EXCLUSIVE DETAILING, INC., ETC. VS. PRESTIGE AUTO GROUP, LLC VS. MLAR CONSULTING, INC. (L-5844-17, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2688-19
EXCLUSIVE DETAILING,
INC., f/k/a PRO CARE CAR,
Plaintiff-Appellant,
v.
PRESTIGE AUTO GROUP, LLC,
d/b/a PRESTIGE FAMILY OF
FINE CARS, and t/a PRESTIGE
MOTORS, PRESTIGE BMW,
PRESTIGE LAND ROVER,
PRESTIGE LEXUS, PRESTIGE
LINCOLN, PRESTIGE MINI, and
PRESTIGE TOYOTA,
Defendants-Respondents,
and
PRESTIGE MOTORS, INC., d/b/a
PRESTIGE MERCEDES BENZ,
PRESTIGE MOTORWERKS, INC.,
d/b/a PRESTIGE BMW,
PRESTIGE LAND ROVER, INC.,
PRESTIGE OF RAMSEY, INC.,
d/b/a PRESTIGE LEXUS, BERRY
MOTORS, LLC, d/b/a PRESTIGE
LINCOLN, PRESTIGE OF
MAHWAY, INC., d/b/a PRESTIGE
MINI, and PRESTIGE OF BERGEN,
INC., d/b/a PRESTIGE TOYOTA,
Third-Party Plaintiffs,
v.
MLAR CONSULTING, INC.,
Third-Party Defendant.
______________________________
Submitted November 4, 2021 – Decided December 21, 2021
Before Judges Hoffman, Suter, and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-5844-17.
Faloni & Associates, LLC, attorneys for appellant
(David A. Faloni, Sr., on the briefs).
Cole Schotz, PC, attorneys for respondents (Jason R.
Finkelstein, of counsel and on the brief).
PER CURIAM
Plaintiff Exclusive Detailing, Inc., appeals the January 29, 2020, order
granting summary judgment to defendants Prestige Motors, Inc., d/b/a Prestige
Mercedes Benz, Prestige Motorwerks, Inc., d/b/a Prestige BMW, Prestige Land
Rover, Inc., Prestige of Ramsey, Inc., d/b/a Prestige Lexus, Berry Motors, LLC,
d/b/a Prestige Lincoln, Prestige of Mahwah, Inc., d/b/a Prestige Mini, and
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Prestige of Bergen, Inc., d/b/a Prestige Toyota1 (defendants), denying its cross-
motion for summary judgment and dismissing its complaint with prejudice.
Plaintiff also appeals the January 29, 2020 order granting defendants' cross-
motion to quash a subpoena to a non-party and denying plaintiff's motion to
compel compliance. For reasons that follow, we affirm the orders substantially
for the reasons set forth by the trial court. We agree with the trial court that
although plaintiff had ample opportunity through discovery to show it incurred
pecuniary damages, it did not produce invoices that were not paid nor any other
type of credible evidence that it was not paid for vehicles it actually serviced.
Having failed to present such evidence, plaintiff's complaint was properly
dismissed.
I.
Pro Car Care2 provided car washing and detailing services to defendants'
dealerships under a written services agreement (Agreement) dated July 21, 2000,
with a ten-year term. The Agreement included a fee schedule for vehicles that
were cleaned or detailed. In 2009, Pro Car Care became known as Exclusive
1
We refer to defendants as identified in their answer rather than as incorrectly
identified in plaintiff's complaint.
2
Plaintiff inverted the name of this entity in the caption.
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Detailing, Inc. (plaintiff). The Agreement with defendants was amended to
reflect the name change. Pro Car Care was owned and operated by Michael
Agolia. He also owns plaintiff. After the ten-year term expired, plaintiff
continued to provide the same services to defendants, at the same rates, from
2011 through October 2016.
Plaintiff and defendants do not agree whether there was a written contract
after July 2010. Plaintiff contends there were yearly contracts from 2011
through 2016, but none of the purported contracts in the record were signed by
defendants. Defendants deny there was a written contract after July 2010.
Throughout the course of its relationship with defendants, plaintiff was
paid weekly based upon invoices that plaintiff prepared and submitted to
defendants' accounting officers. The invoices included the vehicle's VIN
number and description, the type of service performed, and the service rate
consistent with the Agreement.
Defendants paid plaintiff after they reviewed the invoices. On occasion,
defendants found billing errors and inaccuracies in the invoices. At other times,
plaintiff's work was "sloppy," and defendants requested a recleaning of the
vehicle. Payments were adjusted for these issues. Defendants would pay for
the services once they were corrected.
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In May 2016, plaintiff filed bankruptcy under Chapter Seven of the
Bankruptcy Code.3 Defendants were advised to make payments to Agolia's new
company, MLAR Consulting, Inc. (MLAR).4 The fees were the same as those
in the Agreement. Defendants continued to make payments on a weekly basis.
