JOHN C. STOLLSTEIMER VS. FOULKE MANAGEMENT CORP., ETC. (L-2255-16, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-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

6 A-1182-17T3
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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