February 1, 2011
EDWARD GIACCIO, PLAINTIFF-APPELLANT,
HUDSON TOYOTA, UNITED AUTO GROUP AND TOYOTA FINANCIAL SERVICES,*FN1 DEFENDANTS-RESPONDENTS,
AND ERWIN MELENDEZ, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3814-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 1, 2010
Before Judges Axelrad and Lihotz.
Plaintiff Edward Giaccio appeals from the summary judgment dismissal of his complaint against defendants Hudson Motors Partnership t/a Hudson Toyota (Hudson) and Toyota Motor Credit Corporation (Toyota). Plaintiff's name had been forged by his co-worker, defendant Erwin Melendez, to secure financing through Toyota to purchase an automobile from Hudson. After learning of the forgery, plaintiff filed suit against Melendez, Hudson and Toyota, alleging fraud, consumer fraud and breach of the implied covenant of good faith and fair dealing. Upon investigation, Toyota located and repossessed the vehicle and released plaintiff from the loan obligation.
Hudson and Toyota moved for summary judgment, asserting no involvement in Melendez's fraud and arguing plaintiff suffered no ascertainable loss. Plaintiff filed a cross-motion, seeking to bar defendants from introducing the release at trial because it was executed after the complaint was filed. The court granted defendants' motion and denied plaintiff's motion. We affirm.
The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
In April 2008, plaintiff was thinking of buying a car for his girlfriend. Melendez told him he should stop into Hudson to look at a 2005 Mercedes E500, which he might like. According to plaintiff, Melendez was a "referral guy" for Hudson, stating, "He used to take vehicles out all the time and have people purchase the vehicles."
Plaintiff liked the pre-owned vehicle. The next day after work, plaintiff again visited Hudson. When he arrived at the dealership, Melendez was already there with a salesman drawing up a contract to purchase the car. The contract listed plaintiff and LaKalle Truck Parts (LaKalle) as co-buyers. Plaintiff was employed by LaKalle and Melendez was its co-owner. Melendez assured plaintiff there was no problem to list LaKalle a co-buyer as he would advise his partner. When plaintiff demanded that the contract be changed to have his name and his girlfriend's name listed as the buyers, Melendez told him "oh, no, we can't. We already did the paperwork." Melendez then told him to "just sign it then what you have to do is you will have to go and try to redo the whole loan on your own time and have it done." Plaintiff claims he went along with this due to "time constraints" because he needed to pick up his girlfriend at the bus stop. He conceded that he could have simply come back the next day.
At this time, Melendez began driving a 2004 Mercedes S500. Apparently, Menendez had been denied a loan when he attempted to finance the vehicle's purchase, and was told by Hudson he needed to return the vehicle or present a co-signer on the obligation. Melendez suggested to Hudson that plaintiff would co-sign for him. At some point, Melendez forged plaintiff's signature on the financing agreement. Plaintiff asserts he did not sign the sales and finance documents for the vehicle and did not authorize Melendez to purchase it in his name. About a week later, Melendez "completely disappeared off the face of the earth."
Plaintiff discovered the forgery when he received a call from Toyota informing him he had missed payments regarding the 2004 Mercedes S500. Plaintiff initially thought the call was in reference to the 2005 Mercedes E500 he had purchased. He asked Toyota to send him the sales and finance documents. When he compared the VIN numbers and saw the forged signature, he realized what Melendez had done.
Plaintiff returned to the dealership and spoke with George Scarpedo, the manager of Hudson. Plaintiff asked how the transaction could have occurred without someone from Hudson witnessing plaintiff's signature. Scarpedo responded, "I don't know what happened. I knew [Melendez] for so long, we trusted him." Plaintiff did not speak with any other Hudson employees about the fraudulent transaction.
Plaintiff filed his complaint on July 30, 2008. Sometime before May 29, 2009, the vehicle was recovered and returned to Hudson. On that date, plaintiff received a notice from Toyota informing him that the vehicle would be sold unless he redeemed it by paying the outstanding amount of the loan, listed as $35,987.77.
The discovery end date was set for August 4, 2009. On November 5, 2009, defendant Toyota executed a cancellation of the loan for the vehicle (the Release), purporting to release plaintiff from any claims arising out of the retail installment or finance contracts. The Release also states Hudson paid Toyota an undisclosed amount to satisfy the outstanding loan balance and retain the vehicle. Toyota filed a Universal Data Form with Equifax, Experian, Innovis and TransUnion to delete the loan from plaintiff's credit history.
