elements: (1) unlawful conduct . . .; (2) an ascer tainable loss . . .; and (3) a causal relationship between the defendants' unlawfu l conduct and the plaintiff[']s ascertainable loss." Ibid. (quoting N .J. Citizen Action v. ScheringPlough Corp., 367 N.J. Super. 8, 12

- 13 (App. Div. 2003)). Furthermore, the CFA " essentially replaces reliance, an element of proof traditional to any fraud9 A- 3242

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claim, with the requirement that plaintiff prove asc ertainable loss." Ibid. (citing Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 246 (2005)). An ascertainable loss is a "loss that is quantifiable or measurable. " Thiedemann, 183 N.J. at 248

. "In cases involving breach of contract or misrepresentation, either out

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pocket loss or a demonstration of loss in value will suffice to meet the ascertainable loss hurdle and will set the stage for establishing the measure of damages." Ibid. The evidence of the loss presented to the court must not be "hypothetical or illusory" and "must be presented with some certainty demonstrating that it is capable of calculation . . . ." Ibid. Ascertainable loss will be sufficiently demonstrated even with "[a]n estimate of damages, calculated within a reasonable degree of certainty . . . ." Id. at 249 (quoting Cox, 138 N.J. at 22). Plaintiffs, consequently, must "demonstrate a cogniz able and calculable claim of loss due to the alleged CFA violation." Ibid. (citing Weinberg v. Sprint Corp., 173 N.J. 233, 254 (2002)). "When a plaintiff has proven the defendant's unlawful conduct, demonstrat ed an ascertainable loss and established a causal relationship between the condu ct and the ascertainable loss, N.J.S.A. 56:8

- 19 requires an award of treble damages and provides fo r other remedies . . . ." D'Agostino, 216 N.J. at 18 5.10 A- 3242

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To further the CFA's protections in specific consum er situations, corresponding regulations identify conduct constitu ting unconscionable practices under the CFA. See Scibek v. Longette, 3 39 N.J. Super. 72, 78-79 (App. Div. 2001). A violation of these regulations violates the CFA. See Sprenger v. Trout, 375 N.J. Super. 120, 131 (App. D iv. 2005). Specific regulations address CFA requirements and violations concerning automotive repairs, including N.J.A.C. 13:45A-26C.2, which was ci ted by plaintiffs in their amended complaint.
III. We first consider the judge's determination that plaint iffs "did not plead a CFA claim in their complaint," in light of the appl icable law and allegations in the amended complaint. In our view, plaintiffs all eged specific facts and cited applicable statutory provisions and CFA regulations in support of their claims. Almost mirroring the prohibited conduct listed in N .J.A.C. 13:45A-26C.2, plaintiffs enumerated grounds for relief, including defendants: "making false promises" to repair when they "made no attempt to r epair;" failing to identify and list the parts they intended to use to make rep airs; "fail[ing] to provide a clearly and separately itemized list of the charges for parts and labor and did not identify whether the parts were new, rebuilt or use d;" and failing to "post in a11 A- 3242

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conspicuous place a sign" which informed that deale rs "must provide a written estimate, copies of all receipts, detailed invoices, a co py of any guarantees" and return any "replaced parts" on request. Plaintiffs expressly pleaded that defendants provided no "final invoice" and "no pape rwork or documentation of any kind." As such, we disagree with the judge's f inding that plaintiffs' complaint did not allege a CFA claim. To the contr ary, plaintiffs' complaint sufficiently alleges violations of the CFA, includi ng violations of its regulatory provisions. See Hoffman v. Hampshire Labs, Inc., 4 05 N.J. Super. 105, 114 (App. Div. 2009) (recognizing that "mere[] statemen ts of a legal conclusion" are not "sufficient facts that, if proven, would establ ish that defendants engaged in a 'method, act or practice' that is unlawful under the CFA"). Further, it appears the judge, as if concluding bre ach of contract and violation of the CFA are somehow mutually exclusive and conflicting causes of action, found without further discussion that plain tiffs' claims were "more like a breach of contract . . ." and therefore plaintiff s were "not entitled to an award of treble damages available under the CFA." While certainly "a simple breach of warranty or breach of contract is not per se unc onscionable," D'Agostino, 216 N.J. at 189 (quoting Gennari v. Weichert Co, Realtors , 288 N.J. Super. 504, 533 (App. Div. 1996), aff'd as modified, 148 N.J. 582, 590 (1997)), unconscionable12 A- 3242

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breaches of consumer contracts can certainly trigge r application of the CFA. See Manahawkin Convalescents v. O'Neill, 217 N.J. 9 9, 122 (2014). Because the judge's decision lacked sufficient discussion o f both applicable law and fact, we cannot determine if the judge in finding breach of contract erroneously believed she could not also find a violation of the CFA. We next consider the judge's award of damages to pl aintiffs. We similarly cannot decipher the judge's reasons for limiting da mages to the "towing charge, mechanical work, parking tickets, and toll charge" and denying the remaining damages without detail, particularly in light of de fendants' default. While we recognize that plaintiffs' attached records are som ewhat confusing, we see no indication that the judge afforded plaintiffs a pro of hearing or some ability to present argument or testimony as permitted by Rule 4:43 -2(b). As in this case, proof of liability and damages after default requir es only a prima facie standard of proof. Kolczycki v. City of East Orange, 317 N. J. Super. 505, 514-15 (App. Div. 1999); see also Pressler & Verniero, Current N .J. Court Rules, cmt. 2.2.2

on R. 4:43 -2 (2024) (stating that "unless there is intervenin g consideration of public policy or other requirement of fundamental j ustice, the judge should ordinarily apply to plaintiff's proofs the prima fa cie case standard of R[ule] 4:37

- 2(b) and R[ule] 4:40 -1, thus not weighing evidence or finding facts but only13 A- 3242

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determining bare sufficiency"). If uncertain as to the precise damages, given defendants' default status and plaintiffs' presenta tion of sufficient information to indicate further loss, the judge should have hel d a hearing to determine "the amount of damages or . . . the truth of any allegat ion." R. 4:43 -2(b). We therefore reverse the denial of plaintiffs' CFA cla ims and remand for a proof hearing as to both liability and damages pertaining to their breach of contract and CFA claims. Reversed and remanded. We do not retain jurisdicti on.