JAMES MATTIS, et al. v. QUALITY CARE, LLC, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4679-04T14679-04T1

JAMES MATTIS,

Plaintiff-Appellant,

and

HENRIETTA LEE,

Plaintiff,

v.

QUALITY CARE, LLC,

Defendant,

and

PERMOBILE, INC.,

Defendant-Respondent.

_________________________________________________

 

Submitted October 18, 2006 - Decided November 2, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BER-L-2801-03.

Howard A. Gutman, attorney for appellant.

Bressler, Amery & Ross, attorneys for respondent (George R. Hirsch and Jason M. Schoenberg, on the brief).

PER CURIAM

This civil action was commenced by plaintiffs James Mattis, who is disabled and confined to a wheelchair, and his companion and caregiver, Henrietta Lee. Plaintiff James Mattis (plaintiff) filed this action because the wheelchair he purchased from defendant Quality Care, LLC -- which was manufactured by defendant Permobil, Inc. pursuant to a purchase order and specifications provided by Quality Care -- failed to meet his own unique personal requirements.

Permobil's motion for summary judgment was granted on December 3, 2004. Quality Care's motion for summary judgment was denied and the claim against Quality Care was scheduled for trial but later settled. Quality Care, however, ceased functioning shortly thereafter and apparently failed to fund the agreed upon settlement. Plaintiff appealed, arguing that the trial judge erred in granting Permobil's summary judgment motion.

Plaintiff sought relief from Permobil based upon the wheelchair lemon law, N.J.S.A. 56:12-75 to -86, the implied warranty of merchantability, the breach of an express warranty, the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, and negligence. After carefully reviewing the record, we are satisfied that Judge Daniel P. Mecca correctly found that the absence of proof of a principal-agent relationship between Permobil and Quality Care warranted the entry of summary judgment in favor of Permobil.

Summary judgment is appropriate when "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. In determining whether there exists a genuine issue of material fact that precludes summary judgment, the trial 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 factfinder 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).

On appeal, the reviewing court applies the same legal standard as the trial court in determining whether the grant or denial of summary judgment was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998); Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). When considering the legal issues presented, the trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. Manalapan Realty L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In responding to Permobil's summary judgment motion, plaintiff asserted that in 2001 his former wheelchair began showing signs of age and periodically malfunctioned. A Quality Care technician, Steven Todd, came to plaintiff's home on October 21, 2001 to repair the wheelchair. Todd suggested that plaintiff purchase a new wheelchair, representing that a wheelchair manufactured by Permobil would "satisfy all his needs" and would enable plaintiff to be "independent in his home" because the Permobil wheelchair "[t]ilts" and has "a tighter radius" than plaintiff's existing wheelchair.

In February 2002, Todd took physical measurements of areas of plaintiff's home and concluded that the Permobil wheelchair could be appropriately sized for use in plaintiff's home. As a result, plaintiff agreed to purchase from Quality Care a Permobil wheelchair for approximately $19,000. Quality Care sent a purchase order to Permobil with express specifications as to its size.

Notwithstanding that Permobil thereafter provided a wheelchair that met the precise physical dimensions ordered by Quality Care, plaintiff immediately expressed dissatisfaction, describing his complaints in a certification in the following way:

Due to the unusual dimensions of the Permobil, the wheelchair frequently gets stuck in the doorway and I cannot maneuver in bathrooms without hitting walls and fixtures. I cannot use it in my handicapped van because my head is up against the ceiling and I cannot get the wheelchair under the steering wheel. One can see the reason. The Permobil wheelchair is con-structed in an unusual fashion, in that it is much wider and higher than the standard wheelchair, making it inaccessible to most places.

Plaintiff argued that the Permobil wheelchair he purchased from Quality Care is twelve inches longer, two inches wider and four inches higher than his former wheelchair, thus causing the difficulties he described above.

Plaintiff did not argue in opposition to summary judgment that Permobil failed to provide the wheelchair as precisely ordered by Quality Care. Indeed, there is no dispute about the fact that Permobil provided a wheelchair that met all the specifications ordered by Quality Care and that the wheelchair performed in a workmanlike manner. Instead, plaintiff complains that Quality Care's representations about the Permobil wheelchair's ability to negotiate through his home and into his motor vehicle were misleading.

