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(NOTE: The status of this decision is unpublished.)


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3924-04T53924-04T5

GLENN OLLENDORF,

Plaintiff-Appellant,

v.

LACEL MONK,

Defendant-Respondent.

_______________________________________________________


Argued December 6, 2005 - Decided

Before Judges Coburn, Lisa and S.L. Reisner

On appeal from the Superior Court of New Jersey,

Law Division, Somerset County, DC-3528-04.

Glenn Ollendorf, appellant, argued the cause pro se.

Respondent did not file a brief.

PER CURIAM

Glenn Ollendorf sued Lacel Monk in the Law Division, Special Civil Part. He alleged that Monk was in the business of repairing cars, which he did at his home. He further alleged that Monk failed to repair his car's engine in a proper and timely fashion and violated the Consumer Fraud Act, N.J.S.A. 56:8-1 to 20 ("CFA") in many respects.

The record submitted by Ollendorf fails to show that Monk was served with the complaint. In any case, Monk did not file an answer. According to Ollendorf's brief, the clerk entered a default against Monk on September 7, 2004, presumably pursuant to Rule 6:6-2, but Ollendorf has not included any indication of that event in this record. Ollendorf next asserts in his brief that he filed an application for a default judgment, presumably pursuant to Rule 6:6-3(c). That rule requires that the application be made on written notice to a party "if the court, in the interest of justice, orders such notice." The rule also provides that when the default judgment is entered, the clerk shall notify the judgment creditor, who shall in turn "notify the judgment-debtor within 7 days by ordinary mail of the effective date and amount of the judgment." R. 6:6-3(e). The record does not reflect that the judge decided if notice should be given to Monk; nor does it show that Ollendorf served Monk with a copy of the judgment.

Ollendorf's certification in support of his application for default judgment is quite extensive, but in essence it asserts that the rebuilding of the engine was unsatisfactory because Monk failed to replace the engine oil pump. And it states that Ollendorf was told by automobile mechanics that the correction could not be made without disassembling and reassembling the entire engine, a further expense which the mechanics said made no sense in light of the age of the car. The car was built in 1984, making it almost twenty years old when Monk performed the work in 2003. Ollendorf certified that the delay in making the repairs had cost him $176.50 in insurance costs, and that Monk had driven the car without his consent for around 800 miles, justifying an additional damage assessment of $228.00. He also claimed $10 for an oil pressure sending unit. The certification corrects an allegation in the complaint that Ollendorf drove the car another 1,000 miles by conceding that he drove the car for another 4,000 miles until April 2004. He also certified that he has retained the car for emergency use. He also certified to many facts that support his allegation that Monk was conducting an extensive business of auto-repairing and to many facts showing violation of the CFA.

At the proof hearing, Ollendorf testified to paying Monk $1,330 to rebuild the engine. He said Monk agreed to complete the work in two weeks but did not complete it for six months. During that time Ollendorf incurred insurance expenses of $176.50, and bought the oil pressure sending unit for $10. Apart from the cost of purchasing a transcript of a municipal court proceeding against Monk for operating an automotive repair business out of his home, those were all of his out-of-pocket expenses.

The trial judge then ruled as follows:

THE COURT: All right.

Sir, I am satisfied from the proofs presented that you have out-of-pocket . . . expenses, which total, by my calculations, $1516.50. That's $1330 for the cash that you say you gave this individual to repair your car. I am going to give you the credit for the $176.50 insurance, by your own calculation, and $10 for the oil pressure gauge that you paid for at his request.

So I am going to give you a judgment, sir, for $1516.50. Plus, I believe it is $19 court costs.

Ollendorf indicated that the court costs were $54, and the judge said he would check on that, at which point Ollendorf said, "I also ask for treble damages." A few moments later, he added that he was seeking damages for Monk driving his car for 800 miles and added that he could support that claim by testifying about the "change in the odometer between the time that I [gave] it to him and [when] I got it back from him

. . . ."

The record of this hearing then concludes as follows:

THE COURT: I find your proofs to be insufficient with respect to the 800 miles that you allege that he drove your car.

