JOHN C. STOLLSTEIMER VS. FOULKE MANAGEMENT CORP., ETC. (L-2255-16, CAMDEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-1182-17T3
JOHN C. STOLLSTEIMER and
CHERYL R. STOLLSTEIMER,
Plaintiffs-Appellants,
v.
FOULKE MANAGEMENT CORP., d/b/a
FOULKE MANAGEMENT CORPORATION,
d/b/a CHERRY HILL DODGE CHYRSLER JEEP,
d/b/a CHERRY HILL TRIPLEX,
Defendant-Respondent.
________________________________________
Argued May 30, 2018 - Decided June 26, 2018
Before Judges Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
2255-16.
Paul N. DePetris argued the cause for
appellants (Paul N. DePetris and Lewis G.
Adler, of counsel and on the briefs).
Laura D. Ruccolo argued the cause for
respondent (Capehart & Scatchard, PA,
attorneys; Laura D. Ruccolo, on the brief).
PER CURIAM
Plaintiffs John C. and Cheryl R. Stollsteimer appeal from an
October 2, 2017 order dismissing their complaint and compelling
arbitration. We affirm.
On February 19, 2014, plaintiffs purchased a new motor vehicle
from defendant, Foulke Management Corp., d/b/a Foulke Management
Corporation, d/b/a Cherry Hill Dodge Chrysler Jeep, d/b/a Cherry
Hill Triplex. In purchasing the car, plaintiffs signed a Motor
Vehicle Retail Order Agreement (MVRO), which included a
description of the vehicle and the price. Plaintiffs also signed
a retail installment sales contract (RISC) and an arbitration
agreement. The MVRO contained an integration clause, stating any
attachments included all terms and conditions.
The arbitration agreement was attached to the MVRO. The
arbitration agreement stated, in bold, capital letters, that
certain rights, including the right to maintain a court action,
were limited. The arbitration agreement, applicable to "all claims
and disputes," explained the arbitration process in detail. The
arbitration agreement also contained a class action waiver
provision. Upon signing the arbitration agreement, plaintiffs
expressly acknowledged they received, read, and understood the
document.
Over a year after purchasing the vehicle, plaintiffs
experienced trouble with the car. Plaintiffs attempted to have
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the car repaired. When the issues with the vehicle were not
remedied, plaintiffs filed a complaint on or about June 16, 2016.
In the complaint, plaintiffs alleged defendant violated the
Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA),
N.J.S.A. 56:12-14 to -18. Plaintiffs also sought class
certification.
On August 3, 2016, defendant moved to dismiss plaintiffs'
complaint and compel arbitration in accordance with the
arbitration agreement. Plaintiffs opposed defendant's motion.
On September 20, 2016, the motion judge entered an order
enforcing the arbitration agreement. Plaintiffs appealed.
Because that order was entered without oral argument and without
any statement of reasons, we reversed. Stollsteimer v. Foulke
Mgmt. Corp., No. A-0833-16 (App. Div. May 23, 2017) (slip op. at
3). We remanded the matter, requesting the motion judge provide
findings of fact and conclusions of law in accordance with Rule
1:7-4(a). Id. at 3-4.
On remand, the parties were permitted to supplement their
written arguments related to defendant's motion to compel
arbitration. After hearing oral argument, the motion judge granted
defendant's motion to dismiss and compelled plaintiffs to
arbitrate their claims. The judge issued a nine-page written
statement of reasons in support of his October 2, 2017 order.
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In the statement of reasons appended to the order, the judge
found the MVRO, RISC, and arbitration agreement were a single,
integrated contract. The judge noted the MVRO established the
price of the vehicle, the RISC confirmed the payment agreement
between plaintiffs and defendant, and the arbitration agreement
governed dispute resolution pertaining to the agreement as a whole.
In addition, the judge determined all three documents were signed
on or about February 19, 2014, the date that plaintiffs purchased
the vehicle. Further, the judge found the MVRO, RISC, and
arbitration agreement refer to and acknowledge the existence of
the other documents. In holding the three documents formed one
single contract, the judge highlighted language in the arbitration
agreement that read: "I IMMEDIATELY RECEIVED A COPY OF THE
CONTRACTS ALONG WITH THIS ARBITRATION AGREEMENT, AND ACKNOWLEDGE
THAT I FULLY UNDERSTAND THE CONTENTS THEREIN."