Defendants terminated plaintiff's services in October 2016, when they
restructured their business to perform the cleaning and detailing services
themselves. Defendants contend plaintiff did not complain it was owed money
until several months later. However, plaintiff contends defendants' payments
became delinquent in 2011. Plaintiff asserts it complained "all the time" about
"not getting full payments" from defendants. It claims "[m]ost of the invoices
not paid were for the service repair orders and loaner vehicles[,]" and these
invoices would be thrown "in the garbage."
On August 14, 2017, plaintiff filed a four-count complaint against
defendants in the Law Division seeking a civil judgment. The complaint alleged
3
Plaintiff alleges the Trustee advised the Bankruptcy Court that defendants
owed money to plaintiff and that its present law firm was appointed to collect
these funds. However, in Agolia's deposition upon oral examination in January
2016 before the Bankruptcy Court, he said he had gone to the firm two years
earlier and given it "all the paperwork back then."
4
Defendants allege MLAR is under the same ownership as plaintiff and
provides the same services.
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plaintiff "provided cleaning, washing and detailing services for [d]efendants and
its affiliates in connection with multiple dealership operations during the period
of July 2000 through October 2016," but defendants breached their "credit
agreement" with plaintiff, resulting in damages of $19,647,030.40. Plaintiff
requested entry of a judgment, costs and attorney's fees for breach of contract
(Count I). Count II alleged a cause of action for promissory estoppel claiming
defendants assured plaintiff it would be paid in full but breached that promise.
Count III alleged defendants were unjustly enriched because of their failure to
pay plaintiff. Count IV alleged defendants "fail[ed] and refuse[d] to remit
payment to [plaintiff] on the account stated between the parties."
Defendants filed an answer, denying many of the allegations, and a third-
party complaint for contribution against MLAR. Discovery ended on November
15, 2018, following extensions. Plaintiff alleges the parties exchanged
thousands of pages of records during discovery. Depositions continued through
April 15, 2019, with the consent of the trial court. In the interim, Lithia Motor,
Inc. (Lithia), acquired several of defendants' dealerships through a purchase of
their assets in March 2018.
In August 2019, defendants filed a motion for summary judgment seeking
to dismiss the complaint. They alleged all of plaintiff's claims failed as a matter
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of law because there was no evidence of damages beyond mere speculation.
They addressed each cause of action and why it should be dismissed.
Defendants argued the six-year statute of limitations barred any damages arising
before August 14, 2011.
In September 2019, plaintiff filed a cross-motion for summary judgment.
It claimed defendants owed $7,028,810 for cleaning and detailing services
provided from 2011 through 2016.5 Plaintiff claimed it should have been paid
$21,648,685 but was paid only $14,619,875. Plaintiff later reduced the amount
owed to $5,721,910 because it reduced the amount it should have been paid to
$20,341,785. Plaintiff alleged these figures were based on defendants' records
except the amount for 2011, which was based on plaintiff's records.
In July 2019, plaintiff served a subpoena duces tecum on Lithia,
requesting seven categories of documents.6 Plaintiff claimed Lithia received
5
Plaintiff's complaint alleged damages of $19,647,030.40.
6
These included:
(1) the number of vehicles received and delivered from
the manufacturer for each dealership during the years
2011 through October 2016; (2) the number of vehicles
serviced by each store; (3) the number of used vehicles
placed for sale; (4) the number of vehicles sold; (5) the
number of loaner vehicles; (6) the number of vehicles
sent to auction; and (7) the number of tract vehicles
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documents from defendants when it conducted "due diligence" prior to acquiring
defendants' dealerships in 2018. Lithia denied it had any "documents responsive
to this subpoena."
In September 2019, plaintiff filed a motion to compel compliance with the
subpoena and to impose sanctions. It alleged defendants did not provide
information during discovery about "the number of loaner vehicles placed in
service and the number of vehicles serviced." Plaintiff claimed the subpoena to
Lithia was necessary to obtain this information.
Defendants filed a cross-motion to quash the subpoena. Defendants'
director of operations certified that he did not believe Lithia would have the
requested information. He also claimed the information was not relevant
because "[a] raw number of vehicles serviced at a particular dealership would
not bear any direct relationship to the servicing work performed on a vehicle by
[p]laintiff." He certified it was plaintiff's invoices, prepared by plaintiff and
submitted to defendants for payment, that were relevant to the litigation, and
that these were produced to plaintiff during discovery.
supplied during the same period from 2011 through
October 2016.
