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Richard Demarco v. Gemini Towing

September 2, 2011

RICHARD DEMARCO, PLAINTIFF-APPELLANT,
v.
GEMINI TOWING, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
BHAVIN A. PATEL, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1527-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 8, 2010

Before Judges Rodriguez, Grall and LeWinn.

Plaintiff Richard DeMarco appeals from the January 8, 2010, $21,223.75 bench trial judgment in favor of Gemini Towing (Gemini); and the February 19, 2010 order denying his motion for reconsideration. We affirm.

This matter is before us for the second time. We summarized the procedural history and facts in our prior decision. DeMarco v. Twp. of Piscataway, No. A-3904-07T3 (App. Div. July 1, 2009) (DeMarco I). Therefore, we provide only those facts relevant to the issues raised on this appeal.

On September 22, 2006, the Piscataway Township Police (Police) impounded a 2002 Nissan Silva (Nissan) because its driver, Bhavin A. Patel, could not produce valid insurance or motor vehicle registration cards. The Nissan did not have a vehicle identification number (VIN) and its license plate was not on record with the New Jersey Motor Vehicle Commission (MVC). The Police summoned defendant, Gemini Towing, an operator licensed by Piscataway Township, to tow the Nissan.

On October 5, 2006, Patel asked the Police to release the Nissan. Patel provided a "Bill of Sale" with his request and a document that was written entirely in Japanese which he contended was the title of ownership. The Police, however, required a certificate of ownership issued by the MVC prior to releasing the Nissan.

Three months later, DeMarco sent the Police an insurance identification card and a copy of a bill of sale and assignment of claim transferring interest in the Nissan from Patel to himself. He also sent a "demand for release" of the Nissan. The Police again insisted on receiving a certificate of ownership from the MVC.

Rather than obtain that document, DeMarco filed a pro se complaint and order to show cause against Piscataway Township seeking the release of the Nissan. He also sought an order limiting Gemini's storage fees to the time period between the initial impoundment and Patel's attempt to retrieve it on October 5, 2006. The judge denied relief, and recommended that DeMarco add Gemini as a party because his suit concerned the "payment of towing and storage fees being charged" by Gemini.

More than a year later, on October 25, 2007, DeMarco moved again for the release of the Nissan after obtaining a certificate of ownership from the MVC. Pursuant to the February 29, 2008 order, the Police authorized the release of the Nissan conditioned upon DeMarco's payment of the towing and storage fees due to Gemini.

DeMarco appealed this order, contending that the court did not have jurisdiction to enter a money judgment in favor of the non-party towing company. We affirmed, holding that "[t]he jurisdiction to compel payment of fees authorized by a governing ordinance is clear. To the extent the [February 29, 2008] order can be read to sustain the non-party towing company's demands for payment, however, it is vacated." DeMarco I, supra, (slip op. at 8).

While DeMarco's suit against Piscataway was still pending, he filed another suit against Gemini, seeking possession of the Nissan and/or $32,000 for conversion. Gemini answered; counterclaimed against DeMarco for the payment of storage fees; and filed a third-party complaint against Patel.*fn1 Both parties subsequently agreed to limit the accumulation of storage fees to $21,223.75.

Judge John A. Peterson, Jr., conducted a bench trial on December 15, 2009. He found that our DeMarco I opinion and the Piscataway ordinances established that Gemini "was entitled to reasonable costs associated with the towing, impoundment, and storage of the subject vehicle." Further, DeMarco could not challenge the Piscataway ordinances because DeMarco had not joined Piscataway as a party. Finding that the fees set in the ordinance were both fair and reasonable, the judge entered a judgment against DeMarco in favor of Gemini for $21,223.75. The judge also entered a judgment in favor of Gemini against Patel in the amount of "$1,680.00, representing towing and storage costs from September 22, 2006 to November 17, 2006, the date when [DeMarco] became owner of the 2002 Nissan."

The judge supplemented his opinion the next day, finding that Gemini was alternatively entitled to its fees pursuant to the doctrine of quantum meruit. Gemini had provided a service, and DeMarco had accepted those services by purchasing the Nissan with full knowledge of the debt owed to Gemini. Thus, a written contract obligating DeMarco to pay Gemini was unnecessary.

DeMarco moved for reconsideration, but failed to include the transcripts from the judge's prior decision with his motion. Therefore, the judge denied the motion.*fn2

COLLATERAL ESTOPPEL

DeMarco argues that Judge Peterson erred in giving collateral effect to the trial judge's oral opinion from DeMarco's first suit against Piscataway Township. DeMarco points to our ruling in DeMarco I which allowed him to sue Gemini to challenge the costs of the storage and towing. Because the judge did not apply collateral estoppel to preclude any of DeMarco's claims, we disagree.

Judge Peterson began his decision by noting that our prior opinion established that DeMarco should be "required to pay reasonable costs associated with the impoundment" of the Nissan. Nevertheless, he also heard testimony and conducted his own thorough review of the Piscataway ...


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