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Richard Demarco v. Gemini Towing


September 2, 2011


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

Per curiam.


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


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 ordinances to reach the conclusion that the fees were enforceable against DeMarco.

We review a judge's interpretation of law de novo. Alfano v. BDO Siedman, LLP, 393 N.J. Super. 560, 573 (App. Div. 2007). No deference is owed to such a decision. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Where the alleged error stems from a judge's findings of fact, those findings must be supported by "'sufficient credible evidence present in the record' . . . with due regard to the opportunity of the one who heard the witnesses to judge their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Pursuant to N.J.R.E. 201(a) a trial judge may take judicial notice of our court's decisional law. Although unpublished decisions are not precedent, a judge may rely on an unpublished decision for the purposes of res judicata and collateral estoppel. R. 1:36-3.

Here, the judge took notice of DeMarco I, but did not apply the decision collaterally to DeMarco's suit. Instead, the judge found on the evidence produced before him that Gemini had assessed reasonable fees in accordance with a valid ordinance. Therefore, we reject this claim of error.

DeMarco next argues that Judge Peterson incorrectly considered an order from DeMarco's first suit against Piscataway without reading the correlated oral decision which "is the more reliable recitation of [the] ruling." We disagree.

As discussed, Judge Peterson did not apply res judicata or collateral estoppel to bar any of DeMarco's claims. Therefore, this contention does not justify further discussion. R. 2:11-3(e)(1)(E).


DeMarco argues that Gemini should not be permitted to recover $9,202 for storage charges that accrued after Piscataway had authorized the release of the Nissan. He contends that the Piscataway ordinance does not permit the retention of vehicles to extract additional fees from the vehicle's owner. We disagree.

Judge Peterson examined the DeMarco I decision in which we explained that the Piscataway ordinance was passed pursuant to the enabling statute, N.J.S.A. 40:48-2.54(a). Because ordinances are presumed valid, the judge found that the Piscataway ordinance provided adequate authority for the towing company to hold the vehicle and to obtain reasonable fees. Further, Judge Peterson found that DeMarco failed to mitigate his damages because he did not seek a writ of replevin or join Gemini to his first action despite the court's instruction to do so. Indeed, DeMarco could not "complain of the delay" when his prior suit against Piscataway provided "a forum and a readily available opportunity for [him] to address any and all issues related to the towing bill."

N.J.S.A. 40:48-2.54(a) gives municipalities the authority to set rates for "[i]nvoluntary towing." Pursuant to its terms, a township which: requires the towing and storage of motor vehicles without the consent of the owners of those vehicles shall adopt an ordinance . . setting forth a model schedule of towing and storage services which they require and the rates therefor, which rates shall be based on the usual, customary and reasonable rates of operators towing and storing motor vehicles in the municipality or county, as applicable. [Ibid.]

The police may impound a vehicle without the consent of the owner if the driver fails to exhibit an insurance card, N.J.S.A. 39:3-29.1(a); or does not possess a valid permanent registration, N.J.S.A 39:3-4. The owner of a vehicle who violates these provisions is liable for the costs of storage and towing. N.J.S.A. 39:3-29.1(a) ("A motor vehicle impounded . . . shall be removed to a storage space or garage. The Registrant shall be responsible for the cost of removal and storage of the impounded motor vehicle."); N.J.S.A. 39:3-4 ("[T]he expense involved in . . . removal and storing of the vehicle [for failure to exhibit registration] shall be borne" by the vehicle's owner.).

Here, Patel did not have a valid insurance card and the Nissan was not registered and did not have valid license plates. Consequently, the Police appropriately exercised their authority to summon Gemini to impound the Nissan.

Piscataway, NJ, Rev. Ordinances § 7-13.1 through .16 govern "Vehicle Wreckers and Rotating Towing Services." Section 7-13.11 (§ 7-13.11) provides a fee schedule for licensed towing companies for "the transportation, hauling or servicing of disabled vehicles." A disabled vehicle is simply defined as a "passenger car, light weight truck, motorcycle, ATV or motor driven cycle." Daily storage charges may not exceed twenty-five dollars and towing charges may not exceed seventy-five dollars. Licensed towing operators are summoned according to a rotating call list which assigns each operator a specific day. The owner of a vehicle may, however, request another operator.

