TASHICKA HAYES v. TURNERSVILLE CHRYSLER JEEP

 

(NOTE: The status of this decision is Published.)

                    NOT FOR PUBICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION



                                SUPERIOR COURT OF NEW JERSEY
                                APPELLATE DIVISION
                                DOCKET NO. A-2063-16T1


TASHICKA HAYES,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                          February 16, 2018
v.
                                          APPELLATE DIVISION
TURNERSVILLE CHRYSLER JEEP,

     Defendant-Appellant.
________________________________

         Submitted January 31, 2018 – Decided February 16, 2018

         Before Judges Fuentes, Koblitz and Manahan.

         On appeal from Superior Court of New Jersey,
         Law Division, Gloucester County, Docket No.
         L-0489-16.

         Capehart & Scatchard, attorneys for appellant
         (Laura D. Ruccolo, on the brief).

         Lipman, Antonelli, Batt, Gilson, Rothman &
         Capasso, attorneys for respondent (Steven L.
         Rothman, of counsel; Jane B. Capasso, on the
         brief).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.

     On April 19, 2016, plaintiff Tashicka Hayes filed a civil

complaint against defendant Turnersville Chrysler Jeep regarding

her purchase of a motor vehicle.    The complaint was predicated on
three theories of liability: breach of contract, common law fraud,

and consumer fraud in violation of the New Jersey Consumer Fraud

Act, 
N.J.S.A. 56:8-1 to -206.     Plaintiff alleged that she traded

in her car and purchased a used car from defendant.     Thereafter,

defendant allegedly contacted plaintiff and asked her to return

to the dealership.   Once there, plaintiff claims she was forced

to return the used car and purchase a new, more expensive car.

Plaintiff alleges she purchased the new car at a much higher price,

was unable to afford the payments, and the car was repossessed.

     On June 21, 2016, defendant filed a motion to enforce an

arbitration clause contained in the purchase agreement and dismiss

plaintiff's complaint.    Plaintiff opposed the motion, arguing that

defendant exerted undue influence upon her to pressure her to

purchase the new vehicle, and engaged in "unconscionable 'bait and

switch' tactics."    She also argued that defendant breached the

terms of the contract related to the original used vehicle by

requiring her to return it.     After considering the oral argument

from counsel, the trial court denied defendant's motion to enforce

the arbitration clause.

     Defendant did not file a direct appeal of the trial court's

order denying enforcement of the arbitration agreement.    Instead,

defendant filed a motion for reconsideration under Rule 4:49-2

months after the court denied the original motion.        The trial

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court      considered      and     denied     defendant's          motion      for

reconsideration.        Defendant now appeals from the denial of the

motion for reconsideration.

      This appeal requires us to determine whether a trial court's

decision to deny a motion to enforce an arbitration agreement in

a contract to purchase an automobile constitutes a final order

subject    to    the    time   restraints    for     filing   a     motion     for

reconsideration under Rule 4:49-2.          We hold that a motion seeking

reconsideration of an order denying or granting a motion to enforce

an arbitration agreement is not "an interlocutory order [which]

may   always    be    reconsidered,   on   good    cause   shown    and   in   the

interests of justice, prior to entry of final judgment." Akhtar

v. JDN Properties at Florham Park, 
439 N.J. Super. 391, 399-400

(App. Div.), certif. denied, 
221 N.J. 566 (2015) (citing Johnson

v. Cyklop Strapping Corp., 
220 N.J. Super. 250, 263-64 (1987)).

      Pursuant to Rule 2:2-3(a)(3), "appeals may be taken to the

Appellate Division as of right . . . from final judgments of the

Superior Court trial divisions[.]"          This rule also provides, "any

order   either       compelling   arbitration,     whether    the    action      is

dismissed or stayed, or denying arbitration shall also be deemed

a final judgment of the court for appeal purposes."                       R. 2:2-

3(a)(3).     The Supreme Court made clear in GMAC v. Pitella, 
205 N.J. 572, 587 (2011) that "all orders compelling and denying

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arbitration     shall    be    deemed      final   for   purposes   of    appeal,

regardless of whether such orders dispose of all issues and all

parties, and the time for appeal therefrom starts from the date

of the entry of that order."           To dispel any lingering doubts about

the need to seek timely appellate review of such an order, the

Court also included the following admonition: "Because the order

shall be deemed final, a timely appeal on the issue must be taken

then or not at all."          Id. at 586 (emphasis added).