Having deemed the documents signed by plaintiffs to be a
single, integrated contract, the judge then considered whether the
arbitration agreement complied with Atalese v. U.S. Legal Services
Group, LP, 219 N.J. 430 (2014). In that regard, the judge found
plaintiffs "were clearly and unambiguously informed that by
signing the [arbitration] agreement, they would be surrendering
their 'right to pursue any legal action to seek damages or any
other remedies in a court of law, including the right to a jury
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trial.'" Moreover, the judge noted the sales documents referred
to arbitration several times, "often in accentuated, bold
lettering," and highlighted various provisions explaining
arbitration, identifying the rules of arbitration, establishing
the location for arbitration, and setting forth the cost of
arbitration. The judge determined the arbitration agreement
"expressly inform[ed] the parties of their waiver of their right
to a jury trial." Thus, the judge concluded the arbitration
agreement comported with Atalese.
On appeal, plaintiffs contend the motion judge erred because:
(1) the arbitration agreement conflicted with the MVRO and the
RISC; (2) the arbitration agreement was void for lack of
consideration; (3) the arbitration clause failed to satisfy the
requirements of Atalese; (4) the arbitration clause was
unenforceable as to class action litigation; (5) there were
material fact disputes concerning the parties' agreement to
arbitrate; and (6) the motion judge failed to consider defendant's
application as a motion for summary judgment in accordance with
Rule 4:46, as opposed to a motion to dismiss pursuant to Rule 4:6-
2.
The validity of an arbitration agreement is a question of law
and we review an order compelling arbitration de novo. Barr v.
Bishop Rosen & Co., 442 N.J. Super. 599, 605 (App. Div. 2015); see
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also Atalese, 219 N.J. at 445-46 ("Our review of a contract,
generally, is de novo, and therefore we owe no special deference
to the trial court's . . . interpretation.").
"[W]here [an] agreement is evidenced by more than one writing,
all of them are to be read together and construed as one contract,
and all the writings executed at the same time and relating to the
same subject-matter are admissible in evidence." Lawrence v.
Tandy & Allen, Inc., 14 N.J. 1, 7 (1953) (quoting Gould v. Magnolia
Metal Co., 69 N.E. 896, 898 (Ill. 1904)). Where several writings
constitute one instrument, "the recitals in one may be explained,
amplified, or limited by reference to the other." Schlossman's,
Inc. v. Radcliffe, 3 N.J. 430, 435 (1950).
To determine whether arbitration should be compelled, we must
determine whether the contract's arbitration provision is valid
and enforceable. Martindale v. Sandvik, Inc., 173 N.J. 76, 83
(2002). In reviewing a motion to compel arbitration, "we are
mindful of the strong preference to enforce arbitration
agreements." Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186
(2013).
Arbitration is a matter of contract. NAACP of Camden Cty.
E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 424 (App. Div.
2011), appeal dismissed, 213 N.J. 47 (2013). Not every arbitration
clause is enforceable. Atalese, 219 N.J. at 441. "An agreement
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to arbitrate 'must be the product of mutual assent, as determined
under customary principles of contract law.'" Barr, 442 N.J.
Super. at 605 (quoting Atalese, 219 N.J. at 442).
"Mutual assent requires that the parties understand the terms
of their agreement[,]" and where the "agreement includes a waiver
of a party's right to pursue a case in a judicial forum, 'clarity
is required.'" Id. at 606 (quoting Moore v. Woman to Woman
Obstetrics & Gynecology, LLC, 416 N.J. Super. 30, 37 (App. Div.
2010)). "[T]he waiver 'must be clearly and unmistakably
established,' and 'should clearly state its purpose,' . . . [a]nd
the parties must have full knowledge of the legal rights they
intend to surrender." Ibid. (citations omitted). An arbitration
agreement should clearly state if it "depriv[es] a citizen of
access to the courts." Garfinkel v. Morristown Obstetrics &
Gynecology Assocs., 168 N.J. 124, 132 (2001) (quoting Marchak v.
Claridge Commons, Inc., 134 N.J. 275, 282 (1993)).
