CHARLES UDOH VS. ENTERPRISE RENTAL CAR INC. (L-4335-12, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1861-14T4
CHARLES UDOH,
Plaintiff-Appellant,
v.
ENTERPRISE RENTAL CAR INC.,
and JOHN MATTONE,
Defendants-Respondents,
and
CHRISTOPHER G. TURNER,
Defendant.
________________________________
Argued on November 30, 2016 – Decided September 19, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-4335-12.
Charles Udoh, appellant, argued the cause pro
se.
Mary C. McDonnell argued the cause for
respondents (PFund McDonnell, P.C.,
attorneys; Ms. McDonnell, of counsel and on
the brief; David T. PFund, on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
This appeal arises out of plaintiff's claims for damages
against Elrac, Inc., d/b/a Enterprise Rent A Car1 (Enterprise),
and two of its employees, Christopher Turner and John Mattone,
stemming from plaintiff's rental of a van that broke down while
he was moving to North Carolina. According to plaintiff, the
rented van broke down with his belongings still inside. Plaintiff
claims that Enterprise agreed to take possession of the items and
ship them back to him in New Jersey but lost them instead.
Plaintiff appeals from two October 17, 2014 orders; one order
dismissed all claims against Mattone for failure to state a cause
of action and granted summary judgment to Enterprise on all claims
other than loss of property and breach of contract, and the other
order denied plaintiff's motion for summary judgment. Plaintiff
also appeals from the January 5, 2015 order entering judgment for
Enterprise following a jury verdict of no cause of action.2 In
1
Enterprise Rent A Car was improperly pled as Enterprise Rental
Car Inc.
2
In a July 12, 2013 order, the trial court administratively
dismissed the complaint against Turner for lack of prosecution
pursuant to Rule 1:13-7 because plaintiff failed to effectuate
process in a timely manner. The court reaffirmed its dismissal
in a December 15, 2014 order. In his notice of appeal, plaintiff
2 A-1861-14T4
his merits brief, plaintiff does not present any legal argument
or citation of law explaining how the trial court erred in entering
the October 17, 2014 orders.3 As a result, plaintiff has
effectively waived this argument on appeal. See N.J. Dep't of
Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2
(App. Div.), certif. denied, 222 N.J. 17 (2015). As to the January
5, 2015 order, we affirm.
On June 27, 2012, proceeding pro se, plaintiff filed a
complaint against Enterprise, Mattone, the regional vice-
president, and Turner, the employee who rented him the van,
alleging breach of contract and negligence. The trial court
does not appeal either of these orders. Accordingly, those orders
are not subject to review on appeal. See 1266 Apartment Corp. v.
New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004)
(explaining that "it is only the judgment or orders designated in
the notice of appeal which are subject to the appeal process and
review") (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463,
465-66 (App. Div.), aff’d o.b., 138 N.J. 41 (1994)). See also R.
2:5-1(f)(3)(A) ("In civil actions the notice of appeal shall ...
designate the judgment, decision, action, or rule, or part thereof
appealed from....").
3
We note that plaintiff's only arguments addressing the October
17, 2014 orders appear in his reply brief. However, "'[r]aising
an issue for the first time in a reply brief is improper.'"
Goldsmith v. Camden Cty. Surrogate's Office, 408 N.J. Super. 376,
387 (App. Div.) (alteration in original) (quoting Borough of Berlin
v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App.
Div.), certif. denied, 168 N.J. 294 (2001)), certif. denied, 200
N.J. 502 (2009). Thus, we decline to consider the arguments.
3 A-1861-14T4
dismissed the complaint against Turner and Mattone,4 and granted
summary judgment to Enterprise on all claims other than the loss
of property and breach of contract claims.5 For the remaining
claims, the court empaneled a jury of eight and conducted a four-
day jury trial from December 16, 2014 to December 19, 2014.
At the trial, Enterprise stipulated that it had a rental
agreement with plaintiff, pursuant to which plaintiff rented a
large van on March 1, 2010, from Fort Lee, New Jersey. Enterprise
also stipulated that the rented van subsequently broke down in
North Carolina and was towed to the Durham airport Enterprise
branch, where plaintiff received another rental car. Plaintiff
testified that when Enterprise was unable to find another vehicle
to transport his belongings, he decided to abandon his move.
