On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. L-2934-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and Messano.
Defendant, third-party plaintiff Rosanna Pittella appeals from the grant of summary judgment in favor of third-party defendant Pine Belt Enterprises, Inc., and the subsequent dismissal of her class action claims.*fn1 We have considered the arguments raised by plaintiff in light of the record and applicable legal standards. We reverse.
On February 27, 2003, plaintiff entered into a "retail installment sale contract" (the contract) with defendant for the purchase of a 2003 Chevrolet Trailblazer.*fn2 On the same day, she also signed a separate form document bearing defendant's logo, address, and phone and fax numbers (the arbitration agreement). The arbitration agreement included pre-printed designations for the Date, "Vehicle Make," "Vehicle Model," and "Vehicle Vin," which were completed with the information regarding the Trailblazer. The form also had two signature lines for customers; plaintiff's name was inserted on the form, and it is undisputed that she signed the document. There was no signature line for defendant or its representative. We recite the arbitration agreement in its entirety, indicating those provisions that appeared in bold type:
Option to Arbitrate Disputes
By applying for financing with us, and by purchasing or leasing a motor vehicle from us, you agree that if any dispute of any kind arises out of your financing, leasing or acquisition of the vehicle, or any of the documents related thereto, either you or we or third parties involved can choose to have that dispute resolved by binding arbitration as set forth in the arbitration provision below. If arbitration is chosen, it will be conducted pursuant to the Code of Procedure of the American Arbitration Association (the "AAA"). If you have any questions concerning the AAA or wish to obtain a copy of their rules and forms, you may call them at 732-560-9560.
IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, DISPUTE OR CONTROVERSY, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN PRE-ARBITRATION DISCOVERY, EXCEPT AS PROVIDED IN THE ARBITRATION RULES. FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIMS SUBJECT TO ARBITRATION. THE ARBITRATOR'S DECISION WILL GENERALLY BE FINAL AND BINDING. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. IT IS IMPORTANT THAT YOU READ THE ENTIRE ARBITRATION PROVISION CAREFULLY BEFORE SIGNING THESE DOCUMENTS.
Unless inconsistent with applicable law, each party shall bear the expenses of their respective attorneys', experts' and witness fees, regardless of which party prevails in the arbitration. If any portion of this Arbitration Provision is deemed invalid or unenforceable under the Federal Arbitration Act, 9 U.S.C. sections 1-16 it should not invalidate the remaining portions of this arbitration provision.
The contract was later assigned to GMAC; when plaintiff failed to make her payments, GMAC repossessed the car and filed suit. Plaintiff filed her answer, along with a counterclaim and a third-party complaint against defendant. She claimed that the price she paid for an extended warranty when she purchased the vehicle, $3400, was "grossly excessive and . . . unconscionable," in violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -184 (the CFA), and the Uniform Commercial Code, specifically, N.J.S.A. 12A:2-302. Plaintiff also brought the claim on behalf of a proposed class of individuals who had similarly purchased an extended warranty plan from defendant during the prior six years. In her counterclaim, plaintiff alleged that GMAC was subject to all of her claims against defendant pursuant to the contract and the "FTC Holder Rule and State Holder Rule."
In lieu of filing an answer, defendant moved for summary judgment seeking to compel arbitration and to dismiss the third-party complaint in its entirety. In her certification opposing the motion, plaintiff claimed that she did not recall signing the arbitration agreement. Instead, she alleged that the sales representative "fanned" the documents, and indicated where to sign. While acknowledging her signature on the arbitration agreement, plaintiff contended that the documents were not explained to her and the sales representative claimed that he was "going to expedite things for [her]." Plaintiff did not believe she was given the opportunity to review the documents properly, and that she was rushed through the entire process.
On July 31, 2008, after hearing oral argument, the motion judge entered an order granting summary judgment transferring plaintiff's individual claims to arbitration; he declined, however, to dismiss the putative class action claims. Defendant then moved for reconsideration, and, on August 29, after considering further oral argument, ...