NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4438-15T1
ROBERT MELLET and BETTY EVANS, on behalf of themselves and other persons similarly situated,
Plaintiffs-Appellants, APPROVED FOR PUBLICATION v. October 16, 2017 AQUASID, LLC, t/a FUTURE FITNESS POWERED BY AFC, APPELLATE DIVISION
Defendant-Respondent. ________________________________
Argued May 4, 2017 – Decided June 21, 2017
Before Judges O'Connor, Whipple, and Mawla.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-516- 15.
Andrew P. Bell argued the cause for appellants (Locks Law Firm, L.L.C. and the Law Office of Charles N. Riley, L.L.C., attorneys; Michael Galpern, James A. Barry, Charles N. Riley, and Mr. Bell, on the brief).
Sean X. Kelly argued the cause for respondent (Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., attorneys; Sean Robins and Mr. Kelly, on the brief).
The opinion of the court was delivered by
MAWLA, J.S.C., t/a Plaintiffs Robert Mellet and Betty Evans appeal from an April
29, 2016 order denying class certification and granting defendant
summary judgment. We affirm.
We derive the following facts from the record. Defendant
Aquasid, LLC, is a health club operated at two locations in Cherry
Hill, New Jersey. Plaintiffs entered membership agreements with
defendant on February 21, 2014, and subsequently stopped paying
their memberships. Specifically, when Mellet sought to cancel his
membership in July 2014, defendant declined his request and charged
him $1,256.71, comprised of three months of late fees, a collection
fee, administrative fee, and fifteen months of dues. Defendant
attempted to collect these funds from Mellet. In September 2014,
Evans sought to cancel her membership, but defendant declined her
request. Evans' October 2014 payment was declined for insufficient
funds and she was charged a $25 fee. Defendant continued to charge
Evans, and sought to collect $198.34 from her.
Plaintiffs filed suit asserting the form of their membership
contracts and the fees defendant charged violate the Retail
Installment Sales Act (RISA), Consumer Fraud Act (CFA), Health
Club Services Act (HCSA), and the Truth in Consumer Contract,
Warranty, and Notice Act (TCCWNA). They allege at least one
hundred other similarly improper contracts were entered into by
other members. Plaintiffs sought class certification for all
2 A-4438-15T1 persons who entered into a membership agreement with defendant on
or after April 9, 2008. Defendant contested class certification
and moved for summary judgment.
After hearing oral argument, the trial judge denied
plaintiffs' motion for class certification and granted defendant's
request for summary judgment. Regarding plaintiffs' individual
claims, the trial judge concluded RISA did not apply to defendant's
installment contracts with plaintiffs because the contracts did
not afford them an ownership interest in either an object or
service at its conclusion. The trial judge also found Attorney
General review and approval of the membership forms containing the
contract fees, as required by the HCSA, barred any claim under
RISA, and concluded defendant's exculpatory clause was
enforceable.
The trial judge found plaintiffs did not have a clearly
established right under TCCWNA to assert their waiver claim. He
found no CFA claim because the fees plaintiffs sought to recover
under the CFA were RISA fees, which were barred because defendant's
membership agreements passed muster under the HCSA. The trial
judge did not make any findings as to the HCSA requirement that
the total fees charged appear on the front of the contract.
Class certification was denied for lack of the necessary
predominance on the issue of calculation of total fees and whether
3 A-4438-15T1 the total fees must appear on the front of every contract, as
required by the HCSA. The trial judge concluded HCSA claims are
individual in nature, not class based, because defendant's
contracts contained no common price. Finding no individual or
class claims, the trial judge entered summary judgment for
defendant. This appeal followed.
Plaintiffs contend the trial judge erred in granting summary
judgment because the membership agreements violate RISA, the HCSA,
TCCWNA, and CFA. They contend New Jersey favors class
certification, and all the prerequisites to certification under
Rule 4:32-1(a) were met, as well as the requirements of independent
justification for class certification required by Rule 4:32-1(b).
Plaintiffs further contend the trial judge erred in considering
defendant's cross motion for summary judgment on short notice.
We review the grant of summary judgment by a trial court de
novo. Templo Fuente De Vida Corp. v. Nat'l. Union Fire Ins. Co.
of Pittsburgh, 224 N.J. 189, 199 (2016). We apply the same
principles governing an adjudication of a motion for summary
judgment as the trial court. Atl. Mut. Ins. Co. v. Hillside
Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied,
189 N.J. 104 (2006). Rule 4:46-2(c) states an order granting
summary judgment shall be entered if "the pleadings, depositions,
answers to interrogatories and admissions on file, together with
4 A-4438-15T1 the affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is entitled
to a judgment or order as a matter of law." A fact is material
if it is substantial in nature. See Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 529 (1995).
"A court deciding a summary judgment motion does not draw
inferences from the factual record as does the factfinder in a
trial, 'who may pick and choose inferences from the evidence to
the extent that a miscarriage of justice under the law' is not
created." Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)
(quoting Brill, supra, 142 N.J. at 536). Rather, in reviewing
summary judgment orders, the Court must look at the facts in a
light most favorable to the non-moving party and determine whether
a genuine issue of material fact exists sufficient to be tried.
See Brill, supra, 142 N.J. at 523.
I.
Plaintiffs argue RISA covers health club contracts because
the plain language of RISA specifically states it applies to
services, including health club services. They assert the trial
judge’s interpretation of RISA is contradictory to the finding of
our Supreme Court in Perez v. Rent-A-Center, 186 N.J. 188 (2006),
cert. denied, 549 U.S. 115, 127 S. Ct. 984, 166 L. Ed. 2d 710
(2007).
5 A-4438-15T1 The health club contracts at issue here were twenty-month
membership contracts payable in monthly installments. Plaintiffs
state these contracts also included various administrative and
late fees charged month-to-month for the period of the contract.
They argue defendant committed several clear violations of RISA:
charging a late fee of more than $10, N.J.S.A. 17:16C-42(a);
charging more than $20 for a returned check for insufficient funds,
N.J.S.A. 17:16C-42(e); charging more than $10 for a collection
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4438-15T1
ROBERT MELLET and BETTY EVANS, on behalf of themselves and other persons similarly situated,
Plaintiffs-Appellants, APPROVED FOR PUBLICATION v. October 16, 2017 AQUASID, LLC, t/a FUTURE FITNESS POWERED BY AFC, APPELLATE DIVISION
Defendant-Respondent. ________________________________
Argued May 4, 2017 – Decided June 21, 2017
Before Judges O'Connor, Whipple, and Mawla.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-516- 15.
Andrew P. Bell argued the cause for appellants (Locks Law Firm, L.L.C. and the Law Office of Charles N. Riley, L.L.C., attorneys; Michael Galpern, James A. Barry, Charles N. Riley, and Mr. Bell, on the brief).
Sean X. Kelly argued the cause for respondent (Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., attorneys; Sean Robins and Mr. Kelly, on the brief).
The opinion of the court was delivered by
MAWLA, J.S.C., t/a Plaintiffs Robert Mellet and Betty Evans appeal from an April
29, 2016 order denying class certification and granting defendant
summary judgment. We affirm.
We derive the following facts from the record. Defendant
Aquasid, LLC, is a health club operated at two locations in Cherry
Hill, New Jersey. Plaintiffs entered membership agreements with
defendant on February 21, 2014, and subsequently stopped paying
their memberships. Specifically, when Mellet sought to cancel his
membership in July 2014, defendant declined his request and charged
him $1,256.71, comprised of three months of late fees, a collection
fee, administrative fee, and fifteen months of dues. Defendant
attempted to collect these funds from Mellet. In September 2014,
Evans sought to cancel her membership, but defendant declined her
request. Evans' October 2014 payment was declined for insufficient
funds and she was charged a $25 fee. Defendant continued to charge
Evans, and sought to collect $198.34 from her.
Plaintiffs filed suit asserting the form of their membership
contracts and the fees defendant charged violate the Retail
Installment Sales Act (RISA), Consumer Fraud Act (CFA), Health
Club Services Act (HCSA), and the Truth in Consumer Contract,
Warranty, and Notice Act (TCCWNA). They allege at least one
hundred other similarly improper contracts were entered into by
other members. Plaintiffs sought class certification for all
2 A-4438-15T1 persons who entered into a membership agreement with defendant on
or after April 9, 2008. Defendant contested class certification
and moved for summary judgment.
After hearing oral argument, the trial judge denied
plaintiffs' motion for class certification and granted defendant's
request for summary judgment. Regarding plaintiffs' individual
claims, the trial judge concluded RISA did not apply to defendant's
installment contracts with plaintiffs because the contracts did
not afford them an ownership interest in either an object or
service at its conclusion. The trial judge also found Attorney
General review and approval of the membership forms containing the
contract fees, as required by the HCSA, barred any claim under
RISA, and concluded defendant's exculpatory clause was
enforceable.
The trial judge found plaintiffs did not have a clearly
established right under TCCWNA to assert their waiver claim. He
found no CFA claim because the fees plaintiffs sought to recover
under the CFA were RISA fees, which were barred because defendant's
membership agreements passed muster under the HCSA. The trial
judge did not make any findings as to the HCSA requirement that
the total fees charged appear on the front of the contract.
Class certification was denied for lack of the necessary
predominance on the issue of calculation of total fees and whether
3 A-4438-15T1 the total fees must appear on the front of every contract, as
required by the HCSA. The trial judge concluded HCSA claims are
individual in nature, not class based, because defendant's
contracts contained no common price. Finding no individual or
class claims, the trial judge entered summary judgment for
defendant. This appeal followed.
Plaintiffs contend the trial judge erred in granting summary
judgment because the membership agreements violate RISA, the HCSA,
TCCWNA, and CFA. They contend New Jersey favors class
certification, and all the prerequisites to certification under
Rule 4:32-1(a) were met, as well as the requirements of independent
justification for class certification required by Rule 4:32-1(b).
Plaintiffs further contend the trial judge erred in considering
defendant's cross motion for summary judgment on short notice.
We review the grant of summary judgment by a trial court de
novo. Templo Fuente De Vida Corp. v. Nat'l. Union Fire Ins. Co.
of Pittsburgh, 224 N.J. 189, 199 (2016). We apply the same
principles governing an adjudication of a motion for summary
judgment as the trial court. Atl. Mut. Ins. Co. v. Hillside
Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied,
189 N.J. 104 (2006). Rule 4:46-2(c) states an order granting
summary judgment shall be entered if "the pleadings, depositions,
answers to interrogatories and admissions on file, together with
4 A-4438-15T1 the affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is entitled
to a judgment or order as a matter of law." A fact is material
if it is substantial in nature. See Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 529 (1995).
"A court deciding a summary judgment motion does not draw
inferences from the factual record as does the factfinder in a
trial, 'who may pick and choose inferences from the evidence to
the extent that a miscarriage of justice under the law' is not
created." Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)
(quoting Brill, supra, 142 N.J. at 536). Rather, in reviewing
summary judgment orders, the Court must look at the facts in a
light most favorable to the non-moving party and determine whether
a genuine issue of material fact exists sufficient to be tried.
See Brill, supra, 142 N.J. at 523.
I.
Plaintiffs argue RISA covers health club contracts because
the plain language of RISA specifically states it applies to
services, including health club services. They assert the trial
judge’s interpretation of RISA is contradictory to the finding of
our Supreme Court in Perez v. Rent-A-Center, 186 N.J. 188 (2006),
cert. denied, 549 U.S. 115, 127 S. Ct. 984, 166 L. Ed. 2d 710
(2007).
5 A-4438-15T1 The health club contracts at issue here were twenty-month
membership contracts payable in monthly installments. Plaintiffs
state these contracts also included various administrative and
late fees charged month-to-month for the period of the contract.
They argue defendant committed several clear violations of RISA:
charging a late fee of more than $10, N.J.S.A. 17:16C-42(a);
charging more than $20 for a returned check for insufficient funds,
N.J.S.A. 17:16C-42(e); charging more than $10 for a collection
fee, N.J.S.A. 17:16C-42(b); and applying charges to customer
accounts, which were not court costs, attorney fees, or the expense
to retake goods authorized by law, N.J.S.A. 17:16C-50.
Defendant argues RISA does not apply to their membership
agreements and Perez controls because the entire premise of the
installment sales contract contemplated by RISA is possession and
eventual ownership of a specified good by a buyer. Defendant
argues plaintiffs were paying not to eventually own but rather to
utilize the gym's facilities and equipment, and, thus, the RISA
claim was properly dismissed. We agree.
RISA defines a retail installment contact as:
[A]ny contract, other than a retail charge account or an instrument reflecting a sale pursuant thereto, entered into in this State between a retail seller and a retail buyer evidencing an agreement to pay the retail purchase price of goods or services, which are primarily for personal, family or household
6 A-4438-15T1 purposes, or any part thereof, in two or more installments over a period of time. This term includes a security agreement, chattel mortgage, conditional sales contract, or other similar instrument and any contract for the bailment or leasing of goods by which the bailee or lessee agrees to pay as compensation a sum substantially equivalent to or in excess of the value of the goods, and by which it is agreed that the bailee or lessee is bound to become, or has the option of becoming, the owner of such goods upon full compliance with the terms of such retail installment contract.
[N.J.S.A. 17:16C-1(b).]
The term "'[s]ervices' means and includes work, labor and
services, professional and otherwise which are primarily for
personal, family or household purposes but does not include
services which are subject to the 'Home Repair Financing Act,' and
insurance premiums financing which is subject to the 'Insurance
Premium Finance Company Act.'" N.J.S.A. 17:16C-1(s).
In Perez, the Court stated:
In enacting RISA, the stated legislative purpose was protection of the public interest through the regulation of the charges associated with the time sale of goods. By including conditional sales, chattel mortgages, security interests, leases, and similar instruments within RISA's protective ambit, the Legislature signaled that it intended to sweep into the Act as many cognate agreements as possible, even those that did not strictly fall within a denominated category. That broad mandate, along with the well-established notion that remedial statutes like RISA should be liberally construed to achieve their salutary aims,
7 A-4438-15T1 require questions regarding the applicability of the statute to be resolved in favor of consumers for whose protection RISA was enacted.
[Perez, supra, 186 N.J. at 209 (citations omitted).]
The thrust of RISA is to "protect consumers from themselves
and rapacious sellers." See id. at 218. Thus, the Legislature
aimed to protect the public interest regarding the sale of goods.
See id. at 209.
Although the Perez Court stated RISA should be construed
broadly, the statute itself refers to the following categories:
"security agreement, chattel mortgage, conditional sales contract
or other similar instrument." N.J.S.A. 17:16C-1(b). We fail to
see how a health club membership agreement is similar to any of
the enumerated instruments. Health club members are not in the
category of consumers RISA is designed to protect, because these
contracts do not involve the sale of goods. For these reasons,
we agree with the trial judge RISA does not apply and affirm
dismissal of that count of plaintiffs' complaint. Also, because
it is undisputed plaintiffs' CFA claim is dependent upon their
RISA claim, we affirm the judge’s summary judgment dismissal of
the CFA claim as well.
II.
8 A-4438-15T1 Plaintiffs assert defendant's exculpatory clause is the type
of overly broad contract barred by TCCWNA. Plaintiffs argue their
TCCWNA claims should have survived summary judgment because in
Bosland v. Warnock Dodge, Inc., 197 N.J. 543, (2009), the Supreme
Court held TCCWNA "prohibits any provision in a consumer contract
requiring a customer to waive his or her rights under the Act."
They assert the Bosland Court stated TCCWNA "should be broadly
construed in favor of consumers," and, thus, TCCWNA prohibits
broad exculpatory clauses of the type found in defendant's
membership contract.
Plaintiffs assert the trial judge incorrectly applied
Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286 (2010), where
the Supreme Court upheld the validity of limited liability waivers
for injuries suffered while exercising at a health club. They
argue the holding in Stelluti was narrow and specific to "injuries
sustained as a matter of negligence that result from a patron's
voluntary use of equipment and participation in instructed
activity." See id. at 313. Plaintiffs cite Walters v. YMCA, 437
N.J. Super. 111, 120 (App. Div. 2014), where we considered a waiver
in the context of a slip and fall case at a gym, and held when a
"defendant seeks to shield itself from all civil liability, based
on a one-sided contractual arrangement that offers no
9 A-4438-15T1 countervailing or redeeming societal value[,] [s]uch a contract
must be declared unenforceable as against public policy."
Defendant refutes plaintiffs' broad reading of Walters.
Rather, defendant contends the court in Walters stated the
enforceability of an exculpatory clause in a health club membership
contract must be decided on a case-by-case basis.
Our review begins with the statute itself. TCCWNA states:
No consumer contract, warranty, notice or sign, as provided for in this act, shall contain any provision by which the consumer waives his rights under this act. Any such provision shall be null and void. No consumer contract, notice or sign shall state that any of its provisions is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey; provided, however, that this shall not apply to warranties.
[N.J.S.A. 56:12-16.]
Stelluti and Walters address the validity of exculpatory
clauses in health club contracts. In Stelluti, the Court stated:
In sum, the standard we apply here places in fair and proper balance the respective public- policy interests in permitting parties to freely contract in this context (i.e. private fitness center memberships) and requires private gyms and fitness centers to adhere to a standard of conduct in respect of their business. Specifically, we hold such business owners to a standard of care congruent with the nature of their business, which is to make available the specialized equipment and
10 A-4438-15T1 facility to their invitees who are there to exercise, train, and to push their physical limits. That is, we impose a duty not to engage in reckless or gross negligence. We glean such prohibition as a fair sharing of risk in this setting, which is also consistent with the analogous assumption-of-risk approach used by the Legislature to allocate risks in other recreational settings with limited retained-liability imposed on operators.
[Stelluti, supra, 203 N.J. at 312-13.]
The ruling in Stelluti was expressly premised on the fact the
plaintiff there was engaging in the type of strenuous physical
activity normally undertaken at a gym, creating an inherent risk
of injury.
In Walters, we addressed whether an exculpatory clause was
proper where an injury at a health club facility occurred not as
a result of engaging in the type of strenuous activity creating
an inherent risk, but as the result of ordinary negligence.
Walters, supra, 437 N.J. Super. at 111. We applied the same
standard as the Supreme Court in Stelluti, noting an exculpatory
agreement:
[I]s enforceable only if: (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.
11 A-4438-15T1 [Id. at 117-18 (quoting Stelluti, supra, 203 N.J. at 298).]
We held the exculpatory clause at issue was unenforceable as
against public policy because it "eviscerated" the health club's
ordinary duty of care by shielding it from injuries occurring
while patrons utilize its equipment and also immunized the health
club from liability for any injury occurring on its premises, even
those having nothing to do with exercise. Id. at 118-20.
Here, defendant's exculpatory clause states:
I/we accept full responsibility for my/our use of any and all apparatus, appliance, facility, privilege, or service, whatsoever, owned and operated by FF/AFC, or while engaging in any contest, games function, exercise, either on or off the FF/AFC premises, and shall do so at my/out own risk and shall hold FF/AFC, it’s owners, partners, shareholders, directors, officers, employees, representatives, agents and/or affiliated companies, harmless from any and all loss, claim, injury, damage or liability sustained or incurred by me/us, resulting from any act or omission of any owner, partner, shareholder, directors, officers, employees, representatives, agents and/or affiliated companies hereunder in respect of any such loss, cost, claim injury, damage or liability sustained or incurred by using FF/AFC’s services and facilitates.
Plaintiffs' challenges to this exculpatory clause are not for
injuries suffered at a health club as in Stelluti and Walters.
Rather, plaintiffs argue the mere existence of the clause violates
TCCWNA because it exculpates defendant from the type of liability
12 A-4438-15T1 barred in Walters and Stelluti. TCCWNA mandates no "business
offer to any consumer or prospective consumer or enter into any
written consumer contract or give or display any written consumer
warranty, notice or sign after the effective date of this act
which includes any provision that violates any clearly established
legal right. . . ." N.J.S.A. 56:12-15. TCCWNA prohibits any
contract from requiring a party to sign away a clearly established
right. See N.J.S.A. 56:12-16.
The language in defendant's exculpatory clause is more
analogous to the exculpatory clause in Stelluti. However, unlike
Stelluti, it does not contain any waiver for slip and fall type
incidents, which we barred in Walters. See Walters, supra, 437
N.J. Super. at 115. Therefore, defendant's exculpatory clause is
facially enforceable, because it neither broadly waives exercise-
related injuries, nor negates defendant’s ordinary duty of care,
which may not be waived as contrary to public policy. See id. at
113. For these reasons, the trial judge's determination of the
waiver issue is affirmed.
III.
Plaintiffs contend the trial judge did not state his reasoning
for dismissal of the HCSA claims. They state the membership
agreements at issue did not include the total payment obligation
on the first page of the membership agreement as required by the
13 A-4438-15T1 HCSA. See N.J.S.A. 56:8-42(b). Thus, plaintiffs argue dismissal
of this claim was improper.
In opposition, defendant points out the form of the contracts
at issue was subject to review by the Attorney General, who did
not find any violations. Defendant also notes plaintiffs'
contracts contained the total payment information on the first
page of the document.
The HCSA states,
A health club services contract shall specifically set forth in a conspicuous manner on the first page of the contract the buyer's total payment obligation for health club services to be received pursuant to the contract.
[N.J.S.A. 56:8-42.]
The record reveals the trial judge did not make any findings
about the display of the total membership cost on the front page
of the agreement as required by N.J.S.A. 56:8-42. Therefore,
pursuant to Rule 2:10-5 we elect to exercise original jurisdiction
to adjudicate this issue. As stated by our Supreme Court,
[r]esort to original jurisdiction is particularly appropriate to avoid unnecessary further litigation, as where the record is adequate to terminate the dispute and no further fact-finding or administrative expertise or discretion is involved, and thus a remand would be pointless because the issue to be decided is one of law and implicates the public interest.
14 A-4438-15T1 [Price v. Himeji, LLC, 214 N.J. 263, 294 (2013) (citing Vas v. Roberts, 418 N.J. Super. 509, 523-24 (App. Div. 2011) (alteration in original)).]
Here, the record reveals plaintiffs' health membership
agreements contained the total amount owed on a monthly basis on
the first page of their contracts. For these reasons, summary
judgment as to this issue is proper.1
Because we have found plaintiffs do not have any viable
claims, we do not reach the issue of the denial of class
certification. We also decline to address plaintiffs' claim the
trial judge improperly considered defendant's cross-motion on
short notice. The transcript demonstrates, by virtue of an
adjournment the trial judge granted, plaintiffs had sufficient
time to respond and did not seek permission to file a sur-reply.
Furthermore, the record reveals at oral argument plaintiffs
requested more time to file a statement of material facts, but
failed to argue which facts were in dispute beyond the facts
already before the trial judge to necessitate an additional filing.
Likewise, we do not address plaintiffs' TCCWNA claims derived from
RISA, the CFA, and HCSA, because we have found these claims are
not independently viable.
1 We note here appellants' motion to supplement the record on appeal is denied.
15 A-4438-15T1 Affirmed.
16 A-4438-15T1