According to plaintiff, Enterprise took possession of his personal
belongings in the rental van and agreed to send them back to him
in New Jersey but never did. Plaintiff submitted to Enterprise a
106-page list of his personal belongings that were in the van,
including computer equipment, clothing, and household items, along
4
The claims against Mattone were dismissed on summary judgment
for failure to state a claim, as plaintiff failed to present any
evidence of actionable conduct on his part.
5
Enterprise was granted summary judgment on the negligence claims
on the ground that plaintiff's June 27, 2012 complaint was filed
after the expiration of the two-year statute of limitations, which
expired on March 1, 2012. See N.J.S.A. 2A:14-2(a).
4 A-1861-14T4
with purported supporting receipts and checks for loan payments.
Plaintiff testified that he estimated the value of the lost items
to be $200,000.
Although plaintiff testified that he was accompanied by two
movers when the van broke down, he did not call either of them to
testify at the trial. In addition, during cross-examination,
defense counsel questioned plaintiff about testimony he gave
during a December 14, 2007 deposition and at a trial on July 16,
2010. Both the deposition and trial testimony were from an
unrelated case in which plaintiff sued his former landlord for
loss of some of the same property plaintiff now claimed Enterprise
lost. For example, in his 2007 deposition testimony, plaintiff
claimed that he lost a Ju-Ju mask purchased in November 1994,
which was one of the items listed in his submission to Enterprise.
In his 2010 trial testimony, plaintiff testified, "I'm seeking
total damage of my property, my loss . . . everything I owned in
my life, everything, they took it." When confronted with his
prior sworn deposition testimony, plaintiff refused to answer.
When confronted with his prior sworn trial testimony, plaintiff
denied his prior statements and testified that the transcript was
"wrong."
Michael DeBlasio, a risk manager for Enterprise, testified
that while Enterprise may ship small items left in their rental
5 A-1861-14T4
vehicles back to their customers, such as cell phones, EZpass
transponders, or garage door openers, Enterprise would never agree
to ship "a van full of items." Instead, Enterprise would
ordinarily hold the items for thirty days for the customer to
recover. DeBlasio further testified that no Enterprise employee
acknowledged seeing or holding plaintiff's belongings.
Following summations on December 18, 2014, plaintiff
complained that he was sick and was transported by ambulance to
the hospital at the judge's direction. When the trial resumed the
following morning, plaintiff claimed he lost his exhibits when he
was transported to the hospital the day before. At the judge's
request, defense counsel recreated all of plaintiff's exhibits
that were in evidence. Plaintiff requested a mistrial, arguing
that he was still sick and needed to return to the hospital for
additional treatment, his original exhibits were missing, and the
jury was incomplete. The judge denied plaintiff's application.
Although juror number three had not yet arrived, the judge
proceeded with the seven jurors who were present.
The judge later explained his ruling thusly:
[Plaintiff] has been a very difficult
party in this action. He's created many
difficulties, many problems and I think
deliberately caused delays in this trial by
various conduct[] such as walking out at
times. Now he claims to have a health problem
but he's never given the [c]ourt any
6 A-1861-14T4
information as to . . . why he needed to take
these sudden walk outs. He refused to
cooperate on exhibits.
He also misled the [c]ourt at various
times such as when he, in the [c]ourt's view,
removed documents from [an] exhibit . . . and
then denied it occurred. . . .
Now, defendant is also entitled to a fair
trial and I think the plaintiff has done
everything in his power to deprive the
defendant of a fair trial in this matter
. . . .
I think the [plaintiff] in this matter
has taken various maneuvers and steps to try
and prevent that. It['s] reached the point
now while he came here from Hackensack
Hospital whether he's truly released or not I
don't know. I [have] to take his word for
that. . . . [W]hen he shows up he knows his
exhibits are necessary. He says he doesn't
know where they are. I find that hard to
believe. . . . And I think that he's just
intent now to avoid having a decision reached.
I don't believe he is operating in good faith
or has during this trial so many times and
therefore the [c]ourt proceeded because the
defendant is entitled to have a case end.