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On January 29, 2020, the trial court granted defendants' motion for
summary judgment and denied plaintiff's cross-motion, finding no genuine
issues of material fact. It agreed with defendants that "[t]he documents plaintiff
has produced contain figures which are after-the-fact reconstructions
unsupported by evidence. Pure speculation, which do not create a genuine issue
of material fact." The trial court noted there was "just no establishment that
these invoices were owed, the work was done, and it wasn't paid." Plaintiff did
not "identify any specific vehicle it serviced for which it was not compensated."
There was no record produced by plaintiff of an unpaid balance with defendants.
The court found plaintiff's spreadsheets were "too speculative to serve as
the basis from which a reasonable fact-finder could infer that there [were]
underpayments or no payments." Plaintiff calculated the final number by using
the rates plaintiff charged for services by the vehicle types held by defendants
during the years in question. Plaintiff then deducted what it was paid to
determine what it alleges is the underpayment. This methodology did "not
distinguish between those vehicles plaintiff actually serviced and those vehicles
that it may have serviced, but not definitely serviced." The court found this
"after-the fact estimate of those services . . . too speculative."
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The trial court found plaintiff's claims failed as a matter of law because it
could not substantiate its damages. It found this was "fatal to all the theories."
The promissory estoppel claim failed because there was "[n]o clear and definite
promise to pay." The unjust enrichment claim failed because there was "a failure
to show inadequate compensation for any service provided." The account stated
claim failed because there was no evidence the parties agreed to an unpaid
amount.
On the same date, the trial court granted defendants' cross-motion to quash
the subpoena to Lithia and denied plaintiff's motion to compel. The trial court
found,
[t]he only documents relevant to the case, given the
nature of the relationship with the business, are
plaintiff's invoices. Plaintiff's invoices. Defendant[s]
didn't invoice them. So it has to be plaintiff's invoices
and proof of payment therein.
There's no invoices submitted at all, any record of any
outstanding balance, any evidence that plaintiffs
approached defendants about [an] unpaid balance. We
just have that after-the-fact reconstruction of the value.
Lithia certainly has no documents on that, other than
through this litigation.
The court observed that even if Lithia had documents, they would not
"matter" because this "would not indicate the number of vehicles that [plaintiff]
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actually serviced." However, the trial court ordered Lithia to provide a
certification within twenty days regarding the requested documents. On
February 6, 2020, Lithia's Vice President and Assistant Secretary certified the
company was not in possession of any of the records plaintiff requested.
On appeal, plaintiff makes the following arguments:
I. THE TRIAL JUDGE ERR[]ED FINDING THE
CASE DID NOT RAISE ANY GENUINE ISSUES OF
MATERIAL FACT.
II. DID THE TRIAL JUDGE ERR[] WHEN DENYING
EXCLUSIVE'S CROSS [-]MOTION FOR SUMMARY
JUDGMENT [?]
III. WAS THE TRIAL JUDGE CORRECT IN
GRANTING PRESTIGE'S MOTION TO QUASH
EXCLUSIVE'S MOTION TO COMPEL
COMPLIANCE OF THE THIRD[-]PARTY
SUBPOENA AGAINST LITHIA MOTORS, INC.?
II.
We review a summary judgment order on a de novo basis, applying the
same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017).
Summary judgment must be granted "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of law." Templo
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Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016) (quoting R. 4:46-2(c)). The factual inquiry is "'whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it
is so one-sided that one party must prevail as a matter of law.'" Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 533 (1995) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The court must review the evidence
presented "in the light most favorable to the non-moving party." Id. at 540.
A.
Plaintiff claimed it provided over 700,000 separate services for
defendants. Based on the fee schedule in the Agreement, plaintiff calculated it
should have been paid $20,341,785, but was paid $14,619,875, leaving a
difference of $5,721,910. Plaintiff alleges defendants owe this amount for
unpaid services. Plaintiff did not present individual invoices to show damages,
claiming this was impractical. It prepared spreadsheets that it claimed were
based on plaintiff's and defendants' records.
We agree with the trial court that plaintiff did not create a genuine issue
of material fact. Defendants supported their summary judgment motion with
copies of plaintiff's invoices and proof these were paid. However, plaintiff did
not submit evidence that any of the invoices it provided to defendants were not
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paid. It did not identify any vehicle or vehicles it serviced for which it was not
paid. It did not show that any of the information submitted by defendants was
incorrect. All it did was multiply the fee schedule price per (vehicle) service by
the number of various types of vehicles allegedly serviced. This is inadequate
to raise genuine factual questions that are material when it is undisputed that
plaintiff was paid based on the presentation of invoices it prepared with specific
details about the vehicles plaintiff serviced. There are no records that plaintiff
requested additional payments, even though it is undisputed plaintiff was paid
on a weekly basis and could have contemporaneously noted underpayments and
demanded payment for same.
