ROBERT MELLET and BETTY EVANS, on behalf of themselves and other persons similarly situated, Plaintiffs-Appellants,
AQUASID, LLC, t/a FUTURE FITNESS POWERED BY AFC, Defendant-Respondent.
May 4, 2017
Decided June 21, 2017
appeal from Superior Court of New Jersey, Law Division,
Camden County, Docket No. L-516-15.
P. Bell argued the cause for appellants (Locks Law Firm,
L.L.C. and the Law Office of Charles N. Riley, L.L.C,
attorneys; Michael Galpern, James A. Barry, Charles N. Riley,
and Mr. Bell, on the brief).
X. Kelly argued the cause for respondent (Marks, O'Neill,
O'Brien, Doherty & Kelly, P.C., attorneys; Sean
Robins and Mr. Kelly, on the brief).
Judges O'Connor, Whipple, and Mawla.
Robert Mellet and Betty Evans appeal from an April 29, 2016
order denying class certification and granting defendant
summary judgment. We affirm.
derive the following facts from the record. Defendant
Aquasid, LLC, is a health club operated at two locations in
Cherry Hill, New Jersey. Plaintiffs entered membership
agreements with defendant on February 21, 2014, and
subsequently stopped paying their memberships. Specifically,
when Mellet sought to cancel his membership in July 2014,
defendant declined his request and charged him $1, 256.71,
comprised of three months of late fees, a collection fee,
administrative fee, and fifteen months of dues. Defendant
attempted to collect these funds from Mellet. In September
2014, Evans sought to cancel her membership, but defendant
declined her request. Evans' October 2014 payment was
declined for insufficient funds and she was charged a $25
fee. Defendant continued to charge Evans, and sought to
collect $198.34 from her.
filed suit asserting the form of their membership contracts
and the fees defendant charged violate the Retail Installment
Sales Act (RISA), Consumer Fraud Act (CFA), Health Club
Services Act (HCSA), and the Truth in Consumer Contract,
Warranty, and Notice Act (TCCWNA). They allege at least one
hundred other similarly improper contracts were entered into
by other members. Plaintiffs sought class certification for
all persons who entered into a membership agreement with
defendant on or after April 9, 2008. Defendant contested
class certification and moved for summary judgment.
hearing oral argument, the trial judge denied plaintiffs'
motion for class certification and granted defendant's
request for summary judgment. Regarding plaintiffs'
individual claims, the trial judge concluded RISA did not
apply to defendant's installment contracts with
plaintiffs because the contracts did not afford them an
ownership interest in either an object or service at its
conclusion. The trial judge also found Attorney General
review and approval of the membership forms containing the
contract fees, as required by the HCSA, barred any claim
under RISA, and concluded defendant's exculpatory clause
trial judge found plaintiffs did not have a clearly
established right under TCCWNA to assert their waiver claim.
He found no CFA claim because the fees plaintiffs sought to
recover under the CFA were RISA fees, which were barred
because defendant's membership agreements passed muster
under the HCSA. The trial judge did not make any findings as
to the HCSA requirement that the total fees charged appear on
the front of the contract.
certification was denied for lack of the necessary
predominance on the issue of calculation of total fees and
whether the total fees must appear on the front of every
contract, as required by the HCSA. The trial judge concluded
HCSA claims are individual in nature, not class based,
because defendant's contracts contained no common price.
Finding no individual or class claims, the trial judge
entered summary judgment for defendant. This appeal followed.
contend the trial judge erred in granting summary judgment
because the membership agreements violate RISA, the HCSA,
TCCWNA, and CFA. They contend New Jersey favors class
certification, and all the prerequisites to certification
under Rule 4:32-1 (a) were met, as well as the
requirements of independent justification for class
certification required by Rule 4:32-l(b). Plaintiffs
further contend the trial judge erred in considering
defendant's cross motion for summary judgment on short
review the grant of summary judgment by a trial court de
novo. Templo Fuente De Vida Corp. v. Nat'l. Union
Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016).
We apply the same principles governing an adjudication of a
motion for summary judgment as the trial court. Atl. Mut.
Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224,
230 (App. Div.), certif. denied, 189 N.J. 104
(2006). Rule 4:46-2(c) states an order granting
summary judgment shall be entered if "the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment or order as a
matter of law." A fact is material if it is substantial
in nature. See Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 529 (1995).
court deciding a summary judgment motion does not draw
inferences from the factual record as does the factfinder in
a trial, 'who may pick and choose inferences from the
evidence to the extent that a miscarriage of justice under
the law' is not created." Globe Motor Co. v.
Igdalev, 225 N.J. 469, 480 (2016) (quoting
Brill, supra, 142 N.J. at 536). Rather, in
reviewing summary judgment orders, the Court must look at the
facts in a light most favorable to the non-moving party and
determine whether a genuine issue of material fact exists
sufficient to be tried. See Brill, supra,
142 N.J. at 523.
argue RISA covers health club contracts because the plain
language of RISA specifically states it applies to services,
including health club services. They assert the trial
judge's interpretation of RISA is contradictory to the
finding of our Supreme Court in Perez v.
Rent-A-Center, 186 N.J. 188 (2006), cert,
denied, 549 U.S. 115, 127 S.Ct. 984, 166 L.Ed.2d 710
health club contracts at issue here were twenty-month
membership contracts payable in monthly installments.
Plaintiffs state these contracts also included various
administrative and late fees charged month-to-month for the
period of the contract. They argue defendant committed
several clear violations of RISA: charging a late fee of more
than $10, N. J.S.A. 17:16C-42 (a); charging more
than $20 for a returned check for insufficient funds,
N.J.S.A. 17:16C-42(e); charging more than $10 for a
collection fee, N.J.S.A. 17:16C-42(b); and applying charges
to customer accounts, which were not court costs, attorney
fees, or the expense to retake goods authorized by law,
argues RISA does not apply to their membership agreements and
Perez controls because the entire premise of the
installment sales contract contemplated by RISA is possession
and eventual ownership of a specified good by a buyer.
Defendant argues plaintiffs were paying not to eventually own
but rather to utilize the ...