Now, you . . . are asking this Court to invoke the provisions of the Consumer Fraud Act. I find, first, that this is a business done out of the house on the side part time. You, yourself, have indicated that in your pleadings, that this man's primary job is with a big corporation and he does this on the side.

I find that he's not within the definition of "business", as contemplated by the Legislature with[in] the meaning of the enactment of the Consumer Fraud Act.

Therefore, I find the Consumer Fraud Act is not applicable. I give you a judgment, $1516.50, $54 court costs.

Thank you, sir.

Mr. Ollendorf: May I be heard? THE COURT: No. We are done.

Ollendorf then filed a number of motions primarily directed at convincing the judge that he had proved a claim under the CFA. He also argued that if he had failed to establish sufficient facts to support his CFA claim, the judge should have given him an opportunity to present further evidence on the issue. The motions were denied, and Ollendorf appealed.

In the context of a default judgment proof hearing, a trial court is obliged to view plaintiff's proofs indulgently, and the general practice is "to require only a prima facie case . . . ." Heimbach v. Mueller, 229 N.J. Super. 17, 20 (App. Div. 1988). However, if some element of plaintiff's prima facie case is missing, judgment should be denied. Id. at 23. Competent evidence of damages must be presented. Id. at 26. But if the court determines that there has been a failure of proof in that regard, it should "point out the omissions and give plaintiff the opportunity to remedy them." Id. at 27.

As the trial judge recognized, Ollendorf's claim for treble damages under the CFA required proof that Monk was "an automotive repair dealer" engaged in the "business' of providing repair services "to the public." N.J.A.C. 13:45A-26.C2; N.J.S.A. 56:8-2. In holding the CFA inapplicable, the judge cited the following facts: Monk had been repairing Ollendorf's cars for many years; he did not have a sign outside his home indicating that he was operating a business; he "informally" fixed cars for people and did not advertise his services; he had a regular job and did this work on a part-time basis. On the other hand, Ollendorf had offered proof indicating that Monk had been fixing cars for money for many years and at times had so much work that he used assistants to help him.

The CFA has been held applicable to part-time businessmen, Wozniak v. Pennella, 373 N.J. Super. 445, 457 (App. Div. 2004), and it must be construed liberally in favor of consumers to "accomplish its deterrent and protective purposes." Lettenmaier v. Lube Connection, Inc., 162 N.J. 134, 139 (1999). Given those principles and the rule that in the context of a default judgment hearing, the plaintiff's proofs should be treated indulgently, we are constrained to disagree with the judge's ruling that the CFA was inapplicable here on the ground that Monk was not an automotive repair dealer.

Although Monk violated numerous regulations implementing the CFA, Ollendorf was still required to prove that he "suffered an ascertainable loss . . . as a result of the unlawful conduct." Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 473 (1988). Since the judge believed the CFA was inapplicable, he did not reach that issue. Ollendorf's brief does not address that issue, and consequently we will not attempt to resolve it on this record. In addition, Ollendorf was obliged to prove that the repairs had been done improperly. Although the judge accepted his proofs, we are not satisfied that the record supports that acceptance. We reach that conclusion because there was no expert testimony showing that the repair had been done improperly and because Ollendorf admitted driving this nineteen year old car for at least 4,000 miles after the repair had been completed.

We are also concerned with the absence of proof that Monk was served with the complaint, with the judge's failure to order that Monk be given notice of the default judgment hearing, and with Ollendorf's failure to serve a copy of the judgment on Monk, as is required by law. R. 6:6-39(c)(e). Consequently, the judgment is reversed, and the case is remanded for further proceedings. The judge will first determine whether Monk was served with the complaint. If not, the judgment must be vacated. If so, he shall direct that notice of a new hearing be provided to Ollendorf and Monk. Heimbach, supra, 229 N.J. Super. at 27.

Reversed and remanded for further proceedings.


Plaintiff's motion to supplement the record is granted, but does not change our opinion.

(continued)

(continued)

8

A-3924-04T5

December 21, 2005




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