Judge Mecca correctly recognized that plaintiff's complaint was not with the wheelchair itself and its functionality, but on the alleged misrepresentations of Quality Care about what a wheelchair of that size could do in his home and in his vehicle. As a result, the judge accurately concluded that Permobil's liability under any of plaintiff's legal theories turned on whether Quality Care could be deemed to be Permobil's agent. We agree with the judge's determination that the evidence, when viewed in the light most favorable to plaintiff, does not permit a finding that Quality Care was Permobil's agent.

In moving for summary judgment, Permobil provided a certification which indicated that Quality Care was not its agent but was an independent dealer with no authority to act on Permobil's behalf. Permobil also asserted that it "has no involvement in obtaining measurements from the individual customer or in advising individuals on which, if any, Permobil model is appropriate for their unique situation." Instead, Permobil receives orders from dealers such as Quality Care and manufactures wheelchairs based upon the specifications provided, and has "no control over the actions of Quality Care, nor does it have knowledge of or control over the statements made by Quality Care to potential wheelchair customers."

In opposition, plaintiff asserted "[his] understanding" of the manner in which this wheelchair was ordered:

. . . Quality Care takes measurements and provides specifications for [Permobil] to create the wheelchair. The production process is a joint effort between [Q]uality Care and [Permobil]. There are certain pre-set parameters and the wheelchair is created based upon some of the measurements the agent provides.

Quality Care was authorized to sell and service [Permobil's] wheelchairs, and represented itself as such with [Permobil's] permission and approval.

It is apparent from plaintiff's certification that these conclusory statements had no source other than what plaintiff alleges he understood from his discussions with Quality Care representatives. As a result, plaintiff's certification must be understood as not disputing Permobil's assertions that it had no actual agency relationship with Quality Care, and that the necessary link between Quality Care's allegedly misleading representations and Permobil's liability turns on whether Quality Care possessed the apparent authority to bind Permobil.

In regard to the claim of apparent authority, plaintiff only provided what he believed to be the relationship between Quality Care and Permobil based upon what Quality Care's representative told him. We are satisfied that in these circumstances Judge Mecca correctly concluded that Quality Care's alleged claims of authority to act on Permobil's behalf are insufficient to support plaintiff's apparent authority theory. As we said in Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 497 (App. Div. 2003), "[l]iability will be imposed upon the principal in cases involving apparent authority where the actions of a principal have misled a third party into believing that a relationship of authority existed." In short, "a conclusion that a party has acted with apparent authority must rest upon the actions of the principal, not the alleged agent." Ibid. (emphasis added). Neither plaintiff's opposing certification nor any other evidential materials submitted in opposition to summary judgment remotely suggested that Permobil had made any statements or taken any action that would have indicated or led a third party such as plaintiff to believe that Quality Care was its agent. And, as the trial judge correctly observed, there was also no evidence of an actual agency relationship between Permobil and Quality Care. Without such evidence, plaintiff's claims against Permobil could not continue and Judge Mecca correctly granted summary judgment.

We also conclude that plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

The record refers to this party as both Permobile, Inc. and Permobil, Inc. We will adopt the latter name for purposes of this opinion since this is how this defendant refers to itself.

Lee's claim was dismissed, a ruling not challenged on appeal.

The wheelchair lemon law does not suggest otherwise. For instance, a manufacturer's obligation to make repairs for a "nonconformity" turns on whether the wheelchair conforms to "an applicable express warranty." N.J.S.A. 56:12-77. Nonconformity is defined as "a condition or defect that substantially impairs the use, value or safety of a motorized wheelchair." N.J.S.A. 56:12-75. Here, plaintiff asks us to conclude that the size and dimensions of the wheelchair rendered it unsuitable for use in his home and his motor vehicle and that this "substantially impairs [its] use, value or safety." We decline to conclude that N.J.S.A. 56:21-75 imposes liability on a manufacturer who has no knowledge of a user's precise and unique needs when it manufactures a wheelchair that meets the precise specifications provided by contract. As we have said, there is no doubt that Permobil provided a wheelchair that met the exact specifications provided by Quality Care. Thus, Permobil's liability under the lemon law also turns on whether the facts presented at the summary judgment stage permitted a finding that Quality Care was Permobil's agent. In other words, to succeed under the lemon law, plaintiff was obligated to prove that Quality Care's express warranties were Permobil's express warranties.

(continued)

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A-4679-04T1

November 2, 2006