JOANN J. LEVY et al. v. DAIMLER CHRYSLER MOTORS CORP.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5096-04T25096-04T2

JOANN J. LEVY and IRWIN W. LEVY,

Plaintiffs-Appellants,

v.

DAIMLER CHRYSLER MOTORS CORP.,

Defendant-Respondent,

and

BUHLER & BITTER, INC.,

Defendant.

_______________________________________________________

 

Submitted January 31, 2006 - Decided February 14, 2006

Before Judges Coburn and Collester.

On appeal from the Superior Court of New Jersey,

Law Division, Monmouth County, L-4304-03.

Rudnick, Addonizio & Pappa, attorneys for

appellants (Jonathan Rudnick, of counsel and

on the brief).

Hardin, Kundla, McKeon & Poletto, attorneys

for respondent (Albert N. Montano, on the brief).

PER CURIAM

The complaint in this civil action alleged claims of breach of warranty, consumer fraud, violation of the Magnuson-Moss Warranty Act, and the Uniform Commercial code, arising from the leasing of a new motor vehicle. The complaint asserted that the window sticker on the vehicle "indicat[ed] that the miles for the highway would be approximately 21 miles per gallon," and that "plaintiffs' experience was anywhere from 13-15 miles per gallon." Plaintiffs, Joann J. and Irvin W. Levy, appeal from an order granting summary judgment to defendants, Daimler Chrysler Motors Corp. and Buhler & Bitter, Inc. We affirm.

Judge Perri found the following facts, which are fully supported by the record.

Plaintiffs leased a 2000 Jeep Liberty manufactured by the defendant Daimler Chrysler from defendant Buhler & Bitter on December 16, 2002. The lease was for a period of 39 months with monthly lease payments of $284.09.

The fuel consumption estimate contained on the window sticker of the vehicle stated 17 city miles per gallon and 21 highway miles per gallon. The window sticker states that, "Actual mileage will vary with options, driving conditions, driving habits and vehicle's condition[.]"

It goes on to state, "Results reported to EPA indicate that the majority of the vehicles with these estimates will achieve between 14 to 20 MPG in the city and between 17 and 25 MPG on the highway". Defendants have set forth at length the procedure by which these amounts are calculated.

Plaintiffs claim in their answers to interrogatories that defendants "sold the car knowing the gas mileage was different than represented on the sticker". Answer to interrogatory number 50.

They also claim that based upon the gas receipts attached to their answers to interrogatories the vehicle in fact performed at approximately 13 to 15 miles per gallon.

In their answer to interrogatory number 10 plaintiffs state,

"The defendants made several admissions by implication as well as by providing a check for $500 to provide limited compensation as a result of the inconvenience associated with the lack of gas mileage. In addition, the manager and salesman also implied that the mileage readings set for their automobiles was not always accurate and they were based on various factors including, but not limited to, perfect conditions. And as such, plaintiff's mileage would vary from the mileage set forth on the sticker."

In their answer to interrogatory number 13, plaintiffs state,

"Plaintiffs had numerous discussions with agents, servants and/or employees of Buhler with regard to complaints about the mileage problem. All these conversations with the dealership happened at the dealership in addition to some phone conversations wherein the plaintiff complained within a short period of time of transacting within leasing the vehicle.["]

"In addition, the plaintiffs met with a representative from Chrysler, which was a scheduled appointment with regard to the problems. The representative from Chyrsler made similar representations as those indicated by the dealership that the numbers on the vehicle were as a result of various conditions including, but not limited to, perfect conditions and gas burns faster a[t] certain times of the year.["]

On July 24, 2004, defendants had the vehicle inspected and test driven for mileage by J.W. Paskowitz. The vehicle was driven 100 miles on the Garden State Parkway at approximately 55 miles per hour and showed 25.41 miles per gallon on the highway.

Plaintiffs has not served the report of any expert supporting their claims regarding the actual gas mileage achieved, nor have they filed any certifications or affidavits in opposition to the motion that would provide any information about the manner in which the vehicle was operated when it allegedly had lower gas mileage.

On appeal, plaintiffs do not contend that any of the judge's findings of fact are unsupported by the record. Rather, they argue that the judge erred because their testimony was sufficient to establish a lemon law claim, N.J.S.A. 56:12-29 to -49. As defendants note, the Lemon Law was neither pled nor argued below by plaintiffs. We are not obliged to consider an issue not raised in the trial court. We decline to do so in this case because the issue is neither jurisdictional nor of public interest, Hieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), and because the judge's opinion is sound. Indeed, we affirm substantially for the reasons expressed by Judge Perri in his thorough and well-reasoned oral opinion of April 15, 2005.

Affirmed.

 

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A-5096-04T2

February 14, 2006