On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-36-04.
The opinion of the court was delivered by: Messano, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad,*fn1 Payne and Messano.
Plaintiff George Harvey, the owner of Harvey's Towing Service, appeals from the August 18, 2006, interlocutory order that limited his claim for monetary damages against defendant, Township of Deptford (Deptford). Applying the limit fixed by that order, the trial judge subsequently entered judgment on January 22, 2007, in favor of plaintiff against defendant in the amount of $98,705. Harvey argues that the judge misapplied N.J.S.A. 40:48-2.50 to limit his damages on a per vehicle basis, and that as a result, he was denied the opportunity to prove his actual damages, an amount he claims was significantly higher. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.
Plaintiff towed and stored vehicles at the request of Deptford and its police department from 1995 to 2003. He filed a complaint in January 2004 in which he alleged that Deptford had failed to comply with its statutory obligations to publicly auction those vehicles. In the complaint, plaintiff sought an order compelling Deptford "to comply with its obligations to auction vehicles and obtain titles so that the vehicles may be removed from plaintiff's premises." Plaintiff also sought "compensatory damages, punitive damages, special damages and the imposition of sanctions, together with counsel fees and costs . . . ."
Deptford filed its answer and discovery ensued, apparently limited to interrogatories and document requests. On July 14, 2005, plaintiff moved for partial summary judgment on the issue of liability. In support of the motion, plaintiff supplied his counsel's certification along with attachments comprised mostly of defendant's answers to interrogatories and documents it supplied. Plaintiff demonstrated that Deptford had held only two vehicle auctions between 1995 and June 2003. Deptford admitted that it failed to hold any auctions pursuant to N.J.S.A. 39:10A-1 to -7, despite internal memoranda from the police department outlining the procedure for holding auctions, and notices from various State agencies indicating the obligation to comply with the statute.
Deptford did not oppose the motion, and on August 19, 2005, the motion judge delivered an oral opinion, subsequently memorialized in an order dated the same day, granting plaintiff's motion for partial summary judgment. The judge ruled that "Deptford . . . breached its obligations to plaintiff," and he "declare[d] that  Deptford [was] liable to  plaintiff for the tow costs and the storage costs in an amount to be determined at a proof hearing."
After efforts by the parties to count the number of vehicles that had been towed and stored at Deptford's request, 221 vehicles were removed from plaintiff's property on April 6, 2006. On July 24, 2006, Deptford moved for an order limiting the amount of monetary damages that plaintiff could recover for storage costs. In particular, Deptford argued that pursuant to N.J.S.A. 40:48-2.50, plaintiff's recovery was limited to $400 per vehicle stored.
Plaintiff opposed the motion and certified that based upon his actual towing and storage costs, Deptford owed him $4,479,508.70. Plaintiff also furnished a series of letters between his counsel and counsel for Deptford, evidencing attempts to resolve the matter, and noted that Deptford never claimed its damages were limited by the statute.
At oral argument held on August 18, 2006, Deptford contended that the legislation, enacted in 1987, was intended to limit the amount plaintiff could charge for storage of the vehicles. Citing legislative history, Deptford argued that the Legislature had concluded by enacting the statute that "[i]t was imperative that a reasonable limitation be imposed on the storage fees for the important public purpose of sustaining local [fiscal] soundness."
Plaintiff countered that he was entitled to his actual damages "as a result of [Deptford's] breach of its independent statut[ory] [duty]." Plaintiff noted the long history of trying to have Deptford respond to his entreaties to remove the vehicles through the auction process. Plaintiff further contended that he could not limit his damages by auctioning the vehicles himself because he lacked any authority to do so since the vehicles were not towed "at the request of or with the authority of the owner[s]."
In a brief explanation of his ruling, the judge concluded that "the statute would appear to apply to this situation," and makes "quite clear . . . [its purpose was] to limit the liability of municipalities to $400 per vehicle for storage fees." He entered an ...