JEFFREY A. MUELLER v. SOMERSET HILLS TOWING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JEFFREY A. MUELLER, and

SUZANNE MUELLER, his wife,

Plaintiffs-Appellants,

v.

SOMERSET HILLS TOWING,

WILLIAM DEGUILO, JASON

HAGG, BRIDGEPORT SPEEDWAY,

and HOFFMAN MOTORSPORT

PROMOTIONS, LLC,

Defendants-Respondents,

and

BRIDGEPORT SPEEDWAY, LLC,

Third-Party Plaintiff,

v.

TRI-STATE RACE SAVER SPRINT

CAR SERIES,

Third-Party Defendant.

_________________________________

January 19, 2017

Argued November 1, 2016 Decided

Before Judges Reisner and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4746-13.

Dennis A. Drazin argued the cause for appellants (Drazin & Warshaw, attorneys; Mr. Drazin, of counsel and on the brief; John R. Connelly, Jr., on the brief).

Andrew R. Turner argued the cause for respondent William DeGuilo (Turner Law Firm, LLC, attorneys; (Mr. Turner, of counsel and on the brief).

Leonid Kushnir argued the cause for respondents Bridgeport Speedway and Hoffman Motorsports Promotions,LLC (Reardon Anderson, LLC, attorneys; Thomas M. Reardon, III, of counsel; Allison A. Krilla, on the brief).

Yolanda L. Ayala argued the cause for respondents Somerset Hills Towing and Jason Hagg (Gallo, Vitucci, Klar, attorneys; Ms. Ayala on the brief).

PER CURIAM

Plaintiffs Jeffrey Mueller and his wife1 appeal from June 12, 2015 orders granting defendants' summary judgment motions, an order of the same date striking plaintiffs' expert report, and an August 7, 2015 order assessing $11,300 in counsel fees against plaintiffs for frivolous litigation. We affirm all of the June 12 orders, but we reverse the August 7 order assessing counsel fees.

I

Plaintiff, a professional race car driver who also operated a landscaping business, owed money on a judgment unrelated to this appeal. The judgment creditor obtained a writ of execution, pursuant to which William DeGuilo, a Special Civil Part officer, seized a trailer that contained plaintiff's race car.2 DeGuilo arranged for defendant Somerset Hills Towing (Somerset Hills or the towing company) to tow the trailer to its premises. DeGuilo seized the trailer because it had defendant's name painted on it in large letters, and DeGuilo believed that meant plaintiff owned it. However, in fact the trailer belonged to plaintiff's landscaping company.

Plaintiff initially reported to the police that the trailer had been stolen. In speaking to the investigating police officer, DeGuilo admitted that before ordering a Somerset Hills employee to tow the trailer, he failed to check the VIN number to be sure it was the trailer listed in the repossession order. DeGuilo also "admitted he towed the wrong trailer."

According to plaintiff, the race car, which was not secured inside the trailer, was damaged during the towing process. Specifically, he contended that the car's rear axle was damaged and the damaged axle later caused the car to crash while plaintiff was driving it in a race. Plaintiff admitted that he observed a notch in the rear axle before the race started, and could have replaced it with a spare axle he had available. However, plaintiff and several colleagues who also inspected the car before the race, believed the notch was a minor defect, and he decided to race the car without replacing the axle. During the race, the car flipped over multiple times, vaulted a barrier, and came to rest in a non-racing area of the track. Plaintiff was seriously injured.

Plaintiff's lawsuit asserted that DeGuilo negligently executed on the trailer; Somerset Hills Towing and its employee Jason Hagg negligently damaged the car, either while towing the trailer to Somerset's premises or later while towing the trailer back to plaintiff's home; and the racetrack, Bridgeport Speedway3 (the Speedway), was negligent for not having assorted safety features, including a higher barrier (hub fence) around the track. After the close of discovery, the motion judge granted summary judgment to all defendants, finding that they were not negligent and plaintiff's race track safety expert rendered a net opinion. The judge later granted DeGuilo's motion for frivolous lawsuit fees and costs, pursuant to N.J.S.A. 2A:15-59.1.

II

On this appeal, plaintiff presents the following points of argument

I. THE RECORD BELOW SET FORTH A PRIMA FACIE CASE THAT DEGUILO, SOMERSET HILLS TOWING AND HAGG WERE NEGLIGENT AND THAT THEIR NEGLIGENCE WAS A PROXIMATE CAUSE OF THE ACCIDENT.

II. THE COURT ABUSED ITS DISCRETION IN BARRING THE TESTIMONY OF BOB BARNARD.

III. THE EXCULPATORY AGREEMENT EXECUTED BY THE PLAINTIFF BEFORE THE RACE ON JUNE 19, 2012 IS NOT ENFORCEABLE.

IV. THE COURT ABUSED ITS DISCRETION IN GRANTING DEGUILO'S MOTION FOR FEES AND COSTS AGAINST MR. AND MRS. MUELLER PURSUANT TO N.J.S.A. 2A:15-59.1.

Our review of the summary judgment orders is de novo, using the same Brill4 standard employed by the trial court. L.A. v. N.J. Div. of Youth and Family Servs., 217 N.J. 311, 323 (2014). Similarly, our review of legal issues is de novo. Waskevich v. Herold Law, P.A., 431 N.J. Super. 293, 297 (App. Div. 2013).

We review the judge's evidentiary rulings, including the decision to strike an expert report, for abuse of discretion. Townsend v. Pierre, 221 N.J. 36, 52-53 (2015). Likewise, we review his award of counsel fees for abuse of discretion. Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). "[A]buse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Ibid. (citation omitted).

Based on our review of the record, viewed in the light most favorable to plaintiff, we conclude that there were no material facts in dispute and summary judgment was properly granted. See L.A., supra, 217 N.J. at 323. The towing company had no way of knowing that the trailer contained an unsecured race car when it removed the trailer from plaintiff's premises, and there was no proof that it was negligent. Further, even plaintiff admitted, in his deposition, that the contents of the trailer did not appear any different to him after the towing company returned the trailer to his property. Hence, there was no proof that the race car was damaged during the return trip. Moreover, defendants submitted an unrebutted expert report explaining in detail how and why the axle could not have been damaged during the towing process, as plaintiff contended.

We agree with the judge that the conclusory, one-paragraph report of plaintiff's expert Bruce Kindberg, concerning the alleged improper towing of the trailer and the alleged cause of the fractured axle, was a net opinion. See Townsend, supra, 221 N.J. at 54. While DeGuilo was arguably negligent, there was no expert proof of a causal connection between his negligence and the accident. Plaintiff's argument on this point is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Nor can we find error in the judge's conclusion that plaintiff's racetrack expert, Mr. Bernard, rendered a net opinion. See Townsend, supra, 212 N.J. at 53-54. There was no dispute that the racetrack was in compliance with all applicable state regulations, and passed a pre-season inspection by the State Police. In fact, the track's hub fence was thirty-one inches high, which was more than the twenty-four inches that state law required. See N.J.S.A. 5:7-10(a)(1); N.J.A.C. 13:62-4.1(c). The race track also had a fence to protect the spectators and the pit crews, as required by law. N.J.S.A. 5:7-10(b); N.J.A.C. 13:62-4.

However, Bernard claimed that an "industry standard" that he knew about but which was not documented anywhere, called for the hub fence to be thirty-nine inches high. See Townsend, supra, 221 N.J. at 55 (an expert may not base an opinion on his "personal views"); Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). Bernard did not explain how or why the Speedway's slightly lower fence caused plaintiff's injuries. For example, he did not analyze the trajectory of the race car to determine whether, if the fence were slightly higher, the car would not have gone over it. An expert must "give the why and wherefore that supports [his] opinion, rather than a mere conclusion." Townsend, supra, at 54 (citation omitted). We agree with the motion judge that the expert rendered a net opinion.

Next, plaintiff contends that the exculpatory agreement he signed with the Speedway is unenforceable. See Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 304 (2010). The trial court did not rest its decision on the exculpatory agreement, and instead granted summary judgment due to the lack of evidence of the Speedway's liability. Because we agree with the trial court on that point, we need not address the exculpatory agreement.

Finally, plaintiff contends the trial court erred in awarding counsel fees to DeGuilo pursuant to N.J.S.A. 2A:15-59.1. He argues that DeGuilo admittedly towed the wrong vehicle, and that the court's earlier denial of DeGuilo's motion to dismiss supports plaintiff's position that the claim against DeGuilo was not frivolous. DeGuilo asserts that he had no liability insurance to cover this situation and therefore must pay $11,300 to his attorney out of his own pocket. His attorney served frivolous-lawsuit letters on plaintiff's counsel.

In pertinent part, the frivolous litigation statute provides for an award of counsel fees if the court finds that

The nonprevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

[N.J.S.A. 2A:15-59.1(b)(2).]

The statute is narrowly construed to avoid chilling parties' access to the courts. See McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 554-56 (1993); McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 499 (App. Div. 2011).

In deciding the motion, the trial judge found that DeGuilo was not negligent in seizing the trailer, because the trailer had Mueller's name emblazoned on it, and DeGuilo therefore justifiably concluded that it belonged to Mueller. The judge reasoned that, under those circumstances, DeGuilo was not obligated to go back to his office and perform a computer check of the VIN or license plate number before seizing the trailer. The judge also expressed concern that if Special Civil Part Officers could be liable in this situation, it would chill their willingness to carry out their official duties. The judge further concluded that "the non-prevailing party should have known that this claim was totally, totally without any reasonable basis in law or equity and, therefore, I find that it was a frivolous complaint against the court officer."

In reviewing the record, we are constrained to conclude that the trial court misapplied its discretion in awarding counsel fees, by relying on inappropriate considerations in making the decision. See Masone, supra, 382 N.J. Super. at 193. The fact that Special Civil Part Officers carry out an important function does not give them any greater entitlement to frivolous litigation fees if they are sued for negligence in carrying out their official duties. At oral argument of the motion, DeGuilo's counsel acknowledged that the State does not indemnify Special Civil Part Officers against negligence claims. Moreover, although we appreciate that DeGuilo apparently had no liability insurance to cover this lawsuit,5 as a person in the business of seizing other people's property, he might have made a wise choice had he done so.

Further, we cannot conclude that plaintiff's assertion - that DeGuilo negligently seized the trailer - was frivolous, even if the trial court ultimately found it was not meritorious. Although plaintiff's name was on the trailer, it is fairly inferable from the police report that DeGuilo admitted to the investigating officer that he had an order listing chattels to be seized, with VIN numbers, and he did not check the VIN number of this trailer against the numbers on the list.

The rest of plaintiff's claims about DeGuilo hinged on proof of proximate cause, particularly proof that the race car axle was damaged during the towing process. Plaintiff presented an expert report on that point, although the court found the expert rendered a net opinion. Summary judgment was properly granted in DeGuilo's favor. However, that fact alone does not render the claim frivolous within the meaning of the statute. Plaintiff suffered disastrous injuries and his counsel's efforts to pursue all avenues of recovery were understandable.

In considering an application for fees and costs under the Act, we must be mindful of the fact that "the right of access to the court should not be unduly infringed upon, honest and creative advocacy should not be discouraged, and the salutary policy of litigant's bearing, in the main, their own litigation costs, should not be abandoned".

[Graziano v. Grant, 326 N.J. Super. 328, 348 (App. Div. 1999) (quoting Iannone v. McHale, 245 N.J. Super. 17, 28 (App. Div. 1990)).]

Because the trial court considered inappropriate factors and because the claim was not frivolous, we reverse the August 7, 2015 order awarding counsel fees.

1 Mrs. Mueller filed a per quod claim. We will refer to Jeffrey Mueller as "plaintiff."

2 It is unclear on this record whether the race car belonged to plaintiff personally or to a corporation through which he conducted his racing activities.

3 Plaintiff also sued Hoffman Motorsport Promotions, LLC, a related company.

4 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

5 The record does not contain any certification from DeGuilo attesting to the lack of insurance.