OLIVIA CHECCHIO v. EVERMORE FITNESS, LLC (L-7065-20, MIDDLESEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3461-20
OLIVIA CHECCHIO, a minor
by her guardian ad litem,
LISA KUMP-CHECCHIO, and
LISA KUMP-CHECCHIO, APPROVED FOR PUBLICATION
individually, February 15, 2022
APPELLATE DIVISION
Plaintiffs-Respondents,
v.
EVERMORE FITNESS, LLC,
d/b/a SKY ZONE SOUTH
PLAINFIELD ("SKY ZONE"),
SKY ZONE FRANCHISE
GROUP, SKY ZONE LLC,
CIRCUSTRIX HOLDINGS, LLC,
CIRCUSTRIX, LLC,
Defendants-Appellants.
____________________________
Argued December 14, 2021 – Decided February 15, 2022
Before Judges Currier, DeAlmeida and Smith.
On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-7065-
20.
Jill A. Mucerino argued the cause for appellants
(Wood Smith Henning & Berman LLP, attorneys;
Kelly A. Waters, of counsel and on the briefs; Jill A.
Mucerino, Carolynn A. Mudler, and Sean P.
Shoolbraid, on the briefs).
Kenneth W. Elwood argued the cause for respondents
(Blume, Forte, Fried, Zerres & Molinari, PC,
attorneys; Kenneth W. Elwood, on brief).
The opinion of the court was delivered by
CURRIER, J.A.D.
In August 2018, fourteen-year-old Olivia Checchio went to Sky Zone
South Plainfield—an indoor trampoline park—with four friends and Gina
Valenti—the mother of one of the children. Upon arrival at the park, Valenti
signed a document entitled "Participant Agreement, Release and Assumption
of Risk (The Agreement) – Sky Zone South Plainfield, NJ" (2018 agreement).
The 2018 agreement included an arbitration provision under which the signing
adult on behalf of the minor child waived a jury trial and agreed to arbitrate
any dispute or claim arising out of the child's use of the Sky Zone premis es.
The 2018 agreement also stated:
I understand that this agreement extends forever into
the future and will have full force and legal effect
each and every time I or my child(ren)/ward(s) visit
Sky Zone, whether at the current location or any other
location or facility.
....
By signing below, I represent, warrant and certify that
I am the parent, legal guardian, or power-of-attorney
of the above listed [c]hild(ren) and have the authority
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to execute this [a]greement on his/her or their behalf
and to act on his/her or their behalf.
Valenti was not Olivia's 1 parent, legal guardian, or holder of a power-of-
attorney.
After Olivia was injured while using the facilities, her mother, Lisa
Kump-Checchio, filed a suit on behalf of Olivia and for her own individual
claims. Defendants 2 moved to enforce the arbitration agreement. The trial
court denied the motion, stating that because Valenti signed the arbitration
agreement Olivia's parents "never agreed to the arbitration provision and . . .
mutual consent [was] lacking."
Defendants moved for reconsideration, including in their application five
agreements signed by Lisa on behalf of Olivia when she had taken Olivia to
Sky Zone on five occasions in 2016 (2016 agreements). The judge granted
defendants' motion for reconsideration on April 25, 2021. He found that,
because Lisa signed five prior agreements, she "realized when the child was
going to the park . . . Ms. Valenti was going to be confronted with a release
that she had to sign in order to let the kids in the park." Therefore, the trial
court found Valenti had actual and apparent authority to sign the arbitration
agreement.
1
We refer to plaintiffs by their first names for clarity.
2
We refer to all defendants collectively as defendants.
A-3461-20
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Two weeks later, this court issued its decision in Gayles v. Sky Zone
Trampoline Park, 468 N.J. Super. 17, 21-22 (App. Div. 2021), finding that a
non-parent lacked apparent authority to sign defendants' waiver agreement on
behalf of a minor child and therefore, the plaintiffs were not bound by the
defendant's arbitration agreement. Plaintiffs moved for reconsideration of the
April 25, 2021 order. The judge granted the motion on June 17, 2021,
vacating the April 25, 2021 order and restoring the matter to the active trial
docket. The court found there was "no evidence that [Lisa] . . . actually gave
authority to . . . [Ms. Valenti] to waive [Lisa's] child's rights."
Defendants appeal from the June 17, 2021 order, contending Valenti had
apparent authority to sign the 2018 agreement on behalf of Olivia and the trial
court misapprehended the law established in Gayles.
Our review of an interpretation of a contract, including an arbitration
clause, is de novo. Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019);
Kieffer v. Best Buy, 205 N.J. 213, 222 (2011). "Whether a contractual
arbitration provision is enforceable is a question of law, and we need not defer
to the interpretative analysis of the trial . . . courts unless we find it
persuasive." Skuse v. Pfizer, Inc., 244 N.J. 30, 46 (2020) (citing Kernahan v.
Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 316 (2019)).
Defendants assert that Lisa's execution of the 2016 agreements on behalf
of Olivia on five prior occasions when she brought Olivia to Sky Zone
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demonstrates a pattern of conduct sufficient to find Valenti had actual and
apparent authority to sign the 2018 agreement when Valenti brought Oliv ia to
the park. We disagree.
