Lynch, Bischoff and Kole. The opinion of the court was delivered by Kole, J.A.D.
Defendant (Wagner) appeals from a grant of summary judgment in favor of plaintiff (Exxon) on counts 3 and 4 of his amended counterclaim.
Both counts alleged violations of the state Anti-Trust Act. Count 3 charged that Exxon, by and through its agents or employees, caused trade to be diverted away from Wagner and to other businesses owned by and operated for the benefit of Exxon, contrary to N.J.S.A. 56:9-3. Count 4 alleged that Exxon, by and through its agents or employees, attempted to monopolize and has monopolized sales under its trademarks to the exclusion of independent dealers, contrary to N.J.S.A. 56:9-4.
The trial judge entered the judgment after considering the pleadings, affidavits and Wagner's deposition testimony.
We have carefully reviewed the record and have applied the same standard in determining whether the summary judgment should have been granted as was applied by the trial judge. R. 4:46-2; Judson v. Peoples Bank & Trust
Co. of Westfield , 17 N.J. 67 (1954). In reaching our determination we have considered that where subjective elements, such as intent or motive, are involved, summary judgment is to be granted with caution. Judson , at 76; Allen v. Evesham Tp. Planning Bd. , 137 N.J. Super. 359 (App. Div. 1975). So viewed, we have concluded that there was no genuine issue of material fact raised and that Exxon was entitled to judgment on both counts as a matter of law.
What follows are the facts that are undisputed.
Exxon was a lessee of the premises at 47 Shrewsbury Avenue,*fn1 Red Bank, New Jersey, at which an Exxon service station was operated. In 1968 its 15-year lease had expired but it had the option thereunder to renew the lease for ten additional one-year periods. Wagner entered into his first written sublease with Exxon for a service station dealership for these premises on January 31, 1969. He operated under the name "Commuter's Esso." He apparently knew that he was operating under the one-year option periods of Exxon's original lease, but even if he was not aware of this fact, he knew that the life of his sublease was limited to the period of Exxon's rights under its lease. In any event, that sublease commenced on February 1, 1969 and was to terminate February 1, 1970. Wagner borrowed $11,000 from Exxon for his initial inventory. A second and third sublease were executed covering the one-year periods from February 1, 1970 to February 1, 1972. On February 1, 1972 Wagner became a month-to-month tenant. Exxon endeavored to terminate the tenancy as of April 1, 1972. After litigation instituted by Wagner, which was dismissed without prejudice, the monthly tenancy was continued.
In late January 1973 Wagner commenced negotiations with Getty Oil Company for the operation of a Getty service station at 93 Shrewsbury, about 1 1/2 blocks from his Exxon station at 47 Shrewsbury. He acquired title to the 93 Shrewsbury
property on April 1, 1973 after he failed in his efforts to purchase the Exxon leased property at 47 Shrewsbury and bring a Getty station to that location. Exxon would not respond to his request to sell him its right to purchase the leased premises. On March 28, 1973 Wagner notified Exxon that he would vacate its premises on April 30, 1973. For the month of April 1973 Wagner was operating two gasoline service stations, Getty and Exxon. Up until the time Wagner left the Exxon station he was supplied by Exxon with all of the products he needed.
Wagner claimed that the verbal agreement between the Exxon representative and him at the outset of his sublease was that the business at 47 Shrewsbury would be his until he decided that he did not want it and that he would be "the last dealer at that location." He stated that he lost substantial sums of money because he was forced to move the location of his station. The station at 47 Shrewsbury had 80 parking spots which he was able to rent to commuters at a monthly rate, while the station at 93 Shrewsbury (Getty) only had 40 parking spaces. The commuters would buy gas and have repairs made. The termination of his Exxon station, he stated, diverted his clientele to other Exxon stations within the vicinity of 47 Shrewsbury.
There are 13 service stations in Red Bank. These represent seven different oil companies, including Exxon. There is also another service station in the ...