Opinion
DOCKET NO. A-3710-11T2
02-12-2013
VIRGINIA WILLIAMS, Plaintiff-Appellant v. WAYNE WILSON, MELISSA WILSON, FAMILY AUTO CENTER, LLC, and AEGIS SECURITY INSURANCE COMPANY, Defendants-Respondents.
Roger S. Mitchell argued the cause for appellant. Scott W. Lichtenstein argued the cause for respondent Aegis Security Insurance Company (Wolff & Samson, PC, attorneys; Mr. Lichtenstein, on the brief). Respondents Wayne Wilson, Melissa Wilson, and Family Auto Center, LLC, have not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. DC-3611-11.
Roger S. Mitchell argued the cause for appellant.
Scott W. Lichtenstein argued the cause for respondent Aegis Security Insurance Company (Wolff & Samson, PC, attorneys; Mr. Lichtenstein, on the brief).
Respondents Wayne Wilson, Melissa Wilson, and Family Auto Center, LLC, have not filed a brief. PER CURIAM
Plaintiff Virginia Williams, a purchaser of a used car from defendant Family Auto Center, LLC (Family Auto), appeals from the trial court's order, following a bench trial, entering judgment in her favor against the dealership in the amount of $2990, denying without prejudice her request to enter default judgment against defendant bonding company, Aegis Security Insurance Company (Aegis Security), and dismissing Family Auto's counterclaim. She challenges the court's finding of no liability as to the individual principals and no violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195. She also argues that defendant Wayne Wilson violated the Truth in Consumer Contract, Warranty, and Notice Act (TCCWNA), N.J.S.A. 56:12-15, because he failed to disclose the history of the vehicle and that she is entitled to compensation from Aegis Security on the bond.
We dismiss the appeal as interlocutory because the decision being appealed is not final as to all issues and parties. Final judgment has not been entered against Aegis Security, nor has that count been dismissed.
In February 2011, plaintiff purchased a used 1999 Saab from Family Auto. Wilson, the general manager and principal, negotiated the sale. The installment sales agreement reflects the price as $3500, and along with an extended warranty, registration, document fees, and interest, the total contract price was $4605, on account of which plaintiff made a $1500 down payment. The warranty agreement required each party to pay half of the repair costs. The car was not immediately available for delivery and, when it was delivered, it was stalling and leaking oil, and had to be repaired. The car was repaired several times to no avail, and on April 9, 2011, plaintiff returned the car to Family Auto and demanded her money back.
In April 2011 and in subsequent amended complaints, plaintiff filed a Special Civil Part suit against Family Auto, Wilson, and his wife, Melissa Wilson, the president of Family Auto, seeking damages for conversion, fraud in the inducement, violations of the CFA, TCCWNA, and common law fraud in connection with the sale of the vehicle. Wilson filed a pro se counterclaim on behalf of Family Auto for the unpaid balance and outstanding warranty repair costs.
In the sixth count of her second amended complaint, plaintiff also named as defendant Aegis Insurance, alleging:
38. Defendants' actions, misrepresentations, errors and omissions were knowing, intentional, and made in order to induce New Jersey licensing agencies to issue licenses to defendant Family Auto Center, LLC.Aegis Security failed to file an answer and default was entered against it.
39. Defendant Melissa Wilson knew or should have known at the time she certified that Wayne Wilson was authorized to act as a signatory for defendant Family Auto Center, that he was a convicted felon, and she failed to disclose it.
40. Defendant Wayne Wilson [w]as [] not a proper person to be employed by defendant Family Auto Center, LLC.
41. The Chief Administrator of the MVC is authorized to revoke or suspend defendant Family Auto Center's license, N.J.S.A. 39:10-19, et seq.
42. Aegis Security Insurance provided a surety bond to provide an indemnity to plaintiff.
Wherefore, plaintiff demands judgment against defendant Aegis Security Insurance Company for indemnification for compensatory damages, punitive damages, attorneys' fees, interest, cost of suit, and such other relief as the court deems appropriate.
Aegis Security issued a $10,000 surety bond to Family "as indemnity for any loss sustained by any person by reason of any act by the licensee constituting grounds for suspension or revocation of the license[,]" effective from April 1, 2011, through March 31, 2012.
During the bench trial on February 23, 2012, plaintiff withdrew the first count of the complaint alleging conversion, and Judge F. Patrick McManimon dismissed the second count which alleged fraud in the inducement. The judge ultimately concluded that plaintiff did not receive what she bargained for and entered judgment in her favor for $2990 ($2450 paid for car plus $500 out-of-pocket repair costs). He found the "sloppy practices" of the dealership did not give rise to a CFA violation. He also dismissed the counterclaim.