After the close of discovery, Hudson and Toyota moved for summary judgment, arguing plaintiff offered no evidence showing they had engaged in wrongdoing or that he suffered an ascertainable loss. Plaintiff contested entry of summary judgment and filed a cross-motion to bar Hudson and Toyota from introducing the Release at trial.
Judge Tolentino determined plaintiff failed to produce evidence Hudson and Toyota acted fraudulently stating there was not a "scintilla of evidence that would direct the Court to say, 'oh yes, the dealership had some kind of fraudulent activity afoot.'" The court granted summary judgment and denied plaintiff's motion.
On appeal, plaintiff argues that because Hudson prepared the retail installment sales contract it must have known about Melendez's conduct or ratified his use of plaintiff's signature as a co-signer. Specifically, he argues:
THE COURT REFUSED TO ACCEPT THE PLAINTIFF'S FACTUAL ALLEGATION AS TRUE THAT THE RETAIL CONTRACT WAS FORGED AND REFUSED TO ACCEPT REASONABLE INFERENCES.
PLAINTIFF HAD SUSTAINED AN ASCERTAINABLE LOSS WHEN THE SUIT BEGAN AND DEFENDANT'S ATTEMPTS TO "ERASE" BY SENDING A LAST MINUTE LOAN DISCHARGE SHOULD HAVE BEEN STOPPED BY THE COURT.
DEFENDANTS' DELAY IN PAYING OFF THE DEBT UNTIL AFTER THE DISCOVERY END DATE SHOULD HAVE BARRED THEM FROM INTRODUCING THIS EVIDENCE SINCE IT OCCURRED AFTER THE DISCOVERY END DATE AND LONG AFTER DEFENDANT, FINANCE COMPANY, HAS POSSESSION OF THE VEHICLE.
DEFENDANTS SHOULD HAVE BEEN ESTOPPED FROM RELYING UPON DISCHARGE OF [THE] LOAN SUBMITTED ONLY WEEKS BEFORE THE DECEMBER 1, 2009 TRIAL DATE.
LACHES PROHIBITS THE DEFENDANT FROM ASSERTING THAT THEY HAVE EXTINGUISHED THE PLAINTIFF'S LOSS.
The standard governing summary judgment motions is well-known. A motion for summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits . . . 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; Brill, supra, 142 N.J. at 540. On appeal, we apply the same standard as the motion judge. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
In reviewing whether or not a genuine issue as to any material fact challenged is presented, the motion judge cannot weigh the credibility of the evidence. Parks v. Rogers, 176 N.J. 491, 502 (2003); Brill, supra, 142 N.J. at 540. The court must decide from the record whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party . . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of R. 4:46-2." Brill, supra, 142 N.J. at 540.
"Unsubstantiated inferences and feelings" are not sufficient to support or defeat a motion for summary judgment. Oakley v. Wianecki, 345 N.J. Super. 194, 201 (App. Div. 2001). In addition, "[b]are conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961).
Plaintiff argues that in dismissing his complaint, the court erred by refusing to accept as true his factual assertions that "the dealer either authorized, ratified or forged" his signature while the contract was under Hudson's control. We reject this contention.
To support his claims for fraud and consumer fraud, plaintiff must show Hudson and Toyota were parties to the forgery of his signature or, at least, that they knowingly allowed Melendez to commit the forgery. See Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 n.4 (1988) (concurring with the Appellate Division's conclusion that the forging of a customer's signature on a bank loan application by a defendant's employee constitutes an unconscionable commercial practice). Merely because plaintiff makes an assertion does not cause it to become an established fact weighed against the request for summary judgment. "[C]onclusory and self-serving assertions . . . without explanatory or supporting facts will not defeat a meritorious motion for summary judgment. Competent opposition requires competent evidential material beyond mere speculation and fanciful arguments." Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009) (internal quotations and citations omitted). An opponent must do more than establish abstract doubt regarding material facts.
Other than supposition and speculation, plaintiff provides no evidence that Hudson and Toyota had knowledge of, acted in concert to commit, somehow facilitated Melendez's fraud or otherwise engaged in any unconscionable commercial practices. He did not witness the conduct or locate any witness who had personal knowledge of the events. Perhaps Melendez was the only person with knowledge of these facts, however, plaintiff declined to depose him and allowed the claims against Melendez to be dismissed for failure to prosecute. Plaintiff also could have deposed Hudson's employees, but did not. Finally, nothing implicates Toyota. Absent corroborating proof, plaintiff's declaration that Hudson must have allowed or participated in the fraud because it prepared the retail installment sales contract, insufficiently proves the elements of his cause of action.
