KAREN B. TURNER v. MERCEDES-BENZ USA, LLC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3653-07T33653-07T3

KAREN B. TURNER,

Plaintiff-Appellant,

v.

MERCEDES-BENZ USA, LLC,

Defendant-Respondent.

_______________________________________

 

Submitted February 24, 2009 - Decided

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8330-06.

Kimmel & Silverman, P.C., attorneys for appellant (Fred Davis, on the brief).

Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, L.L.C., attorneys for respondent (Patrick Papalia, of counsel; Carolyn B. Hand, on the brief).

PER CURIAM

In November 2006, plaintiff Karen B. Turner filed a complaint in the Law Division in which she asserted claims against defendant Mercedes-Benz USA, LLC under the New Jersey Motor Vehicle Warranty Act (Warranty Act), N.J.S.A. 56:12-29 to -49; the Magnuson-Moss Warranty Improvement Act (Magnuson-Moss), 15 U.S.C.A. 2301 to 2312; the Uniform Commercial Code (UCC), N.J.S.A. 12A:2-314; and the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. Plaintiff appeals from an order entered by the trial court on January 18, 2008, which granted summary judgment in favor of defendant and dismissed all of her claims with prejudice. For the reasons that follow, we affirm.

We briefly summarize the relevant facts. In October 2004, plaintiff leased a 2005 Mercedes C-Class automobile from defendant. According to the lease, the car had an agreed-upon value of $39,422.87. Between October 2004 and June 2006, plaintiff brought the vehicle to defendant on ten occasions, claiming that there were certain problems with the car, including the interior lights, air conditioner, slippage of the gears while the car was in motion, tires, a foul odor allegedly emanating from the air conditioning and heating system, a loose glove compartment box, a loose windshield wiper linkage, and a noise in the steering column.

Defendant's technicians checked the vehicle and corrected without charge any deficiency that the technicians had substantiated. Defendant also retained a consultant to perform an environmental test to check the vehicle for mold and mildew. As a result of the test, the consultant found "no damaging mold" in the car. Moreover, at times, plaintiff was provided a "loaner" car for her use while her car was being serviced.

In October 2006, plaintiff claimed that her daughter had an anaphylactic reaction to an odor allegedly emanating from the vents in the car, which required her hospitalization. Thereafter, plaintiff purchased a new 2007 BMW from DiFeo BMW (DiFeo). The Mercedes was appraised for $28,000, and that amount was credited against the purchase price for the new BMW. DiFeo also agreed to pay the remaining balance due on plaintiff's lease for the Mercedes.

On December 17, 2007, defendant filed a motion for summary judgment. The trial court considered the motion on January 18, 2008, and filed a written opinion in which it concluded that defendant was entitled to judgment as a matter of law on all of the claims asserted by plaintiff in her complaint.

The trial court found that plaintiff had not established any basis for relief under the Warranty Act. The court noted that plaintiff had terminated her lease for the Mercedes; therefore, she could not obtain a refund of the purchase price. Furthermore, plaintiff had never paid for any repair services and she had been given the use of a "loaner" car without charge. Thus, plaintiff could not assert a claim for reimbursement for the warranty repairs or the expenses incurred for a replacement vehicle while her car was being serviced.

The trial court further determined that plaintiff's claims under Magnuson-Moss and the UCC failed because plaintiff had not established that defendant breached any warranty, express or implied. The court noted that defendant had never represented "that the car was in perfect condition." Rather, the vehicle was warranted for "normal use" and defendant had kept its promise to repair all warranted items at no cost to plaintiff.

The court additionally found that plaintiff had not presented sufficient evidence to support her CFA claim because she had not sustained an "ascertainable loss." The court noted that plaintiff had asserted that she terminated the lease for the Mercedes after her daughter allegedly suffered an "allergic reaction" while riding in the car. Plaintiff claimed that she suffered a loss of at least $2,495, which she had paid for the early termination of the lease. The court found that plaintiff's allegation that the car caused her daughter's "allergic reaction" was "purely speculative" and not based on any credible medical evidence.

On January 18, 2008, the court entered an order granting summary judgment to defendant and dismissing all of plaintiff's claims with prejudice. Thereafter, plaintiff filed a motion for reconsideration. The trial court denied that motion by order filed on March 17, 2008. This appeal followed.

Plaintiff raises the following issues for our consideration:

POINT I

THE LOWER COURT ERRED IN ALLOWING [DEFENDANT'S] MOTION FOR SUMMARY JUDGMENT BECAUSE IT WAS OUT OF TIME AND [DEFENDANT] DID NOT ALLEGE EXCEPTIONAL CIRCUMSTANCES.

POINT II

THE LOWER COURT ERRED IN DISMISSING [PLAINTIFF'S] MAGNUSON-MOSS AND UCC CLAIMS.

A. THE LOWER COURT ERRED IN DISMISSING [PLAINTIFF'S] CLAIM UNDER MAGNUSON-MOSS AND THE [UCC] FOR BREACH OF [DEFENDANT'S] EXPRESS WARRANTY.

B. THE LOWER COURT ERRED IN DISMSSING [PLAINTIFF'S] CLAIM UNDER MAGNUSON-MOSS AND THE [UCC] FOR BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY.

POINT III

THE LOWER COURT ERRED IN FINDING PLAINTIFF COULD NOT PROVE DAMAGES UNDER ITS BREACH OF WARRANTY THEORIES.