DeMarco has not challenged the validity of these ordinances despite the opportunity to do so. As such, they are presumed valid. State v. Holland, 132 N.J. Super. 17, 23 (App. Div. 1975).

The statutes authorizing the Police to impound the Nissan also provide that Gemini could collect its storage and towing fees from the owner of the vehicle. See N.J.S.A. 39:3-29.1a(a); N.J.S.A. 39:3-4; N.J.S.A. 39:4-136 (owner of vehicle that was left "standing . . . whether attended or unattended, upon the roadway" shall "pay the reasonable costs of removal and storage which may result from . . . removal, before regaining the possession of the vehicle."). Although § 7-13.11 does not reference the enabling statute, N.J.S.A. 40:48-2.54, Gemini's owner, Joe J. Ondrick, testified that towing operators in Piscataway had always relied on the statutory fee and rotation schedule when towing impounded vehicles. Therefore, the judge did not err in finding that Gemini had assessed reasonable fees in accordance with the local ordinance for towing and storing the Nissan, and that Gemini could retain possession of the Nissan until DeMarco paid those fees.

As to Gemini's alleged failure to mitigate damages, we agree with the judge that DeMarco is more culpable. DeMarco could have paid the fees due on the vehicle as early as December 7, 2007 when Piscataway granted a release of the vehicle. Despite knowing that the fees would continue to mount, DeMarco sued Piscataway and did not join Gemini. As the judge noted, DeMarco had numerous opportunities to mitigate his damages and has instead chosen a more protracted path at every juncture.


DeMarco contends that the trial judge erred in granting Gemini's fees because Gemini has "never been able to present any statutory authority for retaining [the] vehicle," after the Piscataway police granted release on December 6, 2007. He also argues that he should not be liable for towing charges assessed before he owned the vehicle, because although a vehicle may be encumbered by a lien, that lien does "not create a personal liability for a subsequent purchaser." We disagree.

We begin by noting that the Garage Keeper's Lien Act, N.J.S.A. 2A:44-20 through -31, cited by DeMarco, is not applicable to the present case. It only applies to charges resulting from work performed "at the request or with the consent of the owner" of the vehicle. N.J.S.A. 2A:44-21; see also Gen. Electric Capital Auto Lease v. Violante, 180 N.J. 24, 35 (2004) ("Despite its focus on the garage keeper, the Act affords owners with protection from unauthorized liens through the consent requirement."). Here, it is undisputed that the Police ordered the impoundment of the Nissan for various motor vehicle code infractions without Patel's request or consent.

N.J.S.A. 39:3-29.1a(b)(2) provides that the owner of a motor vehicle impounded for failure to produce a valid insurance card may only "reclaim possession" of the vehicle upon providing proof of insurance and paying "the reasonable costs of removal and storage of the motor vehicle." The same is true where the vehicle was impounded for the driver's failure to produce a valid registration. N.J.S.A. 39:3-4. These statutes gave Gemini a lien on the Nissan, thereby authorizing the retention of the Nissan until the towing charges were paid.

Our courts have consistently held that subsequent purchasers of property or chattels with notice of a lien are bound by that lien. For example, pursuant to the Garage Keeper's Lien Act, N.J.S.A. 2A:44-20, a lien for vehicle services is "binding against a subsequent innocent purchaser for value with[] notice." See also Lanterman v. Luby, 96 N.J.L. 255, 258 (E. & A. 1921) (holding that garage keeper's lien "will not be binding against a subsequent innocent purchaser for value without notice"). A purchaser of property with notice of an equitable lien on that property is similarly bound. See Highland Lakes Country Club & Cmty. Ass'n. v. Franzino, 186 N.J. 99, 111-112 (2006) (holding that an equitable lien will bind subsequent purchaser "provided there is notice").

