NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1051-13T1
FIORELLA ROTONDI, on her own
behalf and on behalf of a
class of similarly situated
persons,
Plaintiff-Respondent,
v.
DIBRE AUTO GROUP, L.L.C.,
d/b/a NORTH PLAINFIELD
NISSAN,
Defendant-Appellant,
and
TD AUTO FINANCE, L.L.C.,
Defendant.
____________________________________
Argued March 24, 2014 – Decided July 9, 2014
Before Judges Ashrafi and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No.
L-1967-13.
Thomas G. Russomano argued the cause for
appellant (Schiller & Pittenger, P.C.,
attorneys; Mr. Russomano, of counsel; Jay B.
Bohn, on the brief).
Lessie Hill argued the cause for respondent.
PER CURIAM
Defendant Dibre Auto Group, L.L.C., which owns and operates
a car dealership named North Plainfield Nissan, appeals from an
order of the Law Division denying without prejudice its motion
to dismiss plaintiff's class action complaint and to compel
arbitration of her individual claims. We affirm.1
The facts relevant to the issues on appeal are essentially
undisputed. In March 2011, plaintiff Fiorella Rotondi purchased
a 2011 Nissan Altima from North Plainfield Nissan. The vehicle
was priced at $26,997 according to the Motor Vehicle Retail
Order that defendant prepared and plaintiff signed. She was
granted a credit of $14,830 on a trade-in of her 2007 Honda
Civic, but that entire amount was used by defendant to pay off
her existing loan on the Honda Civic. Additional charges were
added to the price of the Nissan Altima for: (1) Anti-Theft
Vehicle Security Etch (Optional), $199.98; (2) GAP (insurance),
$750.00; (3) State sales tax, $918.19; (4) Motor Vehicle Tire
Fee, $7.50; (5) Registration/Title Fee, $200.00; and (6)
Documentary Fee, $349.97. With these additions, and a credit
1
Although the order is without prejudice, Rule 2:2-3(a) states
that "all orders compelling or denying arbitration, whether the
action is dismissed or stayed, shall also be deemed a final
judgment of the court for appeal purposes."
2 A-1051-13T1
for "Net Pay-Off of Trade-In" of $1,250, the total contract
price was $28,172.64.2
Defendant arranged for financing by plaintiff to pay for
the new car. Our record does not contain a legible copy of the
financing contract plaintiff signed with Chase as the lender,
but counsel represent that the amount financed was $25,865.17
for a period of seventy-two months (six years), with an interest
rate of 12.14% and monthly payments of $535.90. Defendant's
salesperson told plaintiff she could return to the dealership
within one year to refinance the loan with better terms.
A year later, in March 2012, plaintiff returned to
refinance her car loan. Although plaintiff kept the same 2011
Nissan Altima, defendant dealership presented to her and she
signed another Motor Vehicle Retail Order in the same preprinted
form as the March 2011 order. The price listed for the 2011
Nissan Altima that plaintiff already owned was $25,311.32, and a
trade-in was shown on the document of a 2010 Nissan Altima with
a trade-in value of $24,764.26 and the identical amount as the
Chase loan balance to be paid off with the trade-in value. No
2
The document does not explain why the trade-in value of the
2007 Honda Civic was determined to be the same amount as the
balance of plaintiff's existing car loan and yet she was granted
a credit for a "net pay-off of the trade-in."
3 A-1051-13T1
vehicle identification number was provided for the 2010 Altima
being traded in; no such car was involved in the transaction.
As with the 2011 Retail Order, the 2012 order also added
charges for: (1) Anti-Theft Vehicle Security Etch (Optional),
$199.98; (2) State sales tax, $196.49; (3) Registration/Title
Fee, $150.00; and (4) Documentary Fee, $349.97. There was no
GAP insurance or tire fee listed, but there was a new additional
charge added of $2,060.00 for a service contract. There was
nothing entered as a "Net Pay-Off of Trade-In." The total
contract price was $28,267.76.
The re-financed loan was assigned to defendant TD Auto
Finance, LLC. The amount financed was $26,767.76 for a new term
of seventy-two months, with an interest rate of 8.69%, and
monthly payments of $480.00. So, while the interest rate and
monthly payments were reduced, plaintiff was required to make an
additional year of monthly payments for the same car, and she
was charged again for a number of items added to the base price
of the car.
The 2011 and 2012 Retail Orders had identical mandatory
arbitration agreements that plaintiff signed. In relevant part
those sections of the Orders stated:
AGREEMENT TO ARBITRATE ANY CLAIMS. READ THE
FOLLOWING ARBITRATION PROVISION CAREFULLY,
IT LIMITS YOUR RIGHTS, INCLUDING THE RIGHT
TO MAINTAIN A COURT ACTION.
