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Vito's Towing, Inc. v. Kemp

Decided: February 8, 1995.

VITO'S TOWING, INC., PLAINTIFF-APPELLANT,
v.
RONALD KEMP, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County.

Before Judges Michels, Stern and Keefe.

Keefe

The opinion of the court was delivered by KEEFE, J.A.D.

Plaintiff, a towing service, appeals from a judgment dismissing its complaint against defendant wherein it sought damages for towing services, storage fees, and related charges. On appeal, plaintiff maintains that the judgment was against the weight of the evidence. We agree and reverse for the reasons stated herein.

The facts are essentially undisputed. Defendant was the owner of a 1981 Toyota automobile which, on August 24, 1990, showed 92,676 miles on its odometer. On that day, the vehicle was involved in a motor vehicle accident in the Borough of Clifton and, as a result, was apparently totaled.

Plaintiff, a towing service provider and repair facility under contract with the Borough of Clifton, was directed by the Clifton Police Department to remove the vehicle from the scene of the accident to its premises.

Defendant failed to take possession of the vehicle even after being notified by plaintiff and the Borough of Clifton that the vehicle would be sold if not claimed. The Borough of Clifton considered the vehicle abandoned pursuant to the provisions of N.J.S.A. 39:10A-8, and notified defendant of its intention to sell it at a public auction pursuant to N.J.S.A. 39:10A-1d.

Defendant could have retained title to the vehicle by paying the towing and storage charges at anytime prior to the public sale. N.J.S.A. 39:10A-2. However, he failed to do so.

Consequently, the vehicle was offered for sale, along with several other automobiles on November 20, 1990. At that time, defendant owed a total of $1,490.45 for towing, storage and related charges. Plaintiff bid $10 for the vehicle. No one other than plaintiff bid on the vehicle. Plaintiff testified that it is essentially forced to buy such vehicles at public sales if there are no other bidders simply so it can dispose of them and get them off its property. Plaintiff's principal testified that he later sold the vehicle for junk, receiving $50 or $60 for it.

At trial, defendant appeared pro se. He did not challenge the regularity of the proceedings leading up to the sale of the vehicle, nor did he contest the charges levied against him by plaintiff for towing, storage or related items. Notably, defendant did not deny that the vehicle was totaled as a result of the accident. Rather, defendant maintained that he should receive a credit against plaintiff's charges for the amount plaintiff received upon the re-sale of the vehicle. Defendant protested the fact that plaintiff had never furnished him with documentation concerning the re-sale.

As noted earlier, the court dismissed plaintiff's complaint. The crux of the court's decision was as follows:

I find that it was not an arms length transaction. Vito actually purchased it, and there's no documentation to show what was actually received for the vehicle on sale, nothing to substantiate it. Since it was not an arms length transaction by way of any auction that I can determine, I believe that there's a presumption that the amount, reasonable value of the vehicle would satisfy any deficiency.

Accordingly, I find that there's a presumption that the reasonable value of the vehicle would satisfy any deficiency, and I'm entering a judgment of no cause of action and dismissing the complaint.

Although the Judge did not specifically state what sale he believed was not arms length, it appears to us that he was addressing plaintiff's re-sale of the vehicle, essentially for its junk value. However, regardless of which sale he was addressing, the ruling assumed that defendant was entitled to a fair market value credit against any claim ...


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