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Cordell v. Curialle

A-1333-04T5 (N.J. Super. App. Div. 2005) (Unpublished)

BREACH OF CONTRACT; CONSUMER FRAUD ACT—In order to be entitled to treble damages pursuant the Consumer Fraud Act, a consumer must show that they have sustained an ascertainable loss as a result of an unlawful practice under the Act.

A property owner hired a landscaping company to cut the lawn at his residence. The parties entered into a contract which gave the property owner two payment options. The property owner chose to pay the company in two installments and provided the company with his credit card information to pay for the service. Instead of charging the property owner for the first payment installment, the company charged him the full contract price. The property owner notified the company of the billing error and the company offered to give him a ten percent discount on the full contract price. The property owner agreed to the discount, but the company never paid him the discount as agreed. The property owner then cancelled the contract by sending written notice to the company. The company ignored the cancellation notice and continued to cut the property owner’s lawn until its workers were chased off the property. The property owner then filed a complaint in municipal court against the company for trespass. The case was dismissed. The property owner also filed several complaints with the county department of consumer affairs and the local better business bureau. The department of consumer affairs unsuccessfully attempted to resolve the dispute and the property owner then filed a complaint against the company for violation of the New Jersey Consumer Fraud Act, breach of contract, and trespass. The lower court ruled in favor of the property owner and held that the company violated the Act by charging the property owner’s credit card the full contract price. It ordered the company to pay treble damages under the Act in an amount equal to ten percent of the full contract price. The court also awarded contract damages to the property owner. The property owner appealed the lower court’s ruling. On appeal, the property owner asserted, among other things, that the court failed to properly calculate the ascertainable damages under the Act.

The Appellate Division affirmed the lower court’s ruling in part. It began its review by discussing the circumstances under which treble damages are available under the Act. The Court found that treble damages may be awarded to consumers who have demonstrated an ascertainable loss resulting from an unlawful practice under the Act. The Court ruled that a breach of contract alone does not establish an “unlawful practice” under the Act. A consumer must show an unconscionable commercial practice, deception, false pretense, false promise or a misrepresentation to establish an unlawful practice. A consumer does not have to prove intent on the part of the defendant to commit the unlawful act. Once a consumer has shown that an unlawful practice has occurred, he, she or it must then prove that the unlawful practice caused the consumer an ascertainable loss. Applying these principles, the Court concluded that the company’s unlawful charging of the property owner’s credit card constituted an unlawful practice. It further held that this unlawful practice caused the property owner an ascertainable loss equal to treble the full amount of the unauthorized charge. The Court also ruled that the property owner was entitled to the amount of the unauthorized charge less the amount the property owner owed for the number of lawn cuts he received.

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