A. THE LOWER COURT ERRONEOUSLY APPLIED THE ASCERTAINABLE LOSS REQUIREMENT OF THE NEW JERSEY [CFA] TO [PLAINTIFF'S] BREACH OF WARRANTY CLAIMS.

B. THE LOWER COURT ERRONEOUSLY INTERPRETED THE NEW JERSEY SUPREME COURT'S ASCERTAINABLE LOSS ANALYSIS.

We have reviewed the record in light of these contentions and the applicable law. We are convinced that plaintiff's arguments are entirely without merit. We therefore affirm the order granting summary judgment to defendants substantially for the reasons stated by the trial court in its written decision filed on January 18, 2008. R. 2:11-3(e)(1)(A) and (E). We add the following comments.

Plaintiff first argues that the trial court should not have considered defendant's motion for summary judgment because the motion was untimely. As stated previously, defendant's motion was filed on December 17, 2007. The motion had a return date of January 18, 2008. At the time the motion was filed, the trial was scheduled for January 8, 2008.

Before filing the motion, defendant's attorney had obtained consent from plaintiff's counsel to adjourn the trial date because defendant's attorney had just returned from maternity leave and had been assigned to the case. When plaintiff's counsel learned of defendant's summary judgment motion, he withdrew his consent to the adjournment.

Defendant thereafter filed a motion with the Presiding Judge of the Civil Part seeking an adjournment of the trial, noting that a summary judgment motion had been filed and was returnable after the trial date. Defendant also noted that one of its experts was unavailable on the scheduled trial date. This was the first request to adjourn the trial. The Presiding Judge granted the motion and adjourned the trial for sixty days. The trial court considered defendant's summary judgment motion on the January 18, 2008 return date.

Plaintiff argues that the trial court should not have considered the summary judgment motion because it was filed beyond the time prescribed by Rule 4:46-1. The rule requires that a motion for summary judgment be made returnable "no later than [thirty] days before the scheduled trial date, unless the court otherwise orders for good cause shown[.]" Ibid. Here, however, the Presiding Judge of the Civil Part adjourned the scheduled trial date for sixty days. As a consequence, the motion was returnable within the time specified in Rule 4:46-1.

Plaintiff next argues that the trial court erred by granting summary judgment to defendant on her claims under Magnuson-Moss and the UCC for breach of express and implied warranties. Plaintiff contends that defendant never fully addressed her complaints about the vehicle. She claims that the vehicle was not operating "as a new vehicle" should operate and she had been compelled to return the vehicle for warranty repairs an unreasonable number of times.

In opposing defendant's summary judgment motion, plaintiff submitted a three-page report from Scot A. Turner (Turner), who is an automobile technician. In his report, Turner recounted the car's "repair history" and asserted that the records showed "an overall lack of quality and reliability marked by serious and recurrent problems that were not corrected in a reasonable period of time or number of repair attempts." Turner opined that the "use, value, and safety of [the] vehicle have been substantially impaired."

Turner failed, however, to substantiate his assertion that defendant failed to correct "serious and recurrent" problems with the car. Plaintiff asserts that she brought the car in for repairs an unreasonable number of times and also that the alleged problems with the car were "never fixed." The record shows, however, that defendant made the repairs to address deficiencies substantiated by its technicians. The record also shows that defendant's technicians found no basis for many of plaintiff's complaints.

Indeed, plaintiff repeatedly insisted that the car had a persistent mold problem and a moldy odor was emanating from the vehicle's heating and air conditioning system. As stated previously, defendant had a consultant test the vehicle and the consultant found "no damaging mold" in the car. Plaintiff presented no evidence to refute the conclusions reached in that report.

Plaintiff additionally argues that the trial court erred by concluding that she had not established a sufficient monetary loss to support her claims under the CFA. Again, we disagree. The CFA establishes a private cause of action for any person who suffers "any ascertainable loss of moneys or property" due to "the use or employment by another person of any method, act, or practice declared unlawful under [the] act[.]" N.J.S.A. 56:8-19. An "ascertainable loss" means an "actual loss." Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005).

In this matter, the trial court correctly found that plaintiff had not presented sufficient evidence to establish that she, in fact, sustained an "ascertainable loss." Here, as in Thiedemann, plaintiff did not suffer any monetary loss because defendant performed all required warranty repairs without cost to plaintiff and, at times, defendant had provided plaintiff a "loaner" car while her car was being repaired. Id. at 252. Moreover, as was the case in Thiedemann, plaintiff leased the car and therefore was "unable to advance an argument that she might be able to demonstrate loss in future resale value[.]" Id. at 253.

Plaintiff argues, however, that she suffered an "ascertainable loss" because her lease payments were more than they should have been. In his report, Turner stated that the Mercedes was in a "fair condition" because it had certain mechanical problems. Turner said that the difference between the value of the car in "excellent condition" and in "fair condition" was 14.8 per cent.

Turner opined that this difference in value should be reflected in plaintiff's lease payments because those payments were based upon a car "free from significant or recurrent defects and conditions." For these reasons, Turner asserted that, plaintiff had paid $85.84 per month more than she should have paid to lease the car.

Plaintiff's assertion is essentially that she lost the benefit-of-the-bargain because her vehicle at times required warranty service. However, the "warranty program" was part of the bargain. Id. at 251. Defendant made all of the repairs required under the terms of the warranty and did so at no cost to plaintiff. Because plaintiff received what she bargained for, it cannot be said that she overpaid on any of the lease payments.

Affirmed.

 

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A-3653-07T3

March 19, 2009