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Levy v. Priddy


July 28, 2010


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. SC-413-09.

Per curiam.


Submitted April 27, 2010

Before Judges Gilroy and Simonelli.

Defendants Michael Priddy (Priddy) and Priddy Learning Academy, Inc. (PLA) appeal from the judgment of the Special Civil Part entered against PLA in the amount of $1022. We reverse.

The following facts are derived from the evidence presented at trial. PLA offers tutoring programs in math and reading/language arts. In the summer of 2008, it offered a tutoring program that began on June 30, 2008, and ended on August 7, 2008.

On June 26, 2008, plaintiff learned that her daughter, who had just completed the sixth grade, was going to be dropped "down a level in language arts" the following school year. Believing that her daughter had dyslexia, plaintiff consulted a teacher, who referred plaintiff to a neuropsychologist. Prior to speaking to the neuropsychologist, in order to "cover all [her] bases," plaintiff contacted Priddy to provide summer tutoring instruction to her daughter.

Plaintiff knew that Priddy had no experience with children with dyslexia. Nevertheless, because plaintiff wanted her daughter "to learn how to study better and [felt her daughter] needs some help[,]" she agreed to enroll her daughter in PLA's summer tutoring program.

Plaintiff paid the entire program tuition of $1070 in full. She also signed a registration form, which stated "I have received, and agree to the General Policies and Procedures of [PLA]." The General Policies and Procedures contains a provision that tuition for "[t]he Summer Session is nonrefundable." Also, Priddy gave plaintiff a receipt that stated "[n]o refunds exchange only in seven days." Plaintiff claimed that she did not know about the refund policy, and denied receiving the General Policies and Procedures or that defendant advised her there was a no refund policy.

On June 27, 2008, the neuropsychologist advised plaintiff that PLA's tutoring program would not benefit her daughter. Plaintiff immediately called Priddy to cancel her daughter's enrollment and requested a refund of the tuition. Priddy refused a refund, prompting plaintiff to file a complaint in the Special Civil Part.

The trial judge found that there was an enforceable contract between the parties, and that the General Policies and Procedures provided that the tuition for the summer program was non-refundable. However, the judge concluded that plaintiff was entitled to a refund because she had canceled within twenty-four hours with good cause based on testing that did not find her daughter in need of special services. The court entered judgment dismissing the matter as to Priddy and entering judgment against PLA for $1022, representing the tuition, plus costs, less a $70 registration fee.

On appeal, relying on Princeton Montessori Soc'y, Inc. v. Leff, 248 N.J. Super. 474 (App. Div.), certif. denied, 127 N.J. 545 (1991), defendants contend that the judge failed to enforce the non-refundable provision in a contract for educational services. Defendants also contend that the judge erred in finding plaintiff was entitled to a refund because she canceled within twenty-four hours in good faith and/or based on her child's lack of special needs.

Our review of a judgment entered in a non-jury case is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We should not "disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963); see also Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009). "However, '[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]'" and are subject to de novo review. Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 149 N.J. 366, 378 (1995)), certif. denied, 199 N.J. 129 (2009).

We begin our analysis by rejecting defendant's contention that Princeton Montessori required the judge to enforce the non- refundable provision. In that case, the tuition contract between the school and the parent, which contained a nonrefundable provision, was for an entire school year. We held that

Under a contract whereby an educational institution agrees to provide instruction for a specified period and a parent of a student agrees to pay a definite sum for tuition and similar charges therefor, we hold that where the contract expressly provides that no deduction or refund will be made, the entire tuition is payable despite the fact that the student withdraws from school. In these circumstances, the educational institution has no duty to mitigate damages.

[248 N.J. Super. at 478 (emphasis added).]

Although we did not define "educational institution" we specifically noted that the plaintiff was licensed by the State of New Jersey to operate a private school. Id. at 476. PLA is not a private school, nor is it a licensed educational institution. It is an entity that provides tutoring services to the public. The term "educational institution" is not synonymous with "tutoring service," as tutoring services are merely a supplement to the educational instruction students receive at a licensed educational institution. See, e.g., N.J.S.A. 18A:2-3b (dealing with the provision of "tutorial assistance" to students enrolled in "educational institution[s]").

Further, while in Princeton Montessori we cited a litany of cases from other jurisdictions supporting our holding, none involved a tutoring service, or a program that did not cover an entire school year. 248 at N.J. Super. 478-79. Likewise, defendants cite no authority holding that a tutoring service is an educational institution. Accordingly, defendants are not entitled to the protection Princeton Montessori affords to educational institutions.

Nonetheless, we agree with defendants that the trial judge erred by not enforcing the contract. "[I]t is not the function of the court to make a better contract for the parties, or to supply terms that have not been agreed upon." Graziano v. Grant, 326 N.J. Super. 328, 342 (App. Div. 1999) (citing Schenck v. HJI Assocs., 295 N.J. Super. 445, 450 (App. Div.), certif. denied, 149 N.J. 35 (1996)). "'[W]here the terms of a contract are clear and unambiguous . . . the courts must enforce those terms as written.'" City of Orange Twp. v. Empire Mortgage Servs., 341 N.J. Super. 216, 224 (App. Div. 2001) (quoting Karl's Sales and Service, Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 493 (App. Div.), certif. denied, 127 N.J. 548 (1991)).

Here, the judge found that an enforceable contract existed between the parties, and that it included the non-refundable provision. Accordingly, the judge erred by applying exceptions to the non-refundable provision not contained in the contract or agreed to by the parties.

Defendants' remaining contention that PLA was never a party to this case lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make the following comment.

Both PLA and Priddy are named as defendants in the complaint's caption; PLA is named as a defendant on the summons; and the summons and complaint were served on defendants at PLA's place of business.

Reversed and remanded for the entry of judgment in defendants' favor dismissing the complaint with prejudice.


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