HARRIET BLUM v. IMPORTED CARS OF OCEAN, INC., d/b/a ACURA OF OCEAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1796-04T51796-04T5

HARRIET BLUM,

Plaintiff-Respondent,

v.

IMPORTED CARS OF OCEAN, INC.,

d/b/a ACURA OF OCEAN,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 18, 2005 - Decided

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, SC-4160-04.

Mitchell S. Berman, attorney for appellant.

Harriet Blum, respondent pro se.

PER CURIAM

After a bench trial in the Special Civil Part, Small Claims Section, judgment was entered in favor of plaintiff, Harriet Blum, against defendant, Imported Cars of Ocean, Inc., in the amount of $2,031.83 plus costs of $19. The dispute arose out of a transaction in which plaintiff purchased from defendant a new motor vehicle and traded in her old vehicle. The judgment represents the amount that plaintiff claimed she was overcharged and paid "under protest" in order to complete the transaction. The disputed amount reflects the sales tax obligation attributable to the transaction. According to plaintiff, the sale contract originally entered into by the parties contained an all-inclusive "bottom line" price, inclusive of sales tax, which defendant agreed to absorb and pay. Judge O'Hagen agreed with plaintiff and ruled in her favor.

On appeal, defendant argues that the trial judge erred in his construction of the original contract in two regards: (1) the judge failed to enforce a clause in the contract which provided that the price did not include sales tax; and (2) the judge improperly admitted and considered parol evidence in construing the contract. Defendant did not raise either of these arguments in the trial court. Defendant further argues that the trial judge erred when he failed to enforce a subsequent sales agreement, the document that plaintiff signed under protest, which obligated plaintiff to pay the sales tax in addition to the purchase price. We reject these arguments and affirm.

On October 25, 2003, plaintiff, her husband and her daughter went to defendant's automobile dealership intending to purchase a new Acura MDX Sport Utility Vehicle. They met with defendant's salesperson, Jay Pickelny. After some discussion, plaintiff signed a "Guest Sheet," in which she indicated her willingness to purchase the intended vehicle with the desired optional equipment at a price of $43,407, less $8,000 allowance for the trade of her vehicle, plus sales tax (specifically itemized in the amount of $2,124.42) and certain other fees. The net price to plaintiff was $37,820.42. Pickelny presented the Guest Sheet to his supervisors, only to return to plaintiff to inform her that he was not authorized to grant an $8,000 trade allowance on her vehicle.

Plaintiff and her family left the premises and went to another Acura dealership to continue shopping for the desired vehicle. Later that day, they returned to defendant's dealership and resumed their discussions with Pickelny. The Blums made it clear that their overriding concern was knowing the bottom line price because this was the only way they could compare defendant's deal to deals they were offered at other Acura dealerships. It did not matter to the Blums what figures were used in the calculations for the manufacturer's suggested retail price, itemized options, trade allowance, or anything else.

Pickelny prepared a sales agreement which listed the price of the new vehicle at $43,407, listed all of the desired options, but with no itemized amounts, deducted a trade allowance of $6,557.50, for a "Total Taxable Amount" of $36,849.50. To that, a registration and title fee of $160 and documentary fees of $129 were added for a "Total" of $37,138.50. The Blums made a $1,000 payment, which was shown as a "partial payment," leaving the balance to be paid in cash or certified check upon delivery of $36,138.50.

The form of agreement contained a line for sales tax, but no entry was made. Plaintiff and her husband both testified at the trial. They were adamant in their assertion that Pickelny assured them that $37,138.50 was the total bottom line price and that defendant would pay the sales tax out of that figure. They further testified that if they would have been obligated to pay sales tax in addition to the total price, they would not have made the deal with defendant because they could have done better at a different dealership.

Pickelny took the agreement to his sales manager, Robert Hasara, who signed it. Hasara had no direct dealings with the Blums. At the trial, Hasara testified, but Pickelny, who was still employed by defendant at the time of the trial, did not.

About a month later, the vehicle arrived at the dealership and was ready for delivery to plaintiff. When plaintiff sought to pay the balance of the purchase price and take delivery, she was informed by defendant's finance manager that the sales tax line on the sale contract was inadvertently left blank and that plaintiff would have to pay the sales tax in addition to the balance of the purchase price. The finance manager offered plaintiff the option of receiving a refund of her $1,000 deposit and canceling the deal. Plaintiff was extremely upset with the situation. She had waited a month for the vehicle, which was to be a graduation present for her daughter. She did not wish to go back on the market seeking to negotiate a favorable deal at some other dealership and did not know whether she could do so. She insisted on completing the transaction as it was represented to her.

Defendant's representatives prepared a new sale agreement, dated November 26, 2003, utilizing the same form as the previous agreement. This time, the optional equipment contained itemized prices. Although there was no change in the equipment, the total price of the vehicle was now $43,238. This was $169 less than the price in the prior agreement. According to Hasara, "that was just a good will gesture of some type." On this new agreement, the trade allowance remained $6,557.50, leaving a "total taxable amount" of $36,680.50. This time the sales tax line was completed with an entry of $2,200.83. After adding registration and title fees and documentary fees in the same amounts as before, the "total" bottom line price became $39,170.33. After allowing credit for the $1,000 deposit previously paid, the balance due was $38,170.33.