Before charging the jury, at plaintiff's request, the judge
allowed plaintiff to address the jury despite having previously
given his summation. Plaintiff made a rambling statement
complaining that the exhibits itemizing his losses were missing
and that he had not been treated fairly. Plaintiff also explained
that he had to return to the hospital for treatment and left the
courtroom. The judge charged the seven jurors. One alternate was
7 A-1861-14T4
selected and the remaining six jurors retired to the jury room to
deliberate.6 Thereafter, the jury returned a unanimous verdict of
6-0 in favor of defendant on the claims of breach of contract,
negligence, and conversion.
This appeal followed. Plaintiff makes the following argument
for our consideration.
I. THE TRIAL COURT ERRED IN SENDING THE CASE
TO AN INCOMPLETE JURY WITHOUT PLAINTIFF BEING
THERE DUE TO HIM BEING RUSHED FROM THE
COURTROOM TO HACKENSACK [UNIVERSITY MEDICAL
CENTER] HOSPITAL FOR CONDITIONS THAT THE COURT
WAS AWARE OF.
Plaintiff argues that the judge erred by not declaring a mistrial
and by sending the case to an incomplete jury. We disagree.
The decision to declare a mistrial is committed to the trial
court's sound discretion, and "[t]he abuse of discretion standard
of review should pertain when reviewing such determinations of a
trial court." State v. R.D., 169 N.J. 551, 559 (2001). "Juries
in civil cases shall consist of 6 persons" or more. N.J.S.A.
2B:23-1(b); see N.J. Const. art. I, ¶ 9. The rule expressly states
that "[a] deliberating jury in a civil action shall consist of six
persons[.]" R. 1:8-2(b). A court may excuse jurors prior to
6
The missing juror arrived after the jury began deliberating,
explaining that he had overslept.
8 A-1861-14T4
deliberations "provided the number of jurors is not reduced to
less than" six in a civil case. R. 1:8-2(d)(1).
Here, six jurors deliberated and returned a unanimous verdict
of 6-0 in favor of defendant on all the questions presented for
deliberation. Plaintiff's assertion that the case was submitted
to an incomplete jury is entirely belied by the record. The judge
clearly complied with the rule. See LaManna v. Proformance Ins.,
184 N.J. 214, 228 (2005) (noting "our trial courts should comply
fully with Rule 1:8-2.").
Moreover, the judge did not abuse his discretion in denying
plaintiff's application for a mistrial. As the judge noted,
plaintiff engaged in manipulative tactics that undermined the
integrity of the trial, and also engaged in brinkmanship that
challenged the authority of the court. As our Supreme Court
observed:
A plaintiff cannot invoke the jurisdiction and
machinery of our civil justice system, openly
defy the court's authority to suit his own
purposes, and expect to triumph. A plaintiff
does not get to present to the jury his
evidence while suppressing another party's
evidence, or to pick and choose the rules he
intends to follow. The defendant, as much as
the plaintiff, has a right to his day in court.
Because one of the essential purposes of a
civil trial is the search for truth, the one
who initiates that process by filing a
complaint cannot be permitted to obstruct that
search when it becomes unpleasant or
inconvenient.
9 A-1861-14T4
[Gonzalez v. Safe & Sound Sec. Corp., 185 N.J.
100, 117 (2005).]
To the extent we have not specifically addressed plaintiff's
remaining arguments of judicial impropriety,7 we deem them to be
belied by the record and without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
7
Plaintiff argues that he was treated unfairly because the judge
failed to order opposing counsel to comply with his discovery
demands; ordered two armed sheriff's officers to stand in proximity
to him throughout the proceedings; failed to provide him a French
and Swahili interpreter; failed to grant his request for an
adjournment to tend to his medical needs; failed to discharge
jurors who indicated they did not want to serve; assisted opposing
counsel by asking defendant's witness leading questions; allowed
opposing counsel to peruse plaintiff's documents on counsel table
while plaintiff went to the bathroom; interrupted plaintiff as he
tried to present his case; refused to read plaintiff's jury
instructions to the jury; and lost the evidence that he left in
the courtroom.
10 A-1861-14T4