We conclude Judge Tolentino correctly reasoned that to accept plaintiff's contention required the court to make "an inference without support[,]" concluding "it would be an unfair inference to take such a leap with respect to the facts that have been submitted to the Court[.]"
Next, plaintiff maintains the fact that he had sustained an ascertainable loss at the time suit was commenced satisfies the proof of damages. When the complaint was filed, plaintiff owed Toyota the outstanding loan balance. He argues the subsequent release and rectification of his credit history should not be considered. We conclude this claim lacks sufficient merit to warrant lengthy discussion in our opinion. R. 2:11-3(e)(1)(E). We add these brief comments.
Relief under New Jersey's Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -181, requires proof plaintiff suffered an ascertainable loss as a result of the use of the unlawful practice. See N.J.S.A. 56:8-19; Lee v. Carter-Reed Co., L.L.C., 203 N.J. 496, 521 (2010). A theoretical loss is not sufficient; the loss must be "quantifiable or measurable." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557-58 (2009). Here, although the initial debt incurred by Melendez's fraud was charged to plaintiff, he never made any payments, Hudson satisfied the debt and Toyota rectified his credit history, essentially erasing any trace of the initial obligation. These facts mirror those of Meshinsky, supra, 110 N.J. at 476, where the Court held no ascertainable debt was shown when defendant-boat-retailer forged plaintiff-buyer's signature to a retail installment agreement but the defendant paid off the loan after plaintiff filed suit. See also Bosland, supra, 197 N.J. at 558 (citing Meshinsky's holding with approval when explaining the ascertainable loss requirement).
Plaintiff additionally argues Hudson and Toyota should be barred from introducing the Release as evidence that plaintiff suffered no ascertainable loss because the discovery end date had passed. Citing Bender v. Adelson, 187 N.J. 411 (2006), plaintiff suggests Hudson and Toyota must be barred from submitting late evidence. We are not persuaded.
In Bender, the defendant-doctors sought to amend their answers to interrogatories to add three additional experts nearly one month following the court-ordered deadline for submitting expert reports. Id. at 418-19. Applying an abuse of discretion standard, the Court affirmed the trial court's decision to bar the defendants' requested amendments and deny a discovery extension because the defendants made no showing of "due diligence" or "exceptional circumstances" as required by Rules 4:17-7 and 4:24-1(c), respectively. Id. at 428.
Bender is inapposite to this matter. Here, Toyota's submission establishes plaintiff was released from the improper loan and had no obligation on the debt. Interestingly, Hudson and Toyota do not need the document to be granted summary judgment, as plaintiff must prove an ascertainable loss. He cannot ignore the fact that he has no liability and suffered no adverse consequences as a result of Melendez's actions. Meshinsky, supra, 110 N.J. at 476.
In related arguments, plaintiff seeks application of the equitable doctrines of estoppel and laches to bar introduction of the Release because it would be "unfair under these circumstances to permit the defendant[s] to benefit from their delay." We disagree, concluding it would be unfair to preclude disclosure of the fact that plaintiff was not called on to pay the debt Melendez incurred.
We reject plaintiff's contention that Hudson and Toyota "engaged in conduct, either intentionally or under circumstances that induced reliance, and that plaintiff acted or changed [his] position to [his] detriment." Knorr v. Smeal, 178 N.J. 169, 179 (2003). Plaintiff has established neither that he relied on conduct regarding the timing of the Release nor that he suffered a detriment as a result of its issuance following the discovery end date. Ibid. Unlike the plaintiff in Knorr, plaintiff had not established the merits of his claims when the Release was issued. Id. at 181. We do not fault Hudson and Toyota for engaging in discovery to determine whether plaintiff's claims that the loan debt was invalid were accurate. Once they determined the loan was invalid as to plaintiff, appropriate steps were taken to correct the situation to eliminate plaintiff's obligation. Nothing suggests defendants engaged in "delay tactics" or any "improper use of the system." Further, plaintiff offers no explanation of how delay caused prejudice.
We conclude Judge Tolentino's findings and conclusions are amply supported. Summary judgment in favor of Hudson and Toyota and the order denying plaintiff's motion were properly entered.