On appeal from Superior Court of New Jersey, Law Division, Burlington County, L-2302-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 16, 2011
Before Judges Waugh and Koblitz.
Defendants, Nails At Last, Inc., d/b/a Indulge Salon and Medispa, a/k/a Ndulge Salon & Spa, a/k/a Hair Dimensions and Irene E. Gaughan, a/k/a Irene Gauhn, (referred to collectively as "Nail Salon") appeal the "with prejudice" aspect of the court's March 23, 2010 order granting the unopposed motion to dismiss with prejudice filed by third-party defendants Syneron and Syneron Medical, Ltd. (Syneron)*fn1 , as well as the trial court's June 3, 2010 denial of its motion for reconsideration. Nail Salon also appeals the August 30, 2010 grant of the summary judgment motion filed by plaintiff Lyon Financial Services, Inc., d/b/a US Bancorp Business Equipment Group (Lyon). After reviewing the record in light of the contentions advanced on appeal, we affirm the grant of summary judgment to Lyon and remand to the trial court for entry of an order dismissing the third-party complaint for lack of jurisdiction without prejudice to defendant's right to bring suit in any court.
Nail Salon characterizes itself as a "small beauty salon in a lower class neighborhood of New Jersey." The owner, a manicurist by trade, certifies that she was told by a representative of Syneron that she could make a profit performing liposuction with one of Syneron's machines. After she was unable to sell the service, she was allegedly induced to upgrade the machine by fraudulent promises. After failing to find customers for the enhanced treatments, Nail Salon stopped making payments to Lyon, the finance company, which subsequently filed this action.
On October 30, 2007, Nail Salon entered into a sales agreement with Syneron for a VelaSmooth System laser liposection machine for approximately $70,000.*fn2 The two parties agreed that if Nail Salon obtained third-party financing in connection with the purchase, Syneron would transfer title of the system to the third-party financing company. Nail Salon also entered into a lease agreement with Lyon, the third-party financing company, obligating Nail Salon to pay, beginning in ninety days, three monthly payments of $99, followed by six monthly payments of $400, followed by forty-eight monthly payments of $1918.59 for a total payment of $94,789.32. At the end of the lease period, Nail Salon could purchase the equipment from Lyon for $1.
On February 6, 2008, Nail Salon entered into another sales agreement with Syneron, trading in the VelaSmooth System for a VelaShape "two-head" System costing $89,900. Nail Salon was required to pay approximately $12,000*fn3 for the new machine after it received a credit of $70,900 for returning the VelaSmooth, as well as a "further discount" of approximately $8000. It was charged $1000 for shipping and handling. This sales agreement contained a provision limiting jurisdiction and venue for any dispute to Cook County, Illinois. On that same date, Nail Salon signed an addendum to the lease agreement with Lyon, replacing the VelaSmooth with a VelaShape and increasing the final forty-eight payments to $2233.25 each, for a total of $109,893.
Lyon filed a complaint against Nail Salon on July 13, 2009, alleging that Nail Salon made no payments due on or after November 30, 2008. Nail Salon filed an answer, counterclaim and third-party complaint against Syneron, alleging that, through false representations, Syneron improperly sold Nail Salon a medical device that it was not licensed or qualified to operate. Nail Salon alleged that Lyon was a part of the fraudulent enterprise to sell the equipment.
Syneron filed a motion to dismiss the third-party complaint. This unopposed motion was granted with prejudice by the court with no statement of reasons. Nail Salon filed a motion for reconsideration, arguing that the dismissal motion should have been granted without prejudice on jurisdictional grounds alone, acknowledging that the sales agreement specified that any dispute should be litigated in Illinois. The court denied this motion without indicating any reasons.
We are unable to determine whether the trial court granted Syneron's motion to dismiss on jurisdictional grounds alone.*fn4
The trial court did not place any reasons on the record or in the orders at the time of its decisions nor did it provide reasons after the appeal was filed as permitted by the Rules.
R. 2:5-1(b); see Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 300 (App. Div. 2009); State in the Interest of J.R., 244 N.J. Super. 630, 635 (App. Div. 1990). Although not specifically raised by plaintiff as an issue on appeal, a trial court has a duty to make findings of fact and conclusions of law "on every motion decided by written orders that are appealable as of right." R. 1:7-4(a). Failure to perform this duty "'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). Moreover, "[n]aked ...