January 30, 2018
appeal from Superior Court of New Jersey, Law Division,
Camden County, Docket Nos. L-4162-16 and L-4122-16.
Charles N. Riley argued the cause for appellant Janell Goffe
(in A-2658-16) and appellants/cross-respondents Sasha
Robinson and Tijuana Johnson (in A-2659-16).
D. Ruccolo argued the cause for respondents Foulke Management
Corp. t/a Cherry Hill Triplex/Cherry Hill Mitsubishi and
Antonio (Tony) Salisbury (in A-2658-16) and
respondent/cross-appellant Mall Chevrolet, Inc. (in
A-2659-16) (Capehart & Scatchard, PA, attorneys; Laura D.
Ruccolo, on the briefs).
A. Osefchen argued the cause for amicus curiae NAACP Camden
County East (in A-2658-16 and A-2659-16) (DeNittis Osefchen
Prince, PC, attorneys; Stephen P. DeNittis and Joseph A.
Osefchen, on the briefs).
Judges Fisher, Fasciale and Sumners.
plaintiffs in these two actions claim they were victimized by
the wrongful conduct of defendant car dealers. Their sales
contracts incorporated arbitration provisions which were
enforced by motion in both cases. Because the record
establishes the sales contracts, even if fully and mutually
formed, were rescinded, and because plaintiffs' claims
seem to mostly if not entirely relate to defendants'
performance of the parties' agreements to rescind, which
did not contain arbitration provisions, we reverse the orders
dismissing these actions and remand.
after the filing of these two actions - Robinson v. Mall
Chevrolet and Goffe v. Foulke Management Corporation -
defendants moved to dismiss based on their contention that
plaintiffs were contractually required to arbitrate the
pleaded claims. The factual circumstances that we consider in
reviewing the orders granting those motions appear in the
complaints and the certifications filed in opposition to
those motions.Although the two cases present numerous
similarities, we briefly discuss separately what occurred in
opposing the motion to dismiss in her case, Sasha Robinson
recounted her dealings with Mall Chevrolet. She asserted that
on Saturday, November 5, 2016, she telephoned Mall Chevrolet
to inquire about a vehicle; she was then told that if she
made a purchase she would have two days to return the vehicle
if she changed her mind. Robinson visited the showroom later
that day and decided to purchase a 2016 Malibu. In
consideration, Robinson agreed to pay $25, 620 at the rate of
$546 per month; as further consideration, she conveyed to
Mall Chevrolet a vehicle she allegedly jointly owned with her
mother, Tijuana Johnson. Robinson was also told that Johnson
would be required to co-sign in order to complete the
same time, Robinson signed several documents for the purchase
of the Malibu. One was a Motor Vehicle Retail Order Agreement
(MVRO), which set forth the purchase price and information
about the trade-in; the MVRO identified both Robinson and
Johnson as the purchasers and declared that the contract
"shall not become binding until accepted by dealer or
his authorized representative." According to Robinson,
the dealer's representative had not signed the contract
documents by the time she left the showroom with the new
vehicle. The MVRO also contained Robinson's
"acknowledge[ment]" that she
RECEIVED, READ, UNDERST[OO]D AND . . . SIGNED THE ARBITRATION
AGREEMENT WHICH APPLIES TO THIS TRANSACTION.
signed the MVRO directly below this language.
arbitration provision directed in bold print that Robinson
READ THIS ARBITRATION AGREEMENT CAREFULLY. IT LIMITS CERTAIN
OF YOUR RIGHTS, INCLUDING YOUR RIGHT TO MAINTAIN A COURT
arbitration provision declared that both parties "have
an absolute right to demand that any dispute be submitted to
an arbitrator in accordance with this agreement" and
that "[i]f either . . . file[d] a lawsuit, counterclaim,
or other action in a court, the other party has the absolute
right to demand arbitration following the filing of such
action." The document also expressed that both parties
are giving up the right to continue a lawsuit, counterclaim,
or other action in court, including the right to a jury
trial, in the event the other party exercises the right to
demand arbitration pursuant to this agreement.
addition, the document included a waiver of the right to
trial by jury: "You and we expressly waive all right to
pursue any legal action to seek damages or any other remedies
in a court of law, including the right to a jury trial."
provisions purported to encompass "all claims and
disputes" between the parties and listed the covered
disputes as including: any claims or disputes relating to the
"purchase of any goods or services" from the
seller; any "negotiations" between the parties; any
claims relating to "this transaction"; all claims
based on state and federal statutes, including CFA claims;
"any claim or dispute based on an allegation of fraud or
misrepresentation, including fraud in the inducement of this
or any other agreement"; and any breach of contract
claim. It asserted that claims "arising out of, in
connection with, or relating to . . . whether the claim or
dispute must be arbitrated, " and claims regarding
"the validity of this arbitration agreement, " are
to be submitted to arbitration.
signed but, according to her opposing certification, she was
not given a copy of these documents. She paid a $1000
security deposit by debit card, turned over the traded-in
vehicle, and left with the new Malibu. She was advised to
return with her mother so she too could sign the sales
contract; that never occurred.
on the following Monday, Robinson returned with Johnson and
advised she was returning the Malibu because the cost was too
exorbitant. Mall Chevrolet's representatives told
Robinson she could not return the Malibu, that the
representation about being able to rescind the deal within
two days was a mistake, and that Robinson was bound by the
documents she signed. Robinson claims Mall Chevrolet's
representatives then attempted various coercive tactics to
close the deal, including retaining the $1000 security
deposit and the traded-in vehicle; they also offered to lower
the monthly charges.
Chevrolet eventually agreed to return the trade-in but
initially refused to return the deposit, relenting only after
Robinson and Johnson filed this lawsuit.
Robinson, Goffe also opposed a defense motion to compel
arbitration by recounting the events that inspired her
lawsuit. On October 7, 2016, she arrived at Cherry Hill
Mitsubishi in response to an internet advertisement for a
2013 Buick Verano, listed for $15, 800. She discussed the
matter with a sales representative, defendant Antonio
Salisbury, who advised that financing - calling for $390
monthly payments and a $1000 down payment - was approved.
Goffe was instructed to make a $250 payment that day, with
the remainder due fourteen days later. The transaction also
required a trade in of Goffe's vehicle.
signed several documents, including an MVRO and arbitration
provision. The documents are identical to those
signed by Robinson that we quoted above. Goffe signed the
documents in the same places as Robinson, thereby signaling
that she read and understood the documents and, also, that
she actually received copies. Like Robinson, Goffe's
opposing certification asserts that she was not given copies
of any documents she signed.
paid $250, canceled the insurance on her trade-in, and
purchased insurance for the Buick. The dealership provided a
temporary registration and Goffe drove the Buick off the lot.
returned to the dealership two weeks later with the remainder
of the down payment. Salisbury then informed her that
financing had not been approved and she could only retain the
Buick if she agreed to make a $3000 down payment and commit
to monthly payments of $400 instead of $390. Goffe refused
and canceled the deal; the dealership returned the traded-in
vehicle but did not ...