4 A-1051-13T1
The parties to this agreement agree to
arbitrate any claim, dispute, or
controversy, including all statutory claims
and any state or federal claims, that may
arise out of or relating to the sale or
lease identified in this agreement. By
agreeing to arbitration, the parties
understand and agree that they are waiving
their rights to maintain other available
resolution processes, such as court action
or administrative proceeding, to settle
their disputes. Consumer Fraud, Used Car
Lemon Law, and Truth-in-Lending claims are
just three examples of the various types of
claims subject to arbitration under this
agreement. The parties also agree to (i)
waive any right to pursue any claims arising
under this agreement, including statutory,
state or federal claims, as a class action
arbitration, or (ii) to have an arbitration
under this agreement consolidated with any
other arbitration or proceeding. . . . If
any part of this arbitration clause, other
than waivers of class action rights, is
found to be unenforceable for any reason,
the remaining provisions shall remain
enforceable. If a waiver of class action
and consolidation rights is found
unenforceable in any action in which class
action remedies have been sought, this
entire arbitration clause shall be deemed
unenforceable, it being the intention and
agreement of the parties not to arbitrate
class actions or in consolidated
proceedings. . . . THIS ARBITRATION
PROVISION LIMITS YOUR RIGHTS, INCLUDING YOUR
RIGHT TO MAINTAIN A COURT ACTION. PLEASE
READ IT CAREFULLY PRIOR TO SIGNING.
[(underscoring added).]
In May 2013, plaintiff filed a five-count class action
complaint and jury demand. She then amended the pleading twice.
Her second amended complaint alleged in seven counts: (1)
5 A-1051-13T1
violation of the Consumer Fraud Act, N.J.S.A. 56:8-2 to -106,
(2) unjust enrichment, (3) theft by deception, (4) civil
conspiracy, (5) common law fraud, (6) violation of the Plain
Language Act, N.J.S.A. 56:12-1 to -13, and (7) violation of the
Truth in Lending Act. The complaint described the class on
behalf of which plaintiff filed suit as all those person "who
purchased and/or refinanced a new or used vehicle" from March
29, 2011, to the time of the pleading, adding the following list
of specific attributes of the class members:
1. who purchased or refinanced the vehicle
from defendant, North Plainfield Nissan.
Who traded in any vehicle during the
purchase and/or refinance.
2. who did not receive a dollar value for the
traded in vehicle.
3. who did not trade in any vehicle during
the refinance however the contract
referenced a trade in description and
allowance.
4. who were charged a fee for anti-theft
vehicle security etching twice, once on
the purchase and again on the refinance.
5. who were charged documentary fees.
6. who were charged sales tax on the
refinanced vehicle when there wasn't a
sale.
7. who were charged a sales tax less than the
amount required by the State of New
Jersey.
8. who were charged a registration/title fee
on the refinance when these documents were
not provided.
9. who were charged a documentary fee
including document delivery service on the
6 A-1051-13T1
refinance when no documents were
delivered.
10. who were charged a finance fee.
11. where the contract was assigned to TD
Auto Finance, LLC.
Defendant moved to dismiss the second amended complaint and
instead to compel arbitration of any individual claims of
plaintiff. The Law Division heard argument of counsel and
denied the motion without prejudice. The court reasoned that
the provision of the arbitration agreement quoted above that
refers to plaintiff's agreement to "waive any . . . claims . . .
as a class action arbitration" was unclear and ambiguous as to
whether plaintiff's recourse was to pursue a class action in the
courts. The court also stated that factual issues existed
regarding whether the arbitration clause and waiver of class
actions was an unconscionable term of the two Retail Orders, and
that discovery would be permitted to develop that issue. The
court stated that defendant could renew its motion to compel
arbitration as further evidence developed through discovery.
Defendant appeals, contending that the Federal Arbitration
Act ("FAA"), 9 U.S.C.A. §§ 1 to 16, United States Supreme Court
case law applying the FAA, and N.J.S.A. 2A:24-1 all mandate that
the court enforce the arbitration agreements contained in the
7 A-1051-13T1
two contracts executed by the parties.3 Defendant cites a number
of federal and state cases holding that arbitration is a favored
method of dispute resolution and arbitration agreements should
be enforced in accordance with the terms of the parties'
contract. See, e.g., Volt Info. Sciences, Inc. v. Bd. of Trs.
of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S. Ct.
1248, 1255, 103 L. Ed. 2d 488, 500 (1989); Garfinkel v.
Morristown Obstetrics & Gynecology Assocs. P.A., 168 N.J. 124,
131-32 (2001); Malik v. Ruttenberg, 398 N.J. Super. 489, 494-95
(App. Div. 2008).
The FAA provides that the arbitration provision of a
contract affecting commerce "shall be valid, irrevocable, and
3
Defendant does not elaborate on its contention regarding
N.J.S.A. 2A:24-1, and relies instead on its analysis of the
federal law as applied by the United States Supreme Court. The
New Jersey statute states:
A provision in a written contract to
settle by arbitration a controversy that may
arise therefrom or a refusal to perform the
whole or a part thereof or a written
agreement to submit, pursuant to section
2A:24-2 of this title, any existing
controversy to arbitration, whether the
controversy arise out of contract or
otherwise, shall be valid, enforceable and
irrevocable, except upon such grounds as
exist at law or in equity for the revocation
of a contract.
[Ibid.]
8 A-1051-13T1
enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract." 9 U.S.C.A. § 2.
Defendant acknowledges that general contract defenses, such as
fraud, duress, and unconscionability, are available under the
FAA to invalidate arbitration agreements. See Doctor's Assocs.,
Inc. v. Casarotto, 517 U.S. 681, 687, 116 S. Ct. 1652, 1656, 134
L. Ed. 2d 902, 909 (1996); Gras v. Assocs. First Capital Corp.,
346 N.J. Super. 42, 47 (App. Div. 2001), certif. denied, 171
N.J. 445 (2002). To those defenses, we have added the
requirement that a waiver of rights to pursue judicial remedies
must be stated in clear language, unambiguously. Rockel v.
Cherry Hill Dodge, 368 N.J. Super. 577, 586-87 (App. Div.),
certif. denied, 181 N.J. 545 (2004).
In Muhammad v. County Bank of Rehoboth Beach, 189 N.J. 1,
22 (2006), cert. denied, 549 U.S. 1338, 127 S. Ct. 2032, 167 L.
Ed. 2d 763 (2007), our State Supreme Court held void as
unconscionable and against the public policy of this State
arbitration clauses in adhesion contracts that barred class
actions, where small individual claims could not be practically
pursued. In reaching that holding, the Court cited with
approval a similar decision of the California Supreme Court in
Discover Bank v. Superior Court, 113 P.3d 1100, 1110 (Cal.
2005). Muhammad, supra, 189 N.J. at 20.
9 A-1051-13T1
Subsequently, the United States Supreme Court overruled
Discover Bank, and effectively overruled Muhammad, in AT&T
Mobility LLC v. Concepcion, 563 U.S. ___, ___, 131 S. Ct. 1740,
1750, 179 L. Ed. 2d 742, 755 (2011). The Court held that the
FAA preempts a determination under state law that a waiver of
class actions in an arbitration clause is unenforceable on
grounds of state public policy or per se unconscionability. See
id. at ___, 131 S. Ct. at 1753, 179 L. Ed. 2d at 758-59.
Consequently, defendant correctly argues in this appeal
that the class action waiver provisions of the Retail Orders are
not subject to a defense of per se unconscionability on public
policy grounds.
Furthermore, we held in Rockel, supra, 368 N.J. Super. at
580, that a claim of unconscionability based on alleged
violation of the Consumer Fraud Act does not in itself void an
arbitration clause. Rather, unconscionability as a contract
defense has to be determined on a case-by-case basis. Ibid.
When unconscionability is based on alleged Consumer Fraud
violations, the issue can be decided in the arbitration hearing.
Gras, supra, 346 N.J. Super. at 52-53.
Most recently in NAACP of Camden County East v. Foulke
Management Corp., 421 N.J. Super. 404 (App. Div. 2011), appeal
dism'd, 213 N.J. 47 (2013), we held that a class action waiver
10 A-1051-13T1
in a transaction to purchase a new car was not per se invalid,
id. at 441, but that the arbitration provisions of the several
contract documents in that case were inconsistent and therefore
not enforceable. Id. at 444-45.
Similarly in this case, we agree with the trial judge that
the reference in the arbitration clauses to "class action
arbitration" is potentially confusing. On the one hand, the
arbitration clauses state that the parties to the contract agree
to arbitrate all claims. On the other hand, "class action
arbitration" is waived. Since the agreement seems to preserve
other types of claims, only subject to arbitration, and since it
does not state explicitly that the consumer may not pursue any
class action whatsoever, one might infer that a class action
must be brought in the courts.
In Foulke Management, supra, 421 N.J. Super. at 425, we
emphasized the need for clarity in an arbitration clause. See
also Garfinkel, supra, 168 N.J. at 132 ("[A] party's waiver of
statutory rights 'must be clearly and unmistakably established,
and contractual language alleged to constitute a waiver will not
be read expansively.'" (quoting Red Bank Reg'l Educ. Ass'n v.