Plaintiff alleges the trial court erred by not addressing certain issues. It
argues, the trial court should have determined whether there were yearly
contracts between the parties, whether there were "factual issues raised by the
numerous conflicting certifications" and whether plaintiff's records were
destroyed. Plaintiff argues the court erred by finding plaintiff did not service
all of defendants' vehicles and customers, and by finding, without taking
testimony, that plaintiff's damages were speculative. Plaintiff contends it did
not need to submit "volumes of itemized statements and documents" to defeat
summary judgment. We do not agree these issues precluded summary judgment.
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Whether there were yearly contracts is not relevant to plaintiff's claim of
underpayment. No one disputed the amounts listed on the Agreement's fee
schedule or that services were provided through October 2016. It does not
matter to the outcome of the summary judgment motions whether there were
written contracts from 2011 to 2016.
The certifications did not raise fact issues that were material to plaintiff's
claims. As noted, there was no correspondence to support plaintiff's claims that
money was due. If defendants disposed of plaintiff's invoices, plaintiff never
produced its own copies or records from its computers. Lithia did not have the
records that plaintiff was requesting. There is no dispute that plaintiff billed
defendants on a per-vehicle-serviced basis and not based on the gross number
of vehicles that defendants serviced at its dealerships. Thus, plaintiff's pursuit
of defendants' gross service records did not raise a genuine issue of fact that
plaintiff was not paid for the services it provided to defendants.
A party asserting claims has the burden of proof to establish all elements
of its causes of action, including damages. Cumberland Cnty. Improvement
Auth. v. GSP Recycling Co., 358 N.J. Super. 484, 503 (App. Div. 2003).
Though a party may not be tasked with proving its damages with exact precision,
a party remains tasked with proving its damages with, at a minimum, "such
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certainty as the nature of the case may permit, laying a foundation which will
enable the trier of facts to make a fair and reasonable estimate." Lane v. Oil
Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987). However, "the 'law
abhors damages based on mere speculation.'" Mosley v. Femina Fashions, Inc.,
356 N.J. Super. 118, 128 (App. Div. 2002) (quoting Caldwell v. Haynes, 136
N.J. 422, 442 (1994)).
We agree with the trial court's conclusion that plaintiff did not show it had
damages. Count One of plaintiff's complaint alleged a breach of contract. Even
if plaintiff could prove there was a contract from 2011 to 2016, plaintiff could
not prove a breach of contract without proof of damages that were related to the
breach. Plaintiff did not show invoices that were not paid or provide proof it
was not paid for vehicles it serviced.
Count Two's claim for promissory estoppel required proof of a clear and
definite promise and reasonable reliance. Toll Bros., Inc. v. Bd. of Chosen
Freeholders of Burlington, 194 N.J. 223, 253 (2008). Plaintiff alleges a
generalized claim it would be paid, with no proof of a clear and definite promise.
Count Three alleged a claim of unjust enrichment. Plaintiff must prove
"that defendant received a benefit and that retention of that benefit without
payment would be unjust." VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554
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(1994). Without proof of damages, however, plaintiff could not maintain this
claim.
Court Four is for an account stated. Claims for an account stated arise
when a debtor acknowledges an indebtedness to a creditor. Harris v. Merlino,
137 N.J.L. 717, 720 (E. & A. 1948). There is no proof that defendants
acknowledged any indebtedness to plaintiff. 7
Plaintiff's claim that its cross-motion for summary judgment should have
been granted is answered in the negative by our analysis that defendants'
summary judgment motion was properly granted. We do not need to further
address this in a written opinion. R. 2:11-3(e)(1)(E).
B.
Plaintiff argues the trial court erred by quashing the subpoena to Lithia.
It argues the trial court should have granted its motion to compel compliance.
Decisions of trial courts on discovery matters are upheld unless they
constitute an abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp.,
207 N.J. 344, 371 (2011). We review the trial court's decision to quash a
subpoena "pursuant to an indulgent standard of review." In re Subpoena Duces
7
We do not address defendants' statute of limitations arguments because the
trial court did not address them.
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Tecum, 214 N.J. 147, 162 (2013). "It is well settled that the subject of a
[s]ubpoena duces tecum must be specified with reasonable certainty, and that
there must be a substantial showing that the evidence sought to be adduced is
relevant and material to the issues of the case." Wasserstein v. Swern & Co., 84
N.J. Super. 1, 6-7 (App. Div.1964).
The subpoena sought the number of vehicles "serviced" by the dealership.
The trial court noted this "would not indicate the number of vehicles that
[plaintiff] actually serviced." That figure would be based on plaintiff's own
invoices, and there were "no invoices submitted at all, any record of any
outstanding balance, any evidence that plaintiff[] approached defendants about
[an] unpaid balance." Lithia certified it did not obtain any of the requested
information. Plaintiff has not disputed that Lithia does not have the records
requested. On this record, plaintiff did not show an abuse of discretion by the
trial court in quashing the subpoena to Lithia.
Affirmed.
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