MARK A. EDWARDS v. OSMOND BRINKLEY

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02818-12T3

MARK A. EDWARDS,

Plaintiff-Appellant,

v.

OSMOND BRINKLEY,

Defendant-Respondent.

________________________________________________________________

November 6, 2014

 

Submitted October 21, 2014 Decided

Before Judges Reisner and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket. No. DC-15295-12.

Mark A. Edwards, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff, Mark A. Edwards, appeals from the December 20, 2012 dismissal of his Special Civil Part complaint after trial. Plaintiff sought $6400: an amount equal to the cost of a used car that defendant, Osmond Brinkley, purchased on behalf of plaintiff at auction, plus approximately $200 that defendant received for facilitating the transaction as well as undocumented car rental costs that plaintiff incurred after he returned the car keys and title to defendant. We affirm.

Defendant, a used-car dealer employed by 23rd Auto Brokers LLC (23rd Auto), who plaintiff met through a mutual friend, agreed to take plaintiff to a vehicle auction in return for a $200 dealer fee. Plaintiff wanted a model year 2003 or newer car in good condition, with a V6 engine and 120,000 miles or less. In March 2012, the parties went together to Manheim NY Metro Skyline (Skyline) car auction and purchased a car meeting plaintiff's criteria. Defendant testified that he told plaintiff that cars purchased at this auction are sold "as is." Because they could not obtain a title to the car, it was returned without a problem. The $3600 plaintiff had paid went into defendant's business account1 and was held as a credit to be used for the purchase of another car for plaintiff.

At issue is the second car purchase, also bought at a Skyline auction. Plaintiff testified that he paid defendant an additional $1100 for the second car. According to plaintiff, on Monday, May 1, defendant went to the auction house without him and bought a 2002 Eddie Bauer Ford Explorer with 156,000 miles and a V8 engine for $4700. A receipt from the auction house for the 2002 vehicle is made out to 23rd Auto and is dated May 1, 2012. The trial court took judicial notice that May 1, 2012 was a Tuesday.2

Plaintiff testified that he was "upset" that he was not with defendant when the purchase was made. Defendant and a companion dropped the car off at plaintiff's house. Plaintiff testified that he did not want the 2002 model because that model had a rollover problem and because it did not have good gas mileage or meet his maximum mileage requirement. Nonetheless, he accepted the car. He thought he had forty-eight hours to return it. The next day he and a friend returned the keys and title to defendant's place of business. Plaintiff sought to introduce an affidavit from his friend, but the trial judge would not allow its admission.

After some conflicting testimony, defendant ultimately testified that plaintiff was with defendant's partner when the car was purchased. He stated that plaintiff first tried to return the car to him about two weeks after it was delivered. Defendant testified that plaintiff later gave the car keys and title to defendant's partner at defendant's place of business. After plaintiff complained to defendant that the car was blocking plaintiff's elderly mother's driveway, defendant picked up the car, which is currently in defendant's parking lot.

In his decision, the trial judge found that the parties verbally agreed that defendant would act as plaintiff s agent to purchase a used car. The judge also found that there was neither proof nor testimony that the purchase of the second car was completed without the permission or agreement of plaintiff. The judge indicated that there was no credible evidence that defendant made any warranty to plaintiff as to the condition of the car other than it was sold "as is." Furthermore, the judge found it "incomprehensible" that if the car was unacceptable to him, plaintiff did not say, "I can't take that, I don't approve that, don't buy that for me." The discrepancies between the specifications of the car plaintiff sought and the one he received were obvious. The judge found that the car was purchased for plaintiff, and that plaintiff took possession of both the car and the transferred title.

The judge did not find that rescission was warranted in the interests of equity or fairness, noting that the defendant could not be put back to where he was before the transaction. The court entered judgment for defendant and told plaintiff that the car was his.

On appeal, plaintiff raises the following issues

I. NO EXECUTED CONTRACT EXIST[S] BECAUSE DELIVERY OF THE VEHICLE WAS NOT COMPLETED.

II. THE JUDGED ERRED WHEN HE FAILED TO CONSIDER THE FEDERAL TRADE COMMISSION'S COOLING-OFF RULE.

III. COURT FOUND AGENCY AGREEMENT EXISTED, BUT ERRED IN FINDING THE DEFENDANT['S] ACTIONS WERE OUTSIDE THE SCOPE OF AGENCY.

