On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-16678-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Waugh.
Appellant Clarence Willis appeals from the dismissal on summary judgment of his breach of warranty and consumer fraud action against respondent DaimlerChrysler Corporation, now known as Chrysler, LLC. Having reviewed the record on appeal, we affirm as to the consumer fraud claim and reverse as to the breach of warranty and related claims.
Because the case was decided on summary judgment below, we view the facts and the inferences reasonably to be drawn from them in the form most favorable to the appellant. In re Estate of Sasson, 387 N.J. Super. 459, 462-63 (App. Div.), certif. denied, 189 N.J. 103 (2006). Willis purchased a used 2004 Jeep Grand Cherokee with 16,588 miles on it from a Chrysler dealer in late 2005 or early 2006. The balance of the Chrysler three-year, 36,000 mile warranty applied to the vehicle.
Willis experienced a series of problems with the Jeep, beginning shortly after its purchase and continuing through the end of the warranty period. Some of them were resolved by the dealer and are not relevant to this appeal. Willis experienced a clunking sound while putting the Jeep into reverse and returned the Jeep to the dealer twice in March 2006, but the dealer was unable to duplicate the noise or remedy the problem. In September 2006, he returned the Jeep to the dealer because of a banging noise when going into reverse and difficulty moving from park to reverse and reverse to park, as well as another problem that was resolved. The dealer's mechanic told Willis that the banging noise was normal when shifting.
Because the warranty then expired, Willis stopped going to the dealer seeking repair. However, he continued to experience the clunking noise when going into reverse and the difficulty moving between park and reverse. He did not believe that the noise or difficulty were "normal," as the mechanic had asserted.
Willis filed the present action in October 2006. He alleged that Chrysler's failure to remedy the clunking and shifting problems breached the warranty. He stated causes of action under the Magnuson-Moss Warranty Federal Trade Commission Improvement Act, 15 U.S.C.A. §§ 2301-2312; the Uniform Commercial Code, specifically N.J.S.A. 12A:2-314 and -315; and Consumer Fraud Act, N.J.S.A. 56:8-1 to -106.
Following a period for discovery, Chrysler moved for summary judgment. Willis opposed the motion, arguing in part that there were genuine issues of material fact. Although the notice of motion requested oral argument, the motion was decided on the papers. See Raspantini v. Arocho, 364 N.J. Super. 528, 531-32 (App. Div. 2003) with respect to the right to oral argument on substantive motions. In a written decision, the trial judge granted the motion as to all three theories of liability.
We affirm the dismissal of the Consumer Fraud Act claim substantially for the reasons expressed by the trial court.
Willis offered no evidence to support his claim under the Act. Absent some sort of unconscionable commercial practice, a breach of warranty alone is not a violation of the Act. Di Nicola v. Watchung Furniture's Country Manor, 232 N.J. Super. 69, 72-73 (App. Div.), certif. denied, 117 N.J. 126 (1989). There is no factual basis for finding an unconscionable commercial practice in the record before us.
With respect to the claims involving the warranty, however, the trial judge failed to give Willis the benefit of all favorable facts and the reasonable inferences to be drawn from them.
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving ...