Opinion
DOCKET NO. A-6382-11T2
07-16-2013
CAPITAL ONE BANK (USA), N.A., Plaintiff, v. CARMEN ROMAN, Defendant/Third-Party Plaintiff-Appellant, v. BUDGET RENT-A-CAR SYSTEM, INC., (improperly pled as Budget Rent-A-Car Systems, Inc.), Third-Party Defendant-Respondent. BUDGET RENT-A-CAR SYSTEM, INC., (improperly pled as Budget Rent-A-Car Systems, Inc.), Fourth-Party Plaintiff, v. ISRAEL ROMAN, Fourth-Party Defendant.
Joseph M. Pinto argued the cause for appellant (Polino and Pinto, attorneys; Mr. Pinto, on the brief). Gregg A. Ilardi argued the cause for respondent (Harwood Lloyd, LLC, attorneys; Mr. Ilardi, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Hoffman.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1516-10.
Joseph M. Pinto argued the cause for appellant (Polino and Pinto, attorneys; Mr. Pinto, on the brief).
Gregg A. Ilardi argued the cause for respondent (Harwood Lloyd, LLC, attorneys; Mr. Ilardi, of counsel and on the brief). PER CURIAM
Following a bench trial, defendant/third-party plaintiff Carmen Roman appeals from the trial court's dismissal of her third-party complaint, with prejudice, at the conclusion of her case against third-party defendant Budget Rent-A-Car System, Inc. (BRAC). For reasons that follow, we reverse and remand.
I.
Roman traveled to Puerto Rico on July 8, 2006. Upon arrival, she rented a car from a BRAC franchise, Budget Aguadilla, at the airport in Aguadilla, Puerto Rico. On July 14, 2006, Roman allowed her brother Israel Roman (Israel) to drive the rental car, even though he was not an authorized driver under the rental agreement. While driving, he had an accident which caused significant damage to the vehicle. Israel did not have auto insurance, and Roman's own auto insurer would not pay for the damage because she was not driving the car when the accident occurred. On the rental agreement, the box declining insurance was checked.
Following the accident, at Budget Aguadilla's direction, Roman obtained an estimate for the cost to repair the damage. Roman arranged for the return of the damaged vehicle to Budget Aguadilla, and rented a vehicle from another car rental agency for the remainder of her trip. Budget Aguadilla thereafter sought reimbursement for the damage to its vehicle, and Roman agreed, in numerous letters introduced into evidence, to pay for the damage.
Budget Aguadilla proceeded to charge over $1,300 on a Commerce Bank card Roman had provided, and then charged almost $12,000 on Roman's Capital One Bank (Capital One) credit card for the balance of the damage to the rental vehicle. Roman worked out an agreement with Capital One to pay $200 per month and paid this amount for over two years, until she could no longer afford the payments. Capital One then sued Roman, who counterclaimed, alleging violation of federal truth-in-lending laws; Roman also filed a third party-complaint against BRAC, alleging conversion, consumer fraud, and breach of contract, claiming that her Capital One credit card was wrongfully charged without her permission.
Two months before trial, Roman settled her disputes with Capital One when the bank agreed to pay her $2,500 and forgive her then unpaid credit card balance of approximately $17,000.
At trial, Roman testified that she initially provided the clerk at Budget Aguadilla with her Capital One credit card; however, this card was not accepted, as Roman's credit limit on the card was only $500. At that point, Roman gave the clerk her Commerce Bank card, which had a higher credit limit and was accepted. Roman testified that she did not read the rental agreement because she was rushed by the clerk, as there was a line of people behind her. Roman stated that she had not authorized Budget Aguadilla to charge her credit card and claimed that she had not admitted liability by paying $200 per month for over two years, but made the payments to keep her credit from being "completely ruined."
After Roman rested, BRAC moved for an involuntary dismissal. Rule 4:37-2(b). The trial judge granted the motion on the basis that there was "just an incredible amount of inconsistencies with [Roman's] testimony, when you compare [her testimony] to the documents, the interrogatories and the deposition." The judge then discussed the "inconsistencies" he found in Roman's testimony, without referencing any of the counts of the third-party complaint.
The record is unclear as to what testimony or evidence BRAC was prepared to offer if its motion had been denied.
This appeal followed, with Roman raising the following arguments for our consideration:
I. The Trial Judge Committed Reversible Error by Dismissing Roman's Third Party Complaint on Budget's Motion for an Involuntary Dismissal at the End of Her Case on the Grounds That She Was Not a Credible Witness.
II. On Remand, the Case Should be Reassigned to a Different Trial Judge.
II.
A motion for involuntary dismissal at the end of a plaintiff's case should not be granted unless, viewing the evidence most favorable to plaintiff and giving plaintiff the benefit of all favorable inferences, a prima facie case for recovery has not been presented. Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 340 (App. Div. 2001). Dismissal is only appropriate when "no rational [factfinder] could draw from the evidence presented by [the] plaintiff" that an essential element of the plaintiff's case is present. Ibid. In considering a motion for involuntary dismissal under Rule 4:37-2(b), our Supreme Court has directed that, "the trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6, (1969).
In an insurance coverage case, Lyons v. Hartford Ins. Group, 125 N.J. Super. 239, 243 (App. Div. 1973), certif. denied, 64 N.J. 322 (1974), the judge in a bench trial granted the defendant insurance carrier's motion to dismiss after the plaintiff testified and then rested. We reversed because
the trial judge did not apply the correct standard on the motion to dismiss. Instead of viewing the proofs from the point of accepting the plaintiff's testimony as true, giving him the benefit of all legitimate inferences therefrom and rejecting all unfavorable evidence and permissible conclusions, the trial judge proceeded to make findings of fact on the motion.
[Ibid.]
The identical error occurred here as the trial judge failed to apply the correct standard on the motion to dismiss. Instead of accepting Roman's testimony as true, giving her the benefit of all legitimate inferences therefrom and rejecting all unfavorable evidence and permissible conclusions, the trial judge made findings of fact on the motion. At the conclusion of his ruling, the trial judge stated, all of Roman's "claims, the contract claims, the conversion claims, the CFA claims all fail as a matter of law because the facts you need to support those claims have no basis and they're completely not credible." Just as in Lyons, "[c]redibility should have played no part in the determination the court was then called upon to make." Ibid.
As we noted in Lyons, "[p]rior to the 1969 rules revision, a trial judge sitting nonjury was permitted to make findings adverse to the plaintiff at the close of his [or her] proofs and dismiss even though a prima facie case had been established. This is now no longer possible." Ibid.
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We conclude that the fact that a credit card, initially rejected because of its low credit limit, ended up being charged almost $12,000 (a fact not addressed by the judge in his ruling), constitutes something more than a scintilla of evidence supporting Roman's claims.
After careful review of the trial record, we perceive no basis to remand the case to another judge. See O'Shea v. Twp. of West Milford, 410 N.J. Super. 371, 388 (App. Div. 2009) (remanding to another judge unnecessary unless original judge has shown inability to give full and fair consideration to the issues on remand). We reverse and remand for the trial judge to conclude the trial. We do not retain jurisdiction.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION