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Goffe v. Foulke Management Corp.

Superior Court of New Jersey, Appellate Division

April 24, 2018

JANELL GOFFE, Plaintiff-Appellant,
MALL CHEVROLET, INC., Defendant-Respondent/ Cross-Appellant.

          Argued January 30, 2018

          On 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).

          Laura 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).

          Joseph 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).

          Before Judges Fisher, Fasciale and Sumners.


          FISHER, P.J.A.D.

         The plaintiffs in these two actions claim they were victimized by the wrongful conduct[1] 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 Because the record establishes the sales contracts, even if fully and mutually formed, were rescinded, and because plaintiffs' claims seem to mostly if not entirely relate to defendants' performance of the parties' agreements to rescind, which did not contain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.


         Soon 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.[2]Although the two cases present numerous similarities, we briefly discuss separately what occurred in each.


         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 transaction.

         At 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[3]; 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


         Robinson signed the MVRO directly below this language.

         The arbitration provision directed in bold print that Robinson


         The 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.

         In 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."

         These 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.

         Robinson 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.

         Instead, 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.

         Mall Chevrolet eventually agreed to return the trade-in but initially refused to return the deposit, relenting only after Robinson and Johnson filed this lawsuit.


         Like 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.

         Goffe signed several documents, including an MVRO and arbitration provision.[4] 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.

         Goffe 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.

         Goffe 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 ...

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