All the Way Towing, LLC v. Bucks Cnty. Int'l, Inc.

200 A.3d 398, 236 N.J. 431
CourtSupreme Court of New Jersey
DecidedJanuary 24, 2019
DocketA-66/67 September Term 2017; 080700
StatusPublished
Cited by27 cases

This text of 200 A.3d 398 (All the Way Towing, LLC v. Bucks Cnty. Int'l, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
All the Way Towing, LLC v. Bucks Cnty. Int'l, Inc., 200 A.3d 398, 236 N.J. 431 (N.J. 2019).

Opinion

JUSTICE LaVECCHIA delivered the opinion of the Court.

**434New Jersey's Consumer Fraud Act (CFA or the Act), N.J.S.A. 56:8-1 to -210, is a powerful "legislative broadside against unsavory commercial practices" in the marketplace. Real v. Radir Wheels, Inc., 198 N.J. 511, 514, 969 A.2d 1069 (2009). When initially enacted, the CFA addressed the elimination of sharp practices and dealings in the marketing of merchandise. Cox v. Sears Roebuck & Co., 138 N.J. 2, 16, 647 A.2d 454 (1994). Continuously expanded by the Legislature over the years, the CFA's reach now extends beyond "fast-talking and deceptive merchant[s]" to protect the public even when a merchant acts in good faith. Ibid. (alteration in original) (quoting D'Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J. Super. 11, 23, 501 A.2d 990 (App. Div. 1985) ). In light of the CFA's remedial purpose, courts liberally enforce the Act to fulfill its objective to protect consumers from prohibited unconscionable acts by sellers. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 11-12, 860 A.2d 435 (2004).

In this appeal, where plaintiffs, an individual and his limited liability towing company, entered into a contract for the purchase of a customized medium-duty 4x4 truck with autoloader tow unit, we are called on to determine whether the CFA covers the transaction as a sale of "merchandise." The trial court answered that question in the negative and granted summary judgment to defendants on that basis. The Appellate Division disagreed and reversed.

For the reasons expressed herein, we agree with the Appellate Division that the trial court took too narrow an approach in assessing what constitutes "merchandise" under the remedial CFA. The customized *401tow truck and rig fit within the CFA's expansive definition of "merchandise" and, therefore, plaintiff's CFA claim should not have foundered based on an application of that term. We further agree with the appellate panel's remand to the trial court for a determination of whether defendants' other bases for seeking summary judgment are meritorious. That assessment **435of the summary judgment record is best made by the trial court in this instance, not by an appellate body.

I.

A.

This appeal arises from defendants' motion for summary judgment. Therefore, just as Rule 4:46-2 requires of a trial court, on appeal we view all facts related to the application of the term "merchandise" in the light most favorable to the non-moving parties, plaintiffs. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 666 A.2d 146 (1995). The following facts come from deposition testimony of plaintiff, Chayim Goodman, except where otherwise noted.

Goodman is the sole owner of plaintiff, All the Way Towing, LLC (ATW) (Goodman and ATW collectively, plaintiffs). Goodman formed ATW in 2005. During the time relevant to this matter, ATW employed only one person in addition to Goodman and operated three tow vehicles.

In or around November 2010, plaintiffs sought to purchase a medium-duty tow truck with all-wheel drive because ATW was interested in securing a contract that required medium-duty towing capability. After conducting research on the internet, Goodman found the website for Navistar, which manufactures "International" brand trucks. In the summary judgment motion filings, defendants and plaintiffs agreed that defendant, Bucks County International, Inc. (BCI), which is in the business of truck sales, parts sales, and service, sells exclusively the "International" brand trucks that Goodman was interested in purchasing.

Goodman testified that he also conducted research on the website of co-defendant Dynamic Towing Equipment and Manufacturing, Inc. (Dynamic). A representative from Dynamic testified that Dynamic manufactures only towing mechanisms that mount onto truck cabs and chassis; it does not manufacture cabs or chassis. Goodman stated that he decided to purchase an "International"

**436brand truck from BCI with an installed Dynamic 801 model autoloader tow body. Plaintiffs' information about Dynamic's autoloader tow body came from Dynamic's website brochure.

Following his online research, Goodman contacted a salesman at BCI, Herb Krewson, and informed Krewson that he was interested in an "International" brand all-wheel drive truck and that he wanted a Dynamic 801 model autoloader tow body installed onto the truck so that he could perform medium-duty towing work. Krewson told Goodman that Krewson had never dealt with Dynamic before.

Goodman testified that he and Krewson spent "a couple of months" negotiating options and pricing. BCI and ATW signed a ten-page contract,1 dated February 3, 2011. The contract between BCI and ATW contains a list of specifications, which were to be included in the truck chassis prepared at the Navistar factory, and included the cost of attaching a Dynamic 801 rig model to the truck. Goodman testified that he was aware that the truck was to be custom-built according to his requested specifications. According to the contract, *402the overall estimated cost of the outfitted truck was $166,089.27 and included the necessary modifications to the truck and the Dynamic 801 towing rig. During his deposition, Krewson confirmed that ATW paid BCI a $10,000 deposit.

Krewson informed Goodman that after BCI delivered the truck to Dynamic, Dynamic discovered that its tow body was incompatible with the truck, prompting Dynamic to make modifications to the towing unit.

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Bluebook (online)
200 A.3d 398, 236 N.J. 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/all-the-way-towing-llc-v-bucks-cnty-intl-inc-nj-2019.