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Double J. Enterprise, Inc. v. V & H

May 30, 2007

DOUBLE J. ENTERPRISE, INC., AND GARY GALLOPO, PLAINTIFFS-APPELLANTS,
v.
V & H, INC., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3191-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 31, 2006

Before Judges Weissbard and Graves.

Plaintiffs, Double J. Enterprise, Inc., and its owner, Gary Gallopo, appeal from an order granting summary judgment in favor of defendant V & H, Inc., and dismissing their complaint. The trial court reasoned that a forum-selection clause in a contract signed by the parties required plaintiffs to litigate their claims in the courts of Wisconsin. We affirm.

Defendant is in the business of selling trucks in Wisconsin. After some preliminary negotiations, plaintiff Gary Gallopo traveled from New Jersey to Wisconsin on April 7, 2004, to purchase a used 1998 Peterbilt truck from defendant for the sum of $76,044.61. The motor vehicle purchase contract signed by the parties contains a choice of law and forum-selection clause that reads as follows:

GOVERNING LAW AND JURISDICTION: This Agreement shall be governed by and construed in accordance with the Statutes and Common law of the State of Wisconsin. If not prohibited by law, both parties hereby agree to submit to the jurisdiction of the Courts of Wisconsin for enforcement of this Agreement.

After paying for the truck and returning to New Jersey, plaintiffs filed the present action for compensatory and punitive damages. Plaintiffs allege that defendant made false representations regarding the truck's mileage in violation of the New Jersey Consumer Fraud Act, and "New Jersey Statutes with regard to odometer and odometer roll-back and the truth of odometer readings." Plaintiffs also allege that defendant's misrepresentations constituted an act of fraud. In its answer to plaintiffs' complaint, defendant denied each of plaintiffs' claims, and, in a motion for summary judgment, argued:

The contract containing the forum selection clause was executed in Wisconsin. Further, plaintiffs inspected the vehicle in Wisconsin and picked it up at that location. There is nothing in the record to suggest that clause is a result of fraud or unfair bargaining powers, violates a strong public policy of New Jersey, or that enforcement would seriously inconvenience trial. Accordingly, the forum selection clause is enforceable and therefore the complaint should be dismissed.

In addition, defendant claimed it was entitled to summary judgment because plaintiffs did not have an expert witness to substantiate their claim that the truck's actual mileage exceeded the mileage indicated on the truck's odometer. In response to this argument, Gallopo certified that he had sufficient experience in the trucking industry to testify regarding "odometer discrepancies":

I have been in the trucking industry since 1975, in excess of 30 years. I am currently 55 years of age. During my 30 years in the trucking industry, I have bought and sold at least 10 separate trucks and driven hundreds of different types of makes and models, including the truck in this case. I am completely familiar with the industry as well as the pricing guidelines for buying and selling as well as trading trucks. Not only have I bought and sold at least 10 trucks for my own business and for myself personally, but I have assisted many others in the industry as far as shopping for, looking at and helping others negotiate prices of trucks. I am also familiar with the value of trucks and the reduction thereof as a result of damage as well as odometer discrepancies. I have performed repairs on all my trucks during the past 25 years and I have assisted numerous others in the industry. I am familiar with both the value of my truck and the mechanical workings of it intimately, as well as the ability to look at other trucks and value other trucks in the industry as a result of my experience in the industry over the past 30 years.

Following oral argument, the trial court ruled that the forum-selection clause was enforceable, and it entered an order dismissing plaintiffs' complaint. The court's findings included the following:

I'm taking a position that this is not some kind of a naïve purchaser. This is not somebody who walks into a situation where he was taken advantage of. It's clear to me that the plaintiff[s] [are] well-versed in the trucking business. Double J. Enterprise is a trucker and in the business of trucking, as his counsel has said, for over 20 years. And V & H is in the business of selling trucks.

They have a contract that states that everything will be governed by the State of Wisconsin and it says specifically both parties hereby agree to submit to the jurisdiction of the Courts ...


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