PAUL E. GRAVERSEN v. RAKESH CHITKARA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3592-05T53592-05T5

PAUL E. GRAVERSEN,

Plaintiff-Respondent,

v.

RAKESH CHITKARA,

Defendant-Appellant.

_____________________________

 

Submitted December 18, 2006 - Decided January 4, 2007

Before Judges Lintner and S.L. Reisner.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, SC-4504-05.

Spevack and Cannan, attorneys for appellant (Robert R. Cannan, of counsel and on the brief).

Respondent did not file a brief.

PER CURIAM

Defendant, Rakesh Chitkara, appeals from a February 10, 2006 order of the Special Civil Part denying his motion for a new trial. We affirm.

I

Plaintiff, the owner of a Lee Myles transmission repair franchise, sued defendant, who owns a medical transportation company, to collect a $2,780.38 bill for repairing the transmission on one of defendant's vans. Plaintiff and his wife claimed that the work was done, that defendant refused to come in to sign a written authorization or authorization waiver for the work, but that defendant did give him the security code for his American Express Card to pay for the work. Defendant claimed that he did not authorize the work to be done and that it was not done.

Defendant presented an expert witness who contended that he looked at the bolts holding the transmission to the van and concluded based on the amount of rust on the bolts that they did not appear to have been removed within the past year, as opposed to within the past five months when plaintiff claimed the work was done. But he admitted he did not look at the transmission itself to see whether it appeared to contain new parts. In rebuttal, plaintiff presented testimony from the mechanic who rebuilt the transmission. He testified that he did the work, and explained that the bolts would begin to rust "in [a] very short amount of time" after being replaced because "[t]here's no coating on them."

After a bench trial, Judge Sullivan issued an oral opinion on January 5, 2006, in which he concluded that plaintiff, his wife, and their mechanic were more credible than defendant and his expert witness. He concluded that the work was done and that defendant authorized it. Judge Sullivan denied defendant's motion for a new trial. After defendant filed his appeal, Judge Sullivan issued a supplemental written opinion on March 21, 2006, pursuant to Rule 2:5-1(b). In his supplemental opinion, Judge Sullivan reaffirmed that he found plaintiff more credible:

In his certification of January 9, 2006 defendant argues that plaintiffs could have obtained the security code for his American Express card in a telephone conversation regarding earlier repairs to other ambulances. The court is aware of that assertion but still feels the plaintiffs' version, that they had to obtain the security code on this last occasion, to be more credible. The plaintiffs testified that they wanted defendant to come in and sign the paperwork and present his credit card. They further stated that this was what started the rift in the relationship. Plaintiff refused which was what required them to take the credit card over the phone with the security code.

Judge Sullivan also rejected defendant's contention "that plaintiffs failed to comply with [N.J.A.C. 13:45A-26C.2(a)(3)(i)(5)] in obtaining a written waiver of estimate." Relying on D'Egidio Landscaping, Inc. v. Apicella, 337 N.J. Super. 252, 257 (App. Div. 2001), Judge Sullivan concluded that since defendant caused "the absence of a writing" by refusing to sign an authorization and present his credit card in person, he could not claim the protection of the Consumer Fraud Act regulation requiring a written waiver of estimate.

II

On appeal, we must defer to a trial court's findings of fact so long as they are supported by sufficient credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). In particular, we defer to a trial judge's credibility determinations, bearing in mind that he had the opportunity to hear the witnesses testify. State v. Locurto, 157 N.J. 463, 474 (1999).

On this appeal, defendant contends that plaintiff violated the Consumer Fraud Act regulation, N.J.A.C. 13:45A-26C.2, and since defendant did not sign a written authorization or waive the right to an estimate, plaintiff cannot charge him for the work. He also contends that the judge's determination, that the work was actually done, is against the weight of the evidence.

Having reviewed the trial transcript, we conclude that Judge Sullivan's conclusion that plaintiff's mechanic performed the work is supported by sufficient credible evidence. See Close v. Kordulak Bros., supra. Hence, we turn next to defendant's Consumer Fraud Act claim. Defendant has not provided us with a copy of his motion for a new trial, but from our review of the transcript we conclude that defendant did not raise this claim at trial. The claim could not fairly be raised for the first time on a motion for a new trial, since plaintiff had no opportunity at the trial to present evidence to rebut the claim. See Lahue v. Pio Costa, 263 N.J. Super. 575, 597-98 (App. Div.) (discussing analogous principles regarding motions for reconsideration), certif. denied, 134 N.J. 477 (1993). Moreover, defendant has not properly perfected his appeal on this issue, because he has not provided us with any of the record documents presented to the trial court on the new trial motion, including the January 9, 2006 certification to which Judge Sullivan referred in his written opinion.

Further, even if we were to consider the claim, we would reject it on the merits. In D'Egidio Landscaping, supra, 337 N.J. Super. at 257, we held that "defendant is not entitled to the protections offered by the statute and the [Consumer Protection] regulation because it was his own conduct which caused the violation." Having reviewed the record, we conclude there is sufficient evidence to support Judge Sullivan's conclusion that this principle is applicable here.

Affirmed.

 

 

At the bench trial, both parties agreed that the complaint would be amended to name Lee Myles of Freehold as the plaintiff. The record does not reflect whether the franchise is a corporation or whether plaintiff simply conducts business under that name. The parties also agreed that Courtesy Medical Transportation, Inc., would be named as the defendant. However, the order denying defendant's motion for a new trial is captioned Paul E. Graverson v. Rakesh Chitkara. Defendant has not supplied us with a copy of the underlying judgment, and he has not raised on appeal any issue concerning his personal liability.

(continued)

(continued)

6

A-3592-05T5

January 4, 2007