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Kenneth Jecas and Carolyn Sue Jecas v. D&R Boats

September 24, 2012

KENNETH JECAS AND CAROLYN SUE JECAS, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
D&R BOATS, INC., D&R BOAT WORLD, ROBERT BARONE, DONALD BARONE, AND JACK FERGUSON, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS, AND ANCHOR MARINE SERVICES OF NJ, INC. AND PHILLIP MORRIS, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3238-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 10, 2012

Before Judges Parrillo, Sabatino and Fasciale.

Plaintiffs Kenneth and Carolyn Sue Jecas*fn1 appeal from a July 9, 2010 order granting summary judgment to defendants D&R Boats, Inc. and D&R Boat World (collectively D&R), as well as three individuals associated with D&R, Robert Barone, Donald Barone, and Jack Ferguson (individual defendants).*fn2 Defendants cross-appeal from a May 28, 2009 order vacating an order dismissing the case. We reverse the July 9, 2010 order granting summary judgment to D&R but affirm the dismissal of plaintiffs' complaint against the individual defendants. We affirm the May 28, 2009 order.

I.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "consider 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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Viewed most favorably to plaintiffs, the summary judgment record established the following facts.

In 2004, plaintiffs shopped for a powerboat that contained an onboard generator.*fn3 They intended to replace a boat that they purchased in 2003 from D&R that lacked a generator. They returned to D&R and noticed a used poster in its showroom advertising a boat containing an onboard generator. They explained to a D&R sales representative that they desired a boat containing a generator and selected the advertised boat.*fn4

Although D&R knew that the generator would not run, D&R did not provide that information to plaintiffs. In August 2004, plaintiffs purchased the boat for $83,180 without knowing that the generator was defective.

D&R delivered the boat to plaintiffs' boat club and presented them with an "as is" delivery receipt. Plaintiff asked the D&R representative, defendant Ferguson, to demonstrate how to operate the equipment on the boat and discovered that the generator would not operate. Plaintiff then refused to accept delivery of the boat unless D&R agreed to repair the generator. D&R's representative indicated that D&R would pay for the repair costs or replace the generator. Plaintiff then accepted delivery of the boat.

D&R asked an owner of New York Marine Generator Co. (NYM) to repair the generator for plaintiffs. NYM's owner inspected the generator, tuned it up, and informed plaintiff that the generator was now working. Approximately one week later, plaintiff started the generator and copious amounts of smoke billowed out. In October 2004, plaintiffs removed the boat from the water for winter storage, but plaintiff continued to follow-up with D&R. D&R eventually instructed plaintiff to contact Anchor Marine, another repair company, to complete the repairs.

Plaintiff contacted Anchor Marine and its representative requested $500 to remove the generator from the boat for inspection. Plaintiff relied on D&R's representation that it would pay for the repairs and charged the $500 on his credit card expecting D&R to reimburse him. After several months, Anchor Marine informed plaintiff that the generator could not be repaired and it would cost $4,800 for a new one plus $2,000 in labor costs. D&R refused to pay. Without plaintiffs' authorization, Anchor Marine then charged plaintiff's credit card $1,542.99.

Subsequently, plaintiff filed a breach of contract special civil part (SCP) pro se complaint against D&R in Somerset County, and sought $8,260 in damages to cover the full cost of the repairs. D&R then agreed to repair the generator if plaintiff dismissed the SCP complaint, which plaintiff did. Plaintiff, however, reserved his right to pursue additional claims against D&R and Anchor Marine.*fn5 D&R fixed the generator and re-installed it on the boat, but refused to reimburse plaintiffs $1,542.99, the amount that Anchor Marine had unilaterally charged plaintiffs' credit card. Plaintiffs then filed this complaint (the Monmouth County complaint) against D&R, Anchor Marine,*fn6 and the individual defendants.*fn7

Defendants filed a motion to dismiss the Monmouth County complaint and argued that the entire controversy doctrine barred plaintiffs from proceeding because the SCP complaint had been dismissed with prejudice. In December 2007, the court granted defendants' motion. Plaintiffs then filed a motion in Somerset County seeking to modify the SCP order from "with prejudice" to "without prejudice," and on December 12, 2008, a Somerset County judge granted plaintiffs' motion.*fn8 Next, plaintiffs filed a motion in Monmouth County seeking to vacate the order dismissing the Monmouth County complaint, and on May 28, 2009, the court granted plaintiffs' motion and vacated the order dismissing the Monmouth County complaint.*fn9

Thereafter, defendants moved for summary judgment seeking to dismiss the Monmouth County complaint. The judge conducted oral argument, granted defendants partial summary judgment, and dismissed plaintiffs' claims alleging ...

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