      Here,   the   record      is   uncontroverted      with   respect   to   the

following dispositive facts.            On June 21, 2016, defendant filed a

motion to enforce an arbitration clause in the purchase agreement

and dismiss plaintiff's complaint.              Plaintiff opposed the motion,

arguing that defendant exerted undue influence upon her to require

the purchase of the new vehicle, and engaged in "unconscionable

'bait and switch' tactics."           Plaintiff's counsel also argued that

defendant breached the terms of a previous contract in which

plaintiff sought to purchase a used vehicle.

      The trial judge heard oral argument on defendant's motion on

August 12, 2016.        After considering the arguments of counsel and

the   written   submissions,         the   judge   entered   an   order   denying

defendant's motion that same day.              Defendant did not file a direct

appeal to this court to challenge the motion judge's decision.



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Instead, the parties engaged in settlement discussions and limited

discovery.

       Pursuant   to   Rule   4:49-2,     "a    motion       for   rehearing     or

reconsideration seeking to alter or amend a judgment or order

shall be served not later than 20 days after service of the

judgment or order upon all parties by the party obtaining it."                   On

November 21, 2016, 101 calendar days after the trial court's August

12, 2016 order, defendant filed a motion seeking reconsideration

of the trial court's order denying its motion to enforce the

arbitration   agreement.       Although    the      motion    judge    ultimately

denied defendant's motion based on what she characterized as a

failure by the parties to reach "a meeting of the minds" concerning

the arbitration clause, the judge also made the following comments

with    respect   to   the    timeliness       of   defendant's       motion   for

reconsideration:

           It is noted certainly from the outset that the
           [c]ourt made its [d]ecision, as I said, in
           August, and this motion was filed November 23,
           2016.[1] So I do find that it is out of time.
           The Court Rule does provide - - that's [Rule]
           4:49-2 - - requires that it be filed within
           20 days. I know the argument is advanced by
           the [d]efendant that it was not a Final
           Decision. However, it was a Final Decision,
           certainly as to the issue of arbitration.


1
  In the interest of clarity, we note that the record shows
defendant filed the motion for reconsideration on November 21,
2016.

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          However, I still think it is important for
          this [c]ourt to proceed further in the matter
          and make a determination based on - - a legal
          determination on the other areas that are
          advanced by the [p]laintiff.

     Rule 1:1-2 provides, in relevant part: "Unless otherwise

stated, any rule may be relaxed or dispensed with by the court in

which the action is pending if adherence to it would result in an

injustice."     (emphasis added).       Rule 1:3-4(c) expressly states:

"Neither the parties nor the court may . . . enlarge the time

specified by . . . Rule 4:49-2."        Based on these well-established

regulatory time restrictions, we hold the trial court erred in

reviewing and ultimately deciding defendant's facially untimely

motion for reconsideration pursuant to Rule 4:49-2.

     Because the trial court's August 12, 2016 order denying

defendant's motion to compel arbitration was appealable as of

right,   R.    2:2-3(a)(3),   defendant's     only   legally   cognizable

recourse after the time to file a motion for reconsideration

expired was to file a timely direct appeal to this court.           GMAC,


205 N.J. at 586.     Neither the trial court nor defendant had the

legal authority to enlarge the time restrictions of Rule 4:49-2.

R. 1:3-4(c).     We thus affirm the trial court's decision to deny

defendant's motion for reconsideration, but for reasons other than

those expressed by the motion judge.         N.J. Div. of Child Prot. &



                                    6                             A-2063-16T1
Permanency v. K.M., 
444 N.J. Super. 325, 333-34 (App. Div.),

certif. denied, 
227 N.J. 211 (2016).

    Affirmed.




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