Here, DeMarco bought the Nissan from Patel with full knowledge of Gemini's claim for towing and storage fees. Gemini's lien would have been familiar to DeMarco because he is "in the business of assisting garage keepers and towing companies [in] obtain[ing] title to vehicles that are not claimed by their owners or lien holders." The fact that DeMarco understood that he would have to pay the fees to obtain the vehicle was likely the reason that DeMarco only paid $500 for a four-year-old vehicle with the remainder of the purchase price due "[u]pon the purchaser re-claiming this vehicle." In any event, DeMarco was clearly on notice of the lien on the vehicle. Thus, the judge properly determined that Gemini's lien was valid against DeMarco.


DeMarco argues that the term "disabled vehicles" § 7-13.11 does not apply to involuntarily impounded vehicles. DeMarco cites § 7-13.14 as support because it allows the driver of a disabled vehicle to choose a wrecker. According to DeMarco, this is a privilege not typically afforded to the driver of an impounded vehicle. Instead, DeMarco argues that the "Abandoned Motor Vehicles" ordinance, Piscataway, NJ, Rev. Ordinances § 5-5.1 through .5, is "more compatible with the circumstances surrounding" the Nissan. We disagree.

The judge noted that Ondrick had established a "pattern [or] course of conduct," that towing companies "regularly applied the service rates" in § 7-13.11. Further, the judge noted that because § 7.13.11(h) included the removal of vehicles during a snow emergency, the definition of disabled vehicles did not mean inoperable vehicles. In a snow emergency the vehicle would be "disabled" within the meaning of the statute, but could still be technically operable.

With regard to the language of the abandoned vehicle ordinance, the judge found that a "common layman's interpretation of the word abandoned," as used in 5-5.5, "references . . . wrecked, non-operating vehicles," as opposed to vehicles that were subject to impoundment. Thus, the judge found that involuntarily impounded vehicles were "disabled vehicles" within the meaning of § 7-13.11.

A municipal ordinance is entitled to a "general presumption of reasonableness which attends all municipal enactments." H.P. Higgs Co. v. Madison, 188 N.J. Super. 212, 222 (App. Div.), cert. denied, 94 N.J. 535 (1983). When reviewing an ordinance, we "apply the same rules of judicial construction as when construing statutes." AMN, Inc. of N.J. v. S. Brunswick Rent Leveling Bd., 93 N.J. 518, 524-25 (1983). Clear and unambiguous plain language should control. Bergen Comm'l Bank v. Sisler, 157 N.J. 188, 202 (1999). However, "where a statute or ordinance does not expressly address a specific situation, the court will interpret it 'consonant with the probable intent of the draftsman had he anticipated the matter at hand.'" State v. Schad, 160 N.J. 156, 170 (1999) (quoting AMN, supra, 93 N.J. at 525).

Neither Piscataway ordinance expressly deals with the impoundment of vehicles for violations of motor vehicle laws. As such, it is necessary to review these ordinances to determine the "probable intent of the draftsman." Ibid.

The abandoned vehicle ordinance, § 5-5.5, pertains to "dismantled, nonoperating, wrecked, junked, or discarded vehicles," that have been abandoned on a "street or highway within the township" or "on the property [of the owner] longer than 14 days."*fn3 Any abandoned, non-operating, lost, stolen or unclaimed vehicle "shall be impounded until lawfully claimed." A garage storing an abandoned vehicle may charge two dollars per day for storage until the "owner . . . pays the cost of the taking and removal." The ordinance does not reference the impounding of a vehicle for violations of the motor vehicle laws.

The plain language of this ordinance reveals that it concerns the removal of indefinitely inoperable vehicles. The fact that this ordinance references vehicles that have been immobile for a fourteen-day period supports this interpretation. In addition, the notice provision of § 5-5.5, which requires the police to send notice to the last registered owner, suggests that the owner of that vehicle is not present when the vehicle is removed. Further, the lower storage fee corresponds to an abandoned vehicle's reduced value. If the charges were higher, the storage fees could quickly outweigh the inoperable vehicle's worth. See Harvey v. Twp. of Deptford, 402 N.J. Super. 156, 163 (App. Div. 2008).

