Opinion
DOCKET NO. A-4446-11T4
09-03-2013
ROBERT BENNER, Plaintiff-Appellant, v. BRUCE SHARP, DONNA SHARP and BRUCE'S TOWING AND REPAIR, Defendants-Respondents.
Robert Benner, appellant pro se. Hoffman DiMuzio, attorneys for respondents (Jeremiah J. Atkins, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Haas.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Gloucester County, Docket No. DC-008873-11.
Robert Benner, appellant pro se.
Hoffman DiMuzio, attorneys for respondents (Jeremiah J. Atkins, on the brief). PER CURIAM
Appellant Robert Benner appeals from the February 29, 2012 order of the Special Civil Part granting defendants Bruce Sharp, Donna Sharp, and Bruce's Towing and Repair's motion for summary judgment. Appellant also appeals the court's March 22, 2012 order denying his motion to file an amended complaint. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On November 2, 2011, plaintiff filed a complaint against defendants asserting that they "were hired to do transmission" work on his 1992 Jeep Wrangler, but "numerous problems" thereafter arose with the vehicle. He alleged he gave a 2006 Jeep Wrangler to defendants as "collateral" for the repairs, but defendants refused to return it to him. On December 14, 2011, defendants filed an answer, together with a counterclaim alleging they had purchased the 2006 Jeep from plaintiff, but he failed to sign the certificate of title for the vehicle over to them.
Defendants sought discovery from plaintiff and served a request for admissions on him. Plaintiff did not respond to the request for admissions and, pursuant to Rule 4:22-1, the matters were deemed admitted by the trial court. According to the admissions filed by defendants, appellant brought his 1992 Jeep to their repair shop in August 2011 to get the transmission replaced. The repairs cost $1,537.82. Plaintiff paid defendants $1,200 and left his 2006 Jeep as collateral for the remaining amount due. The 2006 Jeep "was significantly damaged and in need of extensive repairs" at the time plaintiff gave it to defendants to hold as collateral. Plaintiff eventually paid the remaining $337.82 and took the 1992 Jeep. However, he failed to retrieve the 2006 Jeep.
In October 2011, plaintiff called defendants to get his 1992 Jeep towed to their shop. Defendants inspected the vehicle and found that the heater core had failed and the starter and battery needed to be replaced. These repairs were not related to the earlier transmission work. Defendants repaired the vehicle, but plaintiff failed to pick it up.
In September, defendant Bruce Sharp offered to purchase the 2006 Jeep from plaintiff in return for a 1999 Ford F250, in which he would install "a newly repaired engine," and $1,500. Plaintiff agreed. Sharp repaired the Ford and gave plaintiff $1,500. Plaintiff and Sharp then exchanged titles for the two vehicles.
Sharp later discovered that plaintiff had failed to sign the back of the title for the 2006 Jeep. Despite several requests, plaintiff refused to sign the title over to Sharp. As a result, Sharp could not acquire legal title to this vehicle.
After the matter was scheduled for trial, defendants filed a motion for summary judgment. However, the judge held the motion in abeyance and began the trial. Plaintiff then requested a jury trial and the matter was adjourned. At that time, the judge determined he would consider defendants' summary judgment motion and he gave plaintiff the opportunity to respond to it. However, plaintiff did not file a response to the motion.
Based upon the facts set forth in defendants' request for admissions, the judge granted defendants' motion for summary judgment. He dismissed plaintiff's complaint and entered judgment in favor of defendants for the $1,5 00 Sharp had given to plaintiff, together with post-judgment interest. Because plaintiff's complaint had been dismissed, the judge thereafter denied plaintiff's motion to file an amended complaint to add an additional plaintiff. This appeal followed.
On appeal, plaintiff argues that defendants "stole" his 2006 Jeep; did not "install [a] rebuilt used transmission" in his 1992 Jeep; "boobied trapped" his "truck" so that it would "fall apart;" and "tampered" with evidence. We find these contentions to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
When reviewing an order for summary judgment, we utilize the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When determining whether there is a genuine issue of material fact, the court 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 fact-finder 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).
Here, plaintiff never responded to defendants' request for admissions and they were therefore deemed admitted under Rule 4:22-1. Despite being given the opportunity to respond to defendants' motion for summary judgment, plaintiff failed to do so. Thus, the admitted facts of the case establish that plaintiff agreed to sell his 2006 Jeep to defendants, accepted $1,500, and then failed to provide the title to Sharp. Under these circumstances, we perceive no reason to disturb the trial judge's determination to grant summary judgment to defendants in the amount of $1,500.
Because plaintiff's complaint was dismissed on February 29, 2012, there was no basis for the judge to permit plaintiff to thereafter amend the complaint to add another plaintiff. Therefore, the judge did not abuse his discretion by denying plaintiff's motion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION