Opinion
DOCKET NO. A-1597-15T3
12-19-2016
VITO'S TOWING, INC., Plaintiff-Appellant, v. GAVIN B. WESTDYKE, Defendant-Respondent.
William J. Pollinger, attorney for appellant. Richard R. Keiling, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Fisher and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Sussex County, Docket No. DC-1569-15. William J. Pollinger, attorney for appellant. Richard R. Keiling, attorney for respondent. PER CURIAM
In this appeal, we consider whether defendant transferred ownership of a motor vehicle, which plaintiff towed and stored, and for which plaintiff sought compensation by way of this special civil part action. Although we agree that in these circumstances a defendant need not demonstrate a transfer of ownership only by way of an authentic copy of an assigned certificate of ownership, we remand for further proceedings due to the matter's unusual disposition.
On November 27, 2014, at police request, plaintiff towed a 1991 Honda Accord off the streets of Clifton. Investigation of Motor Vehicle Commission (MVC) records disclosed that the vehicle was registered to defendant; when contacted, defendant denied ownership. The vehicle was sold at public auction, following which plaintiff commenced this action seeking $8145 from defendant for having towed and stored the vehicle.
At auction, plaintiff purchased the vehicle for $10 and sold it for scrap for $175. The amount sought by defendant apparently takes into account these transactions.
Defendant responded to the complaint by again denying ownership. Claiming he sold the vehicle prior to its abandonment in Clifton, defendant filed a third-party action against the alleged buyer. Plaintiff filed an amended complaint, which named the alleged buyer as a direct defendant. The alleged buyer, however, could not be served, and the matter proceeded in his absence.
In order to expedite the action's disposition, it appears the judge and parties agreed to the submission of whatever documentation they possessed relevant to ownership of the vehicle. The judge thereafter ruled on the merits as if the parties had cross-moved for summary judgment and, by way of a concise written opinion, the judge granted summary judgment in defendant's favor. Plaintiff appeals, arguing that, without presentation of a certificate of ownership memorializing the transfer of title, defendant remained the legal owner and therefore answerable in damages for the towing and storage costs.
We reject plaintiff's central thesis that the lack of a copy of the assigned certification of ownership means defendant did not transfer ownership. N.J.S.A. 39:10-9 states, in relevant part, that "[w]hen a used motor vehicle is sold in this State, the seller shall . . . execute and deliver to the purchaser, an assignment of the certificate of ownership[.]" Although a careful seller would be expected to retain such documentation to avoid litigation of the type now before us, we agree with the trial judge that the absence of such conclusive and indisputable proof does not present an insurmountable obstacle for defendant. Transfer is complete from a seller's standpoint when the certificate of ownership is executed and delivered to the buyer; it is not the seller's obligation to ensure the buyer's registration of the vehicle with MVC. See Lebegern v. Forman, 339 F. Supp. 2d 613, 626 (D.N.J. 2004), aff'd, 471 F.3d 424 (3d Cir. 2006); N.J. Mfrs. Ins. Co. v. Keystone Ins. Co., 112 N.J. Super. 585, 588 (Ch. Div. 1971).
This is to be distinguished from whether ownership has been obtained for insurance purposes — a question that has prompted our courts to hold that strict compliance with the statute and any MVC regulations is required. See Eggerding v. Bicknell, 20 N.J. 106, 111-12 (1955); Progressive Grp. v. Hurtado, 393 N.J. Super. 517, 521 (App. Div. 2007); Velkers v. Glens Falls Ins. Co., 93 N.J. Super. 501, 514-15 (Ch. Div.), aff'd o.b., 98 N.J. Super. 166 (App. Div. 1967), certif. denied, 51 N.J. 388 (1968). --------
In light of the absence of proof in the form of a genuine copy of the assigned certificate of ownership or the absence of proof that the buyer registered the vehicle with MVC, a court may look to other indicia of a transfer. For example, the judge here relied upon an MVC receipt, which memorializes defendant's return, on November 17, 2014, of license plates he had on the vehicle, as well as proof that defendant cancelled his auto insurance effective November 14, 2014. Both these events occurred prior to plaintiff's towing of the vehicle.
Having said all that, the processing of this case left more than a little to be desired. Apparently all discussions about an informal resolution of the case occurred in chambers and went unrecorded. We do not mean to unduly criticize the judge's intentions. It is often of great benefit to the administration of justice for judges to find ways to expedite the handling of special civil part actions — so litigation costs are not disproportionate to the amount in controversy — but, in this case, it would have been preferable had the agreement to sidestep normal procedures been described and stipulated in open court. See R. 1:2-2.
Because corners were cut — and whatever the parties may have stipulated or waived remain unclear — we are left with no certain path as to what to do about plaintiff's contention about a lack of evidence to support defendant's contention that he actually signed over and delivered to the alleged buyer the certificate of ownership. It may be that the parties intended to proceed as if those facts were assumed and to present to the judge for disposition the significance, or lack of significance, of the absence of an assigned certificate of ownership; the absence of such a stipulation in the record, however, forecloses summary judgment.
Although we reject plaintiff's contention that the absence of an assigned certificate of ownership precludes defendant's claim that he no longer owned the vehicle, we are nevertheless obligated to reverse the summary judgment entered in defendant's favor and, consequently, remand for trial. This pivotal question turns on the credibility of defendant's contention that he assigned and delivered title to the alleged buyer; that question may be influenced by some of the documentation already provided but ultimately requires at least consideration of defendant's testimony as may be tested by plaintiff's cross-examination.
Lastly, because the trial judge may have a commitment to his summary determination, we direct that another judge handle all further proceedings.
Reversed and remanded in conformity with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION