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Rhonda Massa v. Mcguire Buick-Pontiac-Gmc

October 25, 2011


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2507-09.

Per curiam.


Argued September 27, 2011

Before Judges Yannotti and Espinosa.

Plaintiff Rhonda Massa appeals from an order entered by the Law Division on September 16, 2010, dismissing her complaint. We affirm.

This appeal arises from the following facts. On March 31, 2008, plaintiff entered into an agreement with defendant McGuire Buick-Pontiac-GMC (McGuire) under which she returned her previously-leased 2004 Buick Century and leased a 2008 Pontiac sedan. In furtherance of the agreement, plaintiff signed various documents including a "Motor Vehicle Retail Order," which provided that the parties to the agreement agreed to arbitrate any claim arising from the sale or lease involved, including all statutory claims and any state or federal claims.

On May 7, 2009, plaintiff filed a complaint in the Law Division against McGuire, McGuire's salesperson Peter Tourso (Tourso) and GMAC.*fn1 She alleged that the 2008 Pontiac lacked certain features that were on her previously-leased vehicle, contrary to certain representations and promises that defendants made to her. Plaintiff further alleged that McGuire had agreed it would pay the last two payments on the existing lease but failed to provide notice of the agreement to GMAC, thereby resulting in demands by GMAC for additional payments.

Based on these facts, plaintiff asserted claims against defendants for breach of contract, breach of the covenant of good faith and fair dealing, fraud, and violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA). McGuire and Tourso filed an answer dated June 16, 2009, and an amended answer dated July 21, 2009, in which they asserted as a separate defense that the "matter is subject to an arbitration agreement.

On August 10, 2009, defendants filed a motion to dismiss the complaint on the ground that plaintiff was required by the "Motor Vehicle Retail Order" to arbitrate the claims in the complaint. The court found that it did not have sufficient facts to determine whether plaintiff had actual knowledge of the arbitration agreement and understood its terms and conditions. The court accordingly entered an order dated September 16, 2009, denying defendants' motion without prejudice.

Thereafter, plaintiff and Tourso were deposed on May 27, 2010. During the depositions, counsel for the parties discussed whether and when defendants would file a second motion to dismiss on the basis of the arbitration agreement. Plaintiff's attorney noted that the matter was scheduled for court arbitration on June 1, 2009.*fn2 Defendants' attorney said that the motion would be filed the following week.

In her deposition, plaintiff testified that she was employed as a teacher and had worked as a teacher for thirty-one years. She has a master's degree. Plaintiff conceded that when she leased the 2008 Pontiac, she signed various documents, including the "Motor Vehicle Retail Order" which contained the arbitration agreement. Plaintiff testified that she did not review the arbitration agreement before she signed it. Plaintiff conceded, however, that she was given an opportunity to review the document before she signed it.

Plaintiff further testified that she understood the arbitration agreement. She said that the agreement indicated that, if she had a problem, she would have to go to arbitration. Plaintiff conceded that that the agreement was "pretty clear." She stated, however, that Tourso never told her she would be giving up her right to sue. Plaintiff testified that, because Tourso subsequently told that she should "take" defendants to court, she did not know she had signed a document precluding her from doing so.

The matter was submitted to court arbitration on July 1, 2010. The arbitrator awarded plaintiff $2,549.95, exclusive of attorneys' fees. Defendants filed their second motion to dismiss on July 21, 2010. The court considered the motion on September 16, 2010, and placed its decision on the record on that date. The court found that the arbitration clause in the "Motor Vehicle Retail Order" was clear and unambiguous and required plaintiff to submit her claims to arbitration.

The court noted that plaintiff is a "highly educated woman" who understood that there was an arbitration clause in the contract. The court rejected plaintiff's contention that defendants waived their right to enforce the arbitration agreement by waiting too long to re-file their motion to dismiss. The court entered an order ...

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