Although defense counsel asserted during oral arguments before this
court that Valenti had actual and apparent authority to execute the agreement
on behalf of Olivia, defendants did not produce any authority in their briefs or
during argument to support a finding of actual authority. And the evidence in
the record does not sustain a finding of any manifestation made by Lisa to
Valenti to expressly imbue Valenti with the power to waive any rights
regarding any claims Olivia was entitled to pursue against Sky Zone. Lisa did
not sign an agreement waiving Olivia's rights to a jury trial on the day Olivia
was injured. Valenti never testified that Lisa gave her the specific authority to
waive Olivia's rights regarding any personal injury claim that might arise from
Olivia's time at the park.
Instead, defendants assert Valenti had apparent authority to execute the
agreement and to bind Olivia (and Lisa) to its contents. We turn then to a
scrutiny of those principles.
Apparent authority focuses on a third party's reasonable expectations in
their interactions with the principal's agent. N.J. Laws.' Fund for Client Prot.
v. Stewart Title Guar. Co., 203 N.J. 208, 220 (2010). "Apparent authority
arises 'when a third party reasonably believes the actor has authority to act on
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behalf of the principal and that belief is traceable to the principal's
manifestations.'" Ibid. (quoting Restatement (Third) of Agency § 2.03 (Am.
Law Inst. 2006)). "There need not be an agreement between [the principal and
agent] specifying an agency relationship; rather, 'the law will look at their
conduct and not to their intent or their words as between themselves but to
their factual relation.'" Sears Mortg. Corp. v. Rose, 134 N.J. 326, 337 (1993)
(quoting Henningsen v. Bloomfield Motors, 32 N.J. 358, 374 (1960)).
The party seeking to rely on the apparent agency relationship must
establish:
(1) that the appearance of authority has been created
by the conduct of the alleged principal and it cannot
be established alone and solely by proof of [conduct
by] the supposed agent; (2) that a third party has relied
on the agent's apparent authority to act for a principal;
and (3) that the reliance was reasonable under the
circumstances.
[Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290,
317-18 (App. Div. 1999) (alteration in original)
(citations and quotation marks omitted).]
And, when determining an agent's apparent authority, courts should not focus
on the alleged agent's actions, but must look to the conduct of the alleged
principal. Id. at 318.
As noted, we recently considered and rejected an identical apparent
authority argument proffered in Gayles. There, the minor plaintiff was also
injured while playing at the defendants' trampoline park. 468 N.J. Super at 19-
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21. The minor's friend's mother signed an agreement on the minor's behalf that
was required for admission to the park. The agreement contained a similar
arbitration provision. Id. at 20. We found that a non-parent lacked apparent
authority to sign a waiver agreement and therefore, the minor and his mother
were not bound by the arbitration agreement. Id. at 21-22.
However, defendants contend Gayles is distinguishable from the
circumstances here because Lisa executed an agreement on behalf of Olivia
when she took her to the park on five prior occasions in 2016. Defendants do
not seek to enforce the 2016 agreements. Instead, defendants urge that the
agreements demonstrate a pattern of prior conduct, and, therefore, establish
apparent authority. We are not persuaded.
The 2016 agreements did not vest Valenti with the authority to enter into
the 2018 agreement or any future agreement on Olivia's behalf. Nor do the
2016 agreements manifest any understanding on Lisa's part that Valenti or any
other adult could sign a future waiver agreement in the place of Lisa or on
Olivia's behalf. To the contrary, the 2016 agreements state that any
"DISPUTE SHALL BE BROUGHT WITHIN ONE YEAR OF THE DATE OF
THIS AGREEMENT AND WILL BE DETERMINED BY BINDING
ARBITRATION." Therefore, under the 2016 agreements, Lisa only waived
Olivia's trial rights as to the events that occurred on the specific date of each of
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those visits in 2016, and the parties were required to arbitrate any claims
within a year of each agreement.
Furthermore, unlike the 2018 agreement, the 2016 agreements did not
include the clause stating the agreement "extends forever into the future and
will have full force and legal effect each and every time I or my
child(ren)/ward(s) visit Sky Zone, whether at the current location or any other
location or facility." 3 The 2016 agreements contained different language than
the 2018 agreement. There is no evidence Lisa would have signed the 2018
agreement. And, Lisa's prior execution of the agreement did not establish a
pattern that she would authorize another person to sign an agreement on behal f
of her daughter. Therefore, the 2016 agreements do not establish Valenti had
apparent authority to waive Olivia's trial rights under the 2018 agreement.
Finally, defendants were unaware of the 2016 agreements when Olivia
and Valenti came to the trampoline park in August 2018. Defendants did not
find the 2016 agreements until after the court ruled on the initial motion to
dismiss the complaint and compel arbitration. Therefore, defendants could not
3
The points raised in this appeal do not require us to address whether this
language in the 2018 agreement is enforceable. But see Cottrell v. Holtzberg,
468 N.J. Super. 59, 72-73 (App. Div. 2021) (holding that an arbitration
agreement governing the plaintiff's initial admission to the defendant's nursing
home is insufficient to demonstrate assent to arbitrate claims related to a
subsequent admission to the nursing home).
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have reasonably relied on the 2016 agreements to demonstrate that Lisa gave
Valenti apparent authority in 2018 to waive Olivia's trial rights.
Defendants have not demonstrated apparent authority to permit Valenti
to waive Olivia's rights. Apparent authority relies on the principal's
manifestations—not those of the agent. Mercer, 324 N.J. Super. at 318.
Therefore, although Valenti executed the agreement in which she represented
and certified she was the parent, legal guardian, or power of attorney of th e
listed minors, she was not. Defendants did not establish any previous conduct
on Lisa's part to create an appearance of authority, and defendants' reliance on
Valenti's signature to their agreement was not reasonable under the
circumstances.
Affirmed.
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