Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fairway Dodge, L.L.C. v. Decker Dodge

June 19, 2007

FAIRWAY DODGE, L.L.C., PLAINTIFF-APPELLANT,
v.
DECKER DODGE, INC., A NEW JERSEY CORPORATION, KATE FAIR MORGAN, TIMOTHY MORGAN, SUSAN DECKER, RONALD BIBBO AND DIANE KENNEDY, DEFENDANTS-RESPONDENTS, AND JOHN DOES (FICTITIOUSLY NAMED DEFENDANTS WHOSE TRUE IDENTITIES ARE PRESENTLY UNKNOWN) AND JANE DOES (FICTITIOUSLY NAMED DEFENDANTS WHOSE TRUE IDENTITIES ARE PRESENTLY UNKNOWN), DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The primary issues in this appeal are whether the trial court erroneously dismissed plaintiff's claims alleging violations of the Computer Related Offenses Act (Computer Act) against the co-owners of defendant car dealership, and whether the asserted evidentiary errors require a new trial on damages.

In the early 1990s, Jane Fair, the owner of Fairway Dodge, decided to sell her family owned and operated car dealership to Ronald Sumner. Jane's daughter, Kate Fair (Fair), and her husband, Timothy Morgan (Morgan), were longtime Fairway Dodge management employees and disapproved of the sale. Fair, Morgan, and another Fairway Dodge employee, Diane Kennedy (Kennedy), eventually resigned their positions at Fairway Dodge to work as managers at a competitor dealership, Decker Dodge, owned by Susan Decker Bibbo (Decker) and managed by her husband Ronald Bibbo (Bibbo).

The evidence showed that before leaving Fairway Dodge, but after Decker Dodge agreed to hire them, Fair and Morgan engaged in questionable business conduct. For example, Fair cancelled Fairway Dodge's contract as a representative of the American Automotive Association (AAA), only to enroll her new employer in the program. Fairway Dodge re-enrolled, but the program was not as successful because of the competition from Decker Dodge. In addition, Fair and Morgan made a backup tape of Fairway Dodge's computer system, including its customer and sales lists and the sales and service history of vehicles and automotive parts. They then delivered the tape to Reynolds & Reynolds (Reynolds), the same company that developed the computer system for Fairway Dodge, so that it could replace the system at Decker Dodge. Fair convinced Reynolds to undertake the work by sending a letter on Fairway Dodge's letterhead and signing it as "Sec[retary]/Treas[urer]", a title she still maintained, and "Gen[eral] Manager," a title she no longer held at Fairway Dodge.

Sumner acquired Fairway Dodge on August 2, 1995. He claimed that immediately after the purchase, the business began to plummet. Later, Sumner learned that the information in Fairway Dodge's computer system had been copied and filed suit against Decker Dodge, Fair, Morgan, and Reynolds, seeking injunctive relief and damages. Sumner later filed an amended complaint adding Decker, Bibbo, and Kennedy as defendants, alleging unlawful interference with prospective advantage, breach of the duty of loyalty, conspiracy, racketeering, and violations of the Computer Act. The trial court granted summary judgment in favor of plaintiff against Fair, Morgan, and Decker Dodge for violations of the Computer Act, but dismissed the racketeering claims. Following the entry of a consent order dismissing the complaint without prejudice, Fairway Dodge filed the present action against Decker Dodge, Bibbo, Decker, Fair, Kennedy, and Morgan, alleging conspiracy to interfere with Fairway Dodge's prospective economic relations, breach of the duty of loyalty, misappropriation of property, and violations of the Computer Act. At trial, both parties presented expert testimony from their respective accountants. Defendants also presented a list of former Fairway Dodge clients who were prepared to testify that they purchased their Decker Dodge vehicle without any solicitation by defendants. However, the trial court did not permit those witnesses to testify for "lack of competency."

The jury returned a verdict in favor of plaintiff, finding, in part, that all defendants conspired against plaintiff and that Bibbo, Decker, and Kennedy violated the Computer Act. The jury awarded compensatory and punitive damages to plaintiffs, though it did not impose compensatory damages against Bibbo, Decker, and Kennedy. Defendants moved for judgment notwithstanding the verdict, a new trial, or remittitur. The trial court denied the motion and molded the verdict to enter joint and several liability against all defendants for the compensatory damages verdict. Subsequently, the court awarded attorneys' fees, costs of investigation, and prejudgment interest.

Defendants appealed and a stay was entered. In an unpublished opinion, the Appellate Division affirmed in part and reversed in part. The Appellate Division held that insufficient evidence existed to find that the co-owners violated the Computer Act and that the failure to admit testimony from witnesses who may have undermined the damages calculations of plaintiff's expert required a new trial on damages.

The Supreme Court granted Fairway Dodge's petition for certification.

HELD: The evidence presented failed to establish that either Bibbo or Decker acted purposefully or knowingly in any conduct that violated the Computer Related Offenses Act. In addition, the trial court should have permitted defendants to call fact witnesses who would have testified that they were not solicited by defendants -- relevant testimony on the issue of damages.

1. The Computer Act imposes liability against an "actor" whose "purposeful or knowing" conduct is proscribed by the statute. The Computer Act does not define the term "actor." Nor does the Court find any legislative history informing the meaning of that word. The Court is satisfied, however, that it is not necessary to define the word "actor" to decide this appeal. The evidence presented failed to establish that either Bibbo or Decker acted purposefully or knowingly in any conduct that violated the Computer Act. Consequently, plaintiff failed to establish that Bibbo and Decker purposefully or knowingly violated the Computer Act. (Pp. 10-13)

2. The trial court should have permitted defendants to call fact witnesses who would have testified that "in the years 1995 to 1999, they did business with [Decker Dodge] but were not solicited by defendants." Although that testimony was not relevant for purposes of assessing liability, it was relevant on the issue of damages. It was error to deny defendants the use of that evidence. (P. 13)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in this opinion.

Per curiam.

Argued January 29, 2007

In this litigation between competing auto dealerships, the primary issues are whether the court erroneously dismissed plaintiff's claims alleging violations of the Computer Related Offenses Act (Computer Act) against the co-owners of defendant car dealership, and whether the asserted evidentiary errors require a new trial on damages. The Appellate Division held that insufficient evidence existed to find that the co-owners violated the Computer Act and that the failure to admit testimony ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.