We first consider whether the three sales documents signed
by plaintiffs formed a single, integrated contract. In reviewing
the challenged documents, we agree with the motion judge that all
three documents were executed at the same time and related to the
same subject-matter: plaintiffs' purchase of the vehicle.
Moreover, the arbitration agreement, attached to the MVRO,
explains and amplifies the MVRO. The MVRO expressly includes "any
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attachments." Therefore, the RISC is incorporated by reference
into the MVRO. Thus, we concur that the MVRO, RISC, and
arbitration agreement signed by plaintiffs constitute a single,
integrated contract.
We next consider whether the arbitration agreement is
enforceable. The arbitration agreement and the provisions
referring to arbitration in the other sales documents were clear
and unambiguous so as to be enforceable. The MVRO, signed by
plaintiffs, contained a provision instructing plaintiffs to "READ
THIS DOCUMENT CAREFULLY. IF YOU DO NOT FEEL THAT YOU HAVE HAD
SUFFICIENT TIME TO READ THE DOCUMENT, YOU SHOULD NOT SIGN IT . . . .
DO NOT SIGN THIS CONTRACT AND THE OTHER CONTRACT DOCUMENTS IF YOU
DO NOT AGREE WITH ALL TERMS OF THE CONTRACT." The arbitration
agreement, also signed by plaintiffs, advised plaintiffs to "READ
THIS ABITRATION AGREEMENT CAREFULLY. IT LIMITS CERTAIN OF YOUR
RIGHTS, INCLUDING YOUR RIGHT TO MAINTAIN A COURT ACTION." The
arbitration agreement provides both parties "have an absolute
right to demand that any dispute be submitted to an arbitrator in
accordance with this agreement" and that "[i]f either . . . file[d]
a lawsuit, counterclaim, or other action in a court, the other
party has the absolute right to demand arbitration following the
filing of such action." The arbitration agreement also included
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a waiver of the right to a jury trial and pursuit of class action
litigation.
In reviewing the MVRO, RISC, and arbitration agreement in a
similar case, another panel of this court recently found "no
infirmity in the content of the arbitration provision or the manner
in which that content was conveyed." Goffe v. Foulke Mgmt. Corp.,
___ N.J. Super. ___ (App. Div. 2018) (slip op. at 10). The panel
found
[i]n bold and conspicuous print, the
provisions emphasize that, by fixing their
signatures on defendants' documents,
plaintiffs . . . agreed to arbitrate all
related claims and waived their rights to
trial by jury regardless of the legal basis
for the claim. We see nothing in the
arbitration provisions in question that would
run afoul of our decisional law's insistence
upon a clear and conspicuous expression of
that intent.
[Id. at 10-11.]
Having concluded the sales documents signed by plaintiffs
form a single, integrated contract and having determined that the
arbitration provisions are enforceable, we need not resolve
plaintiffs' arguments regarding the statute of limitations or
whether plaintiffs agreed to forego the right to pursue a class
action, because the parties expressly delegated the authority to
decide such issues to the arbitrator. Challenges to an arbitration
agreement, as a whole, are subject to an arbitrator's determination
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if the agreement contains a delegation provision. Rent-A-Center
W. v. Jackson, 561 U.S. 63, 68-69 (2010); see also Morgan v.
Sanford Brown Inst., 225 N.J. 289, 303 (2016) ("[P]arties to an
arbitration agreement can agree to delegate to an arbitrator the
issue of whether they agreed to arbitrate a particular dispute.")
Based on the language in the arbitration agreement signed by the
parties, the arbitrator is delegated the authority to decide such
issues in the first instance.
We next examine plaintiffs' argument that the motion judge
failed to treat defendant's motion as a motion for summary judgment
and there were material factual disputes that precluded summary
judgment in this case. In reviewing the record, we find the judge
treated defendant's motion as a motion for summary judgment. The
judge gave plaintiffs an additional opportunity on remand to
present evidence of genuinely disputed material facts. While
plaintiffs raised legal arguments related to the sales contracts,
they failed to set forth any disputed facts. We hold the motion
judge properly considered the undisputed facts in rendering his
decision to dismiss the complaint and compel arbitration.
Affirmed.
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