On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-843-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued October 17, 2011
Before Judges Sapp-Peterson and Ostrer.
Defendant, General Gas, Inc., a corporation operating a gas station, and its principal, defendant Malini Rao, appeal from the trial court order granting summary judgment to plaintiff, a gasoline supplier which commenced litigation to recover more than $600,000, representing forty-eight separate gasoline deliveries to defendants for which no payments were subsequently remitted. We affirm.
The undisputed facts upon which the motion judge granted summary judgment were as follows. Defendants accepted petroleum deliveries from plaintiff on forty-eight occasions. The deliveries were accompanied by forty-eight invoices. Defendants claim there was an agreement between the parties that plaintiff would provide the petroleum at market rates. However, no such agreement was ever reduced to writing. Moreover, defendants continued to accept deliveries and invoices for accounts payable from plaintiff without objection, despite being under no obligation to do so if there was an objection to the billings. Defendants sold the petroleum but failed to make any payment to plaintiff for the deliveries.
Plaintiff moved for summary judgment less than thirty days prior to the scheduled trial date, and the court initially entered an order granting the motion. The court later vacated the order after receiving defendants' cross-motion to file an amended counterclaim alleging fraud and opposition to the summary judgment motion. The court granted the motion to amend the complaint and denied plaintiff's summary judgment motion.
The court concluded there were genuinely disputed issues of fact regarding the existence of an oral agreement.
Thereafter, plaintiff moved for reconsideration, which the court granted. The court once again granted plaintiff's motion for summary judgment, finding it was undisputed that the goods were sold to defendants and defendants accepted the goods but made no payments. The court additionally found that the sale of the gasoline was subject to the Uniform Commercial Code (U.C.C.), N.J.S.A. 12A:2-201, and therefore any modification of the parties' agreement required a writing. As such, the court determined that defendants' fraud claim, based upon a purported oral agreement, could not be maintained.
On appeal, defendants contend the motion judge erred in considering plaintiff's motion, which was untimely, and there were genuinely disputed issues of fact regarding whether plaintiff overcharged defendants for the fuel shipments, contrary to an oral agreement the parties reached that only "market rates" would be charged. We disagree.
Our review of a trial court order granting summary judgment is de novo, and we apply the same standard as the trial court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a "light most favorable to the non-moving party[.]" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Because our review of issues of law is de novo, we accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
Addressing the timeliness of plaintiff's motion, we are in agreement that the motion was filed less than thirty days prior to trial, contrary to Rule 4:46-1, and without a finding by the court that there was good cause for its untimeliness. We conclude, however, defendants suffered no prejudice since the court subsequently vacated its order, denied summary judgment, and afforded defendants a full opportunity to advance opposition to the motion for reconsideration.
Turning to the merits, there is no dispute that the transaction between the parties represents the sale of goods subject to the U.C.C. See N.J.S.A. 12A:2-102; Ford Motor Credit Co. v. Arce, 348 N.J. Super. 198, 200 (App. Div. 2002). ("Article 2 of the Uniform Commercial Code (U.C.C.) applies to 'transactions in goods.'"). As such, enforcement of defendants' claimed agreement that plaintiff would only charge market prices for petroleum required "some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker." N.J.S.A. 12A:2-201. Notwithstanding this provision, enforcement of an oral agreement under the U.C.C. may occur where it can be established that an oral agreement was reached and performance followed consistent with the oral agreement. N.J.S.A. 12A:2-201(3)(c); Integrity Material Handling Systems, Inc. v. Deluxe Corp., 317 N.J. Super. 406, 414 (App. Div. 1999).
Here, defendants presented no document evidencing the claimed agreement. Nor did defendants present any evidence of an oral agreement and performance consistent with any oral agreement. Rather, the undisputed evidence before the motion judge consisted of invoices detailing the quantity and price of gasoline provided in each delivery and defendants' acceptance of the deliveries, without objection each time. Moreover, defendants' acceptance of forty-eight separate deliveries evidenced their acknowledgement of their indebtedness to plaintiff for the unpaid invoices. The motion judge correctly found there were no disputed issues of fact in ...