On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hunterdon County, L-413-99.
Before Judges Kestin, Eichen and Weissbard
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In July 1999, plaintiff, General Electric Capital Auto Lease (GECAL), sued Alfonso Violante alleging breach of an installment sales contract for a Lexus automobile and asserting a "perfected security interest" in the car. *fn2 In a separate count of the complaint, GECAL also sued David's Towing Service and David Brigati, Jr. t/a David's Towing Service (collectively, "David's") for possession of the car, alleging that it had been taken to David's at Violante's behest and that it was being wrongfully held as security for the payment of the towing and storage services rendered by David's. In its answer, David's admitted GECAL's ownership of the vehicle, asserted its contract with Violante and plaintiff's implied consent to such charges for services regarding the automobile as Violante had incurred, and stated that possession of the vehicle had already been turned over to GECAL. Affirmative defenses were pleaded, including GECAL's responsibility as owner of the vehicle "for all costs of towing and storage," and GECAL's obligation to answer for the obligations incurred by its lessee.
In a combined cross-claim and counterclaim, David's asserted an entitlement to payment from GECAL as owner of the vehicle and from Violante, as the person who requested storage and repair.
The pleading alleged that, on March 12, 1999, Violante had engaged David's to "retrieve a motor vehicle which had been vandalized" and to repair the damages. The repairs were not undertaken because the insurer had never inspected the vehicle and authorized the work. On April 28, 1999, in response to GECAL's inquiry about the vehicle, David's demanded payment for "pickup, towing charges and storage charges." From that time until mid-July, discussions ensued between GECAL and David's regarding their respective claims, but no resolution was reached. After the complaint was filed and served, those parties agreed that David's would return the vehicle to GECAL in exchange for GECAL's guarantee that any judgment entered in David's favor would be paid. GECAL's answer to the counterclaim asserted several affirmative defenses, including lack of authority on Violante's part to incur liability by GECAL for repairs or storage charges, and David's failure to mitigate damages by taking early, reasonable steps to determine the actual ownership of the vehicle.
On June 23, 2000, a default was entered against Violante in respect of all claims. *fn3 The matter proceeded on David's counterclaim against GECAL. After a case management conference, the trial court, in a letter to counsel dated September 25, 2000, identified the issues as purely questions of law, i.e., the applicability of N.J.S.A. 2A:44-21 regarding its availability to attach a lien to the lessor's interest without its permission. Also, the applicability of [N.J.S.A.] 39:10A-8 regarding an abandoned vehicle at a repair facility leased without permission of the owner.
A briefing schedule was established with a view to an argument date in November, 2000.
Oral argument occurred on November 15 and, on December 12, an "order granting summary judgment" to GECAL was entered. The judge's reasons for the ruling were expressed in a written addendum to the order. *fn4 He referred to language in paragraph four of the lease between GECAL and Violante, which provided:
You will not create or let continue a lien on the Vehicle or this lease. You will tell us as soon as possible if anyone claims a lien or other interest in the Vehicle or this lease.
[t]he possibility of a lien was contemplated in the lease and it is apparent that the lessee is responsible ...