On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4473-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 16, 2012
Before Judges Axelrad and Ostrer.
Plaintiff Thomas Galli appeals from summary judgment dismissal of his complaint alleging violation of the Consumer Fraud Act against individual defendants, Russ Williams, a salesman, and Ronald A. Markey, owner and manager of defendant Key Motorcars, LLC (Key Motorcars), and denial of his motion for reconsideration. We affirm as to Williams and reverse as to Markey.
On September 17, 2007, plaintiff filed a complaint against Key Motorcars, Markey, and Williams alleging breach of contract and violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. Defendants filed an answer to the complaint and asserted a counterclaim for frivolous litigation. Plaintiff filed a responsive pleading. On May 5, 2009, Williams filed an amended answer to plaintiff's complaint and a cross-claim against Key Motorcars and Markey for contribution and indemnification.
Plaintiff filed an amended complaint on July 27, 2009, adding three additional claims: breach of implied covenant of good faith and fair dealing, negligent performance of a contract, and fraud and fraudulent inducement. Williams filed an answer and restated his cross-claim against Markey and Key Motorcars. Markey filed an answer to the amended complaint and restated his counterclaim.
On August 13, 2010, Williams filed a motion for summary judgment. Markey filed a cross-motion for summary judgment. Plaintiff opposed the motions, and voluntarily dismissed all counts against Williams and Markey, except the count for violation of the CFA.*fn2
Following oral argument on October 15, 2010, the court granted summary judgment to Williams and Markey.*fn3 Plaintiff moved for reconsideration. Following oral argument on January 21, 2011, memorialized in an order of the same date, the court granted reconsideration, but denied reinstatement of plaintiff's CFA claims against Williams and Markey.
Plaintiff appealed. Williams filed a motion to dismiss the appeal, which we denied by order of August 9, 2011. On that date, we also denied plaintiff's motion to supplement the record. Plaintiff and Williams filed timely briefs for this appeal, but Markey did not, and by order of September 29, 2011, his brief was suppressed.
We view the facts in the light most favorable to plaintiff, the non-moving party under Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This case arises from plaintiff's attempt to purchase a 2004 Mercedes-Benz S-Class S500 W4 black opal sedan from Key Motorcars. He saw the car advertised on Ebay for $38,999. Plaintiff's brother, Michael Galli, then contacted Markey at Key Motorcars. They negotiated a price at the dealership and on July 19, 2007, Markey and plaintiff's brother, on behalf of plaintiff, executed an agreement for the purchase of the vehicle, for $34,000. Plaintiff's brother placed a $1000 deposit on the vehicle and signed plaintiff's signature on the purchase agreement.
Within a few days, plaintiff called Key Motorcars to confirm that the vehicle would be ready for pickup, and he spoke with Williams for the first time. Plaintiff testified in his deposition that Williams "seemed surprised at the call and told me that he would have to get back to me." According to plaintiff, when Williams called back, he informed plaintiff that "he had sold the car the day before to someone else. That there was a gap in communication between he and  Markey."
Williams offered to sell plaintiff a silver Mercedes S500 and a black Mercedes S500. The silver Mercedes S500 was also a 2004 and was offered at the same price as the black opal Mercedes S500. However, plaintiff testified he was only interested in the black opal color because that was the most important feature for him. Plaintiff searched for another black opal Mercedes online, in newspapers and at other dealerships, with no success. Key Motorcars refunded the $1000 deposit by check dated July 23, 2007.
Plaintiff filed this lawsuit, claiming he had a purchase agreement to buy the Mercedes for $34,000 but defendants subsequently sold the vehicle to another customer for a higher price. He sought damages of approximately $16,000, the difference between the amount he would have paid under the contract and the $50,000 he claimed the car was worth. In their joint answer, defendants contended that Williams sold the vehicle the day before Markey sold it to plaintiff, and Markey had been unaware of the prior sale.
About one and one-half years later, Williams, represented by separate counsel, individually filed an amended answer to the complaint and a cross-claim against Key Motorcars and Markey. Williams took a different position, claiming he negotiated a sale of the Mercedes to Raymond Purdon the day after plaintiff executed the purchase agreement, not the day before, at which time he was unaware of the agreement with plaintiff. Williams further asserted that at the time of the sale to Purdon, Markey was advised by Williams that plaintiff had already paid a deposit; however, Markey told him "not to worry about the agreement with plaintiff" and advised the car would be sold to Purdon. Williams further alleged that Markey had accepted service on his behalf, did not advise him about the lawsuit, and the law firm originally handling the case had not contacted him in answering the complaint.
Plaintiff filed an amended complaint to which Markey and Williams responded separately. Markey reiterated the allegations that the vehicle was sold to Purdon the day before he executed the sales agreement with plaintiff's brother, at which time he was unaware of the prior sale. Williams repeated the allegations that Markey had told him not to worry about the agreement with plaintiff and to sell the vehicle to Purdon the following day.
The purchase agreement with Purdon, provided in discovery, indicated the vehicle was sold to Purdon for $37,000 by Williams on July 18, 2007, the day before plaintiff's agreement. Depositions of Williams and Markey ...