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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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 vicepresident, and Turner, the employee who rented him the van, alleging breach of contract and negligence. The trial court 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 fourday 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 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

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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 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 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.

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[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.

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Footnotes

[2] A-1861-14T4 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 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

[7] A-1861-14T4 6 The missing juror arrived after the jury began deliberating, explaining that he had overslept.

[8] A-1861-14T4