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Edward Fehr v. George E. Algard

January 5, 2011

EDWARD FEHR, PLAINTIFF-RESPONDENT,
v.
GEORGE E. ALGARD, JR., CATHY ALGARD, STERLING HARBOR MOTEL & MARINA, INC. T/A STERLING HARBOR BAIT & TACKLE, STERLING HARBOR DUKE OF FLUKE TOURNAMENT, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket Nos. L-104-07 and L-106-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 6, 2010 - Decided Before Judges Axelrad and Lihotz.

Defendant Cathy Algard is the owner of defendant Sterling Harbor Motel & Marina Inc. (SHM), trading as Sterling Harbor Bait & Tackle, which is the sponsor of the Sterling Harbor Duke of Fluke Tournament (Tournament). She, along with her husband George E. Algard, Jr., appeals from an order granting plaintiff, the late Edward Fehr,*fn1 partial summary judgment on his breach of contract claim. After reviewing the parties' cross-motions for summary judgment, the court accepted plaintiff's interpretation of the rules governing the competitive fishing contest and set aside plaintiff's disqualification for "cheating" after he was accused of entering fish not caught on the day of the Tournament. The court's determination crowned plaintiff the 2007 "Duke of Fluke" and awarded damages. On all other claims raised in plaintiff's complaint, summary judgment was awarded to defendants.

On appeal, defendants argue the Law Division judge erred in granting summary judgment on plaintiff's contract claim because the Tournament rules could reasonably be read to grant the judges the authority to disqualify plaintiff due to his dishonest conduct and also included an implied covenant of good faith performance and fair dealing, which means participants must not cheat. Defendants seek reversal of the order and an opportunity to prove their claim that plaintiff's deception warranted disqualification. We reverse and remand.

The facts, viewed in a light most favorable to defendants, are taken from the summary judgment record. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Each year, SHM sponsors the Tournament, which attracts more than one-hundred contestants. A number of cash prizes in various categories are awarded. The description of the prize awards and the contest rules are contained in the Tournament tri-fold brochure, which includes the entry application. This controversy entails two of those prize awards. The first, the "single heaviest fluke prize," given to the contestant who catches the heaviest live flounder, and the second, the "five heaviest fluke prize," given to the boat catching the five flounder with the greatest combined weight. For these categories, SHM provided a fixed cash prize and significant additional winnings were garnered through contestant-contributed funds in a process labeled "calcutta."

The contest rules listed in the Tournament brochure are few. In addition to a hold harmless agreement, the rules include a prohibition against any boat approaching another vessel, land or a structure; the designated deadline for registration; the amount of the entrance fee; the start time, place and designated fishing areas, along with the time for the final weigh-in. The rules also add requirements directly related to winning prizes. These include: a fish must be caught on a rod and reel, one rod per angler and four anglers per boat; entrants for the combined weight category may include fish caught by all contestants on a boat; entrants for the heaviest single fluke must be alive at weigh-in, although fish submitted for the other categories, including the five heaviest fluke need not be living at weigh-in; any fish submitted for consideration in the heaviest fluke category may not also be entered in the five-heaviest-fluke category. Finally, Rule 12 states:

All fish will be subject to examinations externally and/or internally, or as any judge deems necessary. Any fish entered in the contest is subject to disqualification if a judge decides it bears suspicious marks or characteristics. All decisions by the judges are final.

The rules brochure also includes the registration portion. Appearing directly below a registrant's information and above the space provided for the captain's signature, is the following statement:

The Captain of said vessel has read the Rules and Regulations of the Sterling Harbor Duke of Fluke Tournament and understands and agrees with them. The Captain of said vessel has also reviewed the rules and regulations with all of the fisherman participating on the said vessel in the tournament. Anyone who is found to have provided false information is subject to immediate disqualification including the rest of the anglers aboard said vessel with no refund. Sterling Harbor reserves the right to refuse entry to any person for any reason whatsoever.

The 2007 Tournament was held in Wildwood on July 14, 2007, and monitored by three judges: George and Cathy Algard, and Kenneth Greenling. Plaintiff's boat, the Gina Ariella, was registered for the Tournament by Jack Aydelotte.

During weigh-in, Aydelotte, on behalf of the Gina Ariella, presented the fish to be considered for prizes. First, he offered a six-pound, four-ounce flounder for the single heaviest fluke award. The fish was tagged and placed in a cooler. Next, Aydelotte presented a fish for the "Duchess Award,"*fn2 but changed his mind and submitted the fish along with four others for consideration for the heaviest five fluke award.

As Aydelotte placed the fish in the weigh-in tray, Algard was the first judge to see them. He stated:

[Aydelotte] went and put that [fish] and four other fish in our tray for weigh-in, and two of the fish were so bad that -- I've seen a lot of bad fish over the years and ...


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