NAT VAUGHN v. CONTEMPO MEDICAL, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2334-04T12334-04T1

NAT VAUGHN,

Plaintiff-Appellant,

v.

CONTEMPO MEDICAL, INC.

Defendant-Respondent.

________________________________________________________________

 

Submitted November 14, 2005- Decided

Before Judges Lintner and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No SC-1552-04.

Nat Vaughn, appellant pro se.

Contempo Medical, respondent has not filed a brief.

PER CURIAM

Plaintiff, Nat Vaughn, appeals the November 29, 2004 order of the Special Civil Part that "ordered and adjudged that [plaintiff's] proofs are insufficient to support a judgment award."

Plaintiff, as executor of the estate of his deceased brother, Herb Vaughn, filed a complaint in the Special Civil Part seeking damages for the cost of replacement parts and repair of an IMC Heartway Allure power wheelchair, serial number HO9822, contending that defendant, Contempo Medical, Inc., the manufacturer's authorized dealer, breached an express warranty that entitled plaintiff to the repair of the wheelchair with new or refurbished parts.

The court conducted a proof hearing on October 20, 2004. Plaintiff testified that his brother purchased the wheelchair in October 2002 and that the defects occurred between October 2002 and October 2003, during which time he contends the defects were covered by an express warranty. The court, after considering plaintiff's testimony, adjourned the proof hearing so that plaintiff could produce (1) satisfactory evidence of the warranty to enable the court to determine the warranty's duration and coverage, and (2) evidence establishing that the defects alleged to be covered by the warranty occurred during the warranty period.

On November 29, 2004, the court entered and filed the order that states in applicable part:

IT IS, on this 29th day of NOVEMBER 2004, HEREBY ORDERED AND ADJUDGED that [plaintiff's] proofs are insufficient to support a judgment award.

The Plaintiff has failed to provide the Court with proper proof of warranty regarding the IMC Heartway Allure power wheelchair, serial number HO9822. Furthermore, even if Plaintiff were to submit proper documentation of warranty, Plaintiff must also substantiate the timeframe; specifically, that the malfunctions indeed occurred within the alleged warranty period. As a monetary judgment cannot be entered absent actual proof of Defendant's liability, judgment cannot be ordered in this matter.

The language of the order does not dismiss plaintiff's complaint and by its wording appears to grant plaintiff the right to produce additional evidence in support of his claim for damages for breach of warranty.

We are convinced that the order appealed from is not a final order but an interlocutory order. Interlocutory adjudi-cations are appealable only on leave granted pursuant to Rule 2:5-6. Granting leave is within our exclusive authority as an exercise of our discretion "in the interest of justice. . . ." R. 2:2-4. It is the exclusive province of this court to determine whether extraordinary circumstances are present warranting a piecemeal appeal. See, e.g., Fu v. Fu, 309 N.J. Super. 435, 440 (App. Div. 1998), appeal granted, 155 N.J. 585 (1998), reversed on other ground, 160 N.J. 108 (1999); Hallowell v. Am. Honda Motor Co., 297 N.J. Super. 314, 318 (App. Div. 1997). No such circumstances exist in this case.

We thus conclude that plaintiff's notice of appeal is improvidently filed. Accordingly, we dismiss the appeal without prejudice to plaintiff seeking another proof hearing before the Special Civil Part.

Dismissed.

 

We note that the appendix to plaintiff's brief contains a sales agreement, a manufacturer's limited one-year warranty, copies of Contempo Medical service visit forms indicating previous repair work on the wheelchair, telephone bill ledgers reflecting telephone calls to defendant's premises during the warranty period and a letter from plaintiff to the judge purporting to enclose the manufacturer's warranty, sales agreement, and estimates for replacement of the wheelchair from two medical suppliers. It is unknown whether these documents were received by the court prior to the court's entry of the November 29, 2004 order, as the documents supplied are not stamped by the clerk with the date received.

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A-2334-04T1

December 14, 2005