By contrast, § 7-13.10 provides that the fee schedule in § 7-13.11 applies to "basic towing services," which include "the removal and transportation of an automobile from a highway, street or other public or private road or parking area" resulting from an accident or the recovery of a stolen vehicle. The police summon licensed tow truck operators according to a rotating list, except when an "owner or driver of a disabled vehicle" chooses another company.

The definition section of this ordinance is unhelpful in determining what qualifies as a "disabled" vehicle. It defines what qualifies as a "vehicle," rather than under what circumstances a vehicle is considered "disabled." For example, "vehicles" includes only "light weight trucks" because a towing company would likely have to charge a larger fee for towing heavy trucks such as tractor-trailers or buses.

The fact that § 7.13-14 permits the "owner or driver of disabled vehicle" to choose the towing operator of their choice suggests that the owner or driver is present at the time the vehicle is towed. That is consistent with the impoundment of a vehicle for motor vehicle infractions. There is no such provision in the abandoned vehicle ordinance. Moreover, we agree with the judge that the abandoned vehicle ordinance deals with vehicles that are inoperable because they are "partially dismantled, nonoperating, wrecked, junked, or discarded." This should be contrasted with 7-13.10, which authorizes the application of the "disabled" vehicle towing fees for tows necessitated by motor vehicle infractions, such as "an accident or theft recovery," that may or may not render a vehicle inoperable. Lastly, DeMarco did not rebut Ondrick's testimony about the course of conduct of the Police and towing operators in Piscataway.

We also note that the fact that only § 5-5.5 uses the word "impoundment" is not persuasive, because "[i]solated expressions cannot be invoked to defeat a reasonable construction." Loboda v. Clark Twp., 40 N.J. 424, 435 (1963). As such, we agree that the fee schedule in § 7-13.11 was applicable to this case.


Without a citation to any legal authority, DeMarco contends that Judge Peterson erred in considering Ondrick's testimony in determining the difference between the "abandoned vehicle" and "disabled vehicle" ordinances. We disagree.

An error is harmless unless there is "'some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led . . . to a verdict it otherwise might not have reached.'" State v. R.B., 183 N.J. 308, 330 (2005) (alterations in original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973) (citation omitted)); R. 2:10-2.

Here, any error relating to the admission of Ondrick's testimony was harmless because the judge conducted a separate analysis of the ordinances in question to reach his decision. We agree with the judge's interpretation of those ordinances and therefore reject this argument.


DeMarco next contends that the trial judge incorrectly granted Gemini's quantum meruit claim. In view of our disposition of this appeal, we find it unnecessary to reach this issue.


DeMarco contends that the twenty-five dollar per day charge for storage of the vehicle is unreasonable. We disagree.

Pursuant a section of the Predatory Towing Act, N.J.S.A. 56:13-14(a), "[a]ll fees charged for . . . non-consensual towing services and related storage services shall be reasonable and not excessive." A fee is unreasonable if it is:

[m]ore than 25 percent higher than the fee charges by the towing company . . . for the same services when provided with . . . consent . . . or . . . [m]ore than 50 percent higher than the fee charges for such other non-consensual towing . . . by other towing companies . . . operating in the municipality from which the vehicle was towed. [N.J.A.C. 13:45A-31.5(a)(1)-(2)]

Any fee exceeding a municipality's towing fee schedule is also unreasonable. N.J.A.C. 13:45A-31.5(b).

Here, DeMarco did not proffer any evidence to demonstrate that the fee was unreasonable. To the contrary, Gemini assessed its towing fees in accordance with § 7-13.11. Because Gemini's fee complies with the local ordinance, it is presumed reasonable. N.J.A.C. 13:45A-31.5(a)(1)-(2). Additionally, Ondrick testified that other municipalities use very similar rate schedules. DeMarco failed to prove otherwise.

We are not persuaded by the following contentions raised by DeMarco: (a) Gemini was without authority to impound the vehicle; and (b) the judge erred in relying on the factual narrative of the DeMarco I opinion to determine that the vehicle was appropriately impounded. From our careful review of the record we determine that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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