G. WINTER'S SAILING CENTER INC. v. FRANK A. BENNETT, III

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4879-11T3

G. WINTER'S SAILING CENTER,

INC., a New Jersey Corporation,

Plaintiff-Respondent/

Cross-Appellant,

v.

FRANK A. BENNETT, III,

Defendant-Appellant/

Cross-Respondent.

_______________________________

April 22, 2013

Argued April 10, 2013 Decided

Before Judges Sapp-Peterson and Haas.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. DC-12352-11.

Franklin A. Bennett, III, appellant/cross-respondent, argued the cause pro se.

Helene B. Raush argued the cause for respondent/cross-appellant (Honig & Green-berg, L.L.C., attorneys; Adam D. Greenberg, of counsel and on the brief).

PER CURIAM

Defendant Frank Bennett appeals the April 20, 2012 order of the Special Civil Part granting plaintiff G. Winter's Sailing Center, Inc.'s motion for summary judgment. Plaintiff has filed a cross-appeal from that order, seeking additional counsel fees. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On April 3, 2010, defendant signed a two-page contract to dock his twenty-three foot sailboat at plaintiff's marina in Riverside, New Jersey. The contract was for the period between April 15, 2010 and October 15, 2010. If defendant failed to remove the boat at the end of the contract term, he was required to pay additional storage fees. In addition, he agreed to pay plaintiff "reasonable attorney fees and costs relating to suit or other collection efforts" if plaintiff instituted litigation to collect any unpaid fees.

Defendant failed to pay plaintiff all the dock fees due during the contract period and he failed to pick up his boat on October 15, 2010. As winter approached, plaintiff took the boat out of the water and placed it in dry storage. To protect the boat's engine, plaintiff also removed the engine from the boat and stored it on its premises.

On October 20, 2011, plaintiff filed a complaint seeking the unpaid storage fees, together with its counsel fees. It thereafter filed a motion for summary judgment. Finding no dispute as to any of the material facts, the trial court granted plaintiff's motion and ordered defendant to pay plaintiff $3,938.65 in unpaid storage fees, plus $2,000 in counsel fees.1 Defendant filed an appeal and plaintiff filed a cross-appeal from the court's April 20, 2012 order.

In his appeal, defendant argues the judge erred in granting plaintiff summary judgment because there were material facts in dispute. We disagree.

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).

Defendant disputes there was a second page to the contract he signed on April 5, 2010.2 However, the contract clearly states, just above defendant's signature on page one, that "TENANTS certify that the printed matter on both front and back of this agreement has been read and the terms and conditions set forth herein are fully understood." In addition, plaintiff provided an additional copy of the contract to defendant during discovery and asked him to admit it was "a true and correct copy of the agreement entered into by Frank Bennett and G. Winter's Sailing Center." Defendant stated "ADMITTED" in his response to this request for admission. Thus, it is clear that both pages of the contract were provided to defendant.

Defendant also argues the trial court erred in denying his request to file a counterclaim that plaintiff stole the engine and damaged the boat when it did so. However, defendant presented no factual basis for either of these allegations. The boat was taken out of the water and placed in dry storage, and the engine was removed from the boat, to protect them from the elements when defendant failed to retrieve them. Plaintiff's officer manager certified that removing an engine from a boat "was as simple as loosening two clamps." The boat and the engine were both on plaintiff's premises and available to defendant for inspection or to pick up. He presented absolutely no proof to support his claim that the engine was "missing" or the boat had been damaged. Because the undisputed material facts of this case demonstrate that defendant failed to pay the storage fees due under the contract, the judge properly granted plaintiff summary judgment in its collection action.

Defendant has not challenged the $2,000 in counsel fees the judge granted to plaintiff. However, plaintiff has filed a cross-appeal in which it asserts the judge erred by not granting it the full $4,135 in fees it sought. "[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). On the basis of this record, where plaintiff sought more in counsel fees than it was owed for the services it provided to defendant, we perceive no basis to disturb the judge's determination to reduce plaintiff's demand and to grant it $2,000 in counsel fees.

Affirmed.

1 The judge also required defendant to pay plaintiff taxed costs.

2 The second page of the contract required defendant to make additional rental payments if he did not pick up his boat at the end of the contract term and to pay plaintiff attorney's fees if there was a collection action.