IV. IF THE COURT FINDS A CONTRACT EXISTED, THE DEFENDANT DID NOT SUBSTANTIALLY COMPLY WITH THE CONTRACT.

V. THE COURT COMMITTED REVERSIBLE ERROR WHEN IT CONSIDERED IRRELEVANT FACTS AND DISMISSED RELEVANT FACTS.

VI. DEFENDANT['S] COUNSEL['S] CLOSING STATEMENT INCLUDES PREJUDICIAL FACTS NOT IN EVIDENCE.

VII. THE COURT ERRED IN FINDING REC[I]SSION WAS NOT APPROPRIATE.

VIII. THE COURT ERRED WHEN IT CONCLUDED [THE] CONFUSIONS ABOUT THE DATES WAS IRRELEVANT.

IX. THE COURT COMMITTED REVERSAL (sic) ERROR, WHEN IT DECIDED PLAINTIFF'S WITNESS WAS NOT NECESSARY THEN DEEMED THE AFFIDAVIT HEARSAY.

When reviewing a trial court's conclusions in a non-jury trial, an appellate court must give substantial deference to the trial court's findings of fact. Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). An appellate court should disturb these findings only where there is no doubt they are inconsistent with the relevant, credible evidence presented, such that a manifest denial of justice would result from their preservation. Ibid. It is of no consequence that the reviewing court suspects that it might have reached a different result, or that all testimonial or evidentiary issues were resolved in favor of one side. State v. Johnson, 42 N.J. 146, 162 (1964).

Regardless of whether plaintiff attended the auction or not, both parties agreed that plaintiff accepted delivery of the car knowing it did not conform to his original specifications.

Plaintiff does not deny that an agency relationship existed between the parties. "Agency is the fiduciary relation that arises when one person (a 'principal') manifests assent to another person (an 'agent') that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act." Restatement (Third) of Agency, 1.01 (2006).

Plaintiff argues that defendant committed misfeasance or malfeasance by purchasing a car that did not meet plaintiff's specifications. Plaintiff, however, ratified the purchase. "'Ratification is the affirmance by a person of a prior act which did not bind him but which was done, or professedly done on his account, whereby the act . . . is given effect as if originally authorized by him.'" Thermo Contracting Corp. v. Bank of N.J., 69 N.J. 352, 361 (1976) (quoting Restatement (Second) of Agency 82 (1957)). Ratification "may be express or implied, and intent may be inferred from the failure to repudiate an unauthorized act, from inaction, or from conduct on the part of the principal which is inconsistent with any other position than intent to adopt the act." Ibid. (citations omitted). Plaintiff accepted delivery of the nonconforming car, thus ratifying the purchase.

Plaintiff also claims that the judge erred by not considering the Federal Trade Commission's cooling-off period. A three-day cooling-off period is included in 16 C.F.R. 429.0 to .3, the regulations governing "Sales Made At Homes Or At Certain Other Locations." The requirement, however, does not apply to automobiles sold at auction, as occurred here. 16 C.F.R. 429.3(a).3 According to the New Jersey Department of Consumer Affairs, there is "a common misconception" that when buying a used car, the purchaser has three days to "automatically cancel a contract." Tips on Buying a Used Car, http://www.njconsumeraffairs.gov/brief/buyused.pdf (revised Feb. 4, 2013).

Plaintiff additionally argues that the judge erred in not ordering rescission. "[R]escission is an equitable remedy that operates as a matter of law, not contract. It lies within the inherent discretion of the court". First Am. Title Ins. Co. v. Lawson, 177 N.J. 125, 140 (2003) (quotation marks and citation omitted). "Ordinarily, contracts may only be rescinded where there is original invalidity, fraud, failure of consideration or a material breach." Notch View Assocs. v. Smith, 260 N.J. Super. 190, 197 (Law Div. 1992). "[T]o grant rescission, the court must be able to return the parties to their original position. Although this is not an absolute requirement, it should be done in so far as practicable." Id. at 197-98 (citations omitted).

The trial judge determined that there was no underlying, inequitable or unfair conduct by defendant that would entitle plaintiff to rescission. As the trial judge noted, rescission would not put the parties back in their original positions. Defendant would have paid for a used car he did not want. The judge did not abuse his discretion by not ordering rescission.

Neither did the judge err by not considering the hearsay4 affidavit of plaintiff's friend or by not giving plaintiff an opportunity to call his friend as a witness. The judge found that the date plaintiff returned the keys and title of the car was not significant. Plaintiff's remaining arguments are without sufficient merit to be addressed in a written opinion. R. 2:11-3(e)(1)(E). The trial judge's decision is consistent with the relevant, credible evidence.

Affirmed.


1 The invoice for the second car purchase lists "23rd Auto Brokers, LLC" as the purchaser and Anthony Burney as the payor. Defendant said that he worked for Mr. Burney.

2 See N.J.R.E. 201(b).

3 Plaintiff does not raise the corresponding New Jersey statutes, but we note that N.J.S.A. 17:16C-61.3 to .5 requires a three-day cooling-off period only for installment sales and does not cover the sale of motor vehicles.

4 Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted." N.J.R.E. 801 (2)(c). Hearsay is "'generally' not admissible." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E. 802 (2014).