The judge denied plaintiff's oral request to resolve the outstanding count regarding Aegis Security's bond, advising that the bonding company could move to vacate default, or plaintiff could submit proofs that the bonding company was liable. Family Auto's attorney noted a potential issue regarding the applicability of the bond based on its nature and date.
On April 24, 2012, a hearing was held to settle the form of judgment. The judge held that the final judgment in plaintiff's favor only applied to Family Auto. By orders of that date, judgment in favor of plaintiff against Family Auto in the amount of $2990 was confirmed and defendant's counterclaim was dismissed, and plaintiff's request to enter judgment against Aegis Security in that amount was denied without prejudice, with a notation "defendant to move to vacate default."
Plaintiff appealed, raising the following arguments:
POINT I
THE LICENSE OF DEFENDANT FAMILY AUTO CENTER, LLC IS SUBJECT TO REVOCATION BECAUSE MELISSA WILSON FALSIFIED SUBMITTALS TO NEW JERSEY OFFICIALS.
POINT II
THE INDIVIDUAL DEFENDANTS ARE PERSONALLY LIABLE FOR VIOLATIONS OF THE CONSUMER FRAUD ACT.
POINT III
THE INSTALLMENT SALE CONTRACT SIGNED BY DEFENDANT WAYNE WILSON VIOLATED THE CONSUMER FRAUD ACT AND ITS REGULATIONS BECAUSE, AMONG OTHER THINGS, IT MISREPRESENTED THE COST OF THE TRANSACTION.
POINT IV
DEFENDANT WAYNE WILSON VIOLATED THE TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT (TCCWNA) BECAUSE HE FAILED TO DISCLOSE THE HISTORY OF THE VEHICLE.
POINT V
AEGIS SECURITY INSURANCE COMPANY ISSUED A
SURETY BOND TO DEFENDANTS AND THAT BOND IS TRIGGERED BY THE WRONGDOING OF DEFENDANTS WILSON AND FAMILY AUTO CENTER AND SHOULD BE USED TO COMPENSATE PLAINTIFF.
In her notice of appeal, plaintiff represented that "all issues, as to all parties in this action, before the trial court . . . have been disposed of" and has taken the position that the matter should be treated as final. At oral argument, plaintiff urged that if we disagree, we should grant leave to appeal nunc pro tunc pursuant to Rule 2:4-4(b)(2), and address the merits of her appeal. Plaintiff emphasizes that Aegis Security did not move to vacate the default in the interim from the trial to her filing of the appeal nor moved to dismiss her appeal on this ground, and she has fully briefed the appeal.
Based on our review of the record and applicable law, we decline to review the matter on the merits at this juncture of the case. It is "well settled that a judgment, in order to be eligible for appeal as a final judgment, must be final as to all parties and all issues." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:2-3 (2013). See Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 383 (App. Div.), certif. denied, 209 N.J. 96 (2011) (holding that in order for a "judgment to be final and therefore appealable as of right, it must dispose of all claims against all parties") (internal quotation marks and citation omitted). It is undisputed that plaintiff's motion to enter default judgment against Aegis Security was denied without prejudice, her claim against Aegis Security has not been resolved and she has not dismissed the sixth count of her amended second complaint. Thus it is clear the matter is not eligible for appeal as a final judgment.
Leave to appeal "as within time" under Rule 2:4-4(b)(2), as in the case of all interlocutory appeals, is still an extraordinary remedy. See R. 2:2-4; Brundage v. Estate of Carambio, 195 N.J. 575, 599 (2008) (holding that the stringent standard for grant of leave to appeal is based on the "general policy against piecemeal review of trial-level proceedings"); State v. Reldan, 100 N.J. 187, 205 (1985) (noting that the power to grant leave to appeal is "highly discretionary" and "exercised only sparingly").
On balance, we do not perceive dismissal of the appeal to be an unjust result. See Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006) (dismissing appeal as interlocutory, explaining that "[a]t a time when this court struggles to decide over 7,000 appeals a year in a timely manner, it should not be presented with piecemeal litigation and should be reviewing interlocutory determinations only when they genuinely warrant pretrial review") (citations omitted).
We dismiss the appeal as interlocutory. We remand to the trial court for resolution of count six of the complaint. We do not retain jurisdiction.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELIATE DIVISION