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Miranda v. Marinemax, Inc.

Superior Court of New Jersey, Appellate Division

October 7, 2013

RONALD MIRANDA, Plaintiff-Appellant,
v.
MARINEMAX, INC., and BANK OF AMERICA, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 19, 2012.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-933-10.

Karri Lueddeke argued the cause for appellant (Lueddeke Law Firm, attorneys; Ms. Lueddeke, on the brief).

Kevin M. McKeon argued the cause for respondent MarineMax, Inc. (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. McKeon, on the brief).

Paul J. Giordano, attorney for respondent Bank of America, joins in the brief of respondent MarineMax, Inc.

Before Judges Sapp-Peterson and Nugent.

OPINION

NUGENT, J.A.D.

Plaintiff, Ronald Miranda, appeals from the December 16, 2011 Law Division order that dismissed his consumer fraud and rescission claims against defendant, Marine Max, Inc., who had sold him a 1995 Chris Craft boat; and from the March 16, 2012 order denying his motions for reconsideration and to amend his complaint. Having considered his arguments in light of the record and controlling law, we affirm.

I.

The parties' dispute stems from plaintiff's purchase on April 26, 2008, of a used 1995 Chris Craft 38 Continental boat (the boat) from defendant, MarineMax, Inc.[1] Plaintiff, an engineer, first became interested in the boat when he saw an online ad. Responding to the ad, he traveled to MarineMax's yard in Lindenhurst, New York, and spoke with a salesman, Nick Ruiz.

Ruiz showed the boat to plaintiff and the two men discussed the boat's general condition. Plaintiff's "particular focus was on the engines, what was the condition of the engines, . . . was it a sound vessel, just general probing of the condition of the boat." Ruiz assured plaintiff that the boat was in good condition. He also said plaintiff could have a "sea trial" and do "whatever you want to ascertain the condition of the boat." Ruiz said that if plaintiff found anything wrong with the boat, "we'll discuss repairs."

During the next few weeks, the men had further discussions about the boat, and plaintiff said he wanted to have a "survey" of the boat. In early April, plaintiff and a representative of MarineMax signed an undated "Purchase Agreement." Under an entry entitled "Dealer Installed Options, " the agreement listed, one above the next, the following: Subject to Sea Trial; Subject to Survey; Wash/Wax/Detail; Replace Transom Door (Cracked); Fix Cockpit Upholstery Rip; Coast Guard Kit; Load Test Batteries. Plaintiff testified at his deposition he understood the "subject to sea trial" language to mean that he "would survey the boat, go to sea trial, review any issues with the boat for further discussion whether MarineMax was going to repair them or not. If they weren't going to repair them, I wasn't going to take the boat."

On April 3, 9, and 14, 2008, Kinsey Marine, LLC, a company whose services plaintiff had used previously, performed the survey and sea trial. Upon completion of the survey and sea trial, Kinsey prepared exclusively for plaintiff a "Report of Marine Survey, Pre-purchase condition & value." The report included a seven-page "Inspection Recommendations Summary, " which stated, among other things, that the boat's "port engine check engine light remained on during the course of the sea trial." The authors of the report recommended that "a mechanic trouble shoot and repair port engine 'check engine' light." The survey also recommended that a "qualified engine mechanic trouble shoot and repair[] [t]he cooling water temperature ...


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