Red Bank Reg'l High Sch. Bd. of Educ., 78 N.J. 122, 140 (1978));
Moore v. Woman to Woman Obstetrics & Gynecology, L.L.C., 416
N.J. Super. 30, 37 (App. Div. 2010) ("Courts decline to enforce
11 A-1051-13T1
an arbitration agreement that is not sufficiently clear as to
the rights the party is waiving."). We conclude that a
prohibition against class actions is not enforceable in either
of the two contracts plaintiff signed because it is not stated
with clarity.
In addition, plaintiff argues that the arbitration clause
in the 2012 Retail Order is not enforceable because there was no
sale or lease of a vehicle at that time. Rather, the
transaction was a refinancing of the car she bought a year
earlier and already owned. While the refinancing was real and
desired by plaintiff, the terms of a new sale with additional
charges was not. Plaintiff contends there was no "meeting of
the minds" in entering into the March 2012 written agreement.
We view this argument as alleging that the 2012 contract
was fraudulent in the making. See, e.g., Amsterdam v. De Paul,
70 N.J. Super. 196, 200 (App. Div. 1961); N.J. Mortg. & Inv. Co.
v. Dorsey, 60 N.J. Super. 299, 302 (App. Div.), aff'd o.b., 33
N.J. 448 (1960); see also McDonald v. Central R.R. Co., 89
N.J.L. 251, 254 (E. & A. 1916) ("A misrepresentation of the
contents of a document by which one is induced to sign a paper
thinking it is other than it really is, is the typical case of
fraud in the execution; it is a case where the defrauded party
may properly say, 'I never agreed to that . . . .'").
12 A-1051-13T1
Alternatively, we view plaintiff as contending that the contract
was voidable because of a mistake of fact — that is, she
believed she was signing a refinancing agreement but the
document was for a non-existent sale. See Restatement (Second)
of Contracts §§ 151-155 (1981) (common law principles applicable
to mistake in the formation of a contract).
Defendant's general manager has certified that it is common
for car dealers to prepare a new sales order when they arrange
for a refinancing through their lender sources, especially a new
lender. He claims that the transaction is, in effect, a sale of
the vehicle by the buyer back to the dealer and then a resale of
the same vehicle to the buyer. However, this explanation does
not address why the 2012 Retail Order prepared by defendant
designates a non-existent 2010 Nissan Altima as the vehicle that
plaintiff was trading in. There is no document evidencing a
sale of the 2011 Nissan Altima from plaintiff back to defendant.
Defendant's explanation also does not address why the trade-in
value of plaintiff's car is listed as $24,764.26, which is the
amount of her outstanding loan balance to Chase, while the sale
price for the same car being purportedly resold to plaintiff on
the same day is designated as $25,311.22. There is no
indication in the record that plaintiff was ever informed that
defendant would charge a net $546.96 to refinance her original
13 A-1051-13T1
loan, and plaintiff alleges that such a charge is unlawful and
fraudulent.
Plaintiff also alleges fraud in the 2012 transaction for
other reasons, including the re-charging for anti-theft security
etching and vehicle documentation and related fees, a new charge
for a service contract that she claims she did not request, and
allegedly no true savings on her original loan. She contends
that, since she requested only a refinancing of her loan and not
another purchase of a vehicle, there was no meeting of the minds
on the 2012 contract, and therefore, the arbitration clause is
part of a void contract and not enforceable.
In Foulke Management, supra, 421 N.J. Super. at 425, we
stated that "an agreement to arbitrate must be the product of
mutual assent, as determined under customary principles of
contract law. . . . There must be, as our cases instruct, a
'meeting of the minds.'" We held that: "because arbitration
provisions are often embedded in contracts of adhesion, courts
take particular care in assuring the knowing assent of both
parties to arbitrate, and a clear mutual understanding of the
ramifications of that assent." Ibid.
Here, the trial court permitted discovery to develop the
parties' competing contentions regarding the enforceability of
the arbitration provisions. Our conclusion that the "class
14 A-1051-13T1
action arbitration" waivers were not stated with sufficient
clarity to constitute a complete abandonment of court
proceedings to pursue a class action makes it unnecessary for us
to address further plaintiff's argument that the 2012 Retail
Order was a fraud and a sham and should not be enforced for that
alternative reason.
Since plaintiff did not file a cross-appeal, we have no
occasion to address whether the trial court's denial of
defendant's motion to compel arbitration should have been with
or without prejudice. The parties and the trial court are free
to address that issue in further proceedings consistent with
this decision.
Affirmed.
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