In order to complete the transaction, plaintiff signed the new agreement, with an inscription next to her signature, indicating that she did so under protest. Plaintiff paid the balance of the purchase price as reflected in the new agreement and took delivery of the vehicle. She then sued defendant for a refund of the difference between the two contract prices, namely $2,031.83.

Judge O'Hagen credited the testimony of plaintiff and her husband and accepted their version of the events, most importantly the discussions between the Blums and Pickelny, including Pickelny's explanation to them of the entries in the contract form and the all-inclusive bottom line price and Pickelny's assurance to them that sales tax was included in that price and would be paid by defendant. As noted, Hasara testified but had no personal knowledge of the discussions between Pickelny and the Blums, and Pickelny, although he was still employed by defendant, did not testify.

After reciting his factual findings, Judge O'Hagen rendered the following analysis and conclusion:

Was there in fact a contract reached on October 25th, 2003? If there was [defendant] had no right to unilaterally at a later time modify the agreement.

When you look at P-1 [the October 25, 2003 sale agreement] it's a form prepared by Acura of Ocean. There's an intentional omission of the sales tax line and the testimony of the Blums is to the effect that was purposeful. We just were interested in how much will this cost and we weren't concerned about how they reached that bottom line figure. And in fact, when you look at P-1, there's no specific price given for running boards and so forth and so on, and a moon roof and so forth and so on.

Now they say that this was a valid contract. When you look at D-1 [the Guest Sheet], I think it basically supports the plaintiff's perspective because earlier in the negotiations it's pretty clear that the dealer was mindful of the sales tax obligation and wished to charge the plaintiffs for that. And this was the product of the earlier failed negotiations. So they were aware of it but then when they came back in the afternoon or later on the day, when Mr. and Mrs. Blum said we don't care how you get to there, but we want a bottom line figure, and the agreement was signed.

I don't think the dealer had the authority unilaterally to terminate that agreement. I think there was a deal and there was an agreement reached. I don't think there's any basis for Acura of Ocean to renig on the deal because of a unilateral mistake on their part. There wasn't a mutual mistake. There was a unilateral mistake. And I think it gets merged into the agreement that was ultimately reached.

It is the dealership which is the professional and it is the dealership which is the seller. The dealership is held to a standard, I think, that the purchasers would not be held to. I think this was a mistake and I think it was on the part of Acura of Ocean, but they entered into an agreement and a deal is a deal. And I don't think they had the authority to do that.

Consequently I will enter judgment in favor of the plaintiffs against the defendant.

The judge's factual findings are well supported by adequate, substantial and credible evidence in the record as a whole, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), and we have no occasion to disturb them. We also find no error in the judge's legal analysis of the issues before him and the conclusion he reached. Defendant's arguments on appeal lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We offer these brief comments.

The form of sales agreement contains on the back a number of conditions, including paragraph 9, entitled "Payment of Sales and Use Taxes," which provides that "[t]he price for the motor vehicle specified on the face of this Order includes reimbursement for certain Federal Excise taxes but does not include sales taxes . . . unless expressly stated. Customer assumes and agrees to pay . . . any such sales . . . taxes imposed on or applicable to the transaction covered by this Order . . . ."

Defendant argues for the first time on appeal that paragraph 9 requires plaintiff to pay the sales tax under the plain and unambiguous terms of the initial contract. Defendant further argues for the first time on appeal that the judge erred in receiving and considering parol evidence to the contrary. Although these arguments are not properly before us because they were not raised in the trial court, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), we will address them. The agreement, within its four corners, is not clear and unambiguous. The sales tax line was left blank, yet paragraph 9 states that the "price for the motor vehicle" does not include sales taxes. That condition could be read as referring only to the first price listed in the contract, namely $43,407. Also, accepting plaintiff's description of the events, it was "expressly stated" to her that the "total" price included sales tax, a plausible interpretation in light of the failure to fill in the sales tax line. Thus, we reject defendant's contention that paragraph 9 obligated plaintiff to pay the required sales tax in addition to the "total" price calculated in the agreement.

Because of the ambiguity in the contract form and the manner in which it was completed, parol evidence was properly admitted to demonstrate the course of dealing which explains or supplements the agreement. See N.J.S.A. 12A:2-202(a). "A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct." N.J.S.A. 12A:1-205(1).

We are satisfied that Judge O'Hagen correctly admitted evidence of the parties' prior discussions and their earlier, failed transaction. That evidence was necessarily admitted to supplement the October 25, 2003 agreement by explaining why the sales tax line was left blank, but yet, a final price was agreed upon and entered on the face of the contract. The course of dealing here further showed that from the beginning the parties considered sales tax in computing the price, as evidenced by the Guest Sheet, supporting plaintiff's contention that sales tax was not inadvertently overlooked but was accounted for in the contract.

Finally, we address defendant's argument that the trial judge erroneously failed to enforce the November 23, 2003 agreement. We find no merit to this contention. Even if omission of the sales tax as a buyer's obligation was a mistake by defendant, it was a unilateral mistake and was insufficient to allow defendant to rescind the agreement. See Hamel v. Allstate Ins. Co., 233 N.J. Super. 502, 507 (App. Div. 1989).

Affirmed.

 

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A-1796-04T5

October 28, 2005