NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0251-06T30251-06T3

MARIE ROMANO,

Plaintiff-Appellant,

v.

GALAXY TOYOTA a/k/a MONMOUTH

TOYOTA, M.T. IMPORTS, INC.,

GALINA CAPORELLIE and DANIEL

CAPORELLIE,

Defendants-Respondents,

and

TOYOTA FINANCIAL SERVICES,

Defendant,

and

GALAXY TOYOTA a/k/a MONMOUTH

TOYOTA, M.T. IMPORTS, INC.,

Third-Party Plaintiff/

Cross-Appellant/Cross-Respondent,

v.

DANIEL CAPORELLIE,

Third-Party Defendant/

Cross-Respondent/Cross-Appellant,

and

GALINA CAPORELLIE POSS,

Third-Party Defendant/

Cross-Respondent.

___________________________

Argued December 19, 2007 - Decided

Before Judges Lisa, Lihotz and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2336-04.

Ronald L. Lueddeke argued the cause for appellant (Lueddeke Law Firm, attorneys; Mr. Lueddeke, on the brief).

Resa T. Drasin argued the cause for respondent/cross-appellant/cross-respondent Galaxy Toyota (Woehling & Freeman, LLP, attorneys; Ms. Drasin, of counsel and on the brief).

Edward L. Larsen, attorney for respondent/cross-respondent/cross-appellant Daniel Caporellie.

Respondent Galina Caporellie Poss has not filed a brief.

The opinion of the court was delivered by

LIHOTZ, J.A.D.

In this consumer fraud case, we review the appropriate measure of damages when a purchaser revokes acceptance of an automobile whose odometer has been rolled back. At trial, plaintiff urged and the jury found that her ascertainable loss for the purpose of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -166, was the purchase price paid for the vehicle. On defendant's motion, the trial court set aside the jury verdict, concluding that although a CFA violation was stipulated, plaintiff failed to establish damages measured by the difference between the vehicle's purchase price and its diminished value as a result of the altered odometer. The trial court also reduced the attorney's fees and costs claimed by plaintiff's counsel. Plaintiff appeals from those determinations.

Defendant, Galaxy Toyota, filed a defensive cross-appeal requesting review if, as a result of plaintiff's appeal, the jury's CFA verdict is reinstated or counsel fees increased. Finally, defendant Daniel Caporellie cross-appealed against Galaxy from the denial of his motion for a new trial and his motion to offset the damage award against him by the value of the car. We affirm the trial court's decision in all respects.

I

We look to the statement of facts set forth in the trial court's written opinion issued to determine the parties' post- trial motions, which the parties have essentially accepted. Plaintiff Marie Romano purchased a 1999 Infiniti I-30 from M.T. Imports, Inc. d/b/a Galaxy Toyota (Galaxy), for $18,690. She financed the vehicle through Toyota Motor Credit Corporation. The odometer disclosure statement listed the vehicle's mileage as 42,305 miles. Two years later, the engine light activated. Romano took the vehicle to a Ray Catena dealership for service. A mechanic determined that as of April 11, 2002, the vehicle's odometer had recorded 68,674 miles. Romano concluded that the odometer had been "rolled back" approximately 26,369 miles prior to her purchase. Romano notified Galaxy. The two were unable to reach an acceptable resolution because Galaxy refused to refund Romano's purchase price. Romano retained possession of the vehicle and continued to make monthly payments of $295.14 on the loan obtained to finance the purchase. At this time, she continues to possess the automobile and likely, has satisfied the loan obligation.

Romano filed suit against Galaxy alleging violations of the CFA, the Federal Odometer Law (